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Memorandum of decision on motion for order to turn' over rents and possession. MUNGER, J. Judgment in this case was rendered on June 19, 1942, and the law day fixed for December 1, 1942. An endorsement on the file reads as follows: "Law day December 1, 1942 provided that income is turned over to plaintiff at once." The plaintiff comes into court alleging' that since the entry of the judgment the defendant has failed and refused and continues to refuse to turn over to the plaintiff the income accruing from said property. The plaintiff then prays for stay of execution and immediate possession and also prays for an order to turn over to it "all rents which have accrued since the entry of judgment and which will accrue until the plaintiff is put in possession of said premises." This motion cannot be granted. It is impossible to say just what was in the mind of the judge when the law day was fixed or what was the meaning of the language quoted. It would seem as if the only conclusion or interpretation of this language would be that the defendant should turn over to the plaintiff the rents then in his possession. It certainly .does not provide that the rents accruing after the entry of judgment should be turned over to the plaintiff in as much as the lam guage is that the rents should be turned over "at once." There is, therefore, no basis for the claim of the plaintiff that the court should grant immediate possession for failure of the de' fendant to turn over the rents which have accrued since the .entry of judgment. Furthermore the judgment file does not mention any condi' tion next ito the fixing of the law day and the judgment file is conclusive. It is the final expression of the judgment of the court and from it must be ascertained what the judgment of the court was. With a situation such as exists I cannot see how the prayer of the plaintiff can be granted. The motion must be denied.

Memorandum of decision on demurrer. O'SULLIVAN, J. The complaint alleges the following summarized set of facts: On Marth 22, 1942, the plaintiff was operating his motorcycle on a highway known as Southern Boulevard, which is partly within the territorial limits of the City of Danbury and partly within those of the Town of Dan-bury. He had reached a point, as he rode along, approximately where the boundary line of the city and the town crosses the boulevard, when, due to the defective condition of the highway, he was tossed off his motorcycle and painfully injured. This defective condition ran for several hundred feet on either side of the boundary line, and although the city and the town long had knowledge of its existence, it remained neglected. Written notices had been given to the clerks of the city and town on March 31st, each notice specifying a general description of the injuries received and their cause, and the time and place of their occurrence. Both the city and the town are named as parties defendant. The city "demurs to the complaint, as amended", on four grounds, though they can be reduced to this one proposition, namely, that it does not appear from the allegations of the complaint that the defective condition on the city's side of the boundary line was the sole proximate cause of the accident. What the city is really trying to assert is that, as the complaint is directed against both the city and the town, the accident, as pleaded, discloses that it was caused not 'only by a defect for which it was to blame, but also by such a defect combined with another unlawful cause originated by the town, and that, under the law stated in cases like Bartram vs. Sharon, 71 Conn. 686, no liability falls on the city under section 1420 of the General Statutes, Revision of 1930. The very presence of the other cause of action alleged against the town hoists the city on its own petard. The demurrer is technically bad, in that it is addressed to the entire complaint but ignores the cause of action alleged against the town. Such a demurrer must be overruled. Thompson vs. Main, 102 Conn. 640. The proper form to one of two or more causes of action in a single pleading or count should be: "In so far as the pleading or count purports to state a cause of action against this defendant, it demurs because, etc." Donovan vs. Davis, 85 Conn. 394; Practice Book (1934) §97. But passing by this matter of technicalities, the demurrer should be overruled on its merits. The plaintiff is confronted with an exceptional set of circumstances, due to the proximity of the boundary line to the place of his accident. He is not attempting to spin some theory of joint liability on the part of the city and town, and any effort so to do would prove futile under our law. He is endeavoring to set forth facts showing that the defective condition of a portion of Southern Boulevard was solely responsible for his injuries. If that portion belongs on the city side of the line, the city may be liable; if on the town side, the town may be liable. The plaintiff, not knowing with certainty on which munich pality rested the duty of maintaining the exact portion of .the boulevard where he was injured, is entitled to have the trier determine the facts and apply the law thereto. The demurrer is overruled.

CORNELL, J. The complaint alleges that the plaintiff was rendered unconscious as a result of the alleged collision. The defendants deny that the plaintiff received his injuries as a result of being struck by a train operated by them. Under these circumstances more liberality is justified in affording plaintiff access to material information in defendants' exclusive power or control than would, otherwise, perhaps, be the case. Other than paragraph 7, which is denied, the motion is granted, except that the defendants are not required to comply with it in the following respects: (1) with regard to interrogatory No. 4 defendant shall be required only to specify the trains passing through Shelton on the night of September 15, 1937, between the hours of 8:30 p.m. and 12:00 m.; (2) defendants need not say what the total length of cars drawn by locomotives OA4 and AOl, were. Paragraph 7 is denied because its answer is apparently dependent upon certain regulations which have been adopted, which may require interpretation. To be complied with on or before November 12, 1938.

CORNELL, J. The motion asks that judgment be entered against plaintiff because of her failure to amend her complaint .after a demurrer thereto sustained. A fair construction of the complaint, which is in one count, admits of the claim that there are, at least, six causes of action stated therein, viz., (1) violation of an absolute duty imposed by the special act therein recited irrespective of prior notice of the alleged dangerous condition; (2) violation of the statute in question in failing to remove the alleged dangerous condition after notice, actual or constructive; (3) common-law negligence; (4) negligence consisting of a violation of the named statute irrespective of prior notice of the presence of the condition; (5) negligence consisting of a violation of the statute in view of actual or constructive notice of the existence of the condition; (6) negligence in either case mentioned in 4 and ?, (a) whether the alleged dangerous condition was caused by the act of the defendant in placing snow or ice on the sidewalk or (b) by the action of the elements. Still other possible causes may be elicited from the allegations of the complaint without doing violence to fair reasoning, but the foregoing references will suffice for present purposes. The demurrer is not directed to any one or more of those described causes of action, as it might have been (Practice Book [1934] §97; Freeman's Appeal from Commissioners, 71 Conn. 708, 717; Smith & Co. vs. Hurlburt Co., 93 id. 391, 398; Donovan vs. Davis, 85 id. 394, 398; New Milford Security Co. vs. Windham County Nat. Bank, 90 id. 323, 341) but is addressed to the complaint as a whole. As such it must embrace every cause of action within the fair construction of that pleading and if it fails to do so the complaint survives. Thompson vs. Main, 102 Conn. 640, 641; Goldfarb vs. Cohen, 92 id. 277, 281. See, also, Cashman vs. Meriden Hospital, 117 Conn. 585, 588. The demurrer on file does not reach all of the causes stated in the one count of which the complaint consists. Hence, while it might be effective as concerns those at which it was apparently meant to be directed, it is not competent to demolish the whole complaint. American Clay Machinery Co. vs. New England Brick Co., 87 Conn. 369, 376. As it is the complaint as an entire pleading to which the demurrer has been sustained, the instant motion, in view of the considerations noted, must be and is denied.

FOSTER, J. The plaintiff has instituted this action against a. foreign corporation by service of garnishee process upon a debtor of the defendant and by service of notice upon the defendant by order of court in accordance with section 5714 of the General Statutes, Revision of 1930. The defendant pleads to the jurisdiction for lack of proper service. The defendant in its plea prays this Court to adjudge that it has no jurisdiction in personam over the defendant. To this plea to the jurisdiction the plaintiff demurs. "Pleas in abatement are not favored." Budd, Admr. vs. Meriden Electric R. R. Co., 69 Conn. 272, 283. "Such pleas are entitled to little favor from a court."' Brockett vs. Fair Haven & W. R. Co., 73 Conn. 428, 431. The Court either has jurisdiction in the case or it has not. This question may be presented and decided upon a plea to. the jurisdiction. That the court has jurisdiction cannot be questioned. Veeder Mfg. Co. vs. Marshall Sanders Co., 79 Conn. 15. The defendant in its brief practically admits that this. Court has jurisdiction in this case. The defendant in effect, asks the Court to determine upon this plea to the jurisdiction the character and extent of the judgment to be rendered. Such determination cannot be made until judgment is rendered. Since the Court has jurisdiction, it will proceed to entertain the case and determine the nature of the judgment to be rendered, when that stage of the proceedings is reached. The demurrer to the plea to the jurisdiction is sustained.

DICKENSON, J. The defendants raise several objections to the allowance of the appeal. They have considered it on its merits, however, and since it must be dismissed upon this ground, it seems unnecessary to discuss the others. The reasons of appeal are that the Commissioner's conclusions are not supported by the subordinate facts found, which, in fact, support the plaintiff's claims; and, somewhat inconsistently, that the subordinate facts are too vague to support any conclusion. The plaintiff claims error, too, in the refusal to find certain facts alleged to be admitted or undisputed. The original claim of the plaintiff was that he suffered from a dermatitis as a result of working in the wetting down department of the defendant, and upon a hearing compensation was ordered paid to January 29, 1937. A motion for further compensation was made, which was heard and denied May 21, 1937, the Commissioner finding that the claimant was able to work since January 29, 1937. The only evidence submitted at the hearing of May 21, 1937, was that of the plaintiff. When compensation was denied the plaintiff asked for a correction of the original finding, which was granted in part and otherwise denied. That denial was properly so upon the evidence or lack of it. As the respondent argues, no evidence was introduced to indicate the nature of the chemicals to which the plaintiff was exposed in his work. He himself testified he could do any job in a hat shop if he could get it,- as well as outside work, and there was no evidence that his earning capacity was impaired. The plaintiff argues that he cannot work at his employment as a hatter; that is the only work he knows and he has been unable to get any other work and thus is entitled to compensation. It does not appear he cannot work as a hatter. At most he was unable to work as a wetter. As has been pointed out, he testified he could do any job in the hatting trade, but-could get no job. He cites Santini vs. Levin, 110 Conn. 248, in support of his contention. But in that case the claimant had gone to work on another job and there was evidence as to difference in earning power. In the instant case it appears the plaintiff is able and willing to work but has not obtained it. There is no finding, nor evidence to support it, that this is because of his physical condition. To hold that an employer must indefinitely and wholly compensate an employee who may be physically unable to perform a particular job when he is physically capable of performing other work but unable to secure it is to carry the theory of compensation beyond reasonable limits. Inability to get work is only important as evidence of incapacity for work. To bear on the question of compensation it must appear the inability to obtain employment is "by reason of his injury." Reilley vs. Carroll, 110 Conn. 212, 286. It might be that evidence of the reasonable compensation for work that he could do, was it available, might entitle him to the difference between that and what he had earned if it was in his favor, but to require an employer to pay full compensation for no apparent reason except "slackness in demand for labor" would be going into the field of employment insurance rather than workmen's compensation. The Commissioner had no evidence before him as to what the plaintiff's earning power was. The plaintiff definitely stated he could work at various jobs. He offered no evidence that his failure to obtain other work arose from his injury There was nothing left for the Commissioner to do but to deny compensation "on the ground the claimant has been able to work since January 29, 1937, and is now able to work." The appeal is dismissed.

McEVOY, J. In this action the plaintiff seeks to restrain the defendant from the use of a water pipe, claiming that the defendant's sole right is to go directly to the pump which is connected with a cistern from which the water pipe runs and that the defendant, while having the right to take water from the pump, has no right to continue to take water from the pipe which runs from the pump to the house of the defendant. The claim of the plaintiff is based upon the allegation in paragraph four, of the complaint, that "The right of the defendant to use water was gotten by reservation contained in the above mentioned warrantee deed dated November 30, 1922, by the following clause, namely: 'The grantors reserve the right to get water at the pump . . .' " The defendant is the daughter of the original owners of the whole tract, who were common grantors of the land now owned by the plaintiff and the land now owned by the defendant. The plaintiff claims title through his predecessor in title, Bolish Maskaitis, who received his title from the original owners, Rudolph Dickman and Amelie Dickman, by deed dated November 30, 1922. The so-called reservation set out in the plaintiff's complaint includes only a part of the agreement between the present plaintiff and his predecessor in title, Bolish Maskaitis. In that deed appear the following words: "Also the right to take water from a spring on land of grantors, about twenty rods southwest of the pump above mentioned and also the right to cross land of grantors near the pump, being the drive' way now in use. The grantors reserve the right to get water at the pump to them, their heirs and assigns forever. The, grantors and the grantee are to -keep the pipe from spring to-pump above described in repair jointly each sharing half of the expense." During about the year 1923 the plaintiff's predecessor in title, Bolish Maskaitis, suggested to the common grantors, Rudolph Dickman and Amelie Dickman, that they "tap" the water pipe which then ran from the spring to the present well over which the described pump was then and is now placed. The Dickmans were then hesitant about tapping the pipe but, on the insistence of Bolish Maskaitis, the plaintiff's-predecessor in title, the Dickmans did tap the pipe and Bolish Maskaitis assisted them in doing it by actually making some of the excavation and assisting in other ways. The pipe, to the use of which the plaintiff now objects,, has been used by the defendant and her predecessors in title, the Dickmans, ever since that time. The reservation which the plaintiff's grantors, the Dickmans, made in the deed to the plaintiff's immediate grantor was not of the use of the pipe leading from the main pipe which came from the spring, but of an additional right to go to the spring and also to go to the pump and take water from either or both of these two places. This was an additional right re' served to the one then enjoyed by them. Subsequently, in the same year, on December 9, 1922, with' in less than two weeks after the deed to Bolish Maskaitis, the Dickmans gave a deed to Stanislaw Gronkiewics, which was-duly recorded. In that deed the Dickmans reserved to them' selves and to Bolish Maskaitis, the plaintiff's grantor, and to others, the right to lay water pipes for the purpose of convey' ing water from a spring on land thereby conveyed to land of Maskaitis and the deed also contained the clause: "And the grantees herein and their heirs and assigns are to share equally the expense of maintaining the main pipe from spring to where other pipes connect." This was a matter of record and was actually well known and understood by the plaintiff's grantor, Bolish Maskaitis, at the time. The clause which refers to the use of the spring and the use of the pump by the original owners, the Dickmans, is erroneously referred to as a "reservation." A reservation should be carefully distinguished from an exception, the dif' ference between the two being this: by an exception, the grantor withdraws from the effect of the grant some part of the thing itself which is in esse, and included under the terms of the grant, whereas a reservation is something out of the thing granted not then in esse, or some new thing created or reserved, issuing or coming out of the thing granted, and not a part of the thing itself. The evidence shows that the original owners, the Dickmans, owned the spring and used it and that they also used the pump which was located on the well. The evidence also shows that they used the connecting pipe from the main pipe for the purpose of supplying water to their house. None of these, in the strict sense, were "reservations." No new right was created which did not previously exist. The most favorable interpretation of the deed which is relied upon by the plaintiff, from the plaintiff's standpoint, is that, at the time of the deed to the plaintiff's grantor, Bolish Mas' kaitis, the original grantors, the Dickmans, then had the right to use the spring and the pipe and this théy retained. The evidence clearly shows that, from the time that the connecting pipe was installed in the Dickman house, and down to the present day, the Dickmans, and their successor in title, the defendant, continually used the pipe to the use of which ob' jection is now made by the plaintiff. The plaintiff's claim that the defendant is limited, by the terms of any of the deeds, sole' ly to the use of the pump is fallacious. It has no foundation in the evidence or in any of the transactions between or among the various interested parties. The real trouble is this: that the plaintiff has had difficulty with the defendant about the use of land, including a passway; that the plaintiff seeks to require the defendant to cross the plaintiff's land so as to limit the defendant's water supply to the use of the pump upon the ostensible ground that this is the defendant's only right and that the plaintiff is plausibly willing to concur in the exercise of that right. The real pur' pose of this action is to cut off the defendant's use of the con' necting water pipe and to require the defendant to cross the plaintiff's land, thus affording to the plaintiff an opportunity to insult and embarrass the defendant and her family in the use of the pump which is over the well. This would merely tend to promote strife and contention and that is not the function or purpose of a court of equity. The issues are found in favor of the defendant. Judgment may enter accordingly.

Memorandum of decision in bastardy proceeding. CULLINAN, J. This is an action under our bastardy statute. (Gen. Stat. [1930] §5867, as amd.) The plaintiff, a married woman separated from her husband, alleges that on September 5, 1942, a son was born to her as the result of her cohabitation with the defendant, a married man separated from his wife. In preliminary proceedings, conducted before a justice of the peace, probable cause to support the plaintiff's claim of pregnancy was found to exist, and the defendant was ordered to appear before the Court of Common Pleas for Fairfield County at its session commencing on the first Tuesday of May, 1942. The matter was assigned for disposition on Wednesday, November 4, 1942, when the defendant appeared in court with counsel. To the plaintiff's complaint, the defendant, acting through counsel, said "not guilty." Thereupon it was learned that the plaintiff was not present in court, although she was represented by counsel. By agreement the matter was continued until Tuesday, November 24, 1942, when, it was represented to the court, both the plaintiff and the defendant would be prepared to proceed to trial. On November 24, 1942, the plaintiff appeared with counsel. However, the defendant was absent although his attorney was in attendance. Since the plaintiff had journeyed a considerable distance to be present, it,,was agreed by all parties that her evidence might be received. During the course of her testimony, it developed that the plaintiff had been in the City of Bridgeport on the date of the previous assignment (November 4, 1942); that she had met the defendant on a public street; that they had engaged in conversation; and that he had requested- her not to appear in court, promising he would amicably settle the matter and arrange to support the child, claimed to have been born to the plaintiff as a result of her cohabitation with him. In view of the defendant's apparent sincerity and persuasiveness, the plaintiff failed to appear to meet the original assignment of her action. At the conclusion of the proceedings of November 24, 1942, counsel for the defendant was instructed to make every reasonable effort to have his client before the court on Tuesday, December 1, 1942. On this date the defendant failed to appear and the matter was adjourned until Tuesday, December 8, 1942, when further evidence was received from the plaintiff. It should be noted that again the defendant failed to appear, although he had been seasonably notified of the course which the entire matter was following. Following adjournment of court on December 8, 1942, counsel for the defendant 'received a special delivery letter from his client wherein he promised to be present in court on Tuesday, December 15, 1942. Needless to say the defendant failed to appear on that date. The foregoing facts have been detailed to portray the com píete bad faith, unreliability and untrustworthiness of the defendant. However, it should be observed that his counsel was, at all times, sincere and cooperative in his attempts to have the defendant before the court. The plaintiff was legally married on July 18, 1941. Thereafter she lived with her husband until mid-August, 1941, when they separated. Their marital relations were resumed on September 27, 1941, and final and complete separation occurred on October 29, 1941, whereupon she took up immediate residence with the defendant. The plaintiff claims that final cohabitation with her husband occurred on October third or fourth, 1941, and that thereafter she ceased having marital relations with him although they continued to live together, intermittently, until the date of final separation, October 29, 1941. On October 28, 1941, the day preceding the plaintiff's final separation from her husband, she and the defendant motored to Pennsylvania, indulged in sexual intercourse, and returned to Connecticut in the early morning hours of October 29, 1941. At this point the plaintiff removed her personal belongings to the defendant's rooming quarters and continued to reside with him until February 28, 1942, when separation occurred. Throughout this period, the plaintiff and defendant were intimate on many occasions. It is the plaintiff's claim that she became pregnant on or about November 28, 1941, and that this pregnancy resulted from her sexual relations with the defendant. Early in December, 1941, when the plaintiff became aware of her condition of pregnancy, she discussed the matter with the defendant who immediately said "he would like to have a baby" and that "he was proud." This narrative by the plaintiff constitutes a sordid and shocking tale of marital infidelity and sexual promiscuity. Likewise, could there be any more convincing evidence of an illicit relationship embracing "what men call gallantry and gods adultery." However, the genuine tragedy lies not in the indiscretions, irregularities and illegalities of the mother and claimed father, but in the birth of "the child of misery" under the most appalling and degrading circumstances. To supplement the claims of the plaintiff concerning the paternity of her child, there is before the court a series of letters written to the plaintiff by the defendant and addressed to "Mrs. James Ross", wherein the defendant expresses the hope that "I can find an apartment soon and you and the baby can come down here"; wherein he evinces concern for "you and the baby"; wherein he bemoans his fate because "I can't find a place to live. Everyone I ask says 'Yes' until I tell them we have a baby"; and wherein he expresses the hypocritically tender sentiment "I love you and miss you. Say 'hello' to Jim, Jr., for me." Furthermore, several of these letters enclosed money for the apparent support of the plaintiff. To this cumulative evidence, pointing unmistakably to the guilt of the defendant, his counsel, by way of defense, has suggested the presumption that a child born to a married woman during wedlock is the child of her husband and legitimate. Hubert vs. Cloutier, 135 Me. 230, 194 Atl. 303. While it must be conceded that this presumption is one of the most persuasive known to the law (Matter of Matthews, 153 N.Y. 443, 47 N.E. 901), yet "by and large... .the courts are generally agreed that countervailing evidence may shatter the presumption.... Issue will not be bastardized as the outcome of a choice between nicely balanced probabilities.... They will not be held legitimate by a sacrifice of probabilities in a futile quest for certainty." (Matter of Findlay, 253 N.Y. 1, 8, 170 N.E. 471, 473.) To be sure, English courts once adopted rules of pleading whereby the presumption of legitimacy of a child born to a married woman during wedlock was to be regarded as absolutely conclusive unless it could be opposed by evidence of the husband's sexual impotency, or of his being beyond the four seas, that is, outside the jurisdiction of the King of England, during theventire period of the wife's gestation. This principle was carried to such fantastically absurd extremes that it was once decided that a child born in England was legitimate^ although it appeared by highly credible evidence that the husband resided in Ireland during the entire period of the wife's pregnancy, and for a considerable period prior thereto. This unwholesome result was achieved solely because Ireland was within the dominion of the King of England. In another instance, where the husband resided in Cadiz, the child was held illegitimate, not because Cadiz was at a greater distance but because it was beyond the four seas. The harshness of this so-called "four seas" or "Quatuor Maria" rule was ultimately meliorated by English and Ameri can courts and the law now appears to be, in the light of many authorities considered, that although the birth of a child, during wedlock, raises a presumption that such child is legitimate, nevertheless this presumption may be rebutted by both direct and presumptive evidence. And in drawing a final conclusion on the subject I feel justified not only in analyzing physical facts but also "the relative situation of the parties, their habits of life, the evidence of conduct and of declarations connected with conduct, and. . . .any induction which reason suggests, for determining upon the probabilities of the case." (Wright vs. Hicks, 12 Ga. 155, 160.) I am satisfied that the plaintiff's marital relations -width her husband terminated on October third or fourth, 1941; that her relations with the defendant commenced on October 28, 1941, continuing down to February, 1942; that the plaintiff became pregnant on or about November 28, 1941; that the plaintiff's pregnancy resulted from her relations with the defendant; that the defendant has at all times recognized himself as the father of the plaintiff's child; and that his conduct, evidenced both by the written and spoken word, clearly points him to be the father of the plaintiff's child. The court finds the defendant guilty and orders him to stand charged with the maintenance of said child with the assistance of the mother. The court finds the lying-in expense and the expense of maintaining the child to date to be $214. The court orders the defendant to pay $107 to the complainant, to pw the costs of court, and to pay the complainant $5 per wee!- from December 23, 1942, until such time as the child attain" the age of 16 venrs. The court further orders the def^dant with sufficient surety to give bond in the sum of $1.599 to perform said order.

FOSTER, J. A recital of the facts of this case as alleged in the pleadings would be of considerable length and is unnecessary. The defendants claim that the plaintiff, by failing within due season to make an election as to acceptance of the terms of the will of Eleanor Mueller, dec'd., has forfeited his right to make any claim against the estate. The plaintiff does not here make any claim against the estate. He claims that one-half of the real estate in possession of the administrator of the estate and the heirs of the deceased never did belong to the deceased, but belongs to him; and he claims that what is his be now delivered to him by those in possession of it. The defendants rely upon section 5156 of the General Statutes, Revision of 1930, and cases based upon this statute. This statute has no application to the cause of action set forth by the plaintiff in his complaint. The motion of the defendants, Ethel Northrup and Edith Pachl, for judgment upon the pleadings is denied.

Memorandum of decision on motion to set verdict aside. BALDWIN, J. On August 12, 1940, the defendants, Stephen and Josephine Wiecenski, were the owners of a Chevrolet dump truck. This truck had a closed metal cab in which the seating capacity would accommodate the operator and one other person. It had also a steel dump body, the sides of which were approximately 18 inches high. The for' ward end of the body came rather close to the outside rear of the cab, there being sufficient space only to admit of the raising of the forward end of the body to dump it. Across the forward end of the body planks had been secured upon edge so that the edge at the top was approximately six or eight inches above the top of the cab. The named defendant with this truck was employed at the time by the A. I. Savitt Construction Company on the Cross Parkway, which was then under construction in the Town of Willington. About 10:30 in the forenoon of this day, George Kendzior, a foreman in the employ of the construction company, directed the named defendant to drive the truck and to take him, the foreman, and the plaintiff and one Richard Moulton, both laborers, to another section of the construction work, some two miles away, for the purpose of moving some gravel. Kend' Zior took a seat inside the cab and the plaintiff and Moulton got into the body of the truck, the named defendant operating it. Their route took them over a state aid road which had a gravel oiled surface, smooth and dry, a distance estimated from 300 to 600 feet to Route No. 74, and thence to their destination. Upon the right side of the state aid road as one approaches Route 74, and 40 feet from the line of the intersection of these roads, there is located a stop sign. The plaintiff and Moulton were riding in the body of the truck, standing near the for' ward end. The truck attained a speed, according to some of the evidence, of from 35 to 40 miles per hour, and the plain' tiff, who had been riding facing forward, because of the wind, turned around and rode backwards standing close to the planks across the forward end of the body of the truck. The driver, the defendant Stephen Wiecenski, proceeded past the stop sign without stopping, when he applied the brakes and brought the truck to a sudden stop well in the intersection, the effect of which was to throw Kendzior, who was sitting beside the driver, forward from his seat and to impulsively protect himself by putting his hands out and against the in' strument board in front of him. The plaintiff was thrown forward, the small of his back coming over the upper edge of the plank and the back of his head coming in contact with the top of the cab and he would have been projected to the ground had not Moulton, who was standing beside him, grabbed his legs and prevented a fall. The plaintiff was severely injured. The defendant claimed that the plaintiff was contributorily negligent in the manner in which he was riding, as a matter of law; that he assumed the risk and that his conduct was characterized by a reckless disregard of his own safety and that Hinch vs. Elliott, 119 Conn. 207, is decisive of this case, and that the motion to set aside the verdict should be granted. In the case referred to the plaintiff was riding sitting on the front fender of a Chevrolet roadster with her feet upon the front bumper; they were traveling upon a street which carried a considerable traffic; the roadster had a rumble seat in which the plaintiff more safely could have ridden; a cob lision with another vehicle occurred and the plaintiff was thrown to the ground and injured. The rate of speed was similar to that in the instant case. In the instant case the truck was not provided with any seating arrangement for the plaintiff; he was standing in the body, as.is a common practice in like circumstances; there was no collision; they were travel' ing upon a smooth street whereon there was no traffic and no condition requiring or indicating any occasion for a sudden stop. The circumstances are unlike those in the Hinch vs. Elliott case and the rule there laid down is not the rule to be applied in the instant case. The question of contributory negligence was a question of fact for the jury to decide, and it decided that question as is indicated by its verdict and its answer to the interrogatory. In that answer it follows that since it found that the plaintiff was not contributorily negligent, it must have found that he was not recklessly disregarding his own safety, The causation of the plaintiff's injuries was the sudden stop' ping of the truck at the speed at which it was traveling and the stopping under circumstances that indicated no occasion to stop. The facts gave rise to a strong inference, reasonably to be drawn by the jury, that the defendant operator, after pass' ing the stop sign, suddenly thought of having passed it, and, as suddenly, applied the brakes. The defendant has made the further claim of assumption of risk—that riding backwards while standing in the body of the truck, a vehicle not designed for the transportation of passengers, he should have foreseen the risk of injury which was involved by so riding. The court in Cosgrove vs. Shusterman, 129 Conn. 1, 7, said: "As regards injuries due to the ordinary incidents of traffic conditions, that would probably be so. But where the injuries are brought about by reason of unusual circumstances not ordinarily incident to traffic condi' tions, the injuries may not be the normal or natural result of the negligence. For example, were the injuries due to the sudden breaking of the steering gear of a car passing on a course far enough from the Shusterman car so that except for this occurrence the decedent would not have been injured, or to his being struck by a passing car as he leaned back to avoid an attempt by Shusterman to push him off, it could properly be found that the happening was one out of the natural train of cause and effect as regards the decedent's negligence in riding as he did, and so that this negligence was not the proximate cause of his injury. Similarly, upon the evidence here, the jury could have found that "Shusterman in turning into Zion Street made so wide a swing that the front of his car was some 14 feet from his right hand curb, that the driver of the Carlson truck should have given him the right of way but failed to do so and furthermore that except for the unreasonable speed of the Carlson truck the collision would not have occurred. With these facts as a basis the jury could properly have concluded that the decedent's injury was due not to his position op the running board but to the concurring negligent acts above re' cited, of the two drivers. In other words, they could reason' ably have concluded that these were circumstances the happening of which was out of the ordinary and that the decedent's injury was not a normal result of his negligence in riding on the running board." As the court in the Cosgrove case, supra, said, so in the instant case "they" [the jury] "could reasonably have concluded that these were circumstances [the sudden ap' plication of brakes and stopping of the truck] the happening of which was out of the ordinary and that the decedent's [in the instant case^ plaintiff's] injury was not a normal result of his negligence in riding on the running board" [in the instant case riding backwards standing in the body of the truck]. In the instant case the plaintiff is chargeable in the manner in which he rode, with the assumption of the risk incident to such hazards as were presented by the normal or usual operation of the truck. He is not chargeable with the hazards that were presented by the abnormal or unusual incidents in th<? operation of the truck. The sudden application of brakes and the sudden stopping of the truck, resulting in throwing the foreman forward from his seat in the manner described by the witness and throwing the plaintiff over the edge of the plank, as described, was an abnormal and unusual incident in the reasonably to be expected operation of the truck and was one that the plaintiff could not, in reason, be expected to foresee, and there was no assumption of risk that could, in reason, be charged to him. Cosgrove vs. Shusterman, supra. The defendant complains that the verdict was excessive and moves to set it aside upon that ground. The plaintiff is a very seriously injured man and his injuries are permanent. He is 33 years of age, a dairy farmer and-laborer, fitted only for heavy labor which he no longer can engage in. He is fitted only for light work such as operating an elevator or other like work. He has done what he could to minimise his damages; there was no indication during the trial of any attempt to aggravate his injuries or exaggerate the damages. It was apparent in his walk, in his seating himself in a chair or arising from a chair and in his. motions, that his injuries were unusual and severe. The verdict was carefully and amply considered, it was well within the realm of compensatory damages. It is not a verdict that; in good conscience, I would •order a remittitur of any part. The motion to set aside is denied.

Memorandum of decision in action of replevin. FITZGERALD, J. This is an action of replevin instituted by a former wife against her former husband. The subject matter of the action concerns title to, and right of possession of, a certain washing machine with equipment. In early December, 1941, plaintiff and defendant were living together in New London as husband and wife. Their household also included a baby, the issue of their marriage. Plaintiff and the defendant former husband (plaintiff subsequently obtained a divorce decree in 1942, prior to the within action) together visited a store in New London where washing machines could be purchased and selected the machine in question. The purchase, as such, was made by the husband under a conditional sales contract containing the usual provisions found in such contracts. It was the husband who was designated therein as the conditional vendee. It was the husband who made all payments to date under the contract of sale. The subject matter of the conditional sale was delivered by the conditional vendor to the then home of the parties herein and used as occasion required by the wife. In the subsequent separation of the parties which culminated in divorce proceedings the question of who was to have possession of the washing machine was never directly considered. The husband, however, continued to keep up payments due under the conditional sales contract, and plaintiff continued in sole physical control of the machine for some time after the separation, which occurred early in the present year. In passing it might be noted that the plaintiff wife, in the subsequent divorce action, withdrew all claims to an award fob alimony in consideration of the defendant withdrawing his cross complaint asking for a divorce decree in his favor. In this action plaintiff bases her claim of title and right of possession in and to said washing machine on the theory of a Christmas gift of the subject matter from her husband in December, 1941. This claim is overruled by the court. There was no specific gift in fact from defendant to plaintiff. The- remaining question to be considered is whether joint possession of the washing machine by both plaintiff and defendant after defendant acquired the right to have the same installed in his home upon the execution of the conditional sales contract by him, confers upon his former wife (the plaintiff herein) a superior right to possession after their marital union terminated by separation followed by divorce pro•ceedings. Were the court to indulge in sentimental reflections and be guided by a man's .attitude that a woman is probably more right'than wrong where her husband—or former husband—is concerned, the controlling question in the case would be de' cided in favor of the plaintiff without a deep consideration of the legal rights of both parties. However, sentiment should not be permitted to control the determination and adjudication of an action at law. The court concludes that defendant in the first instance derived title to the washing machine in question, subject of course to the terms and conditions of the conditional sales contract; that his qualified title is still in full force and effect because of his compliance with the terms of said contract; and that he is entitled to possession of said machine as against his former wife, the plaintiff herein. The annotation in 111 A.L.R. 1374, 1384 et seq., cited by defendant's counsel, has been helpful to the court in reaching this conclusion. So, also, the subordinate facts of the case and the relationship in law between defendant and the conditional vendor of the machine, can permit no other conclusion to be reached. The last question relates to the form of the judgment to be entered. Defendant simply filed a general denial by way of answer. Section 5953 of the General Statutes, Revision of 1930, reads: "No judgment for a return of the goods or for damages shall be given under a mere denial of the acts complained of, nor shall a judgment of return be rendered in favor of a defendant who has either filed a disclaimer or not filed a counterclaim claiming a return of the goods replevied." (Italics added.) See, also, Switzer vs. Turansky, 101 Conn. 60; Gen. Stat. (1930) §5951. Accordingly, the court cannot enter judgment directing the plaintiff return to defendant the washing machine in question. Neither can the court award damages to defendant. Since defendant has prevailed on the issues the court can, and does, direct that judgment enter for defendant to recover his costs. Whether or not defendant is entitled to move the court to reopen judgment for the purpose of amending his answer to conform to the aforesaid statutory requirement de return of washing machine and damages, is a question not before the court at this writing.

Memorandum of decision on demurrer. O'SULLIVAN, J. The complaint alleges that on February 26, 1942, the parties entered into a written agreement whereby the defendant obligated herself to sell to the plaintiff a parcel of land in Bridgeport known as No. 579 Clinton Avenue, described as follows: North on land now or formerly of Mary X. Shea, South on land now or formerly of Charles A. Phelps, West on land now or formerly of Eleanor M. Palmer, East on Clinton Avenue, 109.15 feet; and that she would on or about April 1, 1942, at a place to be decided later, convey the premises to the plaintiff, by warranty deed, free and clear of all incumbrances. The terms for paying the purchase price were to be left for further (disposition by the parties. It was also alleged that the plaintiff gave the defendant as a deposit the sum of $100 to be applied on the agreed price of $9,000 .and that, although the plaintiff has at all times been ready and able to live up to her end of the bargain, the defendant has refused to comply with hers. To this complaint a demurrer has been addressed. Annexed to the complaint and labeled "Exhibit A" is a copy of what counsel for each litigant concedes is the memorandum upon which this action is based. Unfortunately, the so'Called exhibit is not referred to in the complaint, and for technical reasons should not be considered in passing upon the demurrer. However, the parties have argued their respective positions as though it were a part of the record, which in fact it is not. But in view of the apparent invitation to the court to make use of the exhibit, I shall ignore technicalities and assume that the allegations of the complaint are sufficient to incorporate the agreement. Although there are several grounds upon which the com' plaint is attacked, only one need be mentioned. This alleges that the agreement is insufficient to comply with the Statute of Frauds in that the terms for paying the purchase price were left open for subsequent action. The law is definite upon this matter. Santoro vs. Mack, 108 Conn. 683; Benton vs. Colson, 115 id. 720. Where the parties to a contract for the sale of realty leave for future arrangement such an essential as the manner in which the purchase price is to be met, the writing is without legal value. The Statute of Frauds stands in the way of recovery. So much of the agreement as bears on the question now at hand reads as follows: "The seller agrees to sell and convey to the buyer and the buyer to purchase of the seller for Nine Thousand Dollars, payable as follows: Terms to be arranged agreeable to both parties on or before April 1, 1942." Obvb ously, the price was not to be met entirely with cash, for if that was what the parties had in mind, no terms were needed, for cash needs no terms. Under the cases cited, the lack of terms makes the agreement vitally defective, at least so far as the right to a conveyance is concerned. Whether the agreement would be sufficient to enforce the provisions as to the leasing of the property is not determined, in as much as the complaint is based entirely on the alleged right to a conveyance. Accordingly, the demurrer is sustained.

Memorandum of decision in action for divorce or, in alterna' tive, annulment. INGLIS, J. In this action the plaintiff seeks a divorce on the ground of fraudulent contract or, in the alternative, an annulment. The claim for an annulment is not pressed and, indeed, it is apparent that there is nothing in the evidence which would justify a conclusion that the marriage was void. As to the claim for divorce it is found that the defendant fraudulently concealed from the plaintiff two facts. The first of these was that in January, 1940, nearly two years before the marriage, he had been convicted in the New London Police Court of the crime of issuing fraudulent checks. The second was with reference to the number of children whom he had from a former marriage. On this subject, before they were married he told the plaintiff that he had only one daughter who was 20 years old and able to take care of herself, whereas in truth he had four other younger children whom he was boarding out. As soon as the plaintiff discovered the truth about the children she separated from the defendant. In order to make out fraudulent contract as a ground for divorce the facts misrepresented or concealed must be such as to go to the very essence of the marriage. "The existence or nonexistence of the fact thus concealed or misrepresented must operate, as between the parties to the marriage, to prevent some essential purpose of marriage and work a practical destruction of that relation." Gould vs. Gould, 78 Conn. 242, 261; Lyman vs. Lyman, 90 id. 399, 402. Certainly the fact that a man has been convicted of a crime prior to the marriage fdoes not prevent any essential purpose of the marriage. As regards the existence of four minor children the only substantial effect which that necessarily has and which it had in this case is that it diminishes the amount which the husband has to expend for the support of his wife by the amount which he has to expend for their support. That can hardly be said to defeat the purposes of the marriage or to work a practical destruction of the marriage. Many marriages are entirely satisfactory arrangements in spite of the fact that the husband, has to' support children of a former marriage or other relatives. The fact that the husband in this case had somewhat less money available for his wife's support than she supposed he would have does not offer a sufficient ground to dissolve a marriage status. Judgment may enter denying the divorce and the annulment.

Memorandum of decision on appeal from action of Court of Burgesses. BORDON, J. Before discussing the facts or law pertaining to this case, the court desires to make its position clear on the plaintiff's allegation and claim that its business be exempt from municipal regulation because- it is engaged in producing products helpful to the war effort. The claim has no merit. If the location in question were found unsuitable for the type' of business conducted thereon, it would not prevent the plaintiff from relocating it in a more suitable location even if it involved added expense.' While the plaintiff should be commended for its Zeal in producing goods which may help the war effort, it cannot be said that it is conducting its business solely from altruistic motives. It is in business for the purpose of making a profit and, as such, is subject to all legal regulations. This claim, therefore, is disregarded in the court's deliberations. The plaintiff was incorporated in December, 1937, for the purpose of conducting a wholesale oil business. It leased the building in question on George Street, Wallingford, and used it for the storage of oil in drums and cans. Late in 1938, it purchased the property and intended to use the building as an oil refinery. The former owner had used it only for the storage of petroleum products, but no refining of any kind had ever been done there. It was not suitable for the ultimate use intended by the plaintiff without extensive repairs and remodeling and installation of appropriate machinery. After the purchase, the plaintiff began the necessary repairs and remodeling and preparation of the building for the reception of machinery. In 1940, it started installation of machinery which it acquired, from time to time, and during the latter part of that year and the early part of 1941, conducted experimental and laboratory work on a small scale. It was not until July, 1941, that the plaintiff began the operation of its plant on a commercial basis. Its process involves the refining of used crankcase and cutting oil. Crankcase oil is drained from automobile crankcases and cutting oil is the residue of oil used by manufacturing establishments in lubricating machinery. The process eliminates foreign substances from the used oil and re-refines it into usable lubricating oil which is in great demand, at the moment, because of increased industrial activity due to the war. The plaintiff's plant adjoins the railroad tracks, on which passenger and freight trains frequently travel, emitting large quantities of smoke and accompanying gases incident to the operation of steam engines. The plant is also located on the edge of a residential neighborhood of fairly good quality, whose occupants represent a good cross-section of American life in such a community. There are other industrial plants in the neighborhood, to the continued existence of which no objections are raised by the neighbors. While the plaintiff was readying its plant for commercial use, and before refining had commenced, the Borough of Wallingford adopted a zoning ordinance, placing the plaintiff's property in an industrial zone, and forbidding the operation of an oil refinery in such zone. Unless, therefore, the plaintiff had a nonconforming use, its business was outlawed even before it began. Nevertheless, without objection from borough officials, the plaintiff began refining on a large scale in July, 1941, and from,then on its troubles multiplied. In September, 1941, the neighborhood began to complain that objectionable odors •emanated from the plant, penetrated into their homes, and adversely affected their sleep, appetites, health and living conditions in general. The refining process originally employed by the defendant permitted certain gases, resulting therefrom, to float unarrested into the atmosphere, and on windy days they were carried into the homes of nearby residents. These gases had, what is chemically known as a mercaptan odor, a sulphur containing organic compound often found in petroleum products. The objections of the neighbors continued and, ultimately, reached the sympathetic ears of the Burgesses of Wallingford. On March 6, 1942, the plaintiff was served with a notice to attend a hearing before the Court of Burgesses on March 10, 1942, to determine whether the plaintiff's business was a nuisance. This hearing was called pursuant to section 48 of the "Revised and Amended Charter and By-laws of the Borough of Wallingford" which, among other things, gives the Court of Burgesses, power "to. prevent or regulate the use of any building for the purpose of carrying on trade, business, or manufacture in said borough, which, in the opinion of said Court of Burgesses, shall be prejudicial to public health, or an unreasonable annoyance to those living or owning property in the vicinity." In this connection, it should be noted that the officials invoked their police powers to abate a nuisance rather than to enforce the zoning regulations. The hearing was held on March 10, 1942, and pursuant to the authority above referred to, the plaintiff was notified on March 11, 1942, that the operation of . its plant was declared a "nuisance" and was further ordered: "to immediately stop and cease your present method of the operation of the plant which has caused the emissions of objectionable and offensive odors and smells, until such time as you can demonstrate and prove to the satisfaction of the Court of Burgesses that either through equipment installed, or otherwise, you can so operate said business without the emission of such offensive, objectionable and noxious odors and smells without causing an 'unreasonable annoyance' to people owning property or living in the vicinity of the plant and without being a 'nuisance.' " On the same day, the plaintiff appealed to this court praying for a temporary and permanent injunction restraining the Court of Burgesses, and its agents, from interfering with its business, and obtained a temporary injunction to such effect. (Devlin, J.) On March 12, 1942, the burgesses moved to dissolve the temporary injunction and a hearing was held thereon. (Devlin, J.) On April 29, 1942, the temporary injunction was dissolved because the court found that, up to the date of trial, the plaintiff had not been successful in eliminating the noxious odors. The court, in its memorandum, however, suggested that the installation of new equipment "will, before the case is fully tried, solve the problem to the satisfaction of all concerned." Before and after the dissolution of the injunction, the plaintiff installed machinery and equipment which, it claimed, successfully eliminated noxious odors. It installed an exhaust system to collect gases and carry them to a boiler where they were consumed, thus preventing their exit into the atmosphere. However, because of the outstanding desist order, the plaintiff was unable to test the effectiveness of its installations and so represented to the court when the case was reached for trial in May, 1942. In view of the suggestion contained in the memorandum of decision dissolving the injunction, and in view of the language of the desist order which offered the plaintiff an opportunity to correct the condition prevailing at the time of the hearing before the burgesses, it appeared to the court that justice to the plaintiff demanded that it be given an opportunity to test the effectiveness of its gas controlling installations. Upon suggestion by the court, it was agreed that the temporary injunction be reinstated, under certain limitations, until such time as the parties had an opportunity to observe and test the effectiveness of the gas controlling installations, while the plant was actually in operation. The court further suggested that, at the trial of the case, the question of whether a nuisance exists be determined on the basis of the claimed improved conditions rather than on the basis of conditions existing at the time of the hearing before the burgesses. This was agreed to by all counsel. The plaintiff, thereupon, resumed operation of its plant and tests were made by expert chemists. As a result of a written report given the burgesses by their expert, they reaffirmed their previous decision and notified the plaintiff to that effect on July 9, 1942. Thereafter, the plaintiff made additional changes designed to further eliminate odors and improve conditions. It covered a sewer vent on the roof of its building from which odors and gases emanated, thus filling up a leak which it had previously overlooked. The court ruled that this improvement should also be taken into consideration in determining whether a nuisance exists. During the course of the trial, understandable contradictory testimony on the extent of odors was offered by both sides. The court could not, however, understand why two capable expert chemists should disagree on a question involving a science as exact as chemistry, where, obviously, only one conclusion was possible. The court, therefore, suggested that a series of tests be made simultaneously, by both chemists and a joint report given to each of the parties. This suggestion was adopted and a report signed by both experts was offered and entered in evidence as plaintiff's Exhibit I. The court also obtained permission from counsel to visit the premises, on numerous occasions, and make personal tests and observations. The visits were made by the court under varying weather and atmospheric conditions. In the meantime, on March 24, 1942, Frank Zingl and approximately 40 other residents in the neighborhood moved thát they be permitted to intervene as parties and, on March 25, 1942, the court granted this motion. The intervening parties set up, as a "special defense", the violation, by the plaintiff, of the zoning ordinance adopted by the Borough on August 6, 1940, and asked for an order restraining the plaintiff from conducting its business contrary to said ordinance. The court has set out the factual history and progress of the case at length in order to apprise the parties of the factors which 'influenced the decision. It should be helpful in case of an appeal to the Supreme Court. On the basis of the evidence, the experts' reports and testimony, and personal observation, the court hesitates to condemn the plaintiff's plant and business as a nuisance. It is entirely possible that many of the neighbors have become so "odor conscious" that all unpleasant smells in the neighborhood are attributed to the plaintiff's operation. In fact, the controversy has developed such strong feeling and prejudice on the part of the defendants and the intervening parties that nothing short of complete elimination of the plaintiff's business will satisfy them. On one visit, the court noted a strong gassy odor, which was undoubtedly caused by the smoke emitted by passing trains, and yet, several of the residents insisted that it came from the refinery. On another visit, a particularly unpleasant odor was noticeable in the cellar of a nearby resident, but it was difficult to associate that odor with any .gas created by the refining of petroleum products.. Since then, the same odor has manifested itself to the court in a dozen different places far removed from one another and from the plaintiff's plant. The occupant of the dwelling involved, nevertheless, insisted that the plaintiff was responsible for the odor in the cellar. Inspections by the court on seven or eight occasions, under varying weather conditions, failed to disclose any perceptible odor which could be classed as noxious or objectionable. Air samples taken by the defendants' experts in the vicinity of the plant, before all improvements were completed, show such small sulphur content, that harmful odor •could not result from it. The joint investigation of the experts finds the present equipment adequate to eliminate odors except during the shutting down period, when odors of unobjectionable intensity are noted. Because all of these factors militate against a finding that a nuisance exists, great care should be exercised to guard against hasty, arbitrary and unreasonable action which will result in the unnecessary elimination of the plaintiff's business, with consequential loss and hardships. The defendants claim, however, that their finding and decision that a nuisance exists is conclusive and not reviewable by the court. With this contention the court does not wholly agree. Courts will not interfere with the exercise of the discretionary power of a municipal corporation in declaring what shall constitute a nuisance, except in cases of obvious abuse. In doubtful cases, where a thing may or may not be a nuisance, depending upon a variety of circumstances requiring judgment and discretion on the part of the municipal authorities in exercising their legislative functions, their action under such circumstances will be conclusive on the question; and in such cases the municipality's declaration that a particular thing is a nuisance will not be overruled by the courts. However, since a municipality cannot make a thing a nuisance by merely declaring it to be such, the municipality's declaration that a thing is a nuisance is not a final determination of the question; it is subject to review by the courts, both as to its reasonableness, and as to the thing inveighed against being in fact a nuisance. The naked right to abate something as a nuisance does not carry with it the power, judicially, to .determine whether or not a thing complained of is a .nuisance. 43 C.J. Municipal Corporations §532, p. 409. It is universally recognised that one of the chief purposes for the institution of municipal government is the conserva' tion of public health and safety. Municipalities may vest in officers wide discretion in matters affecting the application and enforcement of health laws. The nature of ordinances and regulations that may be adopted and enforced is largely dis' cretionary with municipal authorities. Under charter powers, such rights are uniformly liberally construed by courts, and unless clearly unreasonable and arbitrary, or demonstrably vio' lative of constitutional rights, will be sustained. 3 McQuillin, Municipal Corporations (2d ed. 1928) §954, p. 119. Under general grant of power respecting nuisances the municipal corporation may declare a thing a nuisance which is one in fact, but cannot declare that a nuisance which is not one, nor suppress a business which is not a nuisance per se. To constitute a thing a legal nuisance, it must be so in fact, irrespective of an ordinance declaration. City of Buffalo vs. Kellner, 90 Misc. 407, 153 N.Y.S. 472; City of Forney vs. Mounger (Tex. Civ. App.), 210 S.W. 240. A city has authority to declare what shall constitute a nuisance, but it cannot for that reason act arbitrarily and declare that to be a nuisance which is not so in fact. City of Bushnell vs. Chicago, B. & Q. R.R. Co., 259 Ill. 391, 102 N.E. 785. With reference to things which are of such a character that in their nature they may be nuisances, but as to which honest difference of opinion may exist, the- exercise by the municipality to declare it a nuisance is conclusive. But what is not a nuisance cannot be conclusively declared as such be' cause it is a question of fact. A city cannot declare and abate a nuisance if in fact, it is not one. Sings vs. City of Joliet, 237 Ill. 300, 86 N.E. 663. Whether a thing may or may not be a nuisance, depending on a variety of circumstances requiring judgment and discre' tion on the part of municipal authorities in exercising their legislative functions under a general delegation of power, their action is conclusive, but that which is not in and of itself by its nature or character, or the manner of its use or disposition a nuisance, cannot be made so by the mere fiat of municipal authorities, and the action of officials is then subject to judicial review as to reasonableness of the regulations. Smith vs. City of New Albany, 175 Ind. 279, 93 N.E. 73; Lonoke vs. Chicago, R. I. & P. R. Co., 92 Ark. 546, 123 S.W. 395. It will be noted that the courts have, uniformly, upheld a municipal declaration, by ordinance, that a thing is a nuisance, but with equal uniformity have they held that powers to condemn delegated to officials arc subject to judicial review. Such a course guards the municipality's power to legislate for the health and welfare of its community, and, at the same time, affords protection to property owners against arbitrary action by officials. In the instant case, if the charter and by-laws of the borough declared an oil refinery to be a nuisance and forbade its establishment, such legislation would be conclusive and not subject to review. The question of whether an oil refinery is or is not, in fact, a nuisance would not, under such circumstances, be open to question. The legislative pronouncement to that effect would be sufficient. But where the legislation does not specifically define or designate a nuisance, but gives officials power to do so, their decisions are subject to judicial scrutiny and review. In such cases, their declaration that a thing is a nuisance may be challenged on appeal and becomes a question of fact for the court. This case clearly illustrates the wisdom of prevailing judicial opinion. The charter and by-laws of the borough do not forbid a refinery. They give authority to prevent and regulate the use of buildings, etc. In exercising the authority, the burgesses declared the plaintiff's business a nuisance and ordered its cessation "until such time as you can demonstrate and prove to the satisfaction of the Court of Burgesses that either through equipment installed or otherwise, you can so operate said business without the emission of such offensive, objectionable, and noxious odors and smells without causing an unreasonable annoyance' to people owning property or living in the vicinity of the plant and without being a nuisance." To require the plaintiff to "demonstrate and prove to the satisfaction of the Court of Burgesses" that it has complied with their order, is arbitrary and unreasonable, and can, easily, lead to an abuse of power. For no matter how effective and efficient its installed equipment may be, it still may not satisfy the burgesses. For this reason the plaintiff is entitled to a judicial review of the reasonableness of the order and a determination of whether its business Is, in fact, a nuisance. State ex rel. Redgate vs. Walcott, 125 Conn. 160. The court having found that the plaintiffs business is not a nuisance, it follows that its prayers for relief ought to be granted. The intervening parties have set up the zoning ordinance as a special defense, and insist that the plaintiff's violation thereof should be enjoined. Undoubtedly, they are proper parties to the controversy because they have an interest in its outcome. But their activity cannot go beyond the controversial issues. The cases Cited by them involve zoning appeals in which interested property owners are permitted to intervene and assist in prosecuting or contesting such appeals. None of the cited cases permit the intervening parties to bring in new matters or defenses which go beyond the realm considered by the Zoning boards. The burgesses could have taken appropriate action within the provision of the zoning law. They preferred, however, to pursue the course under their granted police powers. The appeal to this court is limited to a consideration of 'matters relating to this particular controversy. Defenses, not related to the issues involved between the original parties, cannot be injected into the proceedings by the cross complaint of added parties. "The test is whether the .transactions are distinct and independent or arq connected in the sense that the claim under the cross-complaint is so related'to that made in the complaint that consideration of the former is essential to a full adjudication of the parties' rights as to the latter." Puleo vs. Goldberg, 129 Conn. 34. The question raised by the cross complaint is an entirely separate matter from that raised by the appeal. For this reason, the relief .sought by the cross complaint is denied. In considering and determining the case, the court has not been unmindful of the duties of the defendants and the rights of the intervening parties, and serious consideration w^s given them. The evidence, however, fails to justify complaints at this time. This decision must not, however, be regarded, by the plaintiff, as a license to relax in its duty to keep its plant in the present condition, or to make even further improvements, from time to time, as science and mechanical skill reveal them. Its vigil must be strict and constant. The issues on the plaintiff's complaint, defendants' answer, and the intervening parties' cross complaint are found for the plaintiff, and the first, second and fourth prayers for relief are granted. A proper judgment file should be prepared by plaintiff's counsel.

Memorandum of decision in action to construe will. O'SULLIVAN, J. This is an action to construe the will of Agnes Walton Savage, who died at Greenwich on August 24, 1939, leaving her husband, Arthur Savage, surviving her. The ninth paragraph of the will reads as follows and furnished the difficulties: "Ninth: All the rest, residue and remainder of my estate I give and bequeath to my three brothers, William Brady, Brampton, Chesterfield, Derbyshire, England; John Brady, Elder Yard, Chesterfield, Derbyshire, England; James Brady, Newbold Road, Chesterfield, Derbyshire, England, each to receive an equal one-third portion." The will was executed on June 26, 1939. On that date, all of the brothers mentioned in the ninth paragraph were dead, events of which the testatrix was unaware. William had died in England in 1930; James, in 1933, and John, in 1935. Only James and William left issue who survived the testatrix. The estate is ready for distribution but the administrator c.t.a.d.b.n. is uncertain as to whom he should distribute. He propounds three questions, which include the following query: is the share of each brother to be deemed intestate estate, in view of his death prior to the execution of the will? The answering of this question is as far as the court feels justified in going because of the import of the first paragraph of the will, which reads: "I have made no provision for my husband, as for some time he has failed to support me or furnish me with a home." The inference is that the testatrix and her husband were living apart at the time 'the will was executed, a date only two months prior to her death. To pass upon the right of her husband to share in her estate, as a portion of the three questions require if they are to be answered in full, might cause embarrassment later on if it should develop that he had abandoned his wife and had continued such aban' donment, without sufficient cause, to the time of his wife's death. Under such circumstances, he would be barred from enforcing his statutory rights in the enjoyment of the estate. (Gen. Stat. [1930} §5156.) The general rule, in the absence of any statutory provision to the contrary, is that a legacy to a person who is dead at the time of the execution of the will is void. Clifford vs. Cronin, 97 Conn. 434, 438. The vital problem in this case, then, is whether or not this commondaw principle has been abrogated for the benefit of certain named close relatives of the testatrix, by force of section 4879 of the General Statutes, Revision of 1930. The portion of the statute applicable to the facts at hand reads: "When a... .legatee, being a.... brother. . . .of the testator, shall die before him, and no pro' vision shall have been made in the will for such contingency, the issue of such.... legatee shall take the estate so.... be' queathed." Clearly, the statute reaches those situations where the brother dies after the will is made and before the testator's death, but does it extend to those situations, like the instant one, where the brother is dead when he is named as a legatee? At common law, all legacies, not affected by substitutionary disposition, became intestate estate whenever the legatee died before the testator. Thus, as indicated above, a bequest to one who was dead when the will was executed was void, while a bequest to a living person lapsed at his death before that of the testator. Some pretty oppressive results were occasioned by these principles which frequently blocked the way for carry' ing out the testator's expressed intention. These injustices were most significant in those instances where the will provided legacies for close relatives. Eventually, the legislatures of the various states passed acts, commonly called nondapse statutes, to circumvent the harsh' ness of the commondaw rules. These statutes vary in scope, but they all have one common denominator. They permit a more meticulous execution of the expressed wishes of the testator. Ours is a remedial statute and requires a liberal construction in aid of its manifest purpose. "To arrive at the real meaning it is always necessary to. take a broad general view of the Act and to get an exact conception of its scope and purpose. It'is a cardinal rule of statutory interpretation, that the construction must, if possible, be such as will effect the real purpose for which the statute was enacted... .Lord Coke prescribed four general inquiries for this purpose: (a) What was the law before the Act was passed, (b) what was the mischief or defect for which the law had not provided, (c) what remedy did the legislature prescribe, and (d) what was the reason for the remedy." Merchants Bank & Trust Co. vs. Pettison, 112 Conn. 652, 655. Considering all these factors, the legislative indention, it seems to me, was not only to prevent the lapsing of legacies to those enumerated in the statute but also to preclude the voiding of bequests to similar individuals. It would indeed be shocking to believe that the statute protects a legacy to one brother in being when the will is executed and fails to afford relief for the issue of another brother, who, unbeknownst to the testator, had died five minutes. before that time. It is true that the statute uses the future tense and one might argue from that fact that it contemplates only those instances of death occurring after the will has been executed. Nonetheless, no direct language found in the statute takes any notice of the time of the execution of the will or imposes a condition to its operation or non-operation upon a legacy to a brother that he shall be alive when the will is executed. The only conditions which it mentions are that the brother shall die before the testator, and that no provision has been made in the will for such contingency. And, of course, it is available only to issue of the legatee,who may survive the testator. The words "shall die" do not refer to the time of executing the will but to the death of the legatee before that of the testator. I conclude, then, that the statute is to be extended to those situations where a brother of the testator is dead -when the will is made. There is no Connecticut case directly in point. Lee vs. Lee, 88 Conn. 404, presented a somewhat similar set of facts, and the question discussed herein was argued before our ap pellate court. The opinion, however, brushes the question aside and is- based on another ground. In other states which have statutes analogous to our own, the decisions are not in harmony, but the great weight of authority upholds the position that, unless the testator's in' tention runs to the contrary, a legacy to the named legatee, who is dead when the will is executed, does not become intestate estate, if the beneficiary belonged to one of the classes named in the statute and leaves issue surviving the testator. Nutter vs. Vickery, 64 Me. 490; Minter's Appeal, 40 Pa. 111; Darden vs. Harrill, 78 Tenn. 421; Todd vs. Gambrill, 15 Del. Ch. 342, 138 Atl. 167; Wildberger vs. Cheek, 94 Va. 517; In re Hutton's Estate, 106 Wash. 578, 180 Pac. 882; Winsor vs. Brown, 48 R.I. 200, 136 Atl. 434; Kehl vs. Taylor, 275 Ill. 346, 114 N.E. 125. See, also, Pimel vs. Betjemann, 183 N.Y. 194, 76 N.E. 157; Anno. 3 A.L.R. 1682. Contra: Billingsley vs. Tongue, 9 Md. 575; Suber vs. Nash, 84 S.C. 12, 65 S.E. 947; Estate of Matthews, 176 Cal. 576, a case directly opposed to Lee vs. Lee, 88 Conn. 404, as to the effect upon a legacy to one dying between the execution of a will and a subsequent codicil. The claim of the named defendant that the legacies to the dead brother were gifts to a class needs no comment, first because they did not create such a gift (Bill vs. Payne, 62 Conn. 140), and secondly, because, if they did, the statute would still apply. The questions submitted in the complaint are answered only to the following extent: 1. The legacy to John Brady is void and becomes intestate estate, John having died without issue surviving. 2. The legacies to James Brady and William Brady do not become intestate estate but each legacy is to be distributed to such issue of each legatee as survived the testatrix, the distri' bution of each legacy to be per stirpes. Allowances have been requested by counsel. The following sums shall be allowed: to Hirschberg, Pettengill, Strong & Deming, $250 plus their cash expenses; to W. X. Burns, $350 plus his cash expenses; to Messrs. Sisson and Vail, $350 plus their expenses.

Freedman, J. This is an appeal by the plaintiff, Tolland Enterprises, brought pursuant to General Statutes § 51-197a from the assessment of damages for the taking of its property by eminent domain pursuant to General Statutes § 13a-73 (b) and 13b-23. The defendant, the commissioner of transportation, determined the value for the purpose of the taking to be $16,060. The plaintiff applied to the Superior Court, pursuant to General Statutes § 13a-76, for reassessment of damages. The trial court found that the defendant had properly determined the value of the property for the purpose of the taking. On appeal, the plaintiff claims that the trial court improperly (1) found that the rule against perpetuities does not apply to the state for the purpose of invalidating a repurchase provision contained in a quitclaim deed in which the state was the grantor and (2) failed to award severance damages notwithstanding its finding that the repurchase provision was enforceable. We affirm the judgment of the trial court. The trial court found the following facts. The state acquired a strip of land sixty feet in width containing 2.13 acres on Cottage Grove Road in Bloomfield in conjunction with its plan to build a highway bypassing the city of Hartford and connecting 1-91 and 1-84 to the south and west of Hartford with the continuation of 1-91 north of Hartford. The plan was aborted, but the state retained title to the land in the belief that the bypass would be built in the future. Sometime after the state acquired the strip of land, the plaintiff began acquiring land along Cottage Grove Road for the development of an apartment complex. On October 18, 1963, the plaintiff purchased the sixty foot strip of land from the state "for one dollar and other valuable consideration." The quitclaim deed conveying the strip of land to the plaintiff contained the repurchase provision that is at issue in this appeal. The repurchase provision states: "As part consideration for this deed, the Releasees herein hereby agree, for themselves, their heirs and assigns, that the State of Connecticut or the Town of Bloomfield of said State of Connecticut shall have the right to purchase said premises, with all improvements thereon, together with access thereto from the adjacent land of the Releasees herein in said Town of Bloomfield, for the sum of $16,060.00 in the event said premises shall be required by either said State of Connecticut or said Town of Bloomfield for highway purposes, upon giving the owner of record sixty (60) days notice in writing to that effect." On January 16, 1991, twenty-seven years after the conveyance, the state notified the plaintiff that it intended to exercise its right to repurchase 2 acres of the 2.13 acre strip of land pursuant to the provision in the conveyance. Subsequent communications failed to resolve the matter, and, on September 4,1991, the state filed a notice of condemnation and assessment of damages that declared that the land taken was necessary for widening Route 218, Cottage Grove Road. The commissioner assessed damages in accordance with the repurchase provision in the amount of $16,060. The plaintiff appealed the assessment of damages to the Superior Court claiming that the assessment was inadequate and requesting reassessment of the damages. The defendant answered, raising the repurchase provision as a special defense. The plaintiff's reply to the special defense claimed that the repurchase provision is void because it violates the rule against perpetuities and also constitutes an unreasonable restraint against alienation. The plaintiff also claimed that it was entitled to recover severance damages, because the repurchase provision, if effective, would merely control the price of the land taken and not its claim for severance damages. The trial court found as a matter of law that the repurchase provision created a repurchase option, and that in Connecticut a repurchase option must comply with the rule against perpetuities. See Neustadt v. Pearce, 145 Conn. 403, 143 A.2d 437 (1958). The trial court stated, however, that the "rule, designed to restrain the aggrandizement of family dynasties during the middle ages by limiting the time during which the alienability of land could be curtailed, ought not to be applied to a governmental body without first concluding that the policy of the rule in promoting the unrestricted alienability of land will otherwise be seriously frustrated." The trial court concluded that "the rule against perpetuities ought not to be applied to invalidate a repurchase provision inserted into a conveyance by the state for the purpose of conserving the public exchequer in view of the likelihood that the land transferred will eventually be needed for a governmental purpose, such as widening a highway." Because the repurchase provision was enforceable, the trial court held that the damages for the taking of the strip of land were limited to the $16,060 specified in the repurchase provision. "The decisive issue [on appeal] is whether the covenant giving the right to repurchase is enforceable . The covenant purported to grant . a continuing option, unlimited as to time.... It attempted to create a contingent interest which might not vest until some uncertain date in the future. It falls clearly within the principle stated in H. J. Lewis Oyster Co. v. West, 93 Conn. 518, 530, 107 A. 138 [1919], and is void as violative of the rule against perpetuities." Neustadt v. Pearce, supra, 145 Conn. 405. The state does not dispute that the repurchase option of this case is such a covenant. Neither of our appellate courts has addressed the question of whether the rule against per petuities applies to the state for the purpose of invalidating a repurchase provision for the benefit of the state inserted in a conveyance by the state. We conclude that it does not. The question of whether the rule against perpetuities applies to the state in this matter is a question of law. We, therefore, review this claim de novo. Stiefel v. Lindemann, 33 Conn. App. 799, 806, 638 A.2d 642 (1994); McCullough v. Waterfront Park Assn., Inc., 32 Conn. App. 746, 750, 630 A.2d 1372 (1993). "The underlying and fundamental purpose of the common law rule against perpetuities is the protection of society by allowing full utilization of land. As commonly noted, '[t]he rule [against perpetuities] evolved to prevent . . . property from being fettered with future interests so remote that the alienability of the land and its marketability would be impaired, preventing its full utilization for the benefit of society at large as well as of its current owners.' " Village of Pinehurst v. Regional Investments of Moore, 330 N.C. 725, 732, 412 S.E.2d 645 (1992). "The compelling reasons for the rule against perpetuities are believed to be these. First, it strikes a fair balance between the satisfaction of the wishes of members of the present generation to tie up their property and those of future generations to do the same. The desire of property owners to convey or devise what they have by the use of trusts and future interests is widespread, and the law gives some scope to that almost universal want. But if it were permitted without limit, then members of future generations would receive this property already tied up with future interests and trusts, and could not give effect to their desires for the disposition of the property. Thus, the law strikes a balance between these desires of the present generation and of future generations. "A further reason is that, other things being equal, society is better off, if property is controlled by its living members than if controlled by the dead. Thus, one policy back of the rule against perpetuities is to prevent too much dead hand control of property." L. Simes & A. Smith, The Law of Future Interests (2d Ed. 1956) § 1117. While the theories supporting the application of the rule against perpetuities clearly apply to individuals, we conclude that its application to the state is unjustified. Unlike persons, the state is perpetually in existence. Thus, the effect of future interests in yet unborn or contingent remaindermen, or of control of property by those long dead, are not legitimate concerns where the state is involved in the transaction. In addition, the state could have retained the land pending future construction of the bypass; instead, it chose to convey the land to a private party so that it could be utilized until such time as the state or the town of Bloomfield requires it for highway purposes. Cases from other jurisdictions lend strong support to our conclusion that the rule against perpetuities does not apply to the state for the purpose of invalidating a repurchase provision inserted into a conveyance by the state. In Southeastern Pennsylvania Transit Authority v. Philadelphia Transit Co., 426 Pa. 377, 233 A.2d 15 (1967), the Pennsylvania Supreme Court held that the rule against perpetuities does not apply to an option held by the city of Philadelphia for the purchase of a privately owned transportation system. The court held, in part, that for reasons of public policy, and under the particular facts of the case, the rule against perpetuities should not operate on the city of Philadelphia's right to purchase. In Warren v. Leesburg, 203 So. 2d 522, 526 (Fla. 1967), the city of Leesburg instituted an action to enforce the repurchase provision in a deed. The trial court found in favor of the city. The defendant claimed, for the first time in a petition for a rehearing, that the repurchase option in the original deed from the city was void because it violated the rule against perpetuities. The petition was denied without comment and the Florida District Court of Appeals recognized that the claim was not reviewable because it was not timely raised. Nevertheless, the court went on, noting the risk that its opinion may be considered obiter, to state: "There is also grave doubt in our opinion as to whether or not public bodies such as incorporated municipalities are included within the ban of the rule against perpetuities. Perpetual charitable trusts are not subject to the rule. While not strictly analogous, property owned by a City is in a very real sense so owned and held for the benefit of the public. If perpetual charitable trusts are not 'within the spirit of the rule' it would seem that by the same reasoning a public body would be in the same category." Id., 526. In West Indian Co. v. Government of the Virgin Islands, 844 F.2d 1007 (3d Cir. 1988), the United States Court of Appeals for the Third Circuit considered whether an agreement between the West Indian Company, and the government of the Virgin Islands should be considered contractually binding on the legislature. In 1913, Denmark, then the sovereign of the Virgin Islands, granted the West Indian Company a right of reclamation of certain lands. The agreement did not provide for any time limitations in which the West Indian Company could exercise its right of reclamation. In 1968, a dispute arose regarding the treaty granting the right of reclamation and an agreement was entered into to settle the dispute. The case addressed the enforceability of the latter agreement. Because the court resolved the issue under the settlement agreement, it did not address the assertion that the 1913 grant of the right of reclamation to the West Indian Company violated the rule against perpetuities. Nonetheless, the court went on to state in dicta: "We doubt that the act of a sovereign like Denmark's concession to [the West Indian Company] can violate the rule against perpetuities . . . ." Id., 1017. In Joseph Schonthal Co. v. Sylvania, 60 Ohio App. 407, 21 N.E.2d 1008 (1938), an action to quiet title to certain real estate, the trial court found in favor of the defendant. The issue was whether an executory limitation over to the village upon cessation of the use of the premises in accordance with the deed violated the rule against perpetuities. The court held that the rule against perpetuities existing in Ohio at the time of the creation of the deed in question was not violated by the deed. The court, however, went on to state: "Certainly no rule against perpetuities could ever be intended to apply to municipal corporations. On the contrary, they are designed and intended to be perpetual." Id., 415. Thus, we conclude that the rule against perpetuities does not apply to the state for the purpose of invalidat ing a repurchase provision contained in a quitclaim deed in which the state was the grantor. The plaintiff next claims that the trial court improperly failed to award severance damages notwithstanding its finding that the repurchase provision inserted in the conveyance was enforceable. Specifically, the plaintiff claims that the taking by the state was a partial taking and, therefore, the plaintiff is entitled to the difference between the value of the whole parcel prior to the taking and the value of the property remaining as severed after the taking. We do not agree. Severance damages compensate for the diminution in the fair market value of the remainder of the property owner's land, which is both unique to that land and arises as the direct and immediate result of the taking of a portion of the lands by the condemning authority. See Tandet v. Urban Redevelopment Commission, 179 Conn. 293, 298-99, 426 A.2d 280 (1979). The plaintiff attempts to avoid the consequences of its agreement embodied in the repurchase provision by claiming that the damages it is seeking are for the remainder of the property and not for the strip of land taken by the state. At the time of the conveyance to the plaintiff, the plaintiff agreed to return the land to the state for $16,060. In the meantime, the plaintiff has enjoyed the use of the land and the benefit it has provided to the surrounding property for the past twenty-seven years. To award the plaintiff severance damages would contravene the agreement set forth in the repurchase provision and thus penalize the state for enforcing its rights. We conclude that the trial court properly found that the plaintiff was not entitled to severance damages. The judgment is affirmed. In this opinion the other judges concurred. The plaintiff also claims that the repurchase provision is an unreasonable restraint on alienation. Here, however, the repurchase provision does not prohibit outright the sale of the property in question. Under our law, a restraint on alienation generally prohibits or penalizes the power of the owner to alienate his or her property freely. See Olean v. Treglia, 190 Conn. 756, 764, 463 A.2d 242 (1983). We conclude that the provision does not constitute an unreasonable restraint on alienation. "The rule against perpetuities states that '[n]o interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.' J. Gray, The Rule Against Perpetuities (4th Ed. 1942), p. 191; Connecticut Bank & Trust Co. v. Brody, 174 Conn. 616, 623, 392 A.2d 445 (1978)." Texaco Refining & Marketing, Inc. v. Samowitz, 213 Conn. 676, 683, 570 A.2d 170 (1990). For a view to the contrary, see Haggerty v. Oakland, 161 Cal. App. 2d 407, 326 P.2d 957 (1958), where the California Appellate Court applied the rule against perpetuities against a municipality. Haggerty involved a lease held by the city of Oakland to private property that was to run for ten years after the completion of construction of the building that was the subject of the lease. The court found the lease void because it could violate the rule against perpetuities. Professor W. Barton Leach wrote an article criticizing the case; see W. Leach, "Perpetuities: New Absurdity, Judicial and Statutory Correctives," 73 Harv. L. Rev. 1318 (1960); in which he stated: "The Rule Against Perpetuities is a device for protecting the public interest against private settlements which unduly tie up the basic resources of the community. But in this case the city is the public. It is at least arguable that the Rule should not apply at all to dispositions made by duly constituted public bodies. The judge-made Rule was never conceived as a limitation upon the sovereign, and the California constitution, incorporating the common-law Rule, should not be construed as a limitation on action by the state or any of its subdivisions." (Emphasis in original.) Id., 1321.

Per Curiam. The judgment is affirmed.

Per Curiam. The decision of the compensation review board is affirmed.

Per Curiam. The plaintiff filed a motion to dismiss the defendant's appeal for lack of a final judgment. Because the appeal was taken from the denial of a motion to dismiss the action, we conclude that no final judgment exists and that the appeal must be dismissed. The procedural history of this case is not in dispute. The plaintiff brought this personal injury action against the defendant pursuant to General Statutes § 13a-149 for injuries he sustained when he slipped and fell on a sidewalk. The trial court granted the plaintiff s motion for default based on the defendant's failure to plead. Before a scheduled hearing in damages was held, the defendant filed a motion to open the default, which the trial court denied. The defendant then moved to dismiss the plaintiffs action on the basis of an alleged lack of subject matter jurisdiction. The trial court denied the defendant's motion to dismiss. This appeal and the plaintiffs cross appeal followed. The plaintiff now moves to dismiss the defendant's appeal for lack of a final judgment. "The lack of a final judgment is a threshold question that implicates the subject matter jurisdiction of this court." Schick v. Windsor Airmotive Division/Barnes Group, 31 Conn. App. 819, 822, 627 A.2d 478 (1993), citing Walton v. New Hartford, 223 Conn. 155, 162 n.9, 612 A.2d 1153 (1992). Where there is no final judgment, we cannot reach the merits of the appeal. General Statutes § 52-263; Practice Book § 4000; Smith v. Otis Elevator Co., 33 Conn. App. 99, 102, 633 A.2d 731 (1993). "It is undisputed that the denial of a motion to dismiss is not ordinarily a final judgment." Sasso v. Aleshin, 197 Conn. 87, 90, 495 A.2d 1066 (1985); State v. Malkowski, 189 Conn. 101, 104, 454 A.2d 275 (1983); Kioukis v. Kioukis, 185 Conn. 249, 251 n.1, 440 A.2d 894 (1981); Guerin v. Norton, 167 Conn. 282, 283, 355 A.2d 255 (1974); State v. Boucher, 119 Conn. 436, 437, 177 A. 383 (1935); State v. Harris, 4 Conn. Cir. Ct. 534, 536, 236 A.2d 479 (1967). The appeal in this case was taken from the denial of the defendant's motion to dismiss. The denial of the motion did not terminate the plaintiff's action. On the contrary, no final judgment has been rendered because the issue of damages remains unresolved and is scheduled for hearing before the trial court. Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 45 n.4, 478 A.2d 601 (1984); Automotive Twins v. Klein, 138 Conn. 28, 33, 82 A.2d 146 (1951). Because the trial court's denial of the defendant's motion to dismiss is not a final jdugment, the appeal is dismissed for lack of jurisdiction. We turn, sua sponte, to whether the plaintiff's cross appeal is properly here. The plaintiff filed a cross appeal raising the following issue: "Whether the granting of a default against the appellee city of Bridgeport in favor of the appellant Jamie Akerson deems the jurisdictional allegations of fact in the complaint admitted, and, therefore, conclusively finds subject matter jurisdiction." A cross appeal is an independent appeal and, therefore, may be viable under certain circumstances even though the main appeal is no longer before the court. See Schurman v. Schurman, 188 Conn. 268, 270, 449 A.2d 169 (1982). In this case, however, the cross appeal cannot stand independently because it is jurisdiction-ally improper. First, the cross appeal was taken from the denial of the motion to dismiss, which is not a final judgment. Even if the cross appeal had been taken from a final judgment, the plaintiff was not aggrieved by the denial of the motion to dismiss as required under Practice Book § 4005. The issue that the cross appeal seeks to raise cannot properly be addressed until a final judgment is rendered in the trial court. The cross appeal, therefore, must be dismissed. The appeal and the cross appeal are dismissed. One exception to this rule is that interlocutory appeals may be taken from denials of motions to dismiss based on double jeopardy claims. See Sasso v. Aleshin, 197 Conn. 87, 90 n.3, 495 A.2d 1066 (1985). That exception is grounded in constitutionally guaranteed rights and does not apply to this appeal. Practice Book § 4005 provides in relevant part: "Any appellee or appellees aggrieved by the judgment or decision from which the appellant has appealed may jointly or severally file a cross appeal within ten days from the filing of the appeal. . .

Dupont, C. J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The defendant claims that (1) General Statutes § 53a-55 (a) (3) is unconstitutionally vague as applied to him, (2) the trial court improperly instructed the jury on the essential elements of § 53a-55 (a) (3) by failing to instruct on the meaning of the statutory terms "extreme indifference to human life" and "grave risk of death," and (3) the trial court improperly excluded the testimony of a defense witness who was called to testify about the victim's alleged threats to kill the defendant. We affirm the judgment of the trial court. The jury could reasonably have found certain facts. The defendant and the victim had an argument, during which the defendant threatened the victim with a fence picket, which ended the fight. Subsequently, the defendant drove off with some friends. Later that evening, in the vicinity of the defendant's sister's house, the defendant and the victim again got into an altercation. This time a gun was involved. Three to five gunshots were fired, one of which fatally wounded the victim. Shortly after the shots were fired, the defendant was seen with a gun in his possession coming from the area where the victim lay wounded. The defendant then fled and was apprehended four months later. There were no eyewitnesses to what actually occurred between the defendant and the victim. The defendant's first two claims involve § 53a-55 (a) (3). He argues that § 53a-55 (a) (3) violates his due process rights because it is unconstitutionally vague as applied to him. He also challenges the trial court's failure to define, in its instructions to the jury, the terms "extreme indifference to human life" and "grave risk of death," which are used in the statute. The defendant concedes that he did not raise the claim of a due process violation at trial and, therefore, seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). He argues that the failure of the legislature to define the terms as used in the manslaughter statute fails to give him fair warning of the effect of the statute and fails to provide a sufficient guarantee against arbitrary enforcement. The defendant's failure to raise the constitutionality of a statute at trial, or to object to the instruction given, in light of the facts that the jury could reasonably have found, leaves the record inadequate for a fair consideration of whether the statute was unconstitutionally vague as applied to him. State v. Santiago, 218 Conn. 483, 485, 590 A.2d 434 (1991). In the absence of such a record, review is precluded. State v. Golding, supra, 239-40. The defendant next claims that the trial court improperly instructed the jury when it failed to define the terms "extreme indifference to human life" and "grave risk of death" during its main instructions to the jury and, again, later when the jury specifically requested the definition of "extreme indifference to human life" during its deliberations. The defendant failed to preserve this claim properly. He, therefore, seeks our review under State v. Golding, supra. We conclude, however, that the defendant's claim must fail under the third prong of Golding because the record shows that a constitutional violation does not clearly exist and he was not clearly deprived of a fair trial. Id., 240. The defendant's testimony is relevant to a resolution of this issue. He claimed that on the evening of the shooting, the victim came looking for him at his sister's apartment. The victim and the defendant struggled for a gun that the victim had brought with him. The defendant gained possession of the gun and then requested that the victim leave. The two men went outside and the victim refused to leave without his gun. The defendant turned to walk back into the apartment building and the victim ran toward the defendant. The defendant then turned and fired two shots at the ground near the victim's feet. The victim stopped. The defendant again turned to walk into the apartment and the victim again ran toward the defendant. The defendant turned and again fired two shots at the ground near the victim's feet. The victim stopped. The defendant turned for a third time to enter the apartment. The victim again approached the defendant. This time, however, the defendant lost his balance when he turned toward the victim, and the gun went off, fatally wounding the victim. It has long been held that a " 'charge should be read as a whole. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . .' " (Citations omitted.) State v. Foreshaw, 214 Conn. 540, 548, 572 A.2d 1006 (1990). Where supplemental instructions are given, as is the case here, they must be viewed together with the original instructions. State v. Toczko, 23 Conn. App. 502, 507, 582 A.2d 769 (1990). "The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result." State v. Dyson, 217 Conn. 498, 501, 586 A.2d 610 (1991); State v. Bunker, 27 Conn. App. 322, 326, 606 A.2d 30 (1992). In State v. Spates, 176 Conn. 227, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 475 (1979), the defendant claimed that the trial court's failure to define the term "extreme indifference to human life" for the jury required a new trial. The court's instructions, which defined the term for the jury by stating that it meant more than "mere carelessness" or "ordinary recklessness" and also charged the jury extensively on the meaning of "recklessly," were upheld. Id., 236-37. Likewise, in State v. Bunker, supra, 325-27, which involved similar statutory language found in General Statutes § 53a-59 (a) (3), we recently determined that the trial court had not impermissibly diluted the meaning of "extreme indifference to human life" when it paraphrased the statutory term to mean "a high degree of disinterest to human life" where the trial court had adequately defined the term "recklessly" to the jury and had stressed the difference between ordinary recklessness and the type of reckless assault made criminal by § 53a-59 (a) (3). We concluded that the Bunker jury was properly guided to a correct verdict because the court's instructions "gave the jury a clear understanding of the aggravated form of recklessness required to support a conviction under § 53a-59 (a) (3)." Id., 327. Our review of the record in this case shows that the court instructed the jury on the statutory definition of "recklessly." No definition of "extreme indifference to human life" is found in the penal code, title 53a of the General Statutes, and the court did not define the term. In carefully instructing the jury concerning the difference between manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) and manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (l), however, the court explained that § 53a-55 (a) (3) requires "the prosecution . . . to prove beyond a reasonable doubt that the reckless conduct was under circumstances which evinced an extreme indifference to human life and that conduct by its very nature is conduct which created a grave risk of death to another person." Immediately thereafter, the court further explained that under § 53a-56 (a) (1), by contrast, "these two requirements are dropped. The state . . . merely has to prove that [the defendant] acted recklessly and that the death of [the victim] resulted from that reckless conduct." This instruction is entirely consistent with that approved by our Supreme Court in Spates and, we believe, "gave the jury a clear understanding of the aggravated form of recklessness required to support a conviction under [§ 53a-55 (a) (3)]." State v. Bunker, supra; accord State v. Dyson, supra, 502. In response to the jury's requests for a definition of "extreme indifference to human life," the court stated that "[t]here is no special definition. There is no legal definition that I can go to and say this is how the law defines it. It really is a question of fact as to whether or not there was extreme indifference to human life. The term in and of itself is the ordinary meaning of each of the words put together. For me to try to give you an illustration would be for me to attempt to find facts for you, and I can't do that because you are the factfinders." In this supplemental instruction, the court appropriately instructed the jury as to the lack of any specific definition of the term "extreme indifference to human life," especially "when the defendant has not shown that the phrase was used in anything other than its ordinary meaning." State v. Spates, supra, 237. The defendant also challenges the trial court's failure to define the term "grave risk of death." The defendant offers no analysis of this aspect of his claim nor has he suggested, in light of the evidence, that the phrase was used in anything other than its ordinary meaning. See State v. Maresca, 173 Conn. 450, 460-61, 377 A.2d 1330 (1977); State v. Bunker, supra, 328-29. The trial court's instructions, when viewed as a whole, reveal that the jury could not have been misled by the lack of a statutory definition. The jury reasonably could have found, even if it accepted the defendant's testimony as true, that the defendant's behavior evinced "extreme indifference to human life" and recklessly created "a grave risk of death to another person." Repeatedly firing a loaded gun in the direction of another person, even at the ground, in a populated area exhibits behavior plainly within the intendment of General Statutes § 53a-55 (a) (3). The court's instructions gave the jury "a clear understanding of the elements of the crime charged and the proper guidance to determine if those elements were present." State v. Avila, 166 Conn. 569, 574, 353 A.2d 776 (1974). The defendant cannot prevail on his claim because it is not reasonably possible that the jury was misled. A clear constitutional violation does not exist, and the defendant was not clearly deprived of a fair trial. The defendant's final claim is that the trial court improperly refused to admit certain testimony regarding the victim's threats to kill the defendant. The defendant attempted to present the testimony of Andrea Cunningham regarding certain threats made by the victim. Cunningham visited the victim at the hospital some time after the shooting and before his death. During one or more of those visits, the victim allegedly confirmed to Cunningham that he had intended to kill the defendant on the day of the incident. The state objected to this testimony on grounds of hearsay and relevance. The court refused to permit the challenged testimony because there were no indicia of reliability since the defendant's counsel indicated that the victim could not talk after the shooting and could only nod his head in response to statements made by Cunningham, and because the testimony was cumulative. On appeal, the defendant claims that the evidence was relevant and corroborated testimony that the defendant's actions were in self-defense. The defendant asserts that the trial court should have admitted Cunningham's testimony (1) as a statement against penal interest, (2) as hearsay falling within the catchall exception to the hearsay rule, or (3) as non-hearsay testimony offered not for the truth of the matter asserted but only to show the effect that this information had on the defendant's state of mind. Cunningham had already testified that the victim, prior to the shooting, had expressed to her his desire to kill the defendant. Additionally, the defendant himself had testified that the victim had directly communicated such an intention to him during their confrontation earlier in the day of the shooting. In his challenge to the trial court's evidentiary ruling, the defendant has the burden of proving the harmfulness of any alleged erroneous exclusion of evidence, when, as here, it does not involve a constitutional issue. State v. Lewis, 220 Conn. 602, 624-25, 600 A.2d 1330 (1991); State v. Murdick, 23 Conn. App. 692, 697, 583 A.2d 1318 (1991). Although the evidence was relevant to the defendant's claim of self-defense, it was cumulative. Evidence of the victim's alleged reiteration to Cunningham of his prior intention to kill the defendant would have been cumulative of other evidence to the same effect. Even if the evidence had been admissible, its exclusion, therefore, could not have been harmful. State v. Crumble, 24 Conn. App. 57, 70, 585 A.2d 1245 (1991), cert. denied, 218 Conn. 902, 588 A.2d 1077 (1992). The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53a-55 (a) provides in pertinent part: "A person is guilty of manslaughter in the first degree when . (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." We note that not only did the defendant not object at trial to the instruction given regarding General Statutes § 53a-55 (a) (3), but he affirmatively requested that the court instruct the jury as to this lesser included offense. In Bunker, the crime in question was assault in the first degree in violation of General Statutes § 53a-59 (a) (3). Like manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3), assault in the first degree requires proof of reckless conduct that creates a grave risk of death to another person "under circumstances evincing an extreme indifference to human life." The only difference between § 53a-55 (a) (3) and § 53a-59 (a) (3) is that the former requires the conduct to cause the death of another person, whereas the latter requires the same type of conduct to cause serious physical injury to another person. See State v. Bunker, 27 Conn. App. 322, 326-27, 606 A.2d 30 (1992). General Statutes § 53a-56 (a) provides in pertinent part: "A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . ."

Berdon, J. This appeal raises two principal issues: (1) whether the agreements entered into by the parties empowered the arbitrator to determine the arbitrability of their contractual dispute; and (2) if not, whether, after seasonable objections to arbitrability, the voluntary submission of that issue to the arbitrator constituted a waiver. The trial court vacated an arbitration award in favor of the plaintiff, Dennis E. White, and against the defendants, Philip and Helen Kampner. The plaintiff appealed to the Appellate Court, and that court reversed, holding that, under the parties' contract, the determination of arbitrability was within the sole province of the arbitrator. White v. Kampner, 31 Conn. App. 73, 79, 623 A.2d 514 (1993). We granted the defendants' petition for certification, and we now reverse. The following facts are undisputed. In August, 1990, the plaintiff entered into a contract with the defend ants. Under the contract, the plaintiff agreed to manage State Paint, Inc., a Connecticut corporation owned by the defendants, and was granted an option to purchase the corporation. There were two contractual clauses pertaining to the arbitrability of a dispute: a "mandatory negotiation" clause and an "arbitration" clause. The clause entitled "mandatory negotiation" provides: "[The parties] agree that they will attempt to negotiate in good faith any dispute of any nature arising under this [agreement]. The parties shall negotiate in good faith at not less than two negotiation sessions prior to seeking any resolution of any dispute under the [arbitration provision] of this [agreement]. Each party shall have the right to legal representation at any such negotiation session." The clause entitled "arbitration" provides: "Any dispute or question arising under the provisions of this [agreement] which has not been resolved under [the mandatory negotiation provision] shall be determined by arbitration before one (1) arbitrator appointed by the American Arbitration Association. Arbitration proceedings shall occur at a neutral location in Waterbury, Connecticut, and shall be conducted in accordance with the rules then applicable of the American Arbitration Association. The decision of the arbitrator shall be final and may be entered in any court having jurisdiction thereof. Each party shall pay one-half of all costs and expenses of such arbitration." In December, 1990, the parties found themselves in a contract dispute. The defendants, alleging that the plaintiff had been dishonest in his management of the business, terminated the plaintiffs employment. Initially, both parties desired to negotiate, but after some delay not the sole fault of either party, the plaintiff filed a written demand for arbitration with the American Arbitration Association (arbitration association). Prior to the arbitration hearing, the defendants repeatedly wrote to the arbitration association and to the plaintiff, stating that arbitration should not proceed because no negotiation sessions had occurred. Nevertheless, the arbitrator scheduled the arbitration hearing for October 30, 1991. At the commencement of the evidentiary hearing, the defendants again objected to the arbitrator's authority to hear the dispute, claiming that it was not arbitrable due to the failure to hold the negotiation sessions. The arbitrator denied the objection. The trial court found that the parties, during the hearing before the arbitrator, had submitted the issue of arbitrability to the arbitrator, but only "in the context of an objection to the entire proceeding . . . before the arbitration evidence began." After the evidentiary hearing, the arbitrator made a written award in favor of the plaintiff, finding the defendants in breach of contract, and awarded dam ages to the plaintiff. The plaintiff filed an application to confirm the arbitration award with the Superior Court pursuant to General Statutes § 52-417, and the defendants filed an application to vacate the award pursuant to General Statutes § 52-418. The trial court determined that the issue before it was "whether the matter could legally proceed to arbitration in the first place. This question arises from the fact that, while the contract calls for two negotiation sessions as a precondition to any request for arbitration, not even one negotiation session has ever occurred in this case." The trial court found that the defendants had preserved the issue of arbitrability by timely objection to the arbitrator before the commencement of arbitration proceedings. Because no negotiation sessions had occurred and because the defendants had preserved their right to have the court determine arbitrability, the trial court vacated the arbitration award. On appeal, the Appellate Court determined that the parties' contract had provided for an unconditional submission to arbitration of any dispute arising under the contract, including threshold issues of arbitrability. White v. Kampner, supra, 31 Conn. App. 77. On the basis of this determination, the Appellate Court held that the arbitrator's decision that the dispute was arbitrable was unreviewable for errors of law or fact by the trial court. Id., 78. Accordingly, the Appellate Court did not reach the issue of waiver. The Appellate Court reversed the judgment of the trial court and ordered that court to grant the plaintiff's application to confirm the arbitration award and deny the defendants' application to vacate the award. Id., 79. I Unless statutorily mandated; see, e.g., American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 187, 530 A.2d 171 (1987); arbitration is a creature of contract. John A. Errichetti Associates v. Boutin, 183 Conn. 481, 488, 439 A.2d 416 (1981). "Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution." Garrity v. McCaskey, 223 Conn. 1, 4-5, 612 A.2d 742 (1992). Nevertheless, "a person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner in which, he has agreed so to do." Mar sala v. Valve Corp. of America, 157 Conn. 362, 365, 254 A.2d 469 (1969). This limitation on contractual arbitration includes the requirement of satisfying any conditions precedent to arbitration. Frager v. Pennsylvania General Ins. Co., 161 Conn. 472, 477, 289 A.2d 896 (1971). The first issue presented by this appeal is whether, by contract language, the parties manifested an intent to have the question of arbitrability determined by the arbitrator. " 'Whether a particular dispute is arbitrable is a question for the court, unless, by appropriate language, the parties have agreed to arbitrate that question, also.'. . . 'The intention to have arbitrability determined by an arbitrator can be manifested by an express provision or through the use of broad terms to describe the scope of arbitration, such as "all questions in dispute and all claims arising out of" the contract or "any dispute that cannot be adjudicated." ' " (Citation omitted.) Welch Group, Inc. v. Creative Drywall, Inc., 215 Conn. 464, 467, 576 A.2d 153 (1990). The plaintiff argues, and the Appellate Court held, that the intent to have arbitrability determined by the arbitrator was manifested by the broad language of the parties' contract. White v. Kampner, supra, 31 Conn. App. 77. The defendants argue that the trial court correctly determined that the plain language of the arbitration and negotiation clauses created a conditional submission to arbitration, rather than an unrestricted submission as determined by the Appellate Court. Under these circumstances, the defendants argue, it was for the court, not the arbitrator, ultimately to determine the issue of arbitrability. We agree with the defendants. We initially note that, because we favor arbitration, we will defer to this alternative method of dispute resolution if the contractual arbitration provisions fall within the grey area of arbitrability, employing the "positive assurance" test as set out in United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960). Under this test, "'judicial inquiry . . . must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance. . . . An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.' " (Emphasis in original.) Board of Education v. Frey, 174 Conn. 578, 582, 392 A.2d 466 (1978), quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, 582-83. Nevertheless, the contractual language in this case does not fall within the grey area and, therefore, the positive assurance test is not applicable. The trial court correctly interpreted the contractual language to require satisfaction of the provisions of the mandatory negotiation clause as a condition precedent to arbitration, and correctly determined that this arbitrability issue was one for the courts to determine, not the arbitrator. Although the arbitration clause begins with broad language that generally grants jurisdiction to the arbitrator to determine the issue of arbitrability; Welch Group, Inc. v. Creative Drywall, Inc., supra, 215 Conn. 467; express language in the contract restricts the breadth of that clause. The arbitration provision that makes arbitrable "[a]ny dispute or question arising under the provisions of this [agreement]" is qualified by the clause "which has not been resolved under" the mandatory negotiation provision. (Emphasis added.) Furthermore, we construe a contract as a whole and all relevant provisions are considered when determining the intent of the parties. Bialowans v. Minor, 209 Conn. 212, 217, 550 A.2d 637 (1988). In this regard, the plain language of the mandatory negotiation provision provides that the parties are to negotiate in good faith "at not less than two negotiation sessions prior to seeking any resolution of any dispute under" the arbitration provision. (Emphasis added.) In Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 275-77, 231 A.2d 531 (1967), an insurance contract contained an agreement to arbitrate subject to the determination of the existence of the condition precedent that the insured's automobile involved in the accident had contact with the automobile of an uninsured motorist. The plaintiff claimed that the arbitrator had been authorized under the contract to determine the threshold issue of arbitrability—that is, whether there was the required contact between the automobiles. Id., 277. This court disagreed. "Since the question of contact was a condition precedent to arbitrability, it should not, itself, have been adjudged to be arbitrable." Id. Likewise, in the present case, there is a contractual requirement of mandatory negotiation sessions that is a precondition to the arbitrability of any dispute, and the arbitration was limited to those issues that were "not resolved" under the mandatory negotiations. We conclude that the mandatory negotiation sessions constituted a condition precedent to arbitration, and the determination of whether these sessions were held was not part of the contractual submission. Accordingly, under the contractual language, the issue of arbitrability in this case was one for the trial court. II Our analysis does not end with our interpretation of the contractual language, because the parties did proceed to arbitration, and the trial court found that the parties had submitted the issue of arbitrability to the arbitrator. The plaintiff argues that, under these circumstances, the defendants waived their right to have the issue of arbitrability determined by the court. We disagree. We have held that there are two procedural routes by which a party may preserve the issue of the arbitrability of a particular dispute for judicial determination. First, a party may refuse to submit to arbitration at the outset and instead compel a judicial determination of the issue of arbitrability. Schwarzschild v. Martin, 191 Conn. 316, 323, 464 A.2d 774 (1983); New Britain v. State Board of Mediation & Arbitration, 178 Conn. 557, 560-61, 424 A.2d 263 (1979). "Alternatively, threshold questions of arbitrability may properly be committed to the arbitrators themselves for determination under the terms of the contract, along with the merits of the underlying dispute. . In such cases a court, on a motion to vacate, may properly entertain a challenge to an award alleging disregard of the limits in the parties' agreement with respect to arbitration." (Citations omitted.) New Britain v. State Board of Mediation & Arbitration, supra, 560; see Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 105, 483 A.2d 1171 (1981); Conte v. Norwalk, 173 Conn. 77, 80, 376 A.2d 412 (1977). "Thus, the mere conformity of the submission to the award does not foreclose the court from reviewing whether that award is in violation of the parties' agreement." (Internal quotation marks omitted.) Schwarzschild v. Martin, supra, 323. This "is not to say that the parties may not waive procedural limits. . . . [Pjarties [may not] forego objections to arbitration, gambling upon a favorable result and, when losing . . . raise the procedural defects in a motion to vacate." Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 63, 357 A.2d 466 (1975). We have held that a party who voluntarily submits a dispute to arbitration without objecting to the arbitrability of the dispute waives judicial review of that issue. New Britain v. State Board of Mediation & Arbitration, supra, 178 Conn. 561. In New Britain, the record revealed that "the city joined with the union in submitting the dispute . to arbitration and that the joint submission of the parties neither presented nor reserved any question as to the arbitrability of that dispute. Not until after the underlying dispute had been finally resolved on the merits did the plaintiff raise any question as to the arbitrability of the underlying dispute." (Emphasis in original.) Id. Accordingly, we held that "the city's claims as to the arbitrability of the underlying dispute must be deemed to have been waived," and therefore the arbitrability claim was not cognizable on a motion to vacate. Id. The facts of this case are distinguishable from those of New Britain. In this case, as we previously noted, the trial court found that the defendants repeatedly objected to the arbitrability of the dispute before the commencement of arbitration proceedings, and the plaintiff does not challenge this finding on appeal. Neither is the plaintiff's claim of waiver enhanced because, as he argues, "the parties had in fact agreed to submit to the arbitrator the issue of their good faith attempts, or lack thereof to hold the negotiation sessions" in order to decide the issue of arbitrability. This argument ignores the trial court's explicit finding that the issue was submitted in the context of the defendant's objection to the arbitration proceedings. See footnote 4. Because the defendants preserved their objection to the arbitration, they had the option of committing the issue to the arbitrator without risking any waiver of their right to have the issue ultimately determined by the trial court. New Britain v. State Board of Mediation & Arbitration, supra, 178 Conn. 560. Under these circumstances, we hold that the defendants did not waive consideration of the issue of arbitrability by the trial court. The remaining question—that is, whether the parties were required to participate in the mandatory negotiation sessions prior to arbitration—is subsumed in our analysis of the first question. In that analysis, we concluded that the sessions were required, and that the trial court was correct in vacating the arbitration award. The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court. In this opinion the other justices concurred. We certified the following issue for review: "Where parties to a contract make the authority of an arbitrator to act conditional on the completion of two mandatory negotiation sessions prior to arbitration, and it is undisputed that neither mandatory negotiation session ever took place, and it is undisputed that the defendants never waived their challenge to the arbitrator's authority to act, did the Appellate Court properly reverse the trial court's vacating an arbitrator's award?" White v. Kampner, 226 Conn. 909, 625 A.2d 1379 (1993). The principal issue, as we frame it herein, differs from the certified issue in that the certified issue assumes that it is undisputed that the defendants never waived their challenge to the arbitrator's authority to act. The Appellate Court had no occasion to reach the issue of waiver because its interpretation of the contractual language was dispositive of the appeal. White v. Kampner, supra, 31 Conn. App. 77. Nevertheless, although the factual determinations of the trial court with respect to waiver are undisputed, both parties briefed the legal aspect of the waiver issue. See footnote 11. When the dictates of justice so demand, we may expand or modify a certified issue. Practice Book § 4187; Paranteau v. DeVita, 208 Conn. 515, 516 and n.1, 544 A.2d 634 (1988). Accordingly, we restate the issue to include the plaintiff's claim of waiver by the defendants. Although the parties entered into two separate contracts, a management contract and a purchase contract, the provisions pertaining to arbitration in each contract are identical. Therefore, this opinion will refer to the contracts jointly as "the contract." For example, the attorney for the defendants wrote to Jeffrey T. Zaino, tribunal administrator of the arbitration association, the following: "We have been unable to schedule a mandatory negotiation session in accordance with the underlying contract to date. I have written to [the attorney for the plaintiff] to schedule same without response. "Since this session forms the underlying jurisdictional basis for arbitration, please be advised that the hearing should be canceled until the complainant is in compliance with the agreement." The trial court found the following: "The proceedings before the arbitrator were unrecorded, and the witnesses in this court differed on whether the question of arbitrability had been submitted to the arbitrator. The court finds that it was. [The plaintiff's arbitration attorney] credibly testified that he and |the defendants' arbitration attorney] agreed at the conclusion of the arbitration hearing to submit their correspondence to the arbitrator so that the arbitrator could decide the issue of arbitrability. [The plaintiffs arbitration attorney] also testified, however, that this was done in the context of an objection to the entire proceeding by [the defendants' arbitration attorney] before the arbitration evidence began. [The defendants'] objection was based on the specific ground that no negotiation sessions had occurred. The court finds that this objection was seasonably made to the arbitrator and that no waiver occurred." The arbitrator made the following award to the plaintiff: "[The defendants] breached the Management Contract with Claimant. Award in favor of Claimant of: 1. $49,883.44 with 10 [percent] per annum accruing from August 27, 1990 until date of payment; and 2. $205,200.00 with 10 [percent] per annum accruing from January 28, 1991 until date of payment." The arbitrator also extended the time limit within which the plaintiff could exercise his option to purchase the corporation. General Statutes § 52-417 provides in pertinent part: "At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court . for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419." General Statutes § 52-418 provides in pertinent part: "(a) Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made." The Appellate Court noted: "Although the arbitrator's award did not specifically address the issue of arbitrability, the arbitrator concluded that '[t]his award is in full and final settlement of any and all claims submitted to this arbitration.' " White v. Kampner, supra, 81 Conn. App. 75. Neither party challenges the Appellate Court's determination that the arbitrator implicitly found the dispute to be arbitrable. Arbitration was further limited to the insured's right to recover damages and the amount of damages. Frager v. Pennsylvania General Ins. Co., supra, 155 Conn. 275. We agree with the Appellate Court that "a trial court may not substitute its own findings regarding whether a party met a procedural precondition to arbitration for those of the arbitrator when the arbitrator is contractually empowered to decide the question of arbitrability." (Emphasis added.) White v. Kampner, supra, 31 Conn. App. 78, citing East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 656-57, 539 A.2d 125 (1988). Nevertheless, the issue presented by this case is whether the arbitrator was indeed contractually empowered to decide the question of arbitrability. In that regard, this case is distinguishable from East Hartford v. East Hartford Municipal Employees Union, Inc., supra. In East Hartford, a collective bargaining agreement contained broad lan guage providing for the unrestricted submission of all disputes, and there were "no restrictions in the collective bargaining agreement on what issues may be decided by the arbitrators." Id., 656. Under those circumstances, we rejected a claim that the trial court retained jurisdiction over disputes regarding the satisfaction of procedural prerequisites to arbitrability. Id., 656-57. We held that the language of the contract answers the question of whether the trial court or the arbitrator determines issues of arbitrability, not the formal identity of the issue as procedural or substantive. Id.; see Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 123, 318 A.2d 84 (1972) (where contract provided in broad, unconditioned terms that " '[a]ny disagreement arising out of this contract or from the breach thereof shall be submitted to arbitration,' " the arbitrator, not the court, has the authority to determine whether dispute was arbitrable based on claim that party pursued complaint in untimely fashion). In the present case, unlike in East Hartford and Gary Excavating, Inc., the contract language specifically expresses an intent to make arbitrable only the category of disputes not resolved through the mandatory negotiation sessions. In the context of this case, there are two ways by which the defendants could potentially have waived their right to have arbitrability determined by the trial court. First, the defendants could have waived the requirement of mandatory negotiation sessions either expressly or through conduct repudiating their duty to negotiate. The trial court found, however, that the defendants were not responsible for the failure to hold the negotiation sessions, and therefore did not waive the threshold issue of arbitrability by their conduct. The plaintiff does not challenge this finding on appeal, and therefore this issue is not before us. The second way that the defendants could have waived their right to have arbitrability determined by the trial court is if the defendants had agreed to submit the issue of arbitrability for final determination by the arbitrator without a right to subsequent judicial determination. This is the waiver issue that is before this court. The defendants initially argued that the issue of arbitrability is one of subject matter jurisdiction that cannot be waived even if the losing party voluntarily proceeds to arbitration without objection and then brings a motion to vacate to the trial court. The defendants rely on Bennett v. Meader, 208 Conn. 352, 364, 545 A.2d 553 (1988). We disagree with the defendants on this point. In Bennett, the parties entered into an oral agreement to arbitrate their dispute. Id., 354. The plaintiffs did not object before the arbitrator as to the arbitrability of their dispute. Id., 364. The trial court vacated the arbitration award on the plaintiffs' motion, holding that the oral arbitration agreement was unenforceable. Id., 354-55. This court affirmed, noting that by express statutory command; General Statutes § 52-408; arbitration agreements must be in writing to be enforceable. Id., 362. We rejected the defendant's argument that the plaintiffs had waived their right to challenge the validity of the arbitration agreement by participating in arbitration proceedings without objection, because "[t]he authority of the arbitrator is a subject matter jurisdiction issue, and as such it may be challenged at any time prior to a final court judgment." Id., 364. Despite the expansive language of this last statement, however, it is clear that Bennett does not stand for the broad proposition, argued by the defendants, that all issues of arbitrability involve subject matter jurisdiction. To the contrary, the specific holding of Bennett is "that an agreement to arbitrate must meet the requirements of the arbitration statute, including the requirement that the agreement be in writing, or it is invalid." (Emphasis added.) Id. There is no claim in the present appeal that the parties' agreement to arbitrate did not meet the requirements of § 52-408. If the defendants' expansive reading of Bennett were correct, the fact that the defendants objected before the arbitrator in the present case would be wholly irrelevant, as they could have proceeded to arbitration without objection, and without raising the arbitrability issue, challenging arbitrability only upon an unfavorable result in the arbitration hearing. This result would be inconsistent with the well established principle that a party can waive judicial review of arbitrability absent clear objection before the arbitrator; New Britain v. State Board of Mediation & Arbitration, supra, 178 Conn. 560-61; because subject matter jurisdiction cannot be waived. Therefore, we conclude that the issue of arbitrability in this case does not implicate subject matter jurisdiction.

Per Curiam. The judgment is affirmed.

The plaintiff's petition for certification for appeal from the Appellate Court, 34 Conn. App. 189 (AC 12141), is denied.

Katz, J. The principal issue in this appeal is whether the trial court correctly interpreted the term "services" in General Statutes § 12-407 (2) (i) (I) to exclude tangible personal property purchased and consumed by asbestos removal contractors. The statute exempts the cost of "hazardous waste removal services" from sales and use tax, and the department of revenue services defines asbestos as a "hazardous waste." Department of Revenue Services Ruling 89-230 (November 21, 1989). Because we conclude that tangible personal property purchased and consumed by asbestos removal contractors is not services within the meaning of § 12-407 (2) (i) (I), we affirm the judgment of the trial court. The record establishes the following undisputed facts. The plaintiff, A AIS Corporation, is a contractor engaged in the business of providing asbestos abatement services. Asbestos includes any of several fibrous minerals that commonly were used as insulation until it was discovered that the inhalation of asbestos fibers may cause a variety of lung diseases, including cancer. Therefore, extensive precautions are taken in preparation for asbestos removal and in the actual removal process. As a contractor engaged in asbestos removal services, the plaintiff must purchase disposable supplies and materials, including paper uniforms, filters, plastic covering, plastic bags, tape and other miscellaneous materials, that are used in the process. The cost of these materials accounts for approximately 10 to 15 percent of the amount paid for the service by the owner of the property. Because the industry assumed that tangible personal property used to remove asbestos was excluded from the sales and use tax pursuant to § 12-407 (2) (i) (I), none of the plaintiffs suppliers required it to pay sales tax on the purchase of these materials. The defendant, the commissioner of revenue services, determined, however, that tangible personal property purchased by contractors for use in the removal of asbestos is subject to sales and use tax and levied a deficiency assessment against the plaintiff pursuant to General Statutes § 12-415. The plaintiff then petitioned the defendant for a hearing and reassessment under General Statutes § 12-418, arguing that § 12-407 (2) (i) (I) exempts materials as well as labor from the sales and use tax. After the defendant found that it had assessed the deficiency properly and denied a hearing, the plaintiff appealed to the Superior Court pursuant to General Statutes § 12-422. That court determined that the plaintiff had failed to sustain its burden of proof that the assessment had been erroneously levied and, accordingly, upheld the deficiency assessment. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm. The plaintiff made two arguments to the trial court. First, it argued that the tangible personal property used to remove asbestos was resold by the plaintiff to the service recipients and therefore was not taxable to the plaintiff. Because the plaintiff did not obtain a resale certificate and because it ultimately consumed the materials, the trial court found no merit in this argu ment. The plaintiff has not raised it before this court and, therefore, we do not address it. In the alternative, the plaintiff argued that the meaning of "services" under § 12-407 (2) (i) (I); see footnote 1; includes both labor and tangible personal property. As the trial court reasoned, although the term "services" is not defined for the purposes of chapter 219 of the General Statutes, entitled "Sales and Use Taxes," the term is used repeatedly throughout § 12-407 (2), the definitional section, as well as General Statutes § 12-412, the exemption section. The court concluded that when the legislature intended to exempt both services and tangible personal property from the tax, it clearly indicated this intent by explicitly including both terms. The court reasoned, therefore, that if the legislature had intended to exempt both labor and materials used for asbestos abatement services, it would have specifically provided for that exemption as it had in other legislative enactments dealing with the sales and use tax. Accordingly, the trial court determined that the plaintiff had failed to sustain its burden of proof and upheld the defendant's deficiency assessment. We agree with the reasoning and conclusion of the trial court. At the outset, we note the principles of statutory construction that govern the applicability of a tax exemption. "First, statutes that provide exemptions from taxation are a matter of legislative grace that must be strictly construed against the taxpayer. Second, any ambiguity in the statutory formulation of an exemption must be resolved against the taxpayer. Third, the taxpayer must bear the burden of proving the error in an adverse assessment concerning an exemption." Plastic Tooling Aids Laboratory, Inc. v. Commissioner of Revenue Services, 213 Conn. 365, 369, 567 A.2d 1218 (1990). Applying these principles to the present case, we conclude that the trial court properly determined that the plaintiff failed to sustain its burden of proving that the § 12-407 (2) (i) (I) exemption for "services" includes tangible personal property purchased and consumed by asbestos removal contractors. Neither the plain wording of the statute nor the legislative intent supports the plaintiffs argument. It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent. Lauer v. Zoning Commission, 220 Conn. 455, 459-60, 600 A.2d 310 (1991). "In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation . . . ." Id., 460. After considering the language of the statute, both alone and in the context of chapter 219 of the General Statutes, as well as the underlying legislative purpose of the exemption, we conclude that the sales and use tax exemption for asbestos removal services under § 12-407 (2) (i) (I) does not include tangible personal property purchased and consumed by an asbestos removal contractor. The plain language of § 12-407 and 12-412 makes clear that § 12-407 (2) (i) (I) does not include tangible personal property. First, § 12-407 (2) distinguishes between tangible personal property and services. Section 12-407 (2) (i), (k), (l) and (m) define certain services as sales for purposes of the sales and use tax. Much of the remainder of the statute relates to the sales or leasing of "tangible personal property." General Statutes § 12-407 (2) (a), (b), (c), (d), (f), (g) and (j). Therefore, according to the plain language of § 12-407 (2), services are differentiated from tangible personal property. Second, § 12-412 indicates that an exemption for services does not encompass an exemption for tangible personal property. It is settled that statutes must be construed consistently with other relevant statutes because the legislature is presumed to have created a coherent body of law. In re Valerie D., 223 Conn. 492, 524, 613 A.2d 748 (1992). In construing a statute, the court may look to other statutes relating to the same subject matter for guidance. Vecca v. State, 29 Conn. App. 559, 564, 616 A.2d 823 (1992). Exemptions under § 12-412 (21), (22), (29), (55), (68), (73) and (76) relate only to the sale of various tangible personal property. Section 12-412 (3) (B), (11), (36), (41), (58), (62), (74) and (77) exempt only services. Finally, § 12-412 (1), (2), (5), (8) and (35) specifically exempt both services and tangible personal property. Thus, when the legislature intended to exempt tangible personal property, services or both, it clearly provided for that specific exemption. We assume the legislature recognized and intended the distinctions it incorporated in the provisions of § 12-407 (2) and 12-412. Windham First Taxing District v. Windham, 208 Conn. 543, 554, 546 A.2d 226 (1988). Therefore, the statutory differentiation between "services" and "tangible personal property" in these sections indicates that the legislature intended the definition of services to exclude tangible personal property for the purposes of sales and use tax exemptions. The plaintiff contends that asbestos removal services are unique in that the materials a contractor introduces onto a removal site are used only once and, thereafter, they become part of the hazardous waste. The plaintiff argues that because the tangible personal property and the removal services are inseparable, both should be exempt from the sales and use tax. We are not persuaded. The sales and use tax statutes indicate that the term "services" does not include any tangible personal property, spare parts or equipment that may be used in the performance of a service. When an exemption is intended for both service and materials utilized in the act of providing that service, the legislature has explicitly included each component. See General Statutes § 12-407 and 12-412. Further, as the trial court recognized, the purpose of the exemption lends little support to the plaintiffs position. The tax exemption for hazardous waste removal services was included in an amendment to No. 84-507 of the 1984 Public Acts offered by Representative Warren G. Sarasin. The purpose of the exemption was to provide an incentive to property owners to remove voluntarily and dispose of hazardous waste properly rather than to dump it illegally. 27 H.R. Proc., Pt. 17,1984 Sess., pp. 6009-10, remarks of Representative Warren G. Sarasin. The intended beneficiaries of the exemption., therefore, are property owners and not asbestos removal contractors. The plaintiff argues that the added cost incurred due to the sales and use tax will be passed on to the owner and will act as a disincentive to voluntary removal, contrary to legislative intent. The property owners, however, remain tax exempt for between 85 and 90 percent of their total removal cost. This substantial incentive to engage in the voluntary, legal disposal of hazardous waste furthers the legislative purpose of the exemption, and a sales and use tax on material purchased by the asbestos removal contractor does not defeat the tax advantage. The plaintiff relies heavily on a statement made by Senator John B. Larson, when he moved to place the public act on the consent calendar, characterizing the exemption as one for "business services as well as tangible supplies . . . ." 27 S. Proc., Pt. 9, 1984 Sess., p. 3186. We are unpersuaded that this statement alone, which is contrary to the language of the amendment and to ample evidence that the legislature specifically distinguishes between services and tangible personal property, reflects a legislative intent to include personal property within the meaning of services. Indeed, when Representative Sarasin introduced the amendment, and testified regarding the purpose of the exemption, he described the exemption as extending to business services only. 27 H.R. Proc., Pt. 17,1984 Sess., p. 6009. We find the specific language of the statute in combination with the testimony of Representative Sarasin regarding the purpose and scope of the amendment, to be more probative of legislative intent than Senator Larson's isolated remark. Because the plaintiff has provided nothing more substantial than the comment of a single senator to defeat the plain statutory language or to show a contrary legislative purpose or intent, we conclude that the trial court properly found that the plaintiff has failed to sustain its burden of proof. We conclude, further, that for the purposes of the sales and use tax under § 12-407 (2) (i) (I), the term "services" does not include tangible personal property purchased and consumed by asbestos removal contractors. The judgment is affirmed. In this opinion the other justices concurred. General Statutes § 12-407 provides in pertinent part: "definitions. Whenever used in this chapter [chapter 219, entitled 'Sales and Use Taxes']: "(2) 'Sale' and 'selling' mean and include . . . (i) the rendering of certain services for a consideration, exclusive of such services rendered by an employee for his employer, as follows . (I) services to industrial, commercial or income-producing real property, including but not limited to, such services as management, electrical, plumbing, painting and carpentry and excluding any such services rendered for the voluntary containing or removing of hazardous waste, provided income-producing property shall not include property used exclusively for residential purposes The plaintiff Petco Insulation Company, Inc., withdrew its appeal to this court. We refer, therefore, to AAIS Corporation as the plaintiff. Before engaging in asbestos removal, a contractor must file a plan with the department of environmental protection that meets all state and federal regulations for the protection of workers and the public from potential exposure to airborne asbestos fibers. Regs., Conn. State Agencies § 19a-332a-3; see generally General Statutes § 19a-332b. These regulations require the contractor to seal off the area where the asbestos is located with a layer of plastic and to filter all air passing from the area. Regs., Conn. State Agencies § 19a-332a-5. Before entering the sealed area, workers must remove their personal clothing and don full body protective suits and respirators. Upon leaving the sealed area, workers must remove the protective clothing and leave the used clothing at the work site. The clothing may not be reused. Workers must shower and wash their respirators before entering the dressing area. Regs., Conn. State Agencies § 19a-332a-6. After completing the asbestos removal process, the workers must collect the asbestos and all contaminated materials, including their protective suits, filters, plastic and tape, and seal the items in containers for disposal at designated hazardous waste landfills. Regs., Conn. State Agencies § 19a-332a-7 through 19a-332a-9. General Statutes § 12-415 provides in pertinent part: "deficiency assessments. (1) deficiency assessments. If the commissioner is not satisfied with the return or returns of the tax or the amount of tax required to be paid to the state by any person, he may compute and assess the amount required to be paid upon the basis of the facts contained in the return or returns or upon the basis of any information within his possession or that may come into his possession. . . ." General Statutes § 12-418 provides in pertinent part: "reassessments. (1) petition for reassessment. Any person against whom an assessment is made under section 12-415 or 12-416 or any person directly interested may petition for a reassessment within sixty days after service upon such person of notice thereof. . . . "(2) oral hearing. If a petition for reassessment is filed within the sixty-day period, the commissioner shall reconsider the assessment and, if the person has so requested in his petition, shall, in his discretion, grant the person an oral hearing and shall give him ten days' notice of the time and place of the hearing. ." General Statutes § 12-422 provides in pertinent part: "appeal. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under section 12-418, 12-421 or 12-425 may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain, which shall be accompanied by a citation to the commissioner of revenue services to appear before said court." A second issue raised by the plaintiff on appeal is whether the trial court properly determined that the plaintiff owed $42,884.75 plus interest in sales and use tax. According to the plaintiff, the parties stipulated to an amount owed of $36,688.71 plus interest. The stipulation of the parties does not include this dollar amount but refers instead to three exhibits that list concessions made by both parties regarding calculations included on numerous spread sheets. Because the parties no longer dispute this point, we accept the plaintiffs representation as to the stipulated amount and, therefore, we do not otherwise address this issue. The sales and use tax is collected by the retailer from the ultimate consumer. General Statutes § 12-408. If materials are purchased for resale, no sales or use tax is required to be collected at that time. The burden of proving the materials purchased are for resale is "upon the person who makes the sale unless he takes from the purchaser a certificate to the effect that the property is purchased for resale." General Statutes § 12-410 (1). See State v. Zarick, 227 Conn. 207, 221, 630 A.2d 565, cert. denied, U.S. , 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993) (an appellant who fails to raise a claim on appeal abandons it); see also State v. Tatum, 219 Conn. 721, 742, 595 A.2d 322 (1991); see generally Practice Book § 4065. General Statutes § 12-407 (2) provides in pertinent part: " 'Sale' and 'selling' mean and include: (a) Any transfer of title, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property for a consideration; (b) any withdrawal, except a withdrawal pursuant to a transaction in foreign or interstate commerce, of tangible personal property from the place where it is located for delivery to a point in this state for the purpose of the transfer of title, exchange or barter, conditional or otherwise, in any manner or by any means whatsoever, of the property for a consideration; (c) the producing, fabricating, processing, printing or imprinting of tangible personal property for a consideration for consumers who furnish either directly or indirectly the materials used in the producing, fabricating, processing, printing or imprinting, including but not limited to, computer programming, sign construction, photofinishing, duplicating and photocopying; (d) the furnishing and distributing of tangible personal property for a consideration by social clubs and fraternal organizations to their members or others; (e) the furnishing, preparing, or serving for a consideration of food, meals or drinks; (f) a transaction whereby the possession of property is transferred but the seller retains the title as security for the payment of the price; (g) a transfer for a consideration of the title of tangible personal property which has been produced, fabricated or printed to the special order of the customer, or of any publication, including but not limited to, computer programming, sign construction, photofinishing, duplicating and photocopying; (h) a transfer for a consideration of the occupancy of any room or rooms in a hotel or lodging house or space in a campground for a period of thirty consecutive calendar days or less; (i) the rendering of certain services for a consideration, exclusive of such services rendered by an employee for his employer, as follows . . . (j) the leasing or rental of tangible personal property of any kind whatsoever, including but not limited to, motor vehicles, linen or towels, machinery or apparatus, office equipment and data processing equipment, provided for purposes of this subdivision and the application of sales and use tax to contracts of lease or rental of tangible personal property, the leasing or rental of any motion picture film by the owner or operator of a motion picture theater for purposes of display at such theater shall not constitute a sale within the meaning of this subsection; (k) the rendering of telecommunications service . . . subject to the provisions related to telecommunications service in accordance with section 12-407a; (I) the rendering of community antenna television service . . . (m) the rendering of transportation service . . . (n) the transfer for consideration of space or the right to use any space for the purpose of storage or mooring of any noncommercial vessel. Wherever in this chapter reference is made to the sale of tangible personal property or services, it shall be construed to include sales described in this subsection, except as may be specifically provided to the contrary." General Statutes § 12-412 provides in pertinent part: "exemptions. Taxes imposed by this chapter shall not apply to the gross receipts from the sale and the storage, use or other consumption in this state with respect to the following items: "(1) THE UNITED STATES, THE STATE OR subdivisions. Sales of tangible personal property or services to the United States, the state of Connecticut or any of the political subdivisions thereof, or its or their respective agencies. "(2) federal exemptions. Sales of tangible personal property or services which this state is prohibited from taxing under the constitution or laws of the United States. "(3) CERTAIN UTILITIES. . . . "(B) TELEPHONE AND CABLE TELEVISION SERVICE PRIOR TO JANUARY 1, 1990. The sale or furnishing of telephone service and community antenna television and cable service, provided the exemption for services described in this subparagraph shall not be applicable to any such service rendered on or after January 1, 1990. . . . "(5) NONPROFIT charitable hospitals. Sales of tangible personal property or services to and by nonprofit charitable hospitals in this state for the exclusive purposes of such institutions. . . . "(8) charitable and religious organizations. Sales of tangible personal property or services to charitable and religious organizations. . . . "(11) personal services. Professional, insurance or personal service transactions, except any such service transaction described in subsection (2) of section 12-407, which involve sales as inconsequential elements for which no separate charges are made. . . . "(21) personal property for incorporation into or used in waste treatment facilities. Sales of and the storage, use or other consumption of tangible personal property acquired for incorporation into or used and consumed in the operation of facilities for the treatment of industrial waste . "(22) PERSONAL PROPERTY INCORPORATED INTO OR CONSUMED IN AIR pollution control facilities. Sales of and the storage, use or other consumption of tangible personal property or supplies acquired for incorporation into or used and consumed in the operation of facilities . "(29) personal property used or consumed in operation of housing facilities for low and moderate income families and persons. Sales of and the storage, use or other consumption of tangible personal property acquired for incorporation into or used and consumed in the opera tion of housing facilities for low and moderate income families and persons, provided such facilities are constructed under the sponsorship of and owned or operated by nonprofit housing organizations. . . . "(35) centers OF service for elderly persons. Sales of tangible personal property or services to any center of service for elderly persons as described in subdivision (d) of section 17a-310. . . . "(36) MOTOR VEHICLE DRIVING SERVICE PERFORMED OUT OF STATE. The sale of any motor vehicle driving service to the extent of that proportionate part of gross receipts from such service rendered which is directly related to actual driving performance outside the state. . . . "(41) SERVICES TO DETERMINE EFFECT ON HUMAN HEALTH OF CONSUMPTION OR use OF A product or substance. Sales of services used to determine the probable consequences in relation to human health of the consumption or other use of any product, substance or element. . . . "(55) PERSONAL PROPERTY USED IN BURIAL OR CREMATION WITH VALUE UP TO TWO THOUSAND FIVE HUNDRED DOLLARS FOR ANY SINGLE FUNERAL. Sales of tangible personal property by any funeral establishment performing the primary services in preparation for and the conduct of burial or cremation, provided any such property must be used directly in the performance of such services and the total amount of such exempt sales with respect to any single funeral may not exceed two thousand five hundred dollars. . . . "(58) SERVICES RELATED TO PERSONNEL, MANAGEMENT OR RESEARCH WHEN COMPANY RENDERING SERVICE AND RECIPIENT ARE PARTICIPATING IN A JOINT VENTURE FOR PURPOSES OF RESEARCH AND NEW PRODUCT DEVELOPMENT. . . . "(62) SERVICES RENDERED BETWEEN PARENT COMPANIES AND WHOLLY-OWNED SUBSIDIARIES. . . . "(73) COMPONENT PARTS FOR ASSEMBLY OF MANUFACTURING MACHINERY. . . . "(74) CERTAIN SALES OF COMPUTER AND DATA PROCESSING SERVICES. Sales of computer and data processing services rendered by a retailer which, on or after July 1,1991, acquired the operations of a data processing facility from the customer receiving such services, provided such customer operated the facility for its own use. . . . "(76) AIRCRAFT REPAIR ON replacement parts. On and after July 1, 1993, sales of and the storage, use or other consumption of repair or replace ment parts exclusively for use in aircraft owned or leased by a certificated air carrier or in the significant overhauling or rebuilding of aircraft or aircraft parts or components on a factory basis. "(77) aircraft repair services. On or after July 1,1993, sales of aircraft repair services when such services are rendered in connection with aircraft owned or leased by a certificated air carrier or with the significant overhauling or rebuilding of aircraft or aircraft parts or components on a factory basis. . . ." (Emphasis added.) The legislature also made this distinction in No. 84-507 of the 1984 Public Acts. The public act extended a sales tax exemption to renewable energy systems and the hazardous waste exemption in § 12-407 (2) (i) (I) was included as an amendment. The public act exempted both the installation service and component parts of solar and alternative energy systems from sales and use tax. In contrast, the amendment regarding hazardous waste removal exempted only services from the tax. The trial court found that the materials amount to only 10 to 15 percent of the total removal charge. This percentage is undisputed.

The plaintiff's petition for certification for appeal from the Appellate Court, 31 Conn. App. 728 (AC 11500), is granted, limited to the following issue: "Having concluded that the attorney trial referee had not complied with the Practice Book by failing to find the facts, did the Appellate Court properly conclude that the case should be remanded to the same attorney trial referee for a finding of facts?"

Dupont, C. J. The defendant in this negligence action appeals from a judgment rendered in accordance with a jury verdict for the plaintiff, awarding the plaintiff a total of $64,605 in damages, $13,140 for past noneconomic damages and $51,465 for future noneconomic damages. The sole issue is whether the trial court improperly instructed the jury that it could award damages for future pain and suffering without expert medical testimony if the jury inferred from the evidence that the plaintiffs injuries were permanent in nature. We affirm the judgment of the trial court. The jury reasonably could have found certain facts. While shopping at the defendant's store, the plaintiff slipped and fell on an oily section of the floor due to the defendant's negligence. As a result of the fall, the plaintiff sustained injuries, including an exacerbation of a preexisting back condition. The plaintiff had suffered from back problems for most of her adult life. At the time of the accident in the defendant's store, the plaintiff was suffering from pain due to these earlier injuries. The plaintiff claimed, however, that the pain she had endured before the slip and fall was exacerbated as a result of the fall. The plaintiff testified about the difference in the pain she felt, and the physical activities she could undertake, both before and after the slip and fall. The plaintiff's husband further testified about the differences in the plaintiff's activities before and after the fall. The nature and the source of the injury was confirmed by a medical report from one of the plaintiff's physicians. The trial court instructed the jury that it could award the plaintiff damages for future pain and suffering if the jury inferred that the aggravation of the plaintiffs preexisting pain was permanent in nature, even though there may not have been medical evidence to that effect. The defendant argues that this instruction was improper because the plaintiff's condition was complex and beyond the ordinary knowledge and experience of jurors, and, therefore, direct medical testimony on the permanency of the plaintiff's injuries should have been required before the issue reached the jury. The defendant claims that the jury could not distinguish, without expert medical testimony, whether any future pain and suffering would be the result of the fall in the defendant's store or the result of the deterioration of the plaintiff's preexisting injury. Alternatively, the defendant argues that there was insufficient evidence from which the jury could infer that the plaintiff's pain and suffering would continue into the future. "A trier of facts can conclude, by inference, that an injury will be permanent even though there is no medical testimony expressly substantiating permanency." Royston v. Factor, 1 Conn. App. 576, 577, 474 A.2d 108, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984); Robinson v. ITT Continental Baking Co., 2 Conn. App. 308, 313, 478 A.2d 265 (1984); Dibble v. Ferguson, 15 Conn. App. 97, 99, 543 A.2d 294 (1988); Niles v. Evitts, 16 Conn. App. 696, 698, 548 A.2d 1352 (1988). This principle is based on the recognition by Connecticut courts that jurors are able to evaluate for themselves the testimony of the plaintiff, as well as the nature and duration of the injury, the likelihood of its continuance into the future, and the lack of total recov ery by the time of trial. Trani v. Anchor Hocking Glass Corp., 142 Conn. 541, 543-44, 116 A.2d 167 (1955); Boland v. Vanderbilt, 140 Conn. 520, 523, 102 A.2d 362 (1953). If a jury has the opportunity to appraise the condition of a plaintiff and its probable future consequence, an award of damages for permanent injury and for future pain and suffering is proper. Boland v. Vanderbilt, supra, 523. The permanent effects of an aggravation of a preexisting injury are as apparent to a jury as the permanent effects of any other injury, as long as the nature and scope of the preexisting injury is revealed to the jury through testimony at trial. If the jury is aware of the plaintiff's condition before the accident, and compares that to the plaintiff's condition after the accident, then the jury can logically infer that the aggravation of the injury, reflected by the change in the plaintiff's condition, will be permanent. See Boland v. Vanderbilt, supra, 140 Conn. 524. In Boland, the defendant was liable for the cumulative damage caused by his negligence even though that damage was greater than it would have been had the plaintiff not had a preexisting injury. It is appropriate for the trial court to submit the issue of the permanency of an aggravated injury to the jury, if a proper foundation has been laid concerning the plaintiff's condition before and after the injury and if some evidence of permanency has been introduced at trial. See Niles v. Evitts, supra, 16 Conn. App. 699. The trial court must also include in its instructions to the jury a caution that the jury is to award damages only for that part of the pain and suffering attributable to the aggravation of the preexisting injury. Varley v. Motyl, 139 Conn. 128, 130-31, 90 A.2d 896 (1952). Here, it was appropriate for the trial court to submit to the jury the issue of permanency. First, a sufficient foundation was laid concerning the plaintiffs condition before and after the accident. The plaintiff testified about the difference in the pain she felt, and the physical activities she could undertake, both before and after the slip and fall. The plaintiffs husband testified about the differences in the plaintiffs activities before and after the fall. There was also medical evidence concerning the plaintiffs physical condition before and after her slip and fall. The trial took place six years after the fall, which allowed the jury to evaluate the plaintiff's testimony of permanency with that fact before it. Trani v. Anchor Hocking Glass Corp., supra, 142 Conn. 544. The defendant claims there was insufficient evidence of permanency to support submission to the jury. There was medical evidence, however, that it was unlikely that either physical therapy or surgery would alleviate the plaintiffs pain, and evidence at the time of trial, approximately six years after the accident, that the plaintiff was still suffering from the aggravated pain. The trial court indicated to the jury that the plaintiff should be compensated only for the aggravation of her prior injuries. The trial court stated that the plaintiff was entitled to damages for "those permanent consequences of the aggravation of her prior back condition." Also, earlier in the charge, the trial court stated: "[I]f you find that the defendant was negligent and if the negligent act of the defendant lighted up, aggravated or made worse or exacerbated the plaintiffs preexisting condition, then the aggravation or lighting up of the preexisting condition is a proper item of damage." We conclude (1) that the trial court properly instructed the jury that it could infer that the plaintiffs injuries would be permanent, even though there may have been no medical testimony to that effect, and (2) that the evidence of permanency was sufficient to allow the jury to consider the issue. The judgment is affirmed. In this opinion the other judges concurred. When the plaintiff was twelve years old, she injured her back when thrown from a horse. Then, in 1955, the plaintiff was involved in an automobile accident that caused her to suffer back pain. After the automobile accident, the plaintiff underwent back surgery to remove two ruptured disks and to create a bone grafting for her spine. Later, the plaintiff underwent cleanup surgery to remove parts of the grafting that had begun to deteriorate, affecting her nerves and muscles. The plaintiff did not seek compensation for disability, but sought damages for increased pain and suffering. The plaintiff introduced at trial the medical reports of two physicians, Kenneth I. Lipow and John V. Mangieri. The report of Lipow stated in pertinent part: "I feel that [the plaintiff's] fall in the supermarket caused . a flare-up of a low back strain based on her preexisting back history. 11'eel that her fall was a substantial factor in exacerbating her preexisting condition, and that this low back condition is not a new condition." A second report of Lipow indicated that "therapy . . . would most likely not produce long-lasting relief. . I also do not feel that surgical resolution of her problem is likely, and the most beneficial course for this patient would be a physical reconditioning approach including swimming and exercise components." The report of Mangieri stated in pertinent part: "I do not find any substantial difference in . . . [the plaintiff's] disability [prior to the slip and fall] . . . versus her present disability after her fall . Although I do feel her present disability in the lumbar area is approximately 20 percent which is permanent, but not related to the injury [at the defendant's store]. . . ." The trial court stated in its charge to the jury: "It is well settled law that if there is evidence from which you may infer that the painful effects of Mrs. Parker's injuries are permanent, then you may conclude that they are so. If you find that she will endure pain and suffering as a result of this injury and that the pain and suffering will be permanent, then she is entitled to receive compensation for those permanent consequences which aggravate — excuse me, for those permanent consequences of the aggravation of her prior back condition — of her prior condition. That her pain and suffering will be permanent may be inferred from the evidence even though there was no medical testimony to that effect." The trial court later recharged the jury stating: "1 want to correct a portion of the charge. That portion of the charge I wish to correct is the portion dealing with pain and suffering and whether or not that will be permanent and whether it may be inferred from the evidence. I read — I said to you that the plaintiff's pain and suffering will be permanent may be inferred from the evidence even though there was no medical testimony to that effect. I should have said even though there may be no medical testimony to that effect. So what I charge you is that her pain and suffering will be permanent may be inferred from the evidence even though there may be no medical testimony to that effect. And if there was medical testimony to that effect or not, that is for you, the jury, to determine." The defendant did not include the recharge to the jury in its brief or appendix. The defendant, however, claims error in the original charge and not in the recharge. The plaintiff claims that we should not review the defendant's claim of error because of the defendant's failure to include in its appendix both the charge and the recharge. The only significant change between the charge and recharge is that the charge states that "there was no medical testimony" concerning the permanency of pain and suffering, whereas the recharge states that "there may be no medical testimony" to that effect. Because the defendant is not claiming any error arising out of the change of language between the two charges, the defendant's claim is reviewable. Of necessity, our review embodies all of the charge, including the recharge. "The only ease to the contrary is Hulk v. Aishberg, 126 Conn. 360, 362-63, 11 A.2d 380 (1940). Hulk, however, has never been cited in that respect since it was decided. Both Trani v. Anchor Hocking Glass Corporation, 142 Conn. 541, 116 A.2d 167 (1955), and Boland v. Vanderbilt, 140 Conn. 520, 102 A.2d 362 (1953), were decided after Hulk. Trani and Boland strongly suggest that the conclusion in Hulk regarding a jury instruction on permanency of injury has been implicitly limited to its facts." Dibble v. Ferguson, 15 Conn. App. 97, 100 n.3, 543 A.2d 294 (1988). "In assessing the adequacy of a charge to the jury, we consider the charge in its entirety, and judge it by its total effect rather than by its individual component parts." Goodmaster v. Houser, 225 Conn. 637, 644, 625 A.2d 1366 (1993).

The defendant's petition for certification for appeal from the Appellate Court, 35 Conn. App. 714 (AC 13080), is granted, limited to the following issue: "Whether the Appellate Court was correct in concluding that the defendant's plea to arson in the first degree was entered knowingly, intelligently and voluntarily when he was not informed of the mandatory minimum sentence?"

Borden, J. The dispositive issue in this appeal is whether regulation of shellfish beds in the area off the shore of the town of Westport known as Cockenoe Flats is under the jurisdiction of the town of Westport and the town's shellfish commission or under the jurisdiction of the state of Connecticut. The plaintiffs appeal from the judgment of the trial court, rendered after a court trial, in favor of the defendants. The plaintiffs' primary claim on appeal is that the trial court improperly interpreted the General Statutes to confer jurisdiction over Cockenoe Flats on Westport, rather than on the state. We agree with the plaintiffs that the state has jurisdiction and reverse the judgment in part. The plaintiffs, Fernando Frillici, John Posh, Melvin Hartman, Jr., the Connecticut Saltwater Sportsmen's Protective Association, Inc., and the Fairfield County League of Sportmen's Clubs, Inc., initiated this action against the defendants, the town of Westport, the Westport shellfish commission, the state of Connecti cut, the state department of agriculture, the former commissioner of agriculture, Kenneth B. Andersen, and the current commissioner of agriculture, John R. H. Blum. The plaintiffs challenged Westport's exercise of jurisdiction over recreational clamming at Cockenoe Flats, which included the imposition by Westport of a license requirement and limitations on the quantity of clams that an individual can harvest on any one day. In their seven count complaint, the plaintiffs sought: (1) injunctive relief against Westport's continued exercise of jurisdiction over Cockenoe Flats; (2) damages from Westport and the Westport shellfish commission for violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.; (3) damages from Andersen for deprivation of the plaintiffs' property and liberty interests in violation of the plaintiffs' rights under 42 U.S.C. § 1983 et seq.; (4) damages from Andersen for due process violations pertaining to a hearing held under General Statutes § 26-195 on or about February 27, 1986; (5) damages from Westport and the Westport shellfish commission for deprivation of the plaintiffs' property and liberty interests in violation of 42 U.S.C. § 1983, 1985 and 1986; (6) damages from Westport and the Westport shellfish commission for a taking of the plaintiffs' property and liberty interests without due process of law in violation of the fifth amendment to the United States constitution and article first, § 11, of the Connecticut constitution; and (7) damages from Westport and the Westport shellfish commission for conduct that was "wilful, malicious, arbitrary, capricious and with strong hand." The trial court determined that Westport has jurisdiction over Cockenoe Flats, and rejected all of the plaintiffs' claims accordingly. This appeal followed. The factual background can be gleaned from the briefs of the parties. The subject of this dispute is an area of submerged land in navigable waters off the shore of Westport. This area is commonly known as Cockenoe Flats, and lies off Westport's shore between an area known as Saugatuck Shores and Cockenoe Island, which is about three quarters of a mile offshore. Although the parties disagree as to whether the state or Westport has jurisdiction to regulate recreational clamming in this area, it is undisputed that in 1984 Westport asserted such jurisdiction. At that time, pursuant to its local regulations, Westport began to require the purchase of a $10 clamming permit and began enforcing a one peck (now a one-half bushel) daily limit.* Although Westport ceased enforcement following complaints, it reasserted jurisdiction following a Superior Court statement that Westport had jurisdiction over Cockenoe Flats. The plaintiffs claim that the regulations imposed by Westport have infringed on their longstanding right to use Cockenoe Flats for recreational clamming. The plaintiffs and the defendants presented extensive testimony before the trial court regarding the history of the jurisdiction over Cockenoe Flats. Both parties agree that, prior to 1881, the state had jurisdiction of all areas from the high water mark seaward. In 1881, the legislature established a jurisdictional line pursuant to which the state retained jurisdiction over all "shell-fisheries" south, or seaward, of the line, and the towns were conferred jurisdiction over all grounds north of the line. Public Acts 1881, c. 160, § 1. The location of this line was revised in 1882, and it is undisputed that Cockenoe Flats lies north of that revised line.* Public Acts 1882, c. 123. In 1909, the legislature enacted chapter 125 of the Public Acts of 1909, the statutory predecessor to General Statutes § 26-257, which authorized the state and the Westport selectmen to cause a map to be made of the shellfish grounds located within the waters of West-port. The act provided that when the map was made and accepted by the state through its shellfish commissioners, "said shell-fish commissioners shall have and exercise all the powers and duties with reference to the grounds designated thereby which they now have or may hereafter legally exercise with reference to the grounds south of the present state jurisdiction line." Public Acts 1909, c. 125, § 2. This map was made, and the grounds designated on the map were returned to the jurisdiction of the state. Whether Cockenoe Flats was within these designated grounds is a disputed issue in this appeal. I The plaintiffs claim that the trial court misconstrued the relevant jurisdictional statutes to reach the improper conclusion that Westport, and not the state, has jurisdiction over Cockenoe Flats. First, the plaintiffs argue that the trial court improperly determined that the 1909 legislation and the 1910 map did not transfer jurisdiction over Cockenoe Flats back to the state. The defendants counter that the 1909 legislation purported to transfer only "shell-fish grounds," and that Cockenoe Flats was not understood to be or designated as a "shell-fish ground" and was, therefore, not included on the 1910 map. Second, the plaintiffs argue that if the defendants are correct that the 1909 legislation did not transfer Cockenoe Flats back to the state, then the 1882 legislation never transferred the area to Westport in the first place, because the state jurisdictional line established in 1882 had granted the towns jurisdiction only over "shell fishery grounds" north of the line, and if Cockenoe Flats was not a "shell-fish ground" in 1909, then it had not been a "shell fishery ground" in 1882. Finally, the plaintiffs contend that even if jurisdiction over Cockenoe Flats had been vested in Westport by virtue of the earlier legislation, the legislature believed the state to have jurisdiction over Cock-enoe Flats and confirmed this belief by legislation when it amended General Statutes § 26-280 in 1983. Public Acts 1983, No. 83-236. We agree with this last contention. The precursor of § 26-280 is General Statutes (Cum. Sup. 1935) § 1356c, enacted by the legislature in 1935. That statute granted authorization to the Westport selectmen to require a written permit to take shellfish from Saugatuck Shores, and allowed them to charge a fee for the permit. Saugatuck Shores, also known as "the great marsh," is an area along the Westport coast that extends to the low water mark. Cockenoe Island lies south, or seaward, of Saugatuck Shores; Cockenoe Flats, the subject of this dispute, is the area that lies between the southern boundary of Saugatuck Shores (the low water mark) and the northern shore of Cockenoe Island. By its terms, § 26-280, and its statutory predecessors, referred only to Westport's jurisdiction over Saugatuck Shores and made no reference to Cockenoe Flats. The statute remained essentially unchanged until 1983. There apparently was no question or dispute over whether Westport or the state had jurisdiction over Cockenoe Flats until the 1970s. In the late 1960s, West-port acquired title to Cockenoe Island, which previously had been privately owned. Thereafter, Westport attempted to assert jurisdiction over Cockenoe Flats, and an arrest was made in Cockenoe Flats for violation of the Westport shellfish regulations. Although that case was eventually nolled, John Baker, the then chief of the aquaculture division of the state department of agriculture, testified at an evidentiary hearing that the state had jurisdiction over Cockenoe Flats. Shortly thereafter, the Westport town attorney indicated that he also was convinced, in light of his interpretation of the General Statutes and the pronouncements of the state, that the state had jurisdiction over the area. Additionally, the state department of enyironmen- tal protection and the aquaculture division of the state department of agriculture expressed their belief that the state had jurisdiction over Cockenoe Flats. Following these pronouncements, from the mid-1970s to the early 1980s, Westport did not assert jurisdiction over Cockenoe Flats, although it closely regulated clamming at Saugatuck Shores. Westport limited the number of available shellfishing permits for Saugatuck Shores to approximately 300 for Westport residents and 100 for nonresidents. At the same time, boaters could clam at Cockenoe Flats without restriction. In 1983, Westport sought legislation in order to allow a newly created Westport shellfish commission to regulate shellfishing at Saugatuck Shores. Until that time, authority over Saugatuck Shores had been vested in the Westport selectmen, rather than a shellfish commission. House Bill No. 6266 purported to amend § 26-280 so as to authorize the newly created Westport shellfish commission, in addition to the Westport selectmen, to regulate shellfishing at Saugatuck Shores. As the defendants correctly argue, the purpose of the bill was to bring § 26-280 into conformity with General Statutes § 26-257a, which had been enacted in 1963, to authorize the creation of a local shellfish commission in each town to regulate the taking of shellfish from waters under town control. The proposed bill came under scrutiny by certain members of the local community, including the plaintiffs, who feared that Westport intended a shellfish commission, authorized by the bill, to exert jurisdiction over Cockenoe Flats in addition to Saugatuck Shores. Frillici sent a letter to Senator Eugene Skowronski expressing his concern and the concerns of others regarding the effect of House Bill No. 6266, and urging its defeat lest Westport be permitted to assert jurisdiction over Cockenoe Flats. In response to this letter, Westport sent a letter to Senator Skowronski explaining that although "[cjoncepts regarding expansion of local authority beyond the Saugatuck Shores area were . . . discussed" at a public meeting, "Westport is not pursuing [greater local jurisdiction] in the proposed legislation being considered at the present time." With this controversy in the background, when House Bill No. 6266 was considered by the Senate, the following amendment to the bill was offered and accepted: "The provisions of this section shall not be deemed to extend the jurisdiction of the selectmen or the shellfish commission of the town of Westport to any shores, beaches, or flats not within the jurisdiction of such selectmen or commission on or before [October 1, 1983]." Public Acts 1983, No. 83-236. The plaintiffs argue that the legislative history of this amendment, read in light of the controversy surrounding its enactment, indicates that its purpose was to ensure that jurisdiction over Cockenoe Flats remained with the state, and that even if it was enacted based upon a mistaken assumption that the state had jurisdiction at the time, the legislature's intent must be given effect. We agree. The defendants argue that resort to the legislative history is unnecessary because the language of the statute is unambiguous and that "the legislative intent is to be found not in what the legislature meant to say, but in the meaning of what it did say." Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980). They argue that the 1910 map shows that Cockenoe Flats remained within the jurisdiction of Westport because the area was not designated as shellfish grounds on the map, and therefore did not return to state jurisdiction pursuant to § 26-257. Read in conjunction with the map, they argue, the last line of § 26-280 provides that jurisdiction remains with Westport, as it properly was in 1983, the perception of the legislature notwithstand ing. We agree that reading the last sentence of § 26-280 without resort to the legislative history and the background of understanding against which it was enacted could lead to the defendants' conclusion that the 1910 map is dispositive of jurisdiction. The defendants urge that such a reading, without resort to these aids of statutory construction, is supported by the maxim that " 'when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent.' " West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 508, 636 A.2d 1342 (1994), citing American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). We do not agree with the defendants, however, that the language of the amendment is clear on its face and that its meaning can readily be determined without resort to interpretive aids. Indeed, by itself the lan guage says nothing about the scope of Westport's jurisdiction prior to October 1,1983. The statute itself, while clearly assuming that Westport had jurisdiction over Saugatuck Shores, gives no indication as to the jurisdictional status of Cockenoe Flats. Because we must look beyond the language to outside sources, including the map upon which the defendants urge us to rely, we see no valid reason not to consider the legislative history and the historical background and understandings regarding jurisdiction over Cockenoe Flats. We disagree, therefore, with the defendants' assertion that we must make this inquiry with blinders on regarding what the legislature intended the sentence to mean. To the contrary, "[i]t is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature." In re Valerie D., 223 Conn. 492, 512, 613 A.2d 748 (1992); Lauer v. Zoning Commission, 220 Conn. 455, 459-60, 600 A.2d 310 (1991). "In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . .Ambroise v. William Raveis Real Estate, Inc., [226 Conn. 757, 764, 628 A.2d 1303 (1993)]; see Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852-57, 633 A.2d 305 (1993)." (Citations omitted; internal quotation marks omitted.) State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994); Fleming v. Garnett, 231 Conn. 77, 91, 646 A.2d 1308 (1994). Regardless of what the actual status of Cockenoe Flats may have been prior to 1983, as may have been disclosed by the map upon which the defendants rely, we conclude that, by the 1983 enactment of the final sentence of § 26-280, the legislature expressed its intent that jurisdiction be vested in the state. We find persuasive the plaintiffs' argument that even if jurisdiction had been vested in Westport prior to 1983, the legislature reasonably believed jurisdiction to be vested in the state, and enacted the 1983 amendment to § 26-280 specifically to preserve that status. To ignore the intent behind such an amendment would, in effect, contradict our presumption "that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous." Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 231-32, 477 A.2d 988 (1984); Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991); Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 407, 528 A.2d 805 (1987). That the legislative branch enacts legislation based upon what may be a reasonable but mistaken factual or legal assumption is not a sufficient justification for the judicial branch, in interpreting and applying that legislation to a particular set of facts, to fail to give proper effect to the legislation. Every legislator who rose to support the amendment at issue indicated his or her belief that the amendment, which became the last sentence of § 26-280, served to prohibit Westport from exercising jurisdiction over Cockenoe Flats and was designed to preserve jurisdiction in the state. The fact that the legislature added language that referred to the status quo is indicative of the importance the legislature ascribed to maintaining what it perceived to be the status quo: that jurisdiction over Cockenoe Flats was vested exclusively in the state. Senator Skowronski stated that "for the purpose of legislative history, this amendment is offered for the express purpose of [ejnsuring that by the provisions of this bill, the Town of Westport is not acquiring any jurisdiction over any new waters or new shores, beaches or flats or any clambeds that it does not now have. That's why the amendment is offered and I make these comments to make legislative history on this point." (Emphasis added.) 26 S. Proc., Pt. 7,1983 Sess., p. 2311. Senator George L. Gunther's remarks were particularly illuminating. He stated: "I rise to support the amendment. I think there has been a lot of distortion on exactly what this bill would have accomplished as it lies in the file. This will make it abundantly clear that there is no additional jurisdiction being given to the Town of Westport. There was great concern about the [Cockenoe] Island and some of the flats off of West-port that are under the state's jurisdiction. This will make it clear that there is no additional jurisdiction, and that it [is] still under the state's control and consequently this makes the bill very clear and I think it will clear up all the question[s] on the bill itself." (Emphasis added.) Id., pp. 2311-12. After the amendment was adopted, Senator Skowronski added: "Now on the bill, as amended, what the bill as amended does is simply [transfer] the jurisdiction of the Saugatuck Shores in Westport now presently under the jurisdiction of the Board of Selectmen in the Town of Westport to the Shellfish Commission of the Town of Westport. As Senator Gunther indicated, and as I indicated, this bill does not give the board of selectmen or the shellfish commission in Westport jurisdiction over any new waters or new areas, it simply transfers the jurisdiction over the areas and waters they now have from the board of selectmen to the Shellfish Commission." Id., pp. 2312-13. In the House of Representatives, the amendment was read and then remarked upon by Representative Teresalee Bertinuson: "I think it's self-explanatory. It simply makes it very clear that passage of this bill in no way would extend the jurisdiction of the Town of Westport over the coastal waters." (Emphasis added.) 26 H.R. Proc., Pt. 12, 1983 Sess., p. 4169. Representative Julie D. Belaga of Westport stated: "I don't object to the amendment. It is known as gilding the lily. It's exactly what I've been saying all along, and if the Senate wishes to waste the paper, so be it." Id., p. 4170. Once the amendment was adopted, the bill was placed on the consent calendar and subsequently passed. It is clear from the record, therefore, as the trial court concluded, that all of the legislators who spoke had the perception that Cockenoe Flats was within the state's jurisdiction. It is further evident from Senator Gunther's remarks and from the record that the legislature was aware that jurisdiction over Cockenoe Flats was a controversial issue in Westport and neighboring communities. Given that the legislature perceived the state to have jurisdiction, the amendment to the bill must be viewed as a product of the legislature's intent to settle the issue of jurisdiction over Cockenoe Flats in favor of maintaining jurisdiction in the state. We are convinced that the language of the last sentence of § 26-280 must be given the meaning ascribed to it by the legislature when it passed the legislation. "A statute . . . should not be interpreted to thwart its purpose. . . . Board of Education v. State Board of Labor Relations, 217 Conn. 110, 126-27, 584 A.2d 1172 (1991)." (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, supra, 228 Conn. 508. To read the statute to affirm jurisdiction in Westport would be in direct opposition to the clearly expressed purpose of the legislature. Because the determination of jurisdiction over coastal waters is a prerogative of the legislature, there can be no doubt that, had the legislature explicitly stated in 1983 that jurisdiction over Cockenoe Flats was to be vested in the state, we would be compelled to agree. We see no justification to thwart the legislature's purpose simply because that purpose could have been stated more clearly. To do so would betray not only the legislature's objective, but also our own fundamental objective—"to ascertain and give effect to the apparent intent of the legislature." State v. Metz, supra, 230 Conn. 409; Fleming v. Garnett, supra, 231 Conn. 92. II The plaintiffs ask us to remand the case with instruction to the trial court to render judgment in their favor regarding jurisdiction over Cockenoe Flats and liability, to issue an injunction, and to hold a hearing in damages. Although we agree with the plaintiffs' jurisdictional claim and, therefore, their claim for injunctive relief, we find no merit in their due process claims. We therefore remand the case to the trial court only for consideration of whether an injunction should issue and for a new trial on the plaintiffs' remaining claims for damages. A The plaintiffs claim that the trial court improperly concluded "that the plaintiffs did not suffer a deprivation of any right, privilege or immunity secured by the Constitution or law based upon a hearing held by Commissioner Andersen and the failure of the State and Westport to provide any hearing or notice regarding a change in jurisdiction after more than 76 years of State jurisdiction." We read this claim as challenging the trial court's adverse judgment as to counts three, four and five of the plaintiffs' amended complaint, all of which rely on alleged due process violations pursuant to the fourteenth amendment to the United States constitution. We agree with the trial court's conclusion that the plaintiff's due process rights have not been violated. "The fourteenth amendment to the United States constitution provides that the 'State [shall not] deprive any person of life, liberty, or property, without due process of law . . . .'In order to prevail on [their] due process claim[s], the plaintifffs] must prove that: (1) [they have] been deprived of a property [or liberty] interest cognizable under the due process clause; and (2) the deprivation of the property [or liberty] interest has occurred without due process of law. See Double I Limited Partnership v. Planning & Zoning Commission, 218 Conn. 65, 76, 588 A.2d 624 (1991); Connecticut Education Assn. v. Tirozzi, 210 Conn. 286, 293, 554 A.2d 1065 (1989) . . . ." Tedesco v. Stamford, 222 Conn. 233, 241-42, 610 A.2d 574 (1992). An interest protected or cognizable under the due process clause must have a basis in "existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits . . . ." (Internal quotation marks omitted.) New England Savings Bank v. Lopez, 227 Conn. 270, 277, 630 A.2d 1010 (1993). The plaintiffs have not met the first prong of this test, because they have failed to establish the deprivation of a protected substantive property or liberty interest cognizable under the federal due process clause. The plaintiffs argue that the state, through its enactments and actions concerning jurisdiction and by history, custom and usage, conferred a property interest on the plaintiffs to harvest clams in Cockenoe Flats. At oral argument, the plaintiffs' counsel clarified this alleged right to be a "property or liberty right to clam under state jurisdiction free of control from an interloper third-party which is the Town of Westport." The plaintiffs concede, however, that the state could impose the same or more severe restrictions on the plaintiffs' harvesting of clams from Cockenoe Flats without infringing on the plaintiffs' protected rights. This concession, in effect, demonstrates the lack of merit in the plaintiffs' due process claims. If the plaintiffs do not have a property or liberty interest that would prohibit the state from imposing restrictions on clamming, we fail to see how that alleged interest is offended by the imposition of the same permissible restrictions, even by Westport's purportedly wrongful exercise of jurisdiction. Put another way, although Westport's assertion of jurisdiction over Cock-enoe Flats may have been illegal under state law, in the sense that it was not authorized given the 1983 legislation, that illegality does not ipso facto create a substantive property or liberty interest protected under the federal due process clause. Not every instance of illegal government conduct results in a violation of the due process clause. If there exists any "right to harvest clams," and we do not imply that there is, either the alleged right to harvest clams is a right to harvest clams free of such restrictions or it is a right to harvest clams that allows for such restrictions. The plaintiffs concede that they do not have a protected interest in restriction free clamming. Because the plaintiffs concede that such restrictions, if lawfully imposed, do not infringe on their alleged right to harvest clams, their due process claim fails, because their alleged right, to the extent it is protected from interference, has not been infringed upon by the actions of Westport, the state or any of its subsidiaries or officials. Although the plaintiffs seem to argue that Westport's wrongful exercise of jurisdiction violates their due process rights per se, in the absence of a showing that Westport has overstepped the bounds of a protected property or liberty interest, the plaintiffs' due process claims are without merit. B The plaintiffs also claim damages from Westport and the Westport shellfish commission for (1) alleged violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. (count two), and (2) conduct that was "wilful, malicious, arbitrary, capricious and with strong hand" (count seven). The trial court rendered judgment for the defendants on these counts based solely on its conclusion that West-port had jurisdiction over Cockenoe Flats and therefore was engaged in a rightful exercise of its regulatory authority. We remand these claims for consideration in light of our contrary holding on the jurisdictional issue. C We also remand the case to the trial court for a final disposition as to the plaintiffs' request for injunctive relief. In light of our holding on the jurisdictional issue, we would expect an injunction against enforcement of the Westport regulations to issue, unless the trial court determines that, the jurisdictional issue having been authoritatively settled, there is no need for an injunction. We also leave to the discretion of the trial court the plaintiffs' various claims for injunctive relief pertaining to the future exercise of jurisdiction over Cock-enoe Flats and the plaintiffs' request for injunctive relief ordering the defendants: (1) to publish, at their expense, an article or notice to the public that no one who clams in the area is required to have a Westport permit; and (2) to refund all moneys received from the sale of clam permits except to those sold to people wishing to clam from Saugatuck Shores. With respect to counts one, two and seven, the judgment is reversed, and the case is remanded for further proceedings limited to consideration of the plaintiffs' claims (1) for injunctive relief under count one, (2) for damages for alleged CUTPA violations under count two, and (3) for damages under count seven. With respect to counts three, four, five and six, the judgment is affirmed. In this opinion the other justices concurred. The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). The defendants also claim that Westport had asserted its authority over shellfishing in the area prior to 1984. The Westport Shellfish Regulations, as revised to November 30,1989, provides in relevant part: "I. SHELLFISH COMMISSION . "C. The [Westport Shellfish] Commission may issue licenses for the taking of shellfish therefrom and fix the fees therefor may designate the quantities of such shellfish to be taken, the sizes of such shellfish and the methods of taking. "V. DAILY POSSESSION LIMIT AND HOURS "A. Pursuant to Public Act No. 83-245, no person who has not been an actual inhabitant or resident of this State for at least thirty (30) days next preceding shall dig or take any clams from the waters or shores thereof. "B. Pursuant to Section 26-228, of the Connecticut General Statutes, shells or shellfish shall not be taken from any place in the jurisdictional boundaries of the Town of Westport between sunset and sunrise. "VI. METHODS OF HARVESTING AND SIZE LIMITS "A. Pursuant to Section 26-252, of the Connecticut General Statutes, no rake, tongs, dredge, or other device shall be used for taking any variety of shellfish, within the jurisdictional boundaries of the Town of Westport, with spaces or openings between the teeth or prongs of less than one (1) inch. "B. No Round or Hard-shell clams less than one (1) inch in thickness, or which will pass through a ring of one and one-half (1-1/2) inches internal diameter shall be taken. No long-neck clams less than one and one-half (1-1/2) inches in length shall be taken. If any clams are taken not meeting these minimum specifications, they shall, without unnecessary injury, be returned to these waters when taken. "C. No person shall use any power-driven tool or other commercial device, such as a bull rake, to harvest oysters, clams or mussels within the waters or tidal flats within the limits of the Town of Westport that are under control of the Shellfish Commission. "VII. CLAMMING LICENSES . "C. Each Permittee shall pay the following fees for said Permit when issued: "$2.00 Connecticut Senior Citizen Annual Permit (age 62 and over) "$10.00 Connecticut Senior Citizen Life Permit "$10.00 Connecticut Resident Annual Permit . . . ." The state does not require a permit for recreational clamming of beds under its jurisdiction and imposes a daily limit of one bushel. In 1984, Frank Palmer, who is not a party in this case, brought a declaratory judgment action against the department of agriculture and Westport to determine the extent of the state's jurisdiction over Cockenoe Flats. The court granted the department's motion to strike, holding that Palmer should seek redress by way of the statutory scheme for resolution of shellfish area boundary disputes provided for under General Statutes § 26-195. Palmer v. Dept. of Agriculture, Superior Court, judicial district of Fairfield, Docket No. 21 83 88 (July 1, 1985). Thereafter, Palmer petitioned the commissioner of agriculture, pursuant to § 26-195, to determine the extent of state jurisdiction over Cockenoe Flats. Following a public hearing, the commissioner determined that West-port had jurisdiction over Cockenoe Flats. Following this determination, a group of interested parties, including some of the plaintiffs in this case, appealed from the commissioner's decision to the Superior Court. That court, Landau, J., concluded that the commissioner had correctly determined that Westport had jurisdiction over Cockenoe Flats, but that the determination had to be vacated because § 26-195 only gives the commissioner authority to settle disputes with respect to shellfish grounds within the exclusive jurisdiction of the state, and the conclusion that Cockenoe Flats was not within the jurisdiction of the state resulted in the case being beyond the scope of the commissioner's authority. Frillici v. Dept. of Agriculture, Superior Court, judicial district of Fairfield, Docket No. CV86 0230537 S (April 25, 1988). Although the appellants "won" their appeal, it was a hollow victory, and Westport, in reliance on the Superior Court's basis for its holding—that Westport had jurisdiction over Cockenoe Flats—reasserted jurisdiction over the area. The trial court's decision was based on the 1881 line, which it found placed Cockenoe Flats within Westport's jurisdiction. All parties now agree, however, that the 1882 line is controlling. General Statutes § 26-257 provides: "local shellfish grounds under state CONTROL. When shellfish grounds or franchises located within the limits of the towns of West Haven, New Haven, Milford and Westport, and northerly of the state jurisdiction line, have been surveyed, and a map of the same made and accepted by the commissioner of agriculture according to law, said commissioner shall have and exercise all the powers and duties with reference to the grounds designated thereby which he has with reference to the grounds south of the state jurisdiction line; and any copies of such books, records and maps which were used in connection with such survey shall be kept on file in the office of the commissioner; provided the selectmen of the town of Westport shall have exclusive jurisdiction over, and power to designate, shellfish grounds in the waters, in said town, of all creeks and estuaries tributary to Compo Mill Pond in said town, and the selectmen of the town of Milford shall have exclusive jurisdiction over, and power to designate or lease, shellfish grounds in the waters, in said town, of the Indian River, Gulf Pond and that portion of the Milford Harbor located northerly of the breakwater. The map of such grounds in the town of Milford shall be published with the annual report of the commissioner of agriculture. Taxes and rentals on grounds in the towns of West Haven and Westport and in the city of New Haven and on franchises in the town of Milford designated on such maps shall be paid to the treasurer of the town or city." Because we conclude that the 1983 legislation conferred jurisdiction over Cockenoe Flats on the state, we do not consider the effects of the earlier legislation. Even if Westport had jurisdiction following the 1909 legislation and the creation of the 1910 map, later legislative action superseded that arrangement. At trial, the plaintiffs also pressed a claim that the town and the state were bound by numerous oral and written statements of government officials that the state had jurisdiction over Cockenoe Flats. The trial court rejected this claim. Because the plaintiffs did not brief this claim in this court, they are deemed to have abandoned it, and we do not consider it. Mather v. Griffin Hospital, 207 Conn. 125, 129 n.2, 540 A.2d 666 (1988). The original 1935 enactment referred to Saugatuck Shores as being in the towns of Westport and Fairfield. The legislature amended the statute in 1941 to remove references to Fairfield. Public Acts 1941, c. 141. As amended, General Statutes (Sup. 1941) § 573f provided: "taking of shellfish at 'saugatuck shores.' No person shall take, remove or carry away shell-fish of any kind from the shores, beaches and flats at 'Saugatuck Shores,' so called, in the town of Westport, between June first and October first in each year, except under a written permit issued by the selectmen of said town. Any person, who has been a resident of this state for more than one year continuously, desiring to take shell-fish from said shores, beaches and flats shall make application to the selectmen of said town on a form similar to that provided in connection with licenses or permits for fishing and such selectmen shall issue such number of permits and to such applicants as shall to them appear suitable and proper, and each permittee or licensee shall pay the sum of one dollar for such permit or license when issued to him and such license or permit, unless revoked for cause, shall continue in effect for the balance of the calendar year in which the same shall be issued. Any person who shall take shell-fish from said shores, beaches and flats in violation of the provisions hereof shall be fined not more than twenty-five dollars or imprisoned not more than thirty days or both." Consistent with their position that jurisdiction over all waters off West-port was vested in the state in 1909, the plaintiffs argue that this statute was a grant of jurisdiction over Saugatuck Shores to Westport. The statute was amended in 1947 to provide for shellfishing by residents of Westport, Weston and Wilton in certain areas without a permit, and to require that application be made to the Westport police department for the otherwise required permits. General Statutes (Cum. Sup. 1947) § 905i. General Statutes § 26-280 provides: "TAKING OF SHELLFISH AT saugatuck shores IN Westport. No person shall take, remove or carry away shellfish of any kind from the shores, beaches and flats at 'Saugatuck Shores,' so called, in the town of Westport, between June first and October first in each year, except under a written permit issued by the selectmen of said town or as authorized by the shellfish commission of the town of Westport, provided residents of the towns of Westport, Weston and Wilton may take, remove or carry away shellfish from the shores, beaches and flats between the westerly boundary of Sherwood Island Park and the mouth of the Saugatuck River without obtaining such a permit. Any other person, who has been a resident of this state for more than one year continuously, desiring to take shellfish from said shores, beaches and flats shall make application to the police department of Westport on a form similar to that provided in connection with licenses or permits for fishing and such police department shall issue such number of permits and to such applicants as appear suitable and proper, and each permittee or licensee shall pay the sum of one dollar for such permit or license when issued to him and such license or permit, unless revoked for cause, shall continue in effect for the balance of the calendar year in which the same is issued. Any person who takes shellfish from said shores, beaches and flats in violation of the provisions hereof shall be fined not more than twenty-five dollars or imprisoned not more than thirty days or both. The provisions of this section shall not be deemed to extend the jurisdiction of the selectmen or the shellfish commission of the town of Westport to any shores, beaches, or flats not within the jurisdiction of such selectmen or commission on or before October 1, 1983." A copy of this letter was sent to Senator George L. Gunther, Senator Fred Lovegrove, Representative Julie D. Belaga, Representative Susan Barrett, Representative Elinor Wilber and Representative Christine Niedermeier. The defendants argue that it is essential to distinguish between designated "grounds," which can be leased to commercial shelifishers, from shellfish "beds," which are public shellfishing areas. They contend that Cockenoe Flats was not a designated shellfish ground, and was therefore not transferred from the town to the state in 1909. The plaintiffs contest the argument that there is a difference between beds and grounds, and argue that the 1909 statute transferred to the state all beds and grounds north of the jurisdictional line. Alternatively, they argue that because the 1882 statute transferred jurisdiction to the town over "shell fishery grounds," if there is a difference between beds and grounds and Cockenoe Flats is a bed, then it never came into Westport's jurisdiction in the first instance. In light of our ultimate conclusion regarding the effect of the 1983 legislation, we need not resolve this dispute. It is true that, in construing statutes, we have often relied upon the canon of statutory construction that we need not, and indeed ought not, look beyond the statutory language to other interpretive aids unless the statute's language is not absolutely clear and unambiguous. See, e.g., State v. Cain, 223 Conn. 731, 744-45, 613 A.2d 804 (1992); Mercado v. Commissioner of Income Maintenance, 222 Conn. 69, 74, 607 A.2d 1142 (1992); Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992); Anderson v. Ludgin, 175 Conn. 545, 552-53, 400 A.2d 712 (1978). That maxim requires some slight but plausible degree of linguistic ambiguity as a kind of analytical threshold that must be surmounted before a court may resort to aids to the determination of the meaning of the language as applied to the facts of the case. See, e.g., Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991). It is also true, however, that we have often eschewed such an analytical threshold, and have stated that, in interpreting statutes, we look at all the available evidence, such as the statutory language, the legislative history, the circumstances surrounding its enactment, the purpose and policy of the statute, and its relationship to existing legislation and common law principles. See, e.g., Fleming v. Garnett, 231 Conn. 77, 91-92, 646 A.2d 1308 (1994); State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994); Glastonbury Volunteer Ambulance Assn., Inc. v. Freedom of Information Commission, 227 Conn. 848, 852-57, 633 A.2d 305 (1993); Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993); Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, 202 Conn. 583, 589, 522 A.2d 771 (1987). This analytical model posits that the legislative process is purposive, and that the meaning of legislative language (indeed, of any particular use of our language) is best understood by viewing not only the language at issue, but by its context and by the purpose or purposes behind its use. We need not, in this case, determine which process is, in general, more appropriate to the judicial task of statutory construction. Even if we were to apply the "plain meaning" principle articulated above, we would be required to examine the extratextual sources in order to discern the meaning of the 1983 legislation as applied to the facts of this case. Indeed, the trial court determined that "[t]he legislative history of [Public Acts 1983, No.] 83-236 affirms the perception of the legislators and town officials that Westport had no jurisdiction over town waters . . . with the exception of Saugatuck Shores." Because it is not dispositive of this case, we assume without deciding that prior to the 1983 legislation, jurisdiction over Cockenoe Flats was vested with the town of Westport and we look to what the legislature intended by its 1983 revision of § 26-280. The transcript indicates that the word preceding "Island" was unintelligible. The plaintiffs however, indicated at oral argument in this court that there was testimony to the effect that the word was "Cockenoe," and in response to direct questioning the defendants did not dispute this assertion. As the plaintiffs indicated at oral argument, "coastal waters" refers to areas seaward of the low water mark. Saugatuck Shores is the area inland of the low water mark; Cockenoe Flats lies seaward of the low water mark. The record indicates that Representative Belaga made assurances to the legislature that the newly created Westport shellfish commission would not exercise jurisdiction beyond Saugatuck Shores. Indeed, when the West-port shellfish commission first attempted to exert jurisdiction over Cockenoe Flats in 1984, Representative Belaga contacted First Selectman William Seiden to ask that the commission cease and desist, which he directed it to do. It is also evident from the record that in 1983, Westport, the West-port shellfish commission and the Attorney General's office all believed that Cockenoe Flats was under the exclusive jurisdiction of the state. In 1984, the state department of agriculture also indicated its belief that the state had jurisdiction over Cockenoe Flats by designating it as a state recreation clamming area in official regulations. Section 26-235-1 of the Regulations of Connecticut State Agencies provides in part: "recreation CLAMMING AREAS "The following shores and waters are designated exclusive recreation clam harvesting areas for the purposes of Section 26-235 of the Connecticut General Statutes: "(a) WESTPORT COCKENOE ISLAND AREA: That area of shores and waters bounded northerly by Westport Saugatuck Shores and the mouth of the Saugatuck River; easterly by designated shellfish ground as shown on map entitled 'Norwalk and Westport Town Oyster Grounds Prepared By The Connecticut Shellfish Commission'; southerly by the jurisdictional line shown on said map, Cockenoe Island and designated shellfish ground as shown on said map; westerly by Sprite Island and the Norwalk and Westport Town Line as shown on said map. (Effective August 27, 1984)." We recognize that there are limits on the degree to which a court properly may give effect to legislative history that the language of the legislation simply will not bear. Given the ambiguity of this legislative language when read against its historical background, however, this is not such a case. In counts three and five, the plaintiffs claim a deprivation of their property and liberty interests under 42 U.S.C. § 1983 et seq. In count four, the plaintiffs claim due process violations pertaining to the Palmer hearing held by Andersen, which is procedurally unrelated to this case. Counts three, four and five also refer generally to the due process clause of the Connecticut constitution. The plaintiffs have not, however, presented an adequate and independent analysis of any state constitutional claim. "We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue." State v. Robinson, 227 Conn. 711, 721, 631 A.2d 288 (1993). We therefore decline to consider the defendants' state constitutional claims. In count six, the plaintiffs sought relief for a taking of their property and liberty interests without due process of law in violation of the fifth amendment to the United States constitution and article first, § 11, of our state constitution. Because the plaintiffs did not brief this claim before this court, we deem it to have been abandoned. In any event, we fail to see any basis for a "taking" claim under the facts of this case. As plaintiffs' counsel stated at oral argument, "the state of Connecticut can charge $10 or $100. We don't object to reasonable regulation. . . . We object to unreasonable regulation which is [regulation by] a third party." The defendants have not contended that if we reverse the trial court on the jurisdictional issue, the trial court's judgment on these counts should be affirmed on alternative grounds. See Practice Book § 4140 (c).

Heiman, J. The defendant, Danilo Dizon, appeals from a judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of Gen eral Statutes § 53a-134 (a) (4). He claims that the trial court's jury instructions regarding reasonable doubt constitute reversible error. We affirm the trial court's judgment. The charges against the defendant arose out of allegations that he robbed a seventy year old woman at gunpoint as she attempted to exit her car, which was parked in her garage. The primary issue at trial was the reliability of the victim's identification of the defendant. At the conclusion of the trial, the court instructed the jury on the pertinent legal principles, including the definition of reasonable doubt as it applied to the state's burden of proof. The trial court's reasonable doubt instruction was: "Before you can render a verdict of guilty, the state must prove every essential element of the crime charged beyond a reasonable doubt. This phrase, reasonable doubt, has no technical or unusual meaning. You get the real meaning of the phrase if you emphasize the word reasonable. A reasonable doubt is a doubt for which a valid reason can be assigned. It is a doubt that is something more than a guess or a surmise. A reasonable doubt is not such a doubt as is raised by one who questions simply for the sake of argument. It is not a doubt suggested by the ingenuity of counsel which is not warranted by the evidence. A reasonable doubt is a real doubt, an honest doubt, a doubt which has its foundation in the evidence offered here in this case, or in the absence of evidence. A reasonable doubt is not hesitation springing from feelings of sympathy or pity for an accused. A reasonable doubt is one for which you can in your own mind consciously give a reason. If the facts you may find proven, or the evidence that you deem credible are consistent with and may be explained by any reasonable hypothesis, not a possible hypothesis, then the accused must be given the benefit of the doubt and acquitted. A mere possible hypothesis of innocence will not suffice. "Now, I have stated to you that the state must prove its case beyond a reasonable doubt. Now this does not mean that the state must prove guilt with absolute certainty. It is almost impossible to make out a case of absolute certainty. The state is required only to prove a case beyond a reasonable doubt. Now, a doubt to prevent you from finding a person guilty if the proof shows guilt is not to be a whimsical or captious doubt, but a substantial doubt, and, again, it must rest upon some element of weakness in the proof that gives you, as reasonable men and women, a reason for doubting guilt. In other words, if there should be any evidence in the case that has created a reasonable doubt in your minds of the guilt of the accused, then the case is not made out beyond a reasonable doubt. But if there is no reasonable ground for doubting guilt, then it is made out beyond a reasonable doubt. A reasonable doubt which would justify an acquittal is not an imaginary doubt, but is a doubt raised upon reason and common sense. If any individual juror is not convinced of the defendant's guilt beyond a reasonable doubt, he or she cannot convict." After the trial court finished instructing the jury, it asked counsel whether they had any exceptions to the jury instructions. After hearing the defendant's exception to a portion of the instructions not relating to the concept of reasonable doubt, the following colloquy occurred: "The Court: Are there any other exceptions? "[Defendant's Attorney]: No, Your Honor. "[State's Attorney]: None. Matter of fact, I thought the charge on reasonable doubt was super. "[Defendant's Attorney]: I agree." On appeal, the defendant seizes on a single phrase in the trial court's exhaustive exegesis of the term reasonable doubt: "[A reasonable doubt is] not . a whimsical or captious doubt, but a substantial doubt." Relying heavily on the United States Supreme Court decision in Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990) (per curiam), he argues that the trial court's sole characterization of a reasonable doubt as a substantial doubt constitutes reversible error. The defendant concedes that his challenge to the trial court's jury instructions was not preserved for appellate review, and seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In State v. Golding, supra, 239-40, our Supreme Court reformulated the standard of appellate review of unpreserved claims: "[W]e hold that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) We conclude that because the defendant cannot satisfy the third prong of Golding, that an alleged constitutional violation clearly exists and clearly deprived him of a fair trial, he cannot prevail on his claim. We begin our analysis with the axiom that we do not clinically dissect a jury charge, but read the charge as a whole to determine whether there exists a reasonable possibility that the jury was misled. State v. Fernandez, 27 Conn. App. 73, 84-87, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992); State v. Toczko, 23 Conn. App. 502, 507, 582 A.2d 769 (1990). In Cage v. Louisiana, supra, the Supreme Court of the United States reversed the petitioner's murder conviction, concluding that the trial court's jury instructions on the definition of reasonable doubt impermissibly diluted the state's burden of proof. In ruling that the trial court's jury instructions were constitutionally defective, the Supreme Court focused on the trial court's descriptions of reasonable doubt as "such doubt as would give rise to a grave uncertainty," "an actual substantial doubt" and "a moral certainty." Id., 329. "It is plain to us," the Supreme Court declared, "that the words 'substantial' and 'grave,' as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard. When those statements are then considered with the reference to 'moral certainty,' rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause." Id., 329-30. Thus, the Supreme Court in Cage v. Louisiana, supra, focused not merely on the trial court's characterization of a reasonable doubt as a substantial doubt but on the cumulative effect of three offending terms that hopelessly polluted the trial court's reasonable doubt instructions. This point was underscored recently by Justice Stevens, respecting the denial of the petition for a writ of certiorari in Gaskins v. McKellar, U.S. , 111 S. Ct. 2277, 114 L. Ed. 2d 728 (1991). Although the Supreme Court's denial of certiorari has no precedential value, Justice Stevens' short written opinion highlights what a careful reading of Cage v. Louisiana, supra, itself makes clear — that a question under Cage v. Louisiana, supra, presents itself only if a trial court employs instructions that contain the same flaws as did the instructions in Cage v. Louisiana, supra, particularly the "grave uncertainty" language. Such is not the case here. The defendant in this case spotlights a sole misstatement — the reference to a reasonable doubt as a substantial doubt — in the trial court's lengthy and otherwise unexcepted to explanation of reasonable doubt. See State v. Fernandez, supra, 86-88. Because he cannot show that a constitutional violation clearly exists and clearly deprived him of a fair trial, we will not review his claim further. See State v. Negron, 221 Conn. 315, 326, 603 A.2d 1138 (1992); State v. Golding, supra. The judgment is affirmed. In this opinion the other judges concurred.

The defendants' petition for certification for appeal from the Appellate Court, 35 Conn. App. 828 (AC 11522), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 35 Conn. App. 566 (AC 11428/11429), is granted, limited to the following issue: "Does the crime of larceny by embezzlement require an intent to permanently deprive another of his property?"

The defendant's petition for certification for appeal from the Appellate Court, 34 Conn. App. 741 (AC 12700), is granted, limited to the following issue: "Did the Appellate Court properly affirm the defendant's conviction for possession of a hybrid bobcat on the ground that General Statutes § 26-40a was not unconstitutionally vague as applied to the facts of this case?" Decided December 12, 1994 Michael J. Graham, in support of the petition. Jack W. Fischer, assistant state's attorney, in opposition.

The plaintiffs petition for certification for appeal from the Appellate Court, 35 Conn. App. 46 (AC 12439), is denied.

Per Curiam. The dispositive issue in this certified appeal is whether an employee who was injured in the course of ascending an interior stairway in the normal course of his employment may pursue a statutory cause of action under General Statutes § 29-389 and 29-391 against the owner of the building where he was employed. Both the trial court and the Appellate Court concluded that, in the circumstances of this case, the plaintiff, Samuel Packtor, had not stated a claim for relief against the defendant J.M.H. Associates, the owner of the building in which the plaintiff was injured. Packtor v. Seppala & AHO Construction Co., 33 Conn. App. 422, 427-28, 636 A.2d 383 (1994). We granted the plaintiffs petition for certification to review the merits of this conclusion. After reviewing the briefs, the record and the arguments of counsel, we are persuaded that the availability of a statutory cause of action under § 29-389 and 29-391 depends upon a factual predicate that the plaintiff has not established. For a building that lacks emergency stairways such as external fire escapes, the statutes provide a cause of action for egress from a building "in case of fire or other emergency." Whatever the reach of these statutory claims may be, they do not encompass the case of a person like the plaintiff who was injured while climbing up to a second floor interior workspace. This dispositive issue was fully considered in the opinion of the Appellate Court; id.; and it would serve no useful purpose for us to repeat the discussion contained therein. See Fleet Bank of Connecticut v. Dowling, 225 Conn. 447, 449, 623 A.2d 1005 (1993). Because the factual circumstances of this case do not furnish us a full and reasoned opportunity to consider the underlying issue of the scope of § 29-389 and 29-391, we conclude that the plaintiffs appeal should be dismissed on the ground that certification was improvidently granted. See L. & L. Builders, Inc. v. Parmelee, 221 Conn. 203, 206, 602 A.2d 1016 (1992); Shaham v. Capparelli, 219 Conn. 133, 135, 591 A.2d 1269 (1991); Lawler v. Lawler, 212 Conn. 117, 119, 561 A.2d 128 (1989). The appeal is dismissed. General Statutes § 29-389 provides in relevant part: "stairways and fire escapes on certain buildings. Each story of a building used . . . as a store in which more than six persons are employed . . . shall be provided with not less than two remote means of egress. Each story above the first story of each such building shall be provided with not less than two remote means of egress by stairways on the inside or fire escapes on the outside of such building. Such stairways and fire escapes and passageways providing access thereto shall be constructed, designed, maintained and located in accordance with regulations issued under the provisions of section 29-292, which regulations shall provide for free and unobstructed egress from all parts of such building when the building is occupied and shall avoid undue danger to the lives and safety of its occupants from fire, smoke, fumes or resulting panic during the period of time reasonably necessary for escape from such building in case of fire or other emergency. No locks or other fastenings to prevent free escape from the inside of such building shall be installed except in mental, correctional or corrective institutions where supervisory personnel is continually on duty and effective provisions are made to remove occupants in case of fire or other emergency. A ladder affixed to any of the premises herein described shall not be considered a fire escape within the meaning of this section. This section shall not apply to any building used for residence or business which conforms to the stairway, fire escape and egress requirements of the state building code and state fire safety code." General Statutes § 29-391 provides in relevant part: "liability of owner of building. In any ease in which any person suffers injury or in which the death of any person ensues in consequence of the failure of the owner of any building to provide the same with fire escapes or stairways as required by the provisions of sections 29-389 . . . such owner shall be liable to any person so injured for damages for such injury . It shall be no defense to any action for the recovery of such damages that the person injured or whose death ensued as aforesaid had knowledge that such building was not provided with fire escapes or stairways as required by said sections or that such person continued to work in or to occupy such building with such knowledge. The owner of any building or, if such owner is non compos mentis or a minor, the guardian of such owner or, if such owner is a nonresident, the agent of such owner having charge of such property who fails to comply with the provisions of sections 29-389 and 29-390 shall be fined not less than one hundred dollars nor more than five hundred dollars or imprisoned not more than three months or be both fined and imprisoned." We granted the plaintiff's petition for certification to appeal, limited to the following issue: "In the circumstances of this case, did the plaintiff state a cause of action under General Statutes § 29-389 and 29-391 even though he was not injured while attempting to escape a building during a fire or other similar emergency?" Packtor v. Seppala & AHO Construction Co., 229 Conn. 901, 640 A.2d 117 (1994).

The petition of the defendant Freedom of Information Commission for certification for appeal from the Appellate Court, 35 Conn. App. 111 (AC 12493), is granted, limited to the following issue: "Do binding interest arbitration proceedings conducted pursuant to General Statutes § 10-153a through 10-153n fall within the exemption from public disclosure contained in General Statutes § l-18a (b)?"

The defendant's petition for certification for appeal from the Appellate Court, 36 Conn. App. 141 (AC 13620) is granted, limited to the following issues: "1. Does the retroactive application of Public Acts 1993, No. 93-77, to the facts of this case violate article first, § 10, of the United States constitution? "2. If the answer to question 1. is no, does the retroactive application of Public Acts 1993, No. 93-77, to the facts of this case violate the due process clause of the fourteenth amendment to the United States constitution?" Decided November 17, 1994 The Supreme Court docket number is SC 15126. Rodd J. Mantell, in support of the petition.

The plaintiff's petition for certification for appeal from the Appellate Court, 35 Conn. App. 464 (AC 12415), is granted, limited to the following issues: Decided October 13, 1994 The Supreme Court docket number is SC 15085. Karen L. Murdock, Wesley W. Horton and Michael S. Taylor, legal intern, in support of the petition. Philip F. von Kuhn, in opposition. "1. In the circumstances of this case, should the trial court have instructed the jury in accordance with Connecticut General Statutes § 14-240? "2. If the first question is answered in the affirmative, does the failure to so charge require a new trial?"

Per Curiam. The named defendant and the defendant Irene B. Gelormino appeal from the decision of the trial court denying their motion to open a judgment of foreclosure by sale claiming that the trial court abused its discretion and committed an error of law. We disagree. In May, 1991, the plaintiff bank instituted foreclosure proceedings against the Gelorminos. The Gelorminos failed to file responsive pleadings and the trial court rendered a default judgment against them. The Gelorminos subsequently sought to open the default judgment pursuant to General Statutes § 52-212. "To qualify under § 52-212, the movant must meet a two-prong test: (1) there must be a showing that a good defense, the nature of which must be set forth, existed at the time judgment was rendered; and (2) the party seeking to set aside the judgment had to have been prevented from making the defense because of mistake, accident or other reasonable cause. Cholewinski v. Conway, 14 Conn. App. 236, 241, 540 A.2d 391 (1988). The decision to grant or deny this relief rests within the trial court's discretion. Id." A. Secondino & Sons, Inc. v. Loricco, 19 Conn. App. 8, 13, 561 A.2d 142 (1989). Unless the moving party demonstrates an abuse of discretion or some error of law, the denial of the motion to open must stand. Id. The Gelorminos argue that the trial court's memorandum of decision indicates that the trial court improperly relied on representations of counsel in making its factual determinations. We disagree with their interpretation of the trial court's memorandum of decision. The Gelorminos have failed to demonstrate that the trial court abused its discretion, that its findings were clearly erroneous or that its decision was otherwise erroneous in law. Practice Book § 4061; see also U.S. Fidelity & Guaranty Co. v. K.J. Enterprises, Inc., 19 Conn. App. 806, 563 A.2d 1386, cert. denied, 212 Conn. 818, 565 A.2d 538 (1989), cert. denied, 493 U.S. 1088, 110 S. Ct. 1155, 107 L. Ed. 2d 1058 (1990). The judgment is affirmed. The Gelorminos moved the court "to reopen the judgment of foreclosure" which had been rendered in the matter. Although the nomenclature is found in the title to General Statutes § 52-212 and in some decisions of our courts; see e.g., Bartlett v. Bartlett, 220 Conn. 372, 599 A.2d 14 (1991); Sasso v. Aleshin, 197 Conn. 87, 495 A.2d 1066 (1985); D'Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 455 A.2d 833 (1983); Northeast Savings, F.A. v. Hopkins, 22 Conn. App. 396, 578 A.2d 136 (1990); Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 478 A.2d 257 (1984); unless the judgment has been opened previously, the appropriate appellation is a motion to open. "Reopen" is defined in Webster's Third New World Dictionary as "to open again" or "to take up again." (Emphasis added.) Thus, we will treat the motion as a motion to open.

Katz, J. This appeal arises from a dispute over whether "absolute pollution" exclusions in the plaintiffs commercial liability policies with the defendants exclude coverage for damages caused by a fuel oil spill from the plaintiffs property into Stamford Harbor. The plaintiff, Heyman Associates No. 1, brought suit against the defendants, the Insurance Company of the State of Pennsylvania (ISOP) and National Union Fire Insurance Company of Pittsburgh, Pennsylvania (National Union), after the defendants denied coverage based on the exclusions. Both the plaintiff and the defendants moved for summary judgment on select counts of the plaintiffs six count complaint. The trial court ruled in favor of the defendants on both motions and rendered judgment nunc pro tunc on the remaining counts. The plaintiff appealed and raises three primary issues for consideration. We affirm. The following facts are not disputed. The plaintiff is a general partnership in the business of owning and operating commercial real estate. Late in January, 1991, the United States Coast Guard discovered that a large quantity of fuel oil had leaked from the plaintiff's property into Stamford Harbor. By letter dated February 1,1991, the Coast Guard informed the plaintiff that as the party responsible for the spill, it was "liable for, among other things, removal costs and damages resulting from th[e] incident." In its letter, the Coast Guard required that, inter alia, the plaintiff "[ijdentify and remediate" the oil's impact on the water, shoreline and affected wildlife. Further, the Coast Guard explained that under the Federal Water Pollution Control Act, the plaintiff's failure to remediate the incident or to comply with necessary administrative orders would subject it to substantial civil penalties. In response to the Coast Guard's letter, the plaintiff undertook the required remediation of the affected harbor area. On February 14, 1991, the plaintiff sent to ISOP notice of a claim on its primary comprehensive general liability insurance policy in effect with ISOP. On April 19,1991, the plaintiff notified National Union of a claim on its excess liability policy in effect with National Union. After numerous communications between the parties concerning the fuel oil spill and purported insurance coverage, ISOP denied coverage on March 13, 1991, and National Union denied coverage on June 10, 1991. Each defendant denied coverage relying on an exclusion contained in its insurance policy with the plaintiff. In response to the denials of coverage, the plaintiff filed in the Superior Court a six count complaint against the defendants alleging that: (1) the policies issued by the defendants provide coverage for property damage claims, and that the defendants have failed to assume their obligation under the policies to defend and indemnify the plaintiff; (2) the defendants waived any defenses to coverage that they may have had because they failed to provide the plaintiff with timely notice of their denials of coverage; (3) National Union acted in violation of the common law and General Statutes § 38a-321 in "wrongfully] attempting] to alter and cancel the plaintiffs insurance policy after the plaintiff notified [National Union] of its claim"; (4) the defendants' conduct violated General Statutes § 38a-815 and 38a-816 (6) of the Connecticut Unfair Insurance Practices Act (CUIPA) and General Statutes § 42-110a et seq. of the Connecticut Unfair Trade Practices Act (CUTPA); (5) the defendants' conduct violated CUIPA under Gen eral Statutes § 38a-815 and 38a-816 (1) and (2); and (6) the defendants breached their duty of good faith and fair dealing. The defendants filed an answer to the complaint, along with thirty-five "affirmative defenses," on September 3, 1991. The plaintiff filed its reply to the defendants' affirmative defenses on November 13, 1991. On September 30,1991, the plaintiff moved the trial court to grant partial summary judgment and to declare that: (1) the defendants "are obligated under either or both of their insurance policies to pay on behalf of [the plaintiff] any expenses, by way of defense and/or liability, incurred by [the plaintiff] in connection with the fuel oil product spill from [its] property into Stamford Harbor; (2) . . . [the defendants] have waived any purported defenses to coverage as a result of their untimely denials of coverage; and (3) . . . National Union violated [CUIPA] and [CUTPA]." In response, on October 28,1991, the defendants filed a motion for summary judgment requesting that the trial court declare that, in light of the policy exclusions, they had no duty to defend or to indemnify the plaintiff for costs arising from the fuel oil spill. On January 7, 1992, the plaintiff served on the defendants a set of requests for the production of documents, seeking, inter alia, broad disclosure of all writings pertaining to the existence and extent of its own insurance coverage. On February 6,1992, the defendants countered the plaintiffs motion, moving that the trial court grant a protective order authorizing them to withhold disclosure of their responses to the plaintiffs requests for production of documents. In its memorandum of decision of February 25, 1993, the trial court granted the motion for summary judgment in favor of the defendants on the first,* second, fourth and fifth counts of the complaint. Further, the trial court denied the plaintiffs request to compel discovery. On March 12, 1993, the plaintiff filed a motion to open the judgment and/or to reargue the trial court's decision of February 25,1993, claiming that: (1) newly received information from the commissioner of insurance revealed that the defendants had failed to file the exclusions properly, thereby invalidating the exclusions and requiring summary judgment in its favor as a matter of law; and (2) it had moved for summary judgment only on the first, second and third counts and that the trial court therefore acted improperly in rendering judgment on the first, second, fourth and fifth counts. On May 17,1993, the trial court denied the plaintiff's motion, concluding that: (1) the plaintiff had waived consideration of the filing issues by failing to raise them in its memoranda in support of its motion for partial summary judgment and in opposition to the defendants' motion for summary judgment; and (2) it properly had rendered summary judgment on those counts of the complaint that contained CUIPA and CUTPA causes of action. The plaintiff appealed to the Appellate Court, and we thereafter transferred the case to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). I The plaintiff first claims that the trial court improperly granted the motion for summary judgment in favor of the defendants on the first and second counts of the complaint, the counts related to the defendants' duty to defend and to indemnify it for claims arising from the fuel oil spill. More specifically, the plaintiff claims that the trial court erroneously granted the motion for summary judgment on the basis of its incorrect conclusion that the policy provisions excluded all coverage for its fuel oil spill into Stamford Harbor. In support of this claim, the plaintiff asserts two primary arguments: (1) that the trial court improperly interpreted the meaning of the insurance contracts and the exclusions; and (2) that the trial court wrongly found that the defendants did not waive their right to rely on the policy exclusions. We disagree. A On the issue of the trial court's interpretation of the insurance contracts and the pollution exclusions, the plaintiff principally argues that the pollution exclusions do not exclude a fuel oil spill of any type. In the alternative, the plaintiff avers that even if the clauses may exclude fuel oil spills under certain circumstances, they do not exclude coverage for a spill of the particular nature involved in this case. Moreover, the plaintiff contends that, at a minimum, the exclusions are ambiguous and therefore should be interpreted against the defendants, requiring summary judgment in its favor. In opposition, the defendants argue that the pollution exclusions unambiguously exclude coverage for damages caused by the release of fuel oil into a waterway such as Stamford Harbor. We agree with the defendants' interpretation of the exclusions and hold that coverage for the plaintiff's fuel oil spill into Stamford Harbor was excluded by the applicable exclusions. Therefore, we conclude that the trial court properly granted the motion for summary judgment in favor of the defendants on the first and second counts of the complaint. "Under our law, the terms of an insurance policy are to be construed according to the general rules of con tract construction. See, e.g., Weingarten v. Allstate Ins. Co., 169 Conn. 502, 509-10, 363 A.2d 1055 [(1975), overruled in part on other grounds, Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 593 A.2d 498 (1991)]; A. M. Larson Co. v. Lawlor Ins. Agency, Inc., 153 Conn. 618, 622, 220 A.2d 32 [1966]. The determinative question is the intent of the parties, that is, what coverage the . . . [plaintiff] expected to receive and what the defendant was to provide, as disclosed by the provisions of the policy. Marcolini v. Allstate Ins. Co., 160 Conn. 280, 283, 278 A.2d 796 [1971]. If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning. Weingarten v. Allstate Ins. Co., supra, 509. However, [w]hen the words of an insurance contract are, without violence, susceptible of two [equally responsible] interpretations, that which will sustain the claim and cover the loss must, in preference, be adopted. Raffel v. Travelers Indemnity Co., 141 Conn. 389, 392, 106 A.2d 716 [1954]; see also 4 [S.] Williston, Contracts (3d Ed. [1961]) § 621." (Internal quotation marks omitted.) Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 512-13, 442 A.2d 920 (1982); see Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 583-84, 573 A.2d 699 (1990). "[T]his rule of construction favorable to the insured extends to exclusion clauses." Griswold v. Union Labor Life Ins. Co., supra, 514; Smedley Co. v. Employers Mutual Liability Ins. Co., 143 Conn. 510, 513, 123 A.2d 755 (1956). Our jurisprudence makes clear, however, that "[although ambiguities are to be construed against the insurer, when the language is plain, no such construction is to be applied." Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 309-10, 524 A.2d 641 (1987); Gottes-man v. Aetna Ins. Co., 177 Conn. 631, 634, 418 A.2d 944 (1979); Smedley Co. v. Employers Mutual Liabil ity Ins. Co., supra, 143 Conn. 513. Indeed, "courts cannot indulge in a forced construction ignoring provisions or so distorting them as to accord a meaning other than that evidently intended by the parties." Plainville v. Travelers Indemnity Co., 178 Conn. 664, 675, 425 A.2d 131 (1979); Porto v. Metropolitan Life Ins. Co., 120 Conn. 196, 200, 180 A. 289 (1935); Komroff v. Maryland Casualty Co., 105 Conn. 402, 405, 135 A. 388 (1926); see Hammer v. Lumberman's Mutual Casualty Co., supra, 214 Conn. 584; Horak v. Middlesex Mutual Assurance Co., 181 Conn. 614, 617, 436 A.2d 783 (1980); see also Aschenbrenner v. United States Fidelity & Guaranty Co., 292 U.S. 80, 84, 54 S. Ct. 590, 78 L. Ed. 1137 (1934). Accordingly, in order to determine whether the exclusions within the plaintiff's policies exclude the fuel oil spill into Stamford Harbor, we must determine whether the policies are clear and unambiguous on this point. More precisely, we must examine whether the language of each policy clause clearly and unambiguously defines "pollutant" to include fuel oil released into a waterway such as the Stamford Harbor. If we so determine, we must then accord that language its natural and ordinary meaning. In other words, if the clauses unambiguously define "pollutant" to include fuel oil spilled into a waterway such as Stamford Harbor, we may not "indulge in a forced construction"; Plainville v. Travelers Indemnity Co., supra, 178 Conn. 675; distorting that plain meaning. This case presents a question of first impression regarding the meaning of "pollutant" as expressed within the context of this exclusion. The trial court found that the exclusion in ISOP's policy, also known as an "absolute pollution" exclusion due to the breadth and depth of its exclusionary language, excludes coverage for, inter alia, " 'bodily injury' or 'property damage' arising out of the alleged or threatened discharge, dispersal, release or escape of pollutants . . . ." Further, it found that the clause excludes coverage for "any loss, cost or expense arising out of any governmental direction or request that you test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants." The exclusion clause also specifies that "[p]ollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste material. Waste material includes materials which are intended to be or have been recycled, reconditioned or reclaimed." The trial court found that the exclusion contained in National Union's policy embodies similar exclusionary language. The plain language of the absolute pollution exclusion clause therefore makes clear that a liquid is an excluded "pollutant" if it may be characterized as an "irritant" or "contaminant." The dictionary defines "contaminant" as "something that contaminates," and it defines "contaminate" as "to soil, stain, corrupt, or infect by contact or association" or "to render unfit for use by the introduction of unwholesome or undesirable elements." Webster's Third New International Dictionary (1986). Similarly, the dictionary defines "pollutant" as "something that pollutes . a polluting substance, medium, or agent," and it defines "pollute" as "to . . . impair the purity of . . . to make physically impure or unclean." Id. There is no question that the introduction of fuel oil into a waterway such as Stamford Harbor "soils," "corrupts," "infects," and/or "renders unfit for use" the affected water. Fuel oil does not naturally occur in the waters of Stamford Harbor. Moreover, it cannot seriously be disputed that the introduction of fuel oil served to "impair the purity of" the water in the harbor. Indeed, the Coast Guard's swift and intensive investigation of the spill, followed by the plaintiff's substantial remediation efforts, illustrates that the presence of fuel oil in the harbor represents a substantial hazard to the quality of the water and to the wildlife in the area. Thus, an ordinary, lay definition of "pollutant" includes fuel oil spilled into a waterway such as Stamford Harbor. Additionally, statutory definitions of "pollutant" or "pollution" indicate that "pollutant" within an absolute pollution exclusion includes fuel oil spilled into a waterway. General Statutes § 22a-451 (a) provides in relevant part: "Any person, firm or corporation which directly or indirectly causes pollution and contamination of any land or waters of the state or causes an emergency through the discharge, spillage, uncontrolled loss, seepage or filtration of oil or petroleum, . . . deemed by the commissioner to be a potential threat to human health or the environment and removed by the commissioner shall be liable for all costs and expenses . . . ." (Emphasis added.) General Statutes § 22a-448 (4) defines "oil or petroleum" for the purposes of § 22a-451 (a) as "oil or petroleum of any kind or in any form including but not limited to . . . fueloil . . . ." Thus, we find that the plain meaning of the exclusions demonstrates the intention of the parties to exclude from coverage as a "pollutant" oil spilled into Stamford Harbor. Moreover, we find persuasive those authorities recognizing that a petroleum product, when released into a waterway, clearly constitutes a "pollutant" within the meaning of the absolute pollution exclusion. Union Mutual Fire Ins. Co. v. Hatch, 835 F. Sup. 59, 64-66 (D.N.H. 1993) (under New Hampshire law, gasoline that leaked into soil and ground water is "pollutant" within meaning of absolute pollution exclusion); Guilford Industries Inc. v. Liberty Mutual Ins. Co., 688 F. Sup. 792, 793 (D. Me. 1988) (under Maine law, fuel oil that spilled into river is "pollutant" within meaning of absolute pollution exclusion), aff d, 879 F.2d 853 (1st Cir. 1989); see United States v. Standard Oil Co., 384 U.S. 224, 226, 86 S. Ct. 1427, 16 L. Ed. 2d 492 (1966) ("[the] presence [of gasoline] in our rivers and harbors is both a menace to navigation and a pollutant"); see also American States Ins. Co. v. F.H.S., Inc., 843 F. Sup. 187, 189-90 (S.D. Miss. 1994) (absolute pollution exclusion unambiguously excludes coverage for harm caused by accidental release of ammonia into atmosphere). Despite this clear and unambiguous meaning of "pollutant," the plaintiff argues that we must look beyond the plain language to uncover an intended, yet unexpressed, limitation on the scope of the definition of "pollutant." The plaintiff contends that because some courts have interpreted the absolute pollution exclusion as not excluding coverage in certain instances, we should not rely on the exclusions here without a clear expression of the parties' intent to include a fuel oil spill within the meaning of "pollutant." Each of these cases is distinguishable and none answers whether oil in a waterway is a pollutant. Further, the plaintiffs citation of cases finding an "ambiguity" in the absolute pollution exclusion, either on its face or as applied, fails to convince us that the clause is ambiguous as applied to the particular facts of this case. We conclude, therefore, that the clear and unambiguous language of the absolute pollution exclusions excludes coverage for the plaintiffs spill of fuel oil into Stamford Harbor. Accordingly, we may not look to evidence outside the insurance contracts to vary or distort that plain meaning. See Leathermode Sportswear, Inc. v. Liberty Mutual Ins. Co., 150 Conn. 63, 66, 186 A.2d 79 (1962) ("[t]he effect of the [insurance] contract must be determined by the intent expressed in it and not by an extraneous intent which may be claimed or believed to have been in the minds of the parties"); see also Hammer v. Lumberman's Mutual Casualty Co., supra, 214 Conn. 584. B The plaintiff also argues that the trial court incorrectly determined that the defendants did not waive their right to rely on the policy exclusions. Specifically, the plaintiff argues that the lapse in time between the filing of its claims with the defendants and the subsequent denials of coverage amounted, as a matter of law, to a waiver of their policy defenses. We disagree. Waiver is the intentional relinquishment of a known right. Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 251, 618 A.2d 506 (1992); Olean v. Treglia, 190 Conn. 756, 772, 463 A.2d 242 (1983); Multiplastics, Inc. v. Arch Industries, Inc., 166 Conn. 280, 286, 348 A.2d 618 (1974); Brauer v. Freccia, 159 Conn. 289, 295, 268 A.2d 645 (1970). A waiver occurs, therefore, only if there is both knowledge of the existence of the right and intent to relinquish it. Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 562, 316 A.2d 394 (1972); see 16B J. & J. Appleman, Insurance Law and Practice (1981) § 9081, p. 491. In the insurance context, moreover, it has been recognized that "a contract, under the guise of waiver, [may not] be reformed to create a liability for a condition specifically excluded by the specific terms of the policy." 16B J. & J. Appleman, supra, § 9090, pp. 584-85. This limitation on the applicability of waiver to an insurance contract recognizes that because waiver requires the relinquishment of a known, and therefore existing, right within the insurance contract, a party cannot create through waiver coverage for a claim that the parties expressly had excluded from that contract. See id., p. 588. Nonetheless, the plaintiff argues that we should follow the precedent of those courts recognizing, in the plaintiffs view, that an insurer may waive its right to assert an exclusion under certain circumstances. See, e.g., Val Drugs, Inc. v. Lynn, 402 F. Sup. 174 (W.D.N.Y. 1975); Hartford Ins. Co. v. Nassau, 46 N.Y.2d 1028, 389 N.E.2d 1061, 416 N.Y.S.2d 539 (1979). These cases are distinguishable from the present case, however, because they are based not on the requirements of waiver, but on either equitable principles of estoppel; see, e.g., Val Drugs, Inc. v. Lynn, supra, 177; or a court's interpretation of a specific statute regulating disclaimers of coverage. Hartford Ins. Co. v. Nassau, supra, 1029 (citing New York insurance statute governing timeliness of disclaimers). Because the plaintiff failed to establish the elements of estop-pel at trial, it has no basis to argue estoppel on appeal and these cases are inapposite. Consequently, we find that the trial court properly rejected the plaintiff's waiver claim. II The plaintiff next claims that the trial court improperly denied it the opportunity to conduct discovery to oppose the defendants' motion for summary judgment. In support of its claim, it argues that its motion for partial summary judgment "is based on the premise that the exclusions at issue are limited and do not apply to fuel oil, or that the exclusions are ambiguous and are inapplicable as a matter of law. If this Court is not persuaded by these arguments, however, [the plaintiff] is entitled to conduct discovery to prove that the exclusions are limited and do not apply to the facts of this case." (Emphasis added.) Further, the plaintiff contends that it may move for summary judgment on its interpretation of the policies, yet seek discovery to defend against the defendants' motion for summary judgment on the very same issue. The plaintiff specifies that it is entitled to discovery for the following reasons: (1) to prove a latent ambiguity in the absolute pollution exclusion; (2) to show the intent of the drafters of the absolute pollution exclusion; (3) to ascertain the existence of the defendants' filings with state insurance regulators or any representations made by the defendants in marketing the policies; and (4) to determine the actual terms of its policy with National Union. Although we agree in principle that a plaintiff can move for summary judgment on some claims and still receive discovery as to the remaining ones; see, e.g., American Fidelity & Casualty Co. v. London & Edinburgh Ins. Co., 354 F.2d 214, 216 (4th Cir. 1965); we find that the trial court properly denied the plaintiff further discovery in this case. A Our analysis and holding in part I of this opinion necessarily dictates our rejection of the plaintiff's first and second discovery arguments. As we discussed therein, there is no ambiguity in the absolute pollution exclusions as applied to the facts of this case. Instead, we find that the clear and unambiguous language of the absolute pollution exclusions in the plaintiff's policies with the defendants excludes coverage for the fuel oil spill into Stamford Harbor. Discovery as to these materials is therefore inappropriate here because any evidence possibly derived from them would be inadmissible under the parol evidence rule. "As we have so often noted, the parol evidence rule is not a rule of evidence, but a substantive rule of contract law. Security Equities v. Giamba, 210 Conn. 71, 77-78, 553 A.2d 1135 (1989); Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Cohn v. Dunn, 111 Conn. 342, 346, 149 A. 851 (1930); see also 2 Restatement (Second), Contracts § 213, comment (a) [1981]; 3 A. Corbin, [Contracts (1960)] § 573; 4 S. Williston, [Contracts (3d Ed. 1961)] § 631. The rule is premised upon the idea that 'when the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing. After this, to permit oral testimony, or prior or contemporaneous conversations, or circumstances, or usages [etc.], in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme.' Glendale Woolen Co. v. The Protection Ins. Co., 21 Conn. 19, 37 (1851). "The parol evidence rule does not of itself, therefore, forbid the presentation of 'parol evidence,' that is, evidence outside the four corners of the contract concerning matters governed by an integrated contract, but forbids only the use of such evidence to vary or contradict the terms of such a contract. Parol evidence offered solely to vary or contradict the written terms of an integrated contract is, therefore, legally irrelevant. When offered for that purpose, it is inadmissible not because it is parol evidence, but because it is irrelevant. By implication, such evidence may still be admissible if relevant '(1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in a writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud.' Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 56, 453 A.2d 771 (1983). These recognized 'exceptions' are, of course, only examples of situations where the evidence (1) does not vary or contradict the contract's terms, or (2) may be considered because the contract has been shown not to be integrated; or (3) tends to show that the contract should be defeated or altered on the equitable ground that 'relief can be had against any deed or contract in writing founded in mistake or fraud.' Noble v. Comstock, 3 Conn. 295, 299 (1820); see also Dale v. Gear, 38 Conn. 15, 18-19 (1871) (agency, trust, equitable relation or equity may be shown by parol evidence)." TIE Communications, Inc. v. Kopp, 218 Conn. 281, 288-89, 589 A.2d 329 (1991). Because we hold that the absolute pollution exclusions are unambiguous as applied to the facts of this case, the parol evidence rule bars the introduction of any extrinsic evidence to vary or contradict the plain meaning of the term "pollutant" as it is used in those exclusions. Because we determine that the plain meaning of "pollutant" includes fuel oil that has been spilled into a waterway such as Stamford Harbor, we may not look to extrinsic evidence of the exclusion's drafting history to find a contrary meaning. Such evidence is "irrelevant" to the case. Thus, because a party is entitled to discovery only as to information material to the case or likely to lead to admissible evidence; Prac tice Book § 218; the trial court properly denied the plaintiffs discovery request as to these materials. The plaintiff also argues that the trial court wrongly denied its request for discovery to prove a "latent ambiguity" in the absolute pollution exclusions. The plaintiff suggests that it is entitled "to make a reasonable attempt to discover evidence on the issue of applying the contract to the subject matter with which it deals, and thereby raise a fact issue on latent ambiguity." See CBI Industries v. National Union Fire Ins. Co., 860 S.W.2d 662, 665-66 (Tex. App. 1993), writ granted, 37 Tex. Sup. Ct. J. 670 (1994). Because we find that the plaintiff has failed to proffer any evidence suggesting the existence of a latent ambiguity, we conclude that the trial court correctly denied the plaintiffs request for discovery on this issue. The concept of "latent ambiguity" has been described as follows: "A latent ambiguity arises from extraneous or collateral facts which make the meaning of a written instrument uncertain although the language thereof be clear and unambiguous. The usual instance of a latent ambiguity is one in which a writing refers to a particular person or thing and is thus apparently clear on its face, but upon application to external objects is found to fit two or more of them equally." 4 S. Williston, supra, § 627, p. 898. In Connecticut, the vast majority of cases considering a claim of latent ambiguity have arisen in three limited contexts: (1) interpretation of statutes; see, e.g., Rose v. Freedom of Information Commission, 221 Conn. 217, 226-27, 602 A.2d 1019 (1992); Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 693-94, 595 A.2d 313 (1991); (2) interpretation of wills or trusts; see, e.g., Connecticut National Bank & Trust Co. v. Chadwick, 217 Conn. 260, 269-73, 585 A.2d 1189 (1991); Beardsley v. Merry, 136 Conn. 573, 576-77, 72 A.2d 829 (1950); and (3) interpretation of deeds to real property. See, e.g., Apostles of the Sacred Heart v. Curott, 187 Conn. 591, 598, 448 A.2d 157 (1982); Young Men's Christian Assn. v. Zemel Bros., Inc., 171 Conn. 310, 311-12, 370 A.2d 937 (1976). In fact, the plaintiff can offer no Connecticut precedent to support its reliance on latent ambiguity. Instead, it contends that this court should follow the approach adopted by an intermediate appellate court in Texas. See CBI Industries v. National Union Fire Ins. Co., supra, 860 S.W.2d 665-66. In CBI Industries, the plaintiff, a contractor at an oil refinery, brought suit against its various insurers seeking a declaration of coverage for claims arising from its accidental release of hydrofluoric acid into the atmosphere. Id., 664. The insurers subsequently brought a motion for summary judgment based on the absolute pollution exclusions in their insurance policies with the plaintiff. In response, the plaintiff claimed that the terms "pollution," "pollutants," and "to pollute," were ambiguous, and that discovery was required in order to show the ambiguities and permit an accurate construction of the exclusions. Id. Thereafter, the trial court granted the motion in favor of the insurers after the plaintiff had time only to procure affidavits from its own personnel and some unauthenticated documents of testimony presented to the state insurance agency. Id. On appeal, the Court of Appeals of Texas reversed the trial court's grant of the motion for summary judgment. Id., 665-67. In doing so, the court held that the plaintiff was entitled to a reasonable period of time to attempt to locate evidence of a "latent ambiguity." Id., 665. Further, the court listed four pieces of summary judgment evidence, including testimony before the state insurance agency, filings made to the state and communications between third parties, to support its conclusion that the plaintiff had raised an issue of "latent ambiguity." Id., 666. We decline to follow the rationale of the CBI Industries decision. Although the opinion couches its result in terms of "latent ambiguity," its reference to extrinsic pieces of evidence such as drafting history and third party communications suggests that the court uses the phrase "latent ambiguity" actually to mean nothing more than "varying the plain and unambiguous language of the exclusion with extrinsic evidence of intent." In essence, this decision has little to do with external facts creating an ambiguity in otherwise clear and unambiguous language, the traditional view of latent ambiguity, but seems to require a court, regardless of the clarity of the language utilized and the absence of irreconcilable external facts, always to consider extrinsic evidence of the parties' intent. Taken to its logical conclusion, this rule likely would prohibit a motion for summary judgment on any contract claim as long as a litigant proffers some extrinsic evidence of the parties' unexpressed intent. Consequently, we find that the trial court properly denied the plaintiff discovery on this issue. B The plaintiff also argues that the trial court improperly denied it the opportunity to obtain discovery regarding whether the defendants had filed the exclusions with state insurance regulators and received approval for the use of those exclusions. The plaintiff contends that such discovery would show that the defendants failed to file the exclusions or to obtain approval before using them in their policies. It asserts that if the defendants had failed to file the exclusions and to receive prior approval, the exclusions are invalid and it would be entitled to summary judgment in its favor on the issues of the defendants' duties to defend and to indemnify. In its memorandum of decision on the plaintiff's motion to open the judgment and/or to reargue, the trial court found, however, that the plaintiff had waived its right to assert the defendants' alleged failure to file and receive approval for the exclusions. The trial court noted that the plaintiff, by moving for summary judgment on its claims based on the insurance contracts, necessarily represented that there existed no genuine issue of material fact on the issue of contractual interpretation and that the trial court could therefore rule on those claims as a matter of law. Refusing to permit discovery on this filing issue, the trial court recognized that the plaintiff had failed to raise that particular legal argument in any of its mem-oranda in support of its motion for partial summary judgment or in opposition to the defendants' motion for summary judgment. Further, the trial court determined that the plaintiff had discussed the filing and approval requirements of General Statutes § 38a-676 for the first time in its motion to reargue, dated March 12,1993. The trial court also emphasized that the plaintiff, before moving for partial summary judgment, should have sought and could have received full discov ery as to whether the defendants had filed the exclusions properly. We find that the trial court did not abuse its discretion in denying the plaintiffs motion to open the judgment and/or to reargue and therefore conclude that it properly denied the plaintiff the opportunity to seek discovery on this issue. "The principles that govern motions to open or set aside a civil judgment are well established. Within four months of the date of the original judgment, Practice Book § 326 vests discretion in the trial court to determine whether there is a good and compelling reason for its modification or vacation. . . . Gillis v. Gillis, 214 Conn. 336, 340-41, 572 A.2d 323 (1990); Sanchez v. Warden, 214 Conn. 23, 35, 570 A.2d 673 (1990); Acheson v. White, 195 Conn. 211, 214-15, 487 A.2d 197 (1985); Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983). Hirtle v. Hirtle, 217 Conn. 394, 398, 586 A.2d 578 (1991). In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. State v. Bitting, 162 Conn. 1, 11, 291 A.2d 240 (1971); E.M. Loew's Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959). . . . Walton v. New Hartford, 223 Conn. 155, 169, 612 A.2d 1153 (1992)." (Internal quotation marks omitted.) Somers v. Le Vasseur, 230 Conn. 560, 570-71, 645 A.2d 993 (1994). Similarly, the trial court may, in its discretion, permit reargument on the judgment, and we may disturb its decision only if it is an abuse of that discretion. See Ideal Financing Assn. v. LaBonte, 120 Conn. 190, 195-96, 180 A. 300 (1935). We must find such abuse of discretion if the trial court's decision results in "a miscarriage of justice." Id., 196. We cannot find that the trial court abused its discretion in denying the plaintiff's motion to open the judg ment and/or to reargue. Although the plaintiff now argues that it had no meaningful opportunity to seek discovery from the commissioner of insurance and that the trial court's protective order precluded it from obtaining any information related to the filings from the defendants, it is noteworthy that the plaintiff, not the defendants, moved for summary judgment on the contract claims. Indeed, the defendants moved for and received a protective order permitting them to withhold discovery related to the insurance contracts only after the plaintiff filed its motion for partial summary judgment. We cannot find fault in the trial court's rejection of the plaintiff's pleas of insufficient time when the plaintiffs own actions had accelerated the very process of which it complained. Further, although the plaintiff claims that it clearly had raised this precise filing issue in its motion for partial summary judgment and supporting memoranda, our reading of the record shows that the plaintiff had sought discovery on the defendants' filings with the commissioner of insurance only to show the defendants' intent regarding the exclusionary language and to raise an issue of material fact about the actual contents of the exclusions. For example, the plaintiff cited in its memorandum in support of its motion for partial summary judgment Gerrish Corp. v. Universal Underwriters Ins. Co., 947 F.2d 1023 (2d Cir. 1991), cert. denied, 504 U.S. 973, 112 S. Ct. 2939, 119 L. Ed. 2d 564 (1992), which concluded that a filing with the state by an insurance rating organization bound that organization's member-insurer to the terms of its policy as amended by the filing. Because this case and the plaintiff's other references do not discuss the consequences of an insurer's failure to file an exclusion and therefore certainly did not go so far as to raise a claim that such a failure to file renders an exclusion void, we cannot hold that the trial court abused its discretion in not granting the motion to open the judgment and/or to reargue based on the force of these vague references. Our conclusion on this point is further buttressed by our determination that the exclusions are clear and unambiguous as applied to the facts of this case. C The plaintiff also claims that the trial court improperly denied it access to discovery on the issue of what pollutants exclusion, if any, can be considered part of its National Union policy. In support of this claim, the plaintiff argues that because one binder issued by National Union refers to "Pollution" and another binder refers to "Absolute Pollution," there remains an issue of fact as to which version of the pollution exclusion was supposed to be in its policy. The plaintiff emphasizes that its inability to obtain a copy of the policy or policies reflected in the binders heightens its need for discovery to ascertain the exact policy language. We reject this argument as directly contrary to the plaintiffs own admissions and the findings of the trial court. In moving for partial summary judgment, the plaintiff expressly stated to the court that "there are no facts in dispute which would prevent this Court from ruling on either [the plaintiffs] insurance coverage or CUTPA and CUIPA claims. Therefore, summary judgment is appropriate under Connecticut law." In doing so, the plaintiff acknowledged, in effect, that the trial court could treat its insurance coverage claim as a matter of law. See Practice Book § 384. Indeed, the plaintiff stated in its memorandum accompanying the motion that "[a]s explained below, this policy [the original ten million dollar policy with National Union containing the exclusion in question] was extended to cover the period at issue in this case." Despite these clear statements to the trial court, the plaintiff later responded to the defendants' motion for summary judgment by claiming that the actual language of its policy with National Union remained an issue of material fact. On the basis of the prior admissions of the plaintiff, the trial court permissibly disregarded the plaintiff's subsequent protest that there existed an issue of fact relating to its National Union policy. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 6.7.1 (discussing conclusive effect of judicial admissions). The trial court appropriately considered the affidavits and other proof in making its factual determination concerning the contents of the relevant insurance policies. As to the plaintiff's policy with National Union, the trial court found that it contained an exclusion equivalent to that in the ISOP policy. Because the plaintiff submitted ample evidence with its motion for partial summary judgment to support this determination, we conclude that the trial court's finding was not clearly erroneous. See Practice Book § 4061; Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985). Consequently, the trial court properly denied the plaintiff's request for further discovery on that issue. Ill Finally, the plaintiff claims that the trial court improperly rendered summary judgment in favor of the defendants on the third, fourth and fifth counts of the complaint. The plaintiff contends that the third count of the complaint alleged a violation of General Statutes § 38a-816, specifically § 38a-816 (1) (f), and that the trial court mistakenly granted the motion for summary judgment against it on that count applying an analysis inappropriate to a claim under that statutory subsection. Further, the plaintiff asserts that the trial court erred in granting the motion for summary judgment on the fourth and fifth counts of the complaint because neither the defendants nor the plaintiff had moved for summary judgment on those counts. We reject these claims. We have previously recognized that CUTPA and CUIPA claims both "ordinarily involve different factual inquiries" and that "the duties ordinarily associated with them derive from different sources" than claims that rely instead on an underlying insurance contract. Lees v. Middlesex Ins. Co., 219 Conn. 644, 653, 594 A.2d 952 (1991). In a CUTPA or CUIPA claim, "the insurer's liability is ordinarily based on its conduct in settling or failing to settle the insured's claim and on its claims settlement policies in general. The factual inquiry focuses, not on the nature of the loss and the terms of the insurance contract, but on the conduct of the insurer. . In a CUIPA and CUTPA claim, the insurer's duty stems not from the private insurance agreement but from a duty imposed by statute." Id. Thus, when the plaintiff moved for partial summary judgment on the issue of whether "National Union violated the Connecticut Unfair Insurance Practices Act and the Connecticut Unfair Trade Practices Act" and expressly stated that "there are no facts in dispute which would prevent this Court from ruling on . . . [its] CUTPA and CUIPA claims," it acknowledged that the court could treat the issue as a question of law. See Practice Book § 380, 384. Further, the defendants filed no affidavits in connection with this claim and thereby raised no genuine issue of material fact. We have scrutinized the plaintiffs motion for partial summary judgment, the defendants' motion for summary judgment and all the supporting memoranda, and conclude that the trial court properly rendered summary judgment in favor of the defendants. Although the plaintiff contends that the trial court "confused" the various counts in the complaint and granted summary judgment on the wrong counts, we are persuaded that the trial court carefully reviewed the plaintiff's factual allegations in light of the defendants' motion for summary judgment. Moreover, it is clear that the trial court reasonably construed the plaintiff's motion for partial summary judgment, and correctly ruled on the merits of those arguments presented to the court. A In its motion for partial summary judgment, the plaintiff moved the trial court to find that: (1) the defendants "are obligated under either or both of their insurance policies to pay on behalf of [the plaintiff] any expenses, by way of defense and/or liability, incurred by [the plaintiff] in connection with the fuel oil product spill from [its] property into Stamford Harbor; (2) . . . [the defendants] have waived any purported defenses to coverage as a result of their untimely denials of coverage; and (3) National Union violated the Connecticut Unfair Insurance Practices Act and the Connecticut Unfair Trade Practices Act." The plaintiff supported this motion with a memorandum referring generally to "the Connecticut Unfair Insurance Practices Act" and "the Connecticut Unfair Trade Practices Act," while also referring more specifically to § "38a-815 et seq.," "38a-816" and "38a-816 (1) (f)" of CUIPA and "§ 42-110 (b)" of CUTPA. Although the plaintiff now claims that the third count of the complaint alleged a violation of General Statutes § 38a-816, that count made no mention whatsoever of that statute. The third count alleged in relevant part: "National Union's wrongful attempts to alter and to cancel insurance policies subsequent to notification of a claim from their policyholder constitute breach of contract, misrepresentation, and violations of common law as well as C.G.S. Sections 88a-821, all to the harm and detriment of the Plaintiff." (Emphasis added.) Section 38a-321 is entitled "Liability of insurer under liability policy," and it is not within either CUTPA or CUIPA. It is evident that the trial court applied its CUTPA and CUIPA analysis only to the fourth and fifth counts, the two counts stating causes of action under CUTPA and CUIPA. Indeed, it became clear that the trial court had not expressly analyzed the third count in its memorandum of decision on the motion for summary judgment when it subsequently, and without opposition, granted judgment nunc pro tunc on the third and sixth counts. See footnote 15. Thus, this claim relating to the third count is meritless. B The plaintiff also claims that the trial court improperly granted the motion for summary judgment in favor of the defendants on the fourth and fifth counts of the complaint. The plaintiff contends that because it had moved for partial summary judgment only on the third count and not on the fourth and fifth counts, the trial court improperly granted the motion for summary judgment sua sponte on the fourth and fifth counts. As discussed previously, the plaintiff broadly moved in its motion for partial summary judgment that the court declare "that National Union violated the Connecticut Unfair Insurance Practices Act and the Connecticut Unfair Trade Practices Act." By doing so, it represented to the court, in effect, that there existed no genuine issue of material fact relative to those claims. The wording of this portion of the motion, however, implicitly created two problems for the trial court. First, the language failed to specify the particular count or counts in the complaint upon which the plaintiff was moving. Second, this language failed to articulate the specific section or sections of CUTPA or CUIPA upon which the plaintiff was relying. As to the first problem, it is clear from the memorandum of decision that the trial court, despite the plaintiffs numbering of this part of its motion as "(3)," recognized that the plaintiff was not moving for summary judgment on the third count of its complaint. As stated previously, the third count of the complaint specifically referenced only § 38a-321. Instead, the trial court correctly discerned that the substance of the plaintiffs argument related only to the fourth and fifth counts, the counts expressly referencing sections of CUTPA and CUIPA, and that the designation "(3)" referred only to that claim's relative position within the motion for partial summary judgment. As to the second problem, the trial court obviously treated the plaintiff's motion as one for summary judgment on the fourth and fifth counts of the complaint. In doing so, the trial court necessarily ruled on the plaintiff's claims under § 38a-816 (1), (2) and (6) of CUIPA, as well as General Statutes § 42-110 et seq. of CUTPA. The plaintiff now argues that it had moved for summary judgment only on its count grounded in § 38a-816 (1) and (2), which the plaintiff now argues is the third count but, in fact, is the fifth count of the complaint. More precisely, the plaintiff contends that the trial court: (1) improperly granted the motion for summary judgment in favor of the defendants on its claim under § 38a-816 (1) and (2); and (2) improperly had considered on the motion its claim pursuant to § 38a-816 (6) because it had not moved for summary judgment on that claim. We disagree. 1 Section 38a-816 (1) prohibits misrepresentations and false advertising of insurance policies. Section 38a-816 (2) prohibits false information and advertising generally. The plaintiff alleges in its complaint that the defendants have violated, inter alia, these sections by the following conduct: their "wrongful attempts to alter and to cancel the Plaintiffs insurance policies"; the response to the plaintiffs notice and claims for coverage; misrepresentations as to the terms, facts, conditions, and provisions of insurance policies; false advertising; and/or false information and/or advertising generally. The factual basis for this motion was substantiated through affidavits; the defendants filed no affidavits. On appeal, the plaintiff argues, as it did to the trial court on its motion for partial summary judgment, that National Union made two misrepresentations that "induced" or "tended to induce" a lapse of insurance coverage in violation of § 38a-816 (1) (f). First, it contends that National Union's failure to issue a policy, while charging a premium, "tended to induce" it into letting its coverage lapse. Second, it claims that National Union misrepresented that it had failed to pay its premiums and "induced lapse" by sending the cancellation notice following the claim for the fuel oh spill. We conclude that the trial court correctly granted the motion for summary judgment on this issue because these facts, even though uncontroverted, fail to support a CUIPA claim under § 38a-816 (1) (f) and therefore fail to support a CUTPA claim. Although the plaintiff emphasizes that § 38a-816 (1) (f) prohibits misrepresentations inducing or tending to induce a lapse in insurance coverage, it ignores the fact that the subsection actually prohibits misrepresentations "for the purpose 0/inducing or tending to induce . . . [a lapse in coverage.]" (Emphasis added.) As a result, regardless of whether there is a misrepresentation that induces or tends to induce a lapse in coverage, the plain language of the statute permits recovery only if an insured establishes that its insurer made a purposeful misrepresentation. To show such a purposeful misrepresentation, an insured must necessarily produce evidence that the insurer acted intentionally. See Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. 248-49 (plaintiff must show intentional conduct to establish "dishonest purpose"). Because the plaintiff moved for summary judgment on this count and there were no contradictory affidavits, the court properly decided the motion by looking only to the sufficiency of the plaintiffs affidavits and other proof. See Practice Book § 384. Thus, this claim must fail because although the plaintiff places great emphasis on its uncontradicted affidavits from one of its corporate officers, the affidavits show, at most, that National Union used somewhat lax clerical or administrative procedures, and not that National Union intended to induce or to tend to induce a lapse in coverage. See Wadia Enterprises, Inc. v. Hirschfeld, supra, 248-49 (proof of mere negligence fails to support showing of dishonest purpose); see also Haesche v. Kissner, 229 Conn. 213, 216, 640 A.2d 89 (1994) (summary judgment appropriate if "fair and reasonable" person could conclude only one way). 2 Section 38a-816 (6) prohibits unfair claim settlement practices. Under this section of CUIPA, the claimant must allege and prove facts sufficient to show that the insurer was "[cjommitting or performing [certain specified acts] with such frequency as to indicate a general business practice . . . ." General Statutes § 38a-816 (6). The plaintiff admits that it failed to show the requisite "general business practice" under this section, but contends that it never moved for summary judgment on this issue. Moreover, it contends that it should be entitled to obtain discovery on this issue to prove a sufficient "general business practice." We are unpersuaded. As the party moving for summary judgment, the plaintiff is required to support its motion with supporting documentation, including affidavits. Practice Book § 380. Further, because the plaintiff moved on its statutory claims under CUTPA and CUIPA, it was required to identify the specific numbers of those statutes. Practice Book § 109A. Although we have held that Practice Book § 109A is directory rather than mandatory; Rowe v. Godou, 209 Conn. 273, 550 A.2d 1073 (1988); the purpose underlying the requirements of Practice Book § 109A is instructive. "The purpose of this rule, adopted in 1979, is self-evident. No such procedural rule existed prior to that time. It was clearly designed to make future pleadings more specific, detailed and particularly informative by pinpointing statutory authority. Such a rule promotes the often expressed judicial policy of full, informative, comprehensive and open disclosure of legal claims, which promotes the identification, narrowing and resolution of issues before the court." (Emphasis added.) Rowe v. Godou, 12 Conn. App. 538, 543-44, 532 A.2d 978 (1987), rev'd on other grounds, 209 Conn. 273, 550 A.2d 1073 (1988). In light of this policy and the plaintiffs failure to articulate its motion clearly, we cannot conclude, as a matter of law, that the trial court improperly construed the scope of the plaintiffs motion for partial summary judgment. Faced with a broadly worded motion and supporting memoranda containing general references to CUIPA and CUTPA, the trial court reasonably interpreted the pleadings to mean that the plaintiff sought summary judgment on all of its CUIPA and CUTPA claims. Although we acknowledge that the plaintiff made a few isolated references in its memoranda and at oral argument on the motion which might have indicated that it did not seek summary judgment on its claim under § 38a-816 (6), these references must be considered in the light of the expansive language and general citations to "CUTPA" and "CUIPA" also presented to the trial court. Thus, we cannot find that the trial court's failure to interpret these references as limiting the motion constituted an abuse of discretion. Consequently, the trial court properly granted the motion for summary judgment on this claim in favor of the defendants and correctly denied the plaintiff's request for discovery. The judgment of the trial court is affirmed. In this opinion Peters, C. J., and Callahan and Palmer, Js., concurred. The Coast Guard specified in its letter that "[a]s the responsible party for this incident, you are hereby directed to take the following initial actions: "1. Remove fuel product from the storm drain system along its entirety . . . without causing further pollution of the harbor. "2. Identify and remediate any ground saturation resulting from [the] incident. "3. Continue the cleanup operation initiated by the Federal On-Scene Coordinator of the East Branch of Stamford Harbor. This cleanup operation involves removal of any remaining floating fuel product, the cleanup of any impacted shoreline area or any other floating or fixed structure or vessel, whether public or private. Specific direction concerning the remaining harbor cleanup operation will be provided by the Federal On-Scene Coordinator's representative. "4. Respond to and provide treatment for any wildlife impacted by this pollution incident. "5. Isolate and drain all fuel from the existing fuel system supplying the Boilers . . . ." The plaintiff's policy with ISOP, in effect from April 15, 1990, to April 15,1991, provided for one million dollars of coverage per occurrence for liability claims. This policy imposed on ISOP a general duty to defend and to indemnify the plaintiff up to the policy limits on claims arising from covered "bodily injury" or "property damage." An excess liability policy, also known as an "umbrella" policy, provides coverage that is secondary to an insured's primary policy. Thus, coverage under an excess liability policy generally pays benefits only if the insured first exceeds the coverage limits on its primary policy. The parties agree that National Union originally sold the plaintiff an excess liability policy with an effective period of coverage from April 15, 1989, to April 15, 1990. This policy provided for coverage limits of ten million dollars. The record, however, is unclear as to whether a version of that policy, or another policy, was in effect on the dates relevant to this case. It appears from the evidence that the original policy apparently was rewrit ten, effective August 1, 1989, as two policies each providing for coverage limits of five million dollars through August 1, 1990. These rewritten policies were then extended to cover the period of time through August 1,1991. National Union issued binders to confirm these new policies, but the plaintiff claims that it never received the policies themselves. Nonetheless, due to confusion following the oil spill over whether National Union actually had issued the two policies providing coverage limits of five million dollars, the original policy providing for coverage limits of ten million dollars was extended by endorsement to cover the period of time in question here. The parties disagree as to the nature, extent and implications of the communications between the plaintiff and ISOP during the period of time from the fuel oil spill to ISOP's eventual denial of coverage. The plaintiff contends that ISOP originally responded to its claim on the policy by sending "several dilatory letters requesting irrelevant information" and by ignoring its "repeated requests" for an "immediate response." ISOP retorts, however, that many of the plaintiffs purported communications actually were directed to the plaintiff's insurance brokers rather than to it. Further, ISOP suggests that it required the time and information only to determine under which policies the plaintiff was seeking coverage and to obtain those policies. The plaintiff further contends that National Union first responded to its claim by sending a notice of cancellation due to nonpayment of premium. National Union apparently had canceled the policy on the basis of an erroneous belief that the plaintiff had not paid all of the premiums. When the plaintiff protested this cancellation, however, National Union extended by endorsement the original ten million dollar policy. The trial court found that the exclusion in effect in the ISOP policy provided in relevant part that the policy did not apply: "(1) to 'bodily injury' or 'property damage' arising out of the alleged or threatened discharge, dispersal, release or escape of pollutants; "(a) at or from premises you own, rent or occupy; "(b) at or from any site or location used by or for you or others for the handling, storage, disposal, processing or treatment of waste material; "(c) which are at any time transported, handled, stored, treated, disposed of, or processed as waste by or for you or any person or organization for whom you may be legally responsible; or "(i) to test for, monitor, clean up, remove, contain, treat, detoxify, or neutralize the pollutants, or "(ii) if the pollutants are brought on or to the site or location by or for you. "(2) [to] any loss, cost or expense arising out of any governmental direction or request that you test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants. "Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste material. Waste material includes materials which are intended to be or have been recycled, reconditioned or reclaimed." The court found that the exclusion in the National Union policy contained similar language. The trial court further found that ISOP's policy also contained a provision titled "Contamination/Pollution Amendment." This provision provided: "It is understood and agreed that this policy does not cover any loss, damage or expense caused by contamination or pollution, whether or not brought about by a peril otherwise incurred. Contamination or pollution is defined as, loss, damages, or expense caused by gas(es), liquid(s), solid(s), or radioactive material which may be harmful to human health or the environment." Because we find that the plaintiffs claim is excluded by the absolute pollution exclusion in effect in its policies with the defendants, we need not discuss whether this amendment would also exclude coverage independently. Although the plaintiff argues that the binders it received from National Union between 1989 and 1991, which refer to both a "pollution" clause and an "absolute pollution" clause, create an issue of fact as to what "version" of the exclusion actually controls this case, it is clear from the memorandum of decision that the trial courtfound to be controlling the language within the original ten million dollar policy. This is the position advanced by the plaintiff in the memorandum filed in support of its original motion for summary judgment. See part II C of this opinion. General Statutes § 38a-321 provides: "(Formerly Sec. 38-175). liability of INSURER UNDER liability policy. Each insurance company which issues a policy to any person, firm or corporation, insuring against loss or damage on account o f the bodily injury or death by accident of any person, or damage to the property of any person, for which loss or damage such person, firm or corporation is legally responsible, shall, whenever a loss occurs under such policy, become absolutely liable, and the payment of such loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, damage or death occasioned by such casualty. No such contract of insurance shall be cancelled or annulled by any agreement between the insurance company and the assured after the assured has become responsible for such loss or damage, and any such cancellation or annulment shall be void. Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment." General Statutes § 38a-815 provides: "(Formerly Sec. 38-60). UNFAIR practice prohibited. No person shall engage in this state in any trade practice which is defined in section 38a-816 as, or determined pursuant to sections 38a-817 and 38a-818 to be, an unfair method of competition or an unfair or deceptive act or practice in the business of insurance, nor shall any domestic insurance company engage outside of this state in any act or practice defined in subsections (1) to (12), inclusive, of section 38a-816. The commissioner shall have power to examine the affairs of every person engaged in the business of insurance in this state in order to determine whether such person has been or is engaged in any unfair method of competition or in any unfair or deceptive act or practice prohibited by sections 38a-815 to 38a-819, inclusive. When used in said sections, 'person' means any individual, corporation, association, partnership, reciprocal exchange, interinsurer, Lloyd's insurer, fraternal benefit society, and any other legal entity engaged in the business of insurance, including agents, brokers and adjusters." General Statutes § 38a-816 provides in relevant part: "(Formerly Sec. 38-61). unfair practices defined. The following are defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance: "(6) unfair claim settlement practices. Committing or performing with such frequency as to indicate a general business practice any of the following: (a) Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue; (b) failing to acknowledge and act with reasonable promptness upon communications with respect to claims arising under insurance policies; (c) failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies; (d) refusing to pay claims without conducting a reasonable investigation based upon all available information; (e) failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed; (f) not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear; (g) compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds; (h) attempting to settle a claim for less than the amount to which a reasonable man would have believed he was entitled by reference to written or printed advertising material accompanying or made part of an application; (i) attempting to settle claims on the basis of an application which was altered without notice to, or knowledge or consent of the insured; Q) making claims payments to insureds or beneficiaries not accompanied by statements setting forth the coverage under which the payments are being made; (k) making known to insureds or claimants a policy of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration; (,l) delaying the investigation or payment of claims by requiring an insured, claimant, or the physician of either to submit a preliminary claim report and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information; (m) failing to promptly settle claims, where liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage; (n) failing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement; (o) using as a basis for cash settlement with a first party automobile insurance claimant an amount which is less than the amount which the insurer would pay if repairs were made unless such amount is agreed to by the insured or provided for by the insurance policy." This apparently refers to the entirety of chapter 735a of the General Statutes entitled "Unfair Trade Practices." See footnote 7 for the text of General Statutes § 38a-815. General Statutes § 38a-816 provides in relevant part: "(Formerly Sec. 38-61). unfair practices defined. The following are defined as unfair methods of competition and unfair and deceptive acts or practices in the business of insurance: "(1) misrepresentations and false advertising of insurance POLICIES. Making, issuing or circulating, or causing to be made, issued or circulated, any estimate, illustration, circular or statement, sales presentation, omission or comparison which: (a) Misrepresents the benefits, advantages, conditions or terms of any insurance policy; (b) misrepresents the dividends or share of the surplus to be received, on any insurance policy; (c) makes any false or misleading statements as to the dividends or share of surplus previously paid on any insurance policy; (d) is misleading or is a misrepresentation as to the financial condition of any person, or as to the legal reserve system upon which any life insurer operates; (e) uses any name or title of any insurance policy or class of insurance policies misrepresenting the true nature thereof; (f) is a misrepresentation for the purpose of inducing or tending to induce to the lapse, forfeiture, exchange, conversion or surrender of any insurance policy; (g) is a misrepresentation for the purpose of effecting a pledge or assignment of or effecting a loan against any insurance policy; or (h) misrepresents any insurance policy as being shares of stock. "(2) FALSE INFORMATION AND ADVERTISING GENERALLY. Making, publishing, disseminating, circulating or placing before the public, or causing, directly or indirectly, to be made, published, disseminated, circulated or placed before the public, in a newspaper, magazine or other publication, or in the form of a notice, circular, pamphlet, letter or poster, or over any radio or television station, or in any other way, an advertisement, announcement or statement containing any assertion, representation or statement with respect to the business of insurance or with respect to any person in the conduct of his insurance business, which is untrue, deceptive or misleading." This discovery request sought in excess of forty-seven different types of written documentation related to the defendants' policies and business relationship with the plaintiff as well as other policyholders. For example, the request sought writings related to the drafting history of various policies and exclusions, financial information concerned with coverages and claims under policies, other claims previously made against the defendants due to fuel oil spills, and other claims of unfair trade or insurance practices against the defendants. The trial court articulated that "there are no genuine issues of material fact concerning the defendants' absolute pollution exclusions, and judgment as a matter of law may be entered in favor of the defendants because: (1) the pollution exclusions are clear and unambiguous; (2) the pollution exclusions are absolute; and (3) oil leaking into waterways is defined as pollution by the pertinent federal and state statutes." The trial court explained: "Since the plaintiff's claim is barred by the defendants' pollution exclusion clauses, the plaintiff, as a matter of law, should not be allowed to use the remedies of waiver and estoppel to create coverage where none exists. Accordingly, there are no genuine issues of material fact . . . ." The trial court stated: "The undisputed facts stated in the plaintiff's supporting affidavits do not prove that [the] defendant National [Union] violated General Statutes § 38a-816 (6), as the plaintiff fails to prove that National [Union] made misrepresentations relating to the insurance coverage at issue or that National [Union] failed to take prompt action with respect to the plaintiff s claim. Since the plaintiff fails to prove that National [Union] violated § 38a-816 (6) 'with such frequency as to indicate a general business practice,' the plaintiff cannot prove that [National Union's] conduct amounts to a violation of CUTPA. . . . The undisputed facts stated in the plaintiff s supporting affidavits fail to prove that [the] defendant National [Union] violated General Statutes § 38a-816 (1), and (2) as the plaintiff fails to prove that National [Union] (1) misrepresented the true nature of its insurance policy; (2) made a misrepresentation for the purpose of inducing a lapse, forfeiture, exchange, conversion or surrender of the plaintiff's policy, or (3) engaged in some form of false advertising. "Since the plaintiff has failed to prove that National [Union] violated CUIPA, the plaintiff failed to prove that National [Union] engaged in some unfair business practice or violation of public policy that would amount to a violation of CUTPA." Although the trial court expressly rendered summary judgment only on the first, second, fourth and fifth counts, it later rendered judgment, effective February 24, 1993, in favor of the defendants on the third and sixth counts. The trial court made the judgment nunc pro tunc effective February 24,1993, rather than February 25,1993, the date of the partial summary judgment. See footnote 15. On November 3,1993, the defendants filed with the trial court a motion for final judgment nunc pro tunc on the third and sixth counts of the plaintiffs complaint. In support of the motion, the defendants explained that the state referee at the preargument conference had questioned whether the trial court's decision of February 25,1993, was a final judgment as to all six counts. The plaintiff did not oppose the defendants' motion, and on March 4, 1994, the trial court rendered judgment nunc pro tunc, with an effective date of February 24, 1993, on the third and sixth counts of the plaintiff's complaint. Thus, the trial court effectively rendered an appealable final judgment as of February 24, 1993. The defendants also suggest that written statements made by the plaintiff and the Coast Guard referring to the oil spill as "pollution" or "pollution incident" support or establish its coverage determination. We do not consider the merits of this position in our disposition of the case. Because we hold that the defendants owe no duty to indemnify the plaintiff for damages arising from the fuel oil spill, we also conclude that they owe no duty to defend the plaintiff from claims arising from those damages. See, e.g., Alderman v. Hanover Ins. Group, 169 Conn. 603, 610, 363 A.2d 1102 (1975) (duty to defend arises if policy covers particular claim). We acknowledge the plaintiffs citation to cases holding that an insurer's duty to defend is broader than its duty to indemnify, but we are unpersuaded that such authority is relevant when, as in this case, the exclusion clearly and unambiguously excludes coverage for fuel oil spilled into Stamford Harbor. We reject the plaintiffs argument that we should look to the existence in the insurance industry of oil-specific exclusions as evidence that the absolute pollution exclusion does not include oil as a "pollutant." This argument incorrectly assumes that because an insurer may offer to sell to a customer a policy with a narrowly tailored exclusion pertaining only to specific causes of damage such as oil, that same insurer cannot also offer to that customer, for a lower premium, a policy with a more broad exclusion that excludes coverage for damage caused by all types of pollution, including oil. We similarly reject the plaintiff's argument that because some environmental statutes expressly exclude oil products from their definitions of "pollutant"; see, e.g., Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 (14) (1986) (excluding oil from definition of "hazardous substances"); fuel oil spilled into Stamford Harbor is not a pollutant within the meaning of the absolute pollution exclusion. If an environmental statute's express limitation of "pollutant" not to include oil bears any relevance to our inquiry, it seems to undermine rather than bolster the plaintiff's position because a legislature likely would have no need to exclude oil from the definition of "pollutant" unless it believed that oil was within the ordinary meaning of that term originally. The plaintiff cites W.H. Breshears, Inc. v. Federated Mutual Ins. Co., Docket No. CV-F-91-6 REC (E.D. Cal. July 31, 1991), West v. Board of Commissioners, 591 So. 2d 1358 (La. App. 1991), and Atlantic Mutual Ins. Co. v. McFadden, 413 Mass. 90, 595 N.E.2d 762 (1992), for the proposition that "the pollutants exclusions are limited exclusions and courts do not automatically apply them to exclude liability without a clear expression of intent." In W.H. Breshears, Inc. v. Federated Mutual Ins. Co., supra, 17, although the court refused to hold, as a matter of law, that unleaded gasoline was a "pollutant" within the meaning of a pollution exclusion, the court concluded that the gasoline had affected soil, not water. The court specified that "the provided authority does not support a finding that, as a matter of law, unleaded gasoline is a pollutant within the meaning of the policies at issue. The federal environmental law, both statutory and decisional, address Congress' and the California legislature's specific concerns regarding emission of oil into navigable and non-navigable waterways. The cases cited by Federated [the insurer] specifically rely on the compelling grounds for protecting the quality of the nation's waterways, including commercial trade, public health, and other environmental and even aesthetic reasons. In addition, both the federal and state statutory law address concerns of damage to waterways. In the instant case, there has been no damage to any waterway." Id. Similarly, in McFadden, the court upheld the trial court's rendering of summary judgment against the insurer on the issue of the applicability of the absolute pollution exclusion to a claim arising from the lead poisoning of children, concluding that "an insured could reasonably have understood the provision at issue [an absolute pollution exclusion] to exclude coverage for injury caused by certain forms of industrial pollution, but not coverage for injury allegedly caused by the presence of leaded materials in a private residence." Atlantic Mutual Ins. Co. v. McFadden, supra, 413 Mass. 92. Thus, McFadden, like W.H. Breshears, Inc., provides no contrary authority to the proposition that oil spilled in a waterway is a pollutant. Finally, in West, the court reversed the decision of the trial court rendering summary judgment in favor of the insurer on the issue of the application of a pollution exclusion to a claim arising from a worker's inhalation of Azinphosmenthyl fumes. West v. Board of Commissioners, supra, 591 So. 2d 1361. Although that court determined that "the exclusion is applicable to 'polluters'—those who indifferently pollute our environment—and not to those who only incidentally possess the pollutant in the course of their other business," it construed an exclusion with language different than that at issue in this case. Id., 1360. See Westchester Fire Ins. Co. v. Pittsburg, 794 F. Sup. 353 (D. Kan. 1992), aff'd sub nom. Pennsylvania National Mutual Casualty Ins. Co. v. Pittsburg, 987 F.2d 1516 (10th Cir. 1993); West American Ins. Co. v. Tufco Flooring, 104 N.C. App. 312, 409 S.E.2d 692 (1991), review dismissed, 332 N.C. 479, 420 S.E.2d 826 (1992). In Westchester Fire Ins. Co. v. Pittsburg, supra, 354, the court denied the parties' motions for summary judgment on the issue of whether the absolute pollution exclusions in two of the city's insurance policies excluded coverage for "injuries allegedly sustained when the City sprayed [the plaintiffs in an underlying state action against the city] with an insecticide called malathion." Criticizing that under the clauses' broad definition of "pollutants" "[a]ny substance could conceivably be an 'irritant or contaminant' under the right circumstances," the court stated that "[l]ack of precision in the definition of 'pollutants' renders the entire exclusion ambiguous." Id., 355. The plaintiff claims that this rationale applies equally to this case and that we therefore must construe that ambiguity against the defendants in favor of coverage. We reject that overbroad conclusion because it fails to recognize that many substances, including fuel oil, otherwise considered to be useful or beneficial, necessarily become "contaminants" when released into the environment. The West American Ins. Co. decision does not support the plaintiff's claim of ambiguity. In that case, the court interpreted an absolute pollution exclusion identical to that in this case and found that the policy was ambiguous as applied to claims arising from property damage caused by styrene vapors. West American Ins. Co. v. Tufco Flooring, supra, 104 N.C. App. 320-21. In holding only that the policy was ambiguous as applied to the facts, the West American Ins. Co. court found that the styrene vapor damage occurred in the course of the insured's "regular business activities" and reasoned that "[t]o allow [the insurer] to deny coverage for claims arising out of [the insured's] central business activity would render the policy virtually useless to [the insured]." Id., 321. That rationale does not apply here because it is clear that fuel oil storage was not the plaintiff's central business activity and that protection from a fuel oil spill was therefore not the primary purpose of the plaintiff's policies with the defendants. "The essential elements of estoppel are that the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. . . . (Citations omitted.) O'Sullivan v.Bergenty, 214 Conn. 641, 648, 573 A.2d 729 (1990)." (Internal quotation marks omitted.) Hanover Ins. Co. v. Fireman's Fund Ins. Co., 217 Conn. 340, 351, 586 A.2d 567 (1991). The plaintiff contends that the parol evidence rule does not apply to this case because it seeks to introduce extrinsic evidence to aid in the interpretation of the language rather than to vary or contradict the plain language of the exclusions. Although we agree with the plaintiffs general statement that the parol evidence rule does not bar the use of extrinsic evidence to aid in the interpretation of contractual language; see, e.g., Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 272-73, 439 A.2d 314 (1981); we disagree that this principle applies to the facts of this particular case. Because we find that the exclusions clearly and unambiguously exclude coverage for fuel oil spills into a waterway such as Stamford Harbor, any extrinsic evidence purporting to establish that the exclusions do not exclude coverage for the spill would necessarily serve to contradict or vary the exclusions, rather than provide mere interpretive gloss. Under the same rationale, the plaintiff also is not entitled to discovery of representations made by the defendants in marketing the exclusions at issue. General Statutes § 38a-676 provides in relevant part: "(c) The form of any insurance policy or contract the rates for which are subject to the provisions of sections 38a-663 to 38a-697, inclusive, other than fidelity, surety or guaranty bonds, and the form of any endorsement modifying such insurance policy or contract, shall be filed with the insurance commissioner prior to its issuance. The commissioner shall adopt regulations in accordance with the provisions of chapter 54 establishing a procedure for review of such policy or contract. If at any time the commissioner finds that any such policy, contract or endorsement is not in accordance with such provisions or any other provision of law, he shall issue an order disapproving the issuance of such form and stating his reasons therefor. The provisions of section 38a-19 shall apply to any such order issued by the commissioner." We also note that the plaintiff neither alleged nor offered any evidence to show unconscionability or fraud in the exclusions, which might have required the trial court to exercise its discretion. See Holly Hill Holdings v. Lowman, 226 Conn. 748, 756, 628 A.2d 1298 (1993). "[I]n private disputes, a court must enforce the contract as drafted by the parties and may not relieve a contracting party from anticipated or actual difficulties undertaken pursuant to the contract, unless the contract is voidable on grounds such as mistake, fraud or unconscionability. See 1 Restatement (Second), Contracts § 154,159, and vol. 2, § 208 (1981); cf. Warner v. Pandolfo, 143 Conn. 728, 122 A.2d 738 (1956)." Id. The plaintiff has narrowed its original claim under § 38a-816 (1) and (2) generally to include on appeal only a claim under § 38a-816 (1) (f). The plaintiff cites as evidence of a potential lapse in coverage an affidavit from its colórate officer, which states that National Union's notice of cancellation potentially had created a gap in coverage from the effec tive date of the notice of cancellation until one week later when National Union extended by endorsement the original policy. The plaintiff also contends that the trial court granted summary judgment against it on its claim under § 38a-816 (1) (f) based on a mistaken assumption that it had to prove a general business practice. We are unpersuaded that the trial court relied on such an assumption in resolving that claim. The plaintiff argues that its request for partial summary judgment was "outlined clearly in [its] briefs and in the transcript of the October 5,1992 Hearing." Further, the plaintiff asserts that the fact that it neither requested nor received any discovery related to showing the requisite "general business practice" demonstrates that it never moved on that claim. Also, the plaintiff cites the following statement it made at the oral argument on the motion: "In summary, Your Honor, [the plaintiff] seeks summary judgment on three of the six counts and no matter how the court rules on those three counts there are three remaining counts, that according to the Connecticut Supreme Court in the Williams case, since those counts involve proving a general business practice under the Connecticut Unfair Insurance Practices Act and the Connecticut Unfair Trade Practices Act, the lead court said that those acts are separate from the policy and, therefore, [the plaintiff] is entitled to recovery on these other counts and the defendants' motion for a protective order should be denied." Because we hold that the trial court did not abuse its discretion in considering all of the plaintiff's CUTPA and CUIPA claims on the motion for partial summary judgment, it is clear that the plaintiffs failure to offer evidence showing a "general business practice" fatally flaws its claim under § 38a-816'(6), which requires proof of such a general business practice. See Lees v. Middlesex Ins. Co., 229 Conn. 842, 847-48, 643 A.2d 1282 (1994).

Freedman, J. This is an appeal by the plaintiff from a decision of the compensation review division (review division) of the workers' compensation commission. The review division reversed the finding and award of the workers' compensation commissioner (commissioner) which awarded disability benefits to the plaintiff under General Statutes § 7-433C. On appeal, the plaintiff argues that the review division incorrectly determined that the commissioner's finding of evidence of the plaintiff's preemployment hypertension precluded an award under § 7-433c for his subsequent disability due to heart disease. We affirm the decision of the review division. The plaintiff became a regular member of the New Britain fire department on June 26,1972. Prior to his employment he underwent two preemployment physical examinations. After the first examination, it was determined that he was not qualified for the duties of a firefighter. After the second examination, he was found to be qualified for the position. These preemployment physical examinations revealed evidence that the plaintiff suffered from hypertension, but no evidence of heart disease was found. The plaintiff became disabled due to heart disease and was out of work from January 6,1985, through and including December 15, 1985. He first became aware that he suffered from heart disease on January 16, 1985. The plaintiff commenced this action to receive benefits under General Statutes § 7-433c for his disability due to heart disease. Section 7-433c provides in pertinent part that a member of a paid fire department may receive benefits for disability or death caused by hypertension or heart disease if he or she "successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease . . . .''After a formal hearing, the commissioner issued a finding and award granting the plaintiff such benefits. The commissioner found that the plaintiff "was aware of his hypertension condition prior to his employment by the [city of New Britain] in June of 1972." The commissioner also found, however, that the medical testimony presented to it "unanimously differentiated between hypertension and heart disease" and that his "preemployment physical in 1972 made no mention of any heart disease found in the claimant." The commissioner concluded that the plaintiff was entitled to all of the benefits afforded under § 7-433c because of his heart disease. After the commissioner denied a motion by the city of New Britain to correct the commissioner's finding and award, the city appealed the decision of the commissioner to the review division. The city claimed that the commissioner improperly concluded that the plaintiff was eligible for benefits under General Statutes § 7-433c even though the plaintiff's preemployment physical examinations showed evidence of hypertension. The review division reversed the commissioner's finding and award. The review division concluded that a preemployment physical examination that revealed evidence of either hypertension or heart disease prohibits an employee from receiving benefits under § 7-433c for hypertension or heart disease. The plaintiff appealed the decision of the review division to this court. He claims that the commissioner had correctly interpreted § 7-433c and that the review division improperly reversed the decision of the commissioner. The essence of his argument is that because his preemployment physical examinations revealed evidence only of hypertension, not heart disease, he is entitled to receive benefits under the statute for his subsequently discovered heart disease. The implicit suggestion of his argument is that the preemployment evidence of his hypertension precludes him from receiving benefits under § 7-433c only for hypertension during the course of his employment. The sole question, which is dispositive of this appeal, is whether a member of a paid fire or police department whose preemployment physical reveals evidence of hypertension, but not heart disease, may receive benefits for disability or death caused by subsequently discovered heart disease. We answer the question in the negative. We review the review division's construction of § 7-433c in light of well established rules of statutory construction. " 'A fundamental tenet of statutory construction is that "statutes are to be considered to give effect to the apparent intention of the lawmaking body. . . ." ' Verrastro v. Sivertsen, 188 Conn. 213, 220, 448 A.2d 1344 (1982). When the words of a statute are clear and unambiguous, we assume that the words themselves express the legislature's intent and there is no need to look further for interpretive guidance. Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 666, 560 A.2d 975 (1989)." Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 309-310, 592 A.2d 953 (1991). In Horkheimer v. Stratford, 4 Conn. Worker's Comp. Rev. Op. 139 (1987), the compensation review division aptly stated that "[i]n order for [a] claimant to come within the group for which the protection provided in § 7-433c is intended, certain requirements must be met: (1) the claimant must be a uniformed member of a paid municipal fire department . (2) whose preemployment physical examination revealed no evidence of hypertension or heart disease; (3) who suffers a condition or impairment of health caused by hypertension or heart disease; (4) resulting in death or temporary or permanent total or partial disability; and (5) economic loss resulting therefrom." (Emphasis added.) Id., 141. In Horkheimer, the review division further stated that "§ 7-433c is clear and unambiguous that the physical examination on entry into service must fail 'to reveal any evidence of hypertension or heart disease . . . .' That means the physical examination must reveal no evidence of hypertension or heart disease in order for the claimant to be eligible for the application of § 7-433c." Id., 143. "We afford great deference to the construction by the review division that is in charge of the enforcement of the compensation act." Hansen v. Gordon, 221 Conn. 29, 36, 602 A.2d 560 (1992). Not only do we afford great deference to the construction by the review division, but our own independent analysis leads us to the same conclusion. "[W]e are mindful of the principles underlying Connecticut practice in [workers'] compensation cases: that the legislation is remedial in nature; Kennerson v. Thames Towboat Co., 89 Conn. 367, 375, 94 A. 372 (1915); and that it should be broadly construed to accomplish its humanitarian purpose." Dubois v. General Dynamics Corporation, 222 Conn. 62, 67, 607 A.2d 431 (1992). We, however, find no lack of clarity or ambiguity in the statute. A plain reading of § 7-433c requires us to hold that in order to be eligible for any benefits for either hypertension or heart disease under § 7- 433c, the plaintiff must have "successfully passed a physical examination on entry into [employment as a member of a paid municipal fire or police department], which examination failed to reveal any evidence of [either] hypertension or heart disease . . . ." The decision of the compensation review division of the worker's compensation commission is affirmed. In this opinion the other judges concurred. General Statutes § 7-433c provides: "In recognition of the peculiar problems of uniformed members of paid fire departments and regular mem bers of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term 'municipal employer' shall have the same meaning and shall be defined as said term is defined in section 7-467." Blood pressure readings taken at the first physical examination revealed that the plaintiffs blood pressure at that time was 160/110. A blood pressure reading taken at the second physical examination revealed that the plaintiff's blood pressure was 158/94 at that time.

Norcott, J. The issues raised in this certified appeal are (1) whether our decision in State v. Tatem, 194 Conn. 594, 483 A.2d 1087 (1984), requires automatic reversal and a new trial when a trial court uses the word "unreasonable" in place of "unfavorable" in a jury instruction issued pursuant to General Statutes § 54-84 (b), and (2) if not, whether the use of the word "unreasonable" in the present case was harmless beyond a reasonable doubt in the context of the jury charge as a whole. After a jury trial, the defendant, John Yurch, was convicted of one count of offering to make home improvements without a current certificate of registration and three counts of making home improvements without that certificate of registration in violation of General Statutes § 20-427 (b) (5). At trial, the state presented evidence from which the jury could reasonably have found the following facts. On June 11,1990, the defendant entered into a written agreement with Salvatore and Janice Arena to build a three room addition to their Monroe residence in return for $28,000. On July 31, 1990, the defendant entered into a written agreement with Thomas Story. That agreement provided that the defendant would make home improvements to Story's Woodbury residence in return for $4350. During the period between December, 1990, and July, 1991, the defendant reshingled the roof, boxed in the chimney and installed soffit vents on Story's house. On October 5,1990, the defendant entered into a written agreement with Vivian Chabot to remodel the kitchen in her Woodbury residence for the price of $10,500. The defendant performed a portion of the work between January and June, 1991, but did not completely remodel the kitchen. On October 10, 1990, the defendant entered into a written agreement with Fred Thorpe and his wife to build two closets, an office and a bathroom with a whirlpool bath at the Thorpes' Wood-bury residence for a price of $27,400. The defendant made those home improvements between November, 1990, and August, 1991. The state also offered the testimony of Olivia Martinchek, a consumer information representative in the complaint center of the frauds division of the Connecticut department of consumer protection. Martincheck testified that she was the supervisor of the home improvement unit of the frauds division from July, 1985, through December, 1991, and that she was familiar with the procedures by which home improvement contractors were issued certificates of registration. She further testified that she was familiar with the records regarding the defendant's registration as a home improvement contractor in the state of Connecticut. Martinchek testified that the defendant had been registered first on May 20, 1982, with yearly renewals through May 1, 1987, and again on April 1, 1989, through May 1, 1990, but that he had not held a valid certificate of registration at any time thereafter. After the state had rested its case, the defendant neither presented evidence nor testified. Without presenting a theory of defense to the jury, he elected to rely on the prospect that the state had not carried its burden of proving beyond a reasonable doubt the elements of a violation of § 20-427 (b). The jury returned a verdict of guilty of all counts. The trial court rendered a judgment of conviction and sentenced the defendant to a term of four years incarceration, suspended after two years, and two years probation with special conditions including payment of $55,419.79 in restitution to the homeowners. The defendant appealed from the judgment of conviction to the Appellate Court. He claimed that the instruction given by the trial court pursuant to § 54-84 (b) was improper because it allowed the jury to draw any inference, favorable or unfavorable, from the fact that the defendant did not tesify. Relying on State v. Totem, supra, 194 Conn. 594, the Appellate Court concluded, in a per curiam opinion, "that the [trial court's] use of 'unreasonable' instead of 'unfavorable' changes the substantive meaning of the statute and is therefore plain error," which error entitled the defendant to a new trial. State v. Yurch, 31 Conn. App. 688, 690, 626 A.2d 1320 (1993). We granted the state's petition for certification. State v. Yurch, 227 Conn. 910, 632 A.2d 699 (1993). We now reverse the judgment of the Appellate Court. The state claims that the Appellate Court improperly interpreted State v. Tatem, supra, 194 Conn. 594, as mandating automatic reversal when the word "unreasonable" is used in place of "unfavorable" in a § 54-84 (b) jury instruction. The state argues instead that State v. Tatem, supra, and its progeny establish that such an improper jury instruction constitutes plain error that may be " 'harmless if, when viewed in the context of the jury charge as a whole, there is no reasonable possibility that the jury was misled. . . .'" Id., 599. We agree with the state. As a preliminary matter, "we note that we have repeatedly held that a claim of trial court noncompliance with § 54-84 (b) is reviewable on appeal even though a defendant, as in this case, did not at trial except to the charge as given." State v. Townsend, 206 Conn. 621, 625, 539 A.2d 114 (1988); see Practice Book § 4185. As we have previously explained, "noncompliance with § 54-84 (b) is plain error because the statute serves to effectuate the fundamental right of a defendant not to testify in his criminal trial." State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985); see State v. Tatem, supra, 194 Conn. 595. The defendant's claim therefore was properly before the Appellate Court. Whenever a defendant does not testify at trial, § 54-84 (b) requires that, "[u]nless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused's failure to testify. . . ." State v. Cobb, 199 Conn. 322, 324, 507 A.2d 457 (1986) ("it was error for the trial court not to give the charge in the statutory language"). In the present case, the trial court improperly departed from the statutory language. Instead, the trial court instructed the jury as follows: "The law does not compel a defendant to take the witness stand and testify, and no unreasonable inference may be raised, and no presumption of guilt may be drawn from the fact that a defendant decides not to testify." (Emphasis added.) The state does not challenge the conclusion of the Appellate Court that the charge did not comply with the requirements of the statute, but argues instead that in light of the entire jury charge the trial court's deviation was harmless. In State v. Tatem, supra, 194 Conn. 599-600, we declined to give talismanic effect to the use of the word "unreasonable" in a § 54-84 (b) jury charge. Employing a harmless error analysis, we held that " '[a]n erroneous instruction, even of constitutional dimension, is harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury were misled. State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982).' State v. Carrione, [188 Conn. 681, 685, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 03 S. Ct. 1775, 76 L. Ed. 2d 347 (1983)]. . . . '[W]hether a charge is possibly misleading depends on the substance rather than the form of what is said.' State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982)." State v. Tatem, supra. Furthermore, when a statutory violation implicates the defendant's constitutional right against self-incrimination; see footnote 5; it is the state's burden to prove harmlessness beyond a reasonable doubt. State v. Sinclair, supra, 197 Conn. 584. Because the Appellate Court failed to undertake a harmless error analysis in the present case, we now address the state's claim that the erroneous instruction was, in the context of the jury charge as a whole, harmless beyond a reasonable doubt. After applying the above principles to the jury charge as a whole, we conclude that the trial court's failure to follow the literal wording of § 54-84 (b) was harmless. The defendant argues, on the basis of State v. Tatem, supra, 194 Conn. 594, that the trial court's improper instruction allowed the jury to draw any inference whatsoever from the defendant's failure to testify, resulting in prejudicial error. The state argues to the contrary that the trial court's misstatement was rendered harmless by the language that immediately followed in the jury charge. Referring to the defendant's failure to testify, the trial court stated immediately after the erroneous language: "You must not permit such a fact to weigh in the slightest degree against the defendant. Nor should it enter your discussions or deliberations. A defendant is not required to establish his innocence. He need not produce any evidence whatsoever if he does not choose to do so. As I have told you already, the burden is on the state to prove a defendant guilty beyond a reasonable doubt. If it fails, a defendant has the right to rely on that failure, and must be of right acquitted." The defendant concedes that this language standing alone was in substance a proper statement of the principles underlying § 54-84 (b). Nonetheless, he argues that once the erroneous language was uttered by the court, the deviation could be cured only by a specific repudiation. We disagree. On the basis of the foregoing language, we are persuaded that it was not reasonably possible that the jury would have understood the court to be permitting any inferences whatsoever to be drawn. The language following the improper charge served to alert the jury to the fact that it was to draw no inference whatsoever from the defendant's failure to testify. It is axiomatic that "[a]n instruction prohibiting any inference would also preclude an unfavorable inference." State v. Marra, 195 Conn. 421, 443, 489 A.2d 350 (1985). As a result, despite the trial court's deviation from the statutory language, "the substantive meaning of the statutory requirement was conveyed." Id. We conclude therefore that although the trial court improperly instructed the jury that it could not draw unreasonable inferences from the fact that the defendant did not testify, that misstatement was rendered harmless by the language that immediately followed, completely prohibiting the use of that fact. The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court. In this opinion the other justices concurred. General Statutes § 54-84 provides: "testimony or silence of ACCUSED, (a) Any person on trial for crime shall be a competent witness, and at Ms or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section. "(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused's failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused's silence." General Statutes § 20-427 (b) provides: "No person shall: (1) Present or attempt to present, as his own, the certificate of another, (2) knowingly give false evidence of a material nature to the commissioner for the purpose of procuring a certificate, (3) represent himself falsely as, or impersonate, a registered home improvement contractor or salesman, (4) use or attempt to use a certificate which has expired or which has been suspended or revoked, (5) offer to make or make any home improvement without having a current certificate of registration under this chapter, (6) represent in any manner that his registration constitutes an endorsement of the quality of his workmanship or of his competency by the commissioner, (7) employ or allow any person to act as a salesman on his behalf unless such person is registered as ahorne improvement salesman, or (8) fail to refund the amount paid for a home improvement within ten days of a written request mailed or delivered to the contractor's last known address, if no substantial portion of the contracted work has been performed at the time of the request and more than thirty days has elapsed since the starting date specified in the written contract. In addition to any other remedy provided for in this chapter, any person who violates any provision of this subsection shall be fined not more than five hundred dollars or imprisoned for not more than one year or be both fined and imprisoned. Notwithstanding subsection (d) of section 53a-29, if the court determines that a contractor cannot fully repay his victims within the period of probation established in that subsection, the court may impose probation for a period of not more than five years. A violation of any of the provisions of this chapter shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b." The relevant portion of the trial court's jury charge reads as follows: "The law does not compel a defendant to take the witness stand and testify, and no presumption of guilt may be raised, and no unreasonable inference may be drawn from the fact that a defendant decides not to testify. You must not permit such a fact to weigh in the slightest degree against the defendant. Nor should it enter your discussions or deliberations. A defendant is not required to establish his innocence. He need not produce any evidence whatsoever if he does not choose to do so. As I have told you already, the burden is on the state to prove a defendant guilty beyond a reasonable doubt. If it fails, a defendant has the right to rely on that failure, and must be of right acquitted." We granted certification limited to the following issues: "1. Did the Appellate Court properly reverse the judgment of the trial court by holding that this court's decision in State v. Tatem, 194 Conn. 594 (1984), establishes that the trial court's use of the word 'unreasonable' in place of 'unfavorable' in instructing the jury under General Statutes § 54-84 (b) automatically requires reversal and a new trial? "2. If the answer to question 1. is no, was the trial court's misstatement of the word 'unreasonable' in charging the jury under General Statutes § 54-84 (b), when viewed in the context of the jury charge as a whole and the evidence in the case, harmless beyond a reasonable doubt?" State v. Yurch, 227 Conn. 910, 632 A.2d 699 (1993). Because we conclude that, in the context of the entire jury charge, the trial court's improper use of the word "unreasonable" was harmless beyond a reasonable doubt, we do not reach the state's claim that such an error could be harmless in light of the overwhelming evidence tending to show the defendant's guilt. The defendant's right not to testify is rooted in the privilege against self-incrimination under both the federal and the state constitutions. " 'The fifth amendment to the United States constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." That provision acts as a restraint upon the individual states as well as the federal government under the fourteenth amendment to the United States constitution. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1963). Article first, § 8, of the Connecticut constitution affords criminal defendants a similar protection in language at least as broad as its federal counterpart. That section, which sets forth the rights of accused persons in criminal prosecutions, provides that "[n]o person shall be compelled to give evidence against himself . . . ' State v. Cohane, 193 Conn. 474, 482, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984)." State v. Sinclair, supra, 197 Conn. 583 n.10. Our application of a harmless error analysis is consistent with the basic tenets and goals of our adversarial system of criminal justice. "Indeed, the appellate harmless error doctrine is rooted in [a] fundamental purpose of our criminal justice system—to convict the guilty and acquit the innocent. ' "The harmless error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, United States v. Nobles, 422 U.S. 225, 230 [95 S. Ct. 2160, 45 L. Ed. 2d 141] (1975), and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error." ' Rose v. Clark, 478 U.S. 570, 577, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986), quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)." Bunkley v. Commissioner of Correction, 222 Conn. 444, 460, 610 A.2d 598 (1992).

O'Connell, J. The defendant appeals from the judgment of conviction, after a jury trial, of murder in violation of General Statutes § 53a-54a, felony murder in violation of General Statutes § 53a-54c and assault in the first degree in violation of General Statutes § 53a-59 (a) (l). The jury acquitted the defendant of reckless assault in violation of General Statutes § 53a-59 (a) (3). The defendant claims that the trial court (1) improperly instructed the jury on the law of self-defense and (2) improperly sentenced the defendant on both intentional murder and felony murder. We reverse the judgment in part and remand the case for modification of sentence. The jury could reasonably have found the following facts. On February 2,1991, the victim, Joseph Licari, owned and operated Joe's Variety Shop on Whalley Avenue in New Haven. He was eighty years old, in poor health and walked with a cane. He usually worked alone, and a longtime friend, Nicholas Codianni, came to the store every evening to help him close. At about 8 p.m. on February 2,1991, the defendant entered the store and soon became involved in an argument over a lottery ticket. The defendant pulled what turned out to be a toy gun from his pocket and announced, "This is a stickup." While Codianni was attempting to knock what he believed to be a real gun from the defendant's hand, Licari took his own pistol from behind the counter and fired toward the defendant, missing him. The defendant and Licari then engaged in a struggle for Licari's gun. Codianni entered the fray, hitting the defendant on the head with a telephone. In the course of the struggle, the defendant and Codianni ended up in the shop's back room where the defendant shot and wounded Codianni. The defendant then returned to the front of the store where he fired the lethal shot at Licari. The defendant left the store after picking up a $50 bill that had fallen to the floor during the struggle. I Self-defense was the principal defense offered by the defendant. He contended that he was the victim of an unprovoked attack by Codianni. The defendant makes two challenges to the trial court's jury instruction on self-defense. First, that the instruction impermissibly replaced the subjective-objective test contemplated by the self-defense statute with a purely objective standard, and, second, that the instruction concerning initial aggression was tantamount to a directed verdict of guilty. A The state bears the burden of proving beyond a reasonable doubt that the defendant's actions were not justified as self-defense. State v. Carter, 34 Conn. App. 58, 66, 640 A.2d 610, cert, granted on other grounds, 229 Conn. 916, 644 A.2d 915 (1994). The trial court read the relevant portion of the self-defense statute and then instructed the jury on the definitions of "reasonable" and "reasonable man." The standard for determining justification for the use of force is a subjective-objective one. "The statute focuses on the person . . . claiming self-defense. It focuses on what he reasonably believes under the circumstances and presents a question of fact. This subsection also makes clear that such a person may not use 'deadly physical force' unless he reasonably believes that the other person is either 'using or is about to use deadly physical force' or is 'inflicting or about to inflict great bodily harm.' " (Emphasis in original.) State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427 (1982). The jury must view the situation from the defendant's perspective. State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984). The starting point of a jury's inquiry into whether reasonable force was used by the defendant is whether the defendant believed that deadly force was necessary to repel the attack. The bottom line is that ultimately the defendant's belief must be found to be reasonable. Id., 390. The defendant focuses on the portion of the instruction in which the trial court defined "reasonable" in terms of what "an ordinary prudent man" might perceive his situation to be. A correct instruction is what this particular defendant, as opposed to the hypothetical ordinary prudent man, believed his situation to be. The defendant, however, lifts the objective portion out of the instruction and views it in isolation. This excision skews the jury charge. It is axiomatic that a jury charge is to be read as a whole and that individual instructions are not to be judged in artificial isolation from the overall charge. State v. Suggs, 209 Conn. 733, 755, 553 A.2d 1110 (1989); State v. Washington, 15 Conn. App. 704, 713, 546 A.2d 911 (1988). The test is whether the charge as a whole tended to mislead the jury. State v. Quintana, 209 Conn. 34, 44, 547 A.2d 534 (1988); State v. Boone, 15 Conn. App. 34, 55, 544 A.2d 217, cert. denied, 209 Conn. 811, 550 A.2d 1084 (1988). When we view this instruction as a whole, it is apparent that the trial court correctly charged the jury on the subjective-objective standard. The defendant disregards the subjective portion of the charge and emphasizes the objective portion out of context. The court made it clear that "[t]he test is not what force is actually necessary to protect [the defendant] . . . rather the test is what force did he, acting as a reasonable man, believe to be necessary under the circumstances." Seven times before and after the objective instruction the court expressly told the jury that unless the defend ant reasonably believed that Licari or Codianni or both were about to inflict great harm on him he could not use deadly force in self-defense. Considered as a whole, the jury charge adequately instructed the jury on self-defense in general, as well as the defendant's subjective belief as to the force Licari was using or was about to use in particular. The jury was informed that it must look at what the defendant himself believed. It was also told to consider whether the defendant's subjective belief that deadly physical force was necessary was ultimately reasonable, i.e., what a person of ordinary prudence and mental physical capacity in the defendant's position would believe. The defendant's belief was not left out of the equation. In directing the jury to consider what the defendant reasonably believed, the court stated the standard more than once in terms of the statute. A proper self-defense instruction includes both subjective and objective aspects. In the present case, the trial court properly instructed the jury on both aspects. B The defendant next claims that the trial court's instruction on the "initial aggressor" aspect of self-defense constituted either a directed verdict of guilty or created a mandatory presumption. During its deliberations, the jury sought clarification of the self- defense charge asking, "When a person is in the process of committing a robbery does he give up his claim to self-defense?" The court gave a supplemental charge. The short answer was "No, he does not give up his right to have [the jury] consider his claim of self-defense." The court then reread the self-defense statute to the jury, noting that a person is not justified in using physical force when he is the initial aggressor. Addressing the issue of initial aggressor, the court said, "So, as it relates to your question, if you find that the defendant was in the process of committing a robbery, that is, attempting to commit a robbery, because the very nature of the act of robbery, that is, a stealing or attempted stealing by the use of force, you would necessarily have found that the defendant was the initial aggressor. . . . So, to recap, if you find proven beyond a reasonable doubt that the defendant was attempting to commit a robbery, he would be found to be the initial aggressor and his use of physical force would not have been justified unless he withdrew from the confrontation and effectively communicated his intent to do so to the other party and the other party notwith standing continued or threatened the use of physical force upon him." "There is no question that '[t]he standard of review to be applied to a claim of an improper instruction on the elements of self-defense is whether it is reasonably possible that the jury was misled.' ." (Citations omitted.) State v. Jimenez, 30 Conn. App. 406, 411, 620 A.2d 817 (1993), rev'd on other grounds, 228 Conn. 335, 636 A.2d 782 (1994). "In evaluating the propriety of a supplemental charge, we must examine both the main and supplemental charge as a whole. State v. Williams, 199 Conn. 30, 41, 505 A.2d 699 (1986)." State v. Hopkins, 25 Conn. App. 565, 571, 595 A.2d 911, cert. denied, 220 Conn. 921, 597 A.2d 342 (1991). The defendant argues that the supplemental instruction concerning initial aggression usurped the role of the jury as trier of fact by presenting it with what amounted to a directed verdict. The defendant notes that one can construct a scenario wherein one attempts robbery without being an initial aggressor. Therefore, by telling the jury that someone attempting robbery is perforce the initial aggressor, the court had improperly taken that determination from the jury. The defendant might have a point if he had been charged with attempted robbery, but he was not. Nor was the court instructing on the technical requirements of such a charge. Rather, the court was responding to the jury's question about whether one abrogates a self-defense claim when he is in the "process of committing a robbery." At trial, the jury was presented with essentially only two versions of the event. It could have believed that the defendant was the victim of an unprovoked attack as he left Licari's store, or it could have believed that the defendant was attacked only after entering the store, brandishing what appeared to be a gun and telling Licari and Codianni that this was a holdup. When the jury asked the court about the effect of being in the "process of committing a robbery" on a self-defense claim, it was obviously considering the latter scenario. In that context, "attempting" or "attempted" robbery refers not to the technical legal term "attempted robbery" and its appurtenant elements, but rather to the lay understanding of someone waving a gun around, clearly intent on taking money, but, as yet, not having actually finished the job. Looking at the main and supplemental charges as a whole and in light of the factual issues raised at trial, the court neither directed the jury to reach a verdict nor created a mandatory presumption. The trial court focused the jury's attention on the parties' conflicting versions of the altercation, leaving the fact-finding and credibility determinations to the jury. The court merely informed the jury of the legal effect of crediting one of the alternative versions. "Indeed, the instructions comported with the requirement that an allusion to the evidence is necessary to furnish the jury with a practical guide as to how to apply the law to the evidence. Shea v. Tousignant, 172 Conn. 54, 60, 372 A.2d 151 (1976)." State v. Storlazzi, 191 Conn. 453, 467, 464 A.2d 829 (1983). The defendant cannot prevail on this claim because the charge was merely an instruction of law, leaving fact-finding to the jury. II As a consequence of killing Licari, the defendant was convicted of both intentional murder and felony murder. The trial court sentenced the defendant to fifty years on each conviction with the sentences to run concurrently. The state and the defendant agree that sentencing on "multiple convictions for a single homicide under the felony murder statute and any other homicide statute" constitutes double jeopardy. State v. Chicano, 216 Conn. 699, 710, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); State v. John, 210 Conn. 652, 696-97, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. Couture, 194 Conn. 530, 560, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). We must remand the case to the trial court with direction to combine the defendant's convictions for felony murder and intentional murder and to vacate one of the sentences. Combining these sentences will not change the total effective sentence of imprisonment. State v. Chicano, supra, 216 Conn. 721-25; accord State v. Howard, 221 Conn. 447, 462-63, 604 A.2d 1294 (1992). The judgment is reversed in part and the case is remanded with direction to combine the defendant's murder conviction with his felony murder conviction and to vacate the sentence for one of those convictions. The judgment is otherwise affirmed. In this opinion the other judges concurred. This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court. "[General Statutes] Sec. 53a-54a. MURDER, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . ." "[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime . . . he . . . causes the death of a person . . . ." "[General Statutes] Sec. 53a-59. assault in the first degree: class b FELONY, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . ." The defendant also offered a defense of "accident," claiming that the gun discharged accidentally while he and Licari were struggling. "[General Statutes] Sec. 53a-19. use of physical force in defense of person, (a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm. "(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform. "(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law." The relevant portion of the jury instruction follows: "It may be concluded from the statute that a man who is being assaulted or who reasonably believes that he is about to be assaulted may use force in such a degree as he reasonably believes is necessary for his defense. The moment he steps over the line and uses more force than he reasonably believes is necessary, then he becomes a wrongdoer and he becomes guilty of the crime himself. The test is not what force is actually necessary to protect himself from the use or imminent use of force, rather the test is what force did he, acting as a reasonable man, believe to be necessary under the circumstances. "Now, 'reasonably' means what an ordinary prudent man, a man of ordinary mental and physical capacity using his faculties in a normal manner might do or perceive in a given set of circumstances. A man of common sense acting in a common sense manner. A reasonable belief is a belief generated by the particular circumstances fairly created and honestly entertained. Now, in determining what the defendant reasonably believed, you should ask what would an ordinary prudent man, a man of ordinary mental and physical capacity, using his faculties in a normal manner, what might he do or perceive? That is, what would a man of common sense acting in a common sense manner do under the circumstances that you find that the defendant found himself in. The statute focuses on a person claiming self-defense, that is, what would a man in the position of Marion Miller reasonably believe under the circumstances. . . . You must view the situation from the perspective of the defendant and ultimately you must find that the defendant's belief was reasonable under the circumstances." In its main charge on self-defense, the trial court stated: "[A] person is not justified in using physical force if he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justified if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force. "Now, the defendant claims that he used no aggressive actions against either of the victims until forced to do so by the aggressive actions of both Nicholas Codianni and Joseph Licari under a reasonable belief that Joseph Licari would continue to use a pistol against him. He claims to have been the victim of an assault upon him by Mr. Codianni as he was leaving the premises after arguing with Mr. Licari over a lottery play. He claims further to have been shot at by Mr. Licari and hit in the right hand by a bullet fired by Mr. Licari. "The state claims, among other things, that by drawing a pistol, pointing it at Mr. Codianni and announcing that 'This is a stickup,' that that makes him the initiator and aggressor of the violent action that was directed at Mr. Codianni and Mr. Licari, and, as such, he was not entitled to use deadly force against either Mr. Licari or Mr. Codianni. While this defense is applicable to each crime charged and the lesser included crimes as it relates — and any lesser included crimes as it relates to the charge of felony murder, if you find beyond a reasonable doubt that the defendant did, in fact, intend to rob Joe's Variety Store, pointed a gun, albeit one determined to be a toy gun, and announce 'This is a stickup,' then you effectively would have found that he was the aggressor or initiator of the aggression, and the state would have proved beyond a reasonable doubt that he was not justified in his actions unless the evidence showed that he withdrew, or attempted to withdraw from the encounter, and effectively communicated such to the other parties of his intent to do so." For example, one could, with intent to rob, conceal a gun in one's pocket and enter a store. At this point one has met the elements of attempted robbery without being the initial aggressor for purposes of the self-defense statute.

Per Curiam. The judgment is affirmed.

The defendant's petition for certification for appeal from the Appellate Court, 31 Conn. App. 548 (AC 11259), is denied.

Dupont, C. J. The respondent Michael B., a juvenile, appeals from the granting of the motion by the state's advocate and the state's attorney to transfer his case from juvenile matters to the adult criminal docket on the charges of two counts of murder in violation of General Statutes § 53a-54a, one count of capital felony in violation of General Statutes § 53a-54b (8), and one count of felony murder in violation of General Statutes § 53a-54c. In order to transfer the respondent's case to the adult criminal docket, the transfer court was required to find probable cause as to the elements of each of the crimes with which the respondent is charged. The respondent contends that the order transferring his case to the adult criminal docket was improperly-entered because there was insufficient evidence to support a finding of probable cause as to any of the crimes with which he is charged and because he was not allowed to present evidence that would rebut any finding of probable cause. At stake is whether the respondent will be tried as though he were an adult at the time of the commission of the crimes, thereby becoming susceptible to the penalties prescribed by the statutes he allegedly violated. On the date of the alleged offenses, the respondent was more than fourteen years old and less than sixteen years old. We affirm the transfer court's rulings that probable cause existed to believe the respondent committed all of the crimes with which he is charged, and that the respondent's proffered evidence was properly excluded. The facts surrounding the crimes are set out in the concise and clear memorandum of the transfer court. John Cluny, the husband of the victim Elaine Cluny and the father of the victim David Cluny, called the Norwich police at approximately 5:25 p.m. on May 24,1993, to report that he had found the victims' bodies in a bedroom of the family's home. Approximately eight hours later, the respondent was apprehended in a vehicle owned by Elaine Cluny. The case against the respondent is circumstantial in nature. The circumstantial evidence included certain facts. The respondent and David Cluny were friends. They played together, spent time at each other's homes, went to school together and rode the same school bus. The respondent was aware of the fact that John Cluny kept firearms in his home, and the respondent had in the past fired certain of those weapons on the Cluny property with John Cluny's permission. On May 24, 1993, David Cluny attended school, but the respondent did not. One witness, a neighbor, reported seeing someone riding a bicycle during the morning hours in the vicinity of the Cluny home. The neighbor's description of the rider was consistent with a description of the respondent, and her description of his clothing was consistent with the clothes that the respondent was wearing at the time of his subsequent apprehension. A fellow student at the respondent's school identified a photograph of a bicycle found parked within the Cluny residence as being of a bicycle belonging to the respondent. The bicycle in the photograph was consistent with the description of the bicycle given by the neighbor. During the late morning and early afternoon of May 24,1993, none of the three Clunys was seen near the residence. Gunshots were heard at various times during that period. The driver of the school bus that both David Cluny and the respondent took to school reported that she dropped off David after school at approximately 2:30 p.m., that the respondent was not on the bus that day, and that the Cluny dog was not there to greet David when he exited the bus, as it usually was. Several witnesses testified that Elaine Cluny, a teacher at Griswold High School in Jewett City, left the high school at the same time she usually did, approximately 2:50 p.m. Elaine Cluny was expected to attend a meeting of the Norwich parking commission at 3:30 p.m. It is estimated that she arrived at home at approximately 3:05 p.m. A phone call from a member of the Norwich parking commission at 3:38 p.m. produced no answer. Shortly thereafter, two witnesses saw Elaine Cluny's vehicle being driven erratically at a high rate of speed. It was coming from the direction of the Cluny house and was being driven by a young white male with short hair and wearing a light colored shirt. John Cluny arrived home at approximately 3:45 p.m. He noted that his wife's car was not there, that the door to the house was not locked, which was not unusual, that the television was on, and that no one appeared to be home. He watched television, had a snack, and took a nap on the couch. Twice during the afternoon, he received telephone calls from the respondent's mother, expressing concern about the whereabouts of her son. Following the second of these calls, at approximately 5:20 p.m., he checked his son's bedroom and found the lifeless bodies of his wife and son. He immediately called the police. The bodies were found together in David Cluny's bedroom. Each had sustained a single gunshot wound to the head, and the deputy chief medical examiner certified that the gunshot wounds were the cause of death of both victims. On the basis of the nature of the wounds, the chief medical examiner concluded that the weapon could not have been .22 or .25 caliber, but could have been a .357 magnum or a .38 caliber weapon or, as he acknowledged on cross-examination, could have been a 9 or 10 millimeter weapon. The wounds caused immediate loss of consciousness with death ensuing within a few moments. The medical examiner is of the opinion that the weapon was held at close range to both of the victims. The police officers also found a trail of blood leading from the hallway to a bathroom. Behind the tub, they found the body of the Cluny dog, which had sustained gunshot wounds to the chest and head. Its wounds, while fatal, were not immediately so, allowing it to walk some distance to the place where its body was eventually found. John Cluny subsequently noticed that a holster containing a Ruger .357 magnum handgun had been removed from its usual location and that the handgun and live ammunition kept in the Ruger holster gunbelt were missing. He also noticed that boxes of bullets found on the living room couch had not been there previously, that a .22 caliber rifle and a shotgun had been moved from their usual locations to David's room, and that the boxes in which he kept his handguns had been tampered with. He also noted bullet holes in a canoe in the backyard that had not been there previously, bullet holes in the window of his van, and bullet holes in his son's bedroom and the master bedroom. In addition, he discovered that although his wife's briefcase was in its usual place on the dining room table, her key ring was not there. Following the issuance of a police alert on the Cluny vehicle, the respondent was eventually spotted in that vehicle, followed, and then stopped at approximately 1:30 a.m. Subsequent scientific testing revealed gun shot residue on his hands and on the steering wheel of the vehicle. Human blood was found on his shirt and sock. Canine blood was found on one of his sneakers. The respondent was subsequently arrested pursuant to a warrant signed by a judge of the Superior Court charging him with two counts of murder. He was presented to the Superior Court for juvenile matters pursuant to two petitions of alleged delinquency, the first charging him with the theft of the Cluny vehicle and the second charging him with the murders of David and Elaine Cluny. Subsequent amendment of the latter petition left the respondent charged with two counts of murder in violation of General Statutes § 53a-54a, one count of capital felony in violation of General Statutes § 53a-54b, and one count of felony murder in violation of General Statutes § 53a-54c. At the close of the state's case, the court indicated that it was inclined to find probable cause, at least as to the charges of murder under General Statutes § 53a-54a. The respondent requested permission to introduce into evidence two documents, which were marked for identification as respondent's exhibits A and B. These were preliminary and supplemental reports from the state police forensic science laboratory. The request was denied. The transfer court subsequently concluded in a written decision that there was probable cause as to each of the charges against the respondent. Accordingly, the court ordered the respondent's case transferred to the regular criminal docket of the Superior Court. On appeal, this court's function is to determine whether the transfer court's decision that probable cause existed as to each of the crimes with which the respondent was charged was clearly erroneous. In re David M., 29 Conn. App. 499, 503, 615 A.2d 1082 (1992), citing Practice Book § 4061 and In re Lloyd W., 28 Conn. App. 608, 611, 611 A.2d 461 (1992). Probable cause exists when "the state's evidence would warrant a person of reasonable caution to believe the respondent had committed the crime with which he was charged." In re Edwin N., 215 Conn. 277, 284, 575 A.2d 1016 (1990). The quantum of evidence required to establish probable cause is less than that required to establish proof beyond a reasonable doubt at trial. It is more than mere suspicion but substantially less than that required for conviction. In re Keijam T., 221 Conn. 109, 115-16, 602 A.2d 967 (1992). In reviewing the evidence and the permissible inferences drawn from it to determine whether the transfer court's decision was clearly erroneous, we do so in the light most favorable to sustaining that court's determination of probable cause. In re David M., supra, 503. I The Murder Charges We first review the transfer court's finding of probable cause with regard to the two counts of murder in violation of General Statutes § 53a-54a. The state's circumstantial evidence compels the conclusion that there is probable cause to believe that the respondent caused the deaths of Elaine and David Cluny. While the respondent argues that the evidence that he caused the victims' deaths is "only" circumstantial, there is no legal distinction between direct and circumstantial evidence as far as probative force is concerned. In re David M., supra, 29 Conn. App. 505. The element of intent required by General Statutes § 53a-54a can be established by circumstantial evidence or inferred from a party's statements or actions. State v. Smith, 198 Conn. 147, 154-55, 502 A.2d 874 (1985); State v. DeForge, 194 Conn. 392, 399, 480 A.2d 547 (1984). Here, the fact that both victims were shot in the head at close range with a high caliber weapon supports the finding of prob able cause that the person who fired those shots intended the victims' deaths. The other evidence, as previously recited, is more than sufficient to support a finding that it was the respondent who fired the shots and caused the deaths. We conclude that the evidence was sufficient to support a finding of probable cause as to the two counts of murder. II The Felony Murder Charges In order to sustain the court's finding of probable cause as to the felony murder charge, there must be sufficient evidence that the respondent was committing or attempting to commit one of certain enumerated crimes and "in the course of and in furtherance of" or in "flight therefrom" he caused the deaths of the victims. There is no requirement under the felony murder statute, nor was there such a requirement under common law felony murder, that the state prove that the respondent had the general intent to commit the murders. State v. Kyles, 221 Conn. 643, 666, 607 A. 2d 355 (1992). The state must simply prove all the elements of the underlying felony and then prove that the deaths were in the course of and in the furtherance of that felony, or that the deaths were caused in flight from the commission of the felony. Id. The killing of a nonparticipant "in the course of and in furtherance of [a felony] or of flight therefrom" are two methods of committing the same crime. State v. Scognamiglio, 202 Conn. 18, 22, 519 A.2d 607 (1987). The information alleges that the underlying felony in this case is burglary. The information does not specify which degree of burglary the respondent allegedly committed, but the least serious charge of burglary is burglary in the third degree, which is defined by General Statutes § 53a-103 as "entering] or remain[ing] unlawfully in a building with intent to com mit a crime therein." Section 53a-103 does not enumerate specific crimes that one must intend to commit in order to be guilty of burglary in the third degree. The "enters or remains unlawfully" elements of burglary in the third degree are disjunctive and a jury can convict on either element. State v. Belton, 190 Conn. 496, 502, 461 A.2d 973 (1983); State v. Mankus, 16 Conn. App. 184, 187, 547 A.2d 84, cert. denied, 210 Conn. 801, 553 A.2d 616 (1988). Although the respondent and David Cluny were friends, there was no direct evidence that on the day of the killings the respondent was in the Cluny home with the permission of any member of the Cluny family. There was circumstantial evidence, however, indicating that the respondent entered the home at a time when he knew none of the Clunys was in it. Although there was no direct evidence that at the time of his unlawful entry into the Cluny home the respondent intended to commit a crime therein, there was circumstantial evidence that the respondent did formulate such an intent during the period of time that he unlawfully remained in the home. There was also sufficient evidence to conclude that there was probable cause to believe that at some time while unlawfully remaining in the Cluny home, the respondent intentionally shot the Cluny dog, an act that would constitute the crime of cruelty to animals under General Statutes § 53-247, and that he committed the crime of criminal mischief in violation of General Statutes § 53a-117 by causing the bullet holes in the bedrooms. Finally, there is the circumstantial evidence that the respondent took Elaine Cluny's car keys and the direct evidence that he used her car without permission in violation of General Statutes § 53a-119b. He might also have formulated the intent to commit larceny of a motor vehicle, the value of which exceeds $10,000, in violation of General Statutes § 53a-122. The respondent argues that there is no evidence that he formulated the intention to commit any criminal acts prior to his alleged murder of the two victims. Evidence was introduced, however, from which it could be inferred that criminal acts had been committed prior to the murders. It could be inferred that the respondent entered the Cluny home sometime in the late morning, that he fired shots in it sometime in the late morning or early afternoon, and that he had already shot the Cluny dog by the time David Cluny arrived on the school bus. It was, therefore, proper for the transfer court to conclude that at some time while the respondent was in the Cluny home, he formulated the intention to commit a variety of crimes involving weapons, ammunition, car keys and an automobile. We now turn to the issue of whether the killings of David and Elaine Cluny occurred in the course of and in the furtherance of or in flight from the respondent's alleged burglary of the Cluny home. "In the course of" has been held to denote a temporal limitation. State v. Young, 191 Conn. 636, 643-44, 469 A.2d 1189 (1983). The state's evidence is sufficient to support a belief that probable cause existed to find that the murders of David and Elaine Cluny occurred after the respondent unlawfully entered the home and before he left the Cluny home in Elaine Cluny's automobile, and therefore within the temporal limitation of when the alleged burglary began and ended. In conjunction with a finding that the killings occurred "in the course of" the burglary, there must also be evidence that the killings occurred "in furtherance of" the burglary. The case of State v. Young, supra, 191 Conn. 640-41, summarizes the history and purpose of the "in furtherance" phrase of § 53a-54c. An issue of that case was whether the phrase "and in furtherance of such crime or of flight therefrom" imposed a requirement of mens rea in the form of a specific intent or scienter with respect to the death itself. Id., 639-40. The defendant in Young argued that "furtherance" meant "promotion" or "advancement" and did not imply merely a causal relationship between the underlying felony and the death. Id., 640. In rejecting this argument, the Young court noted that Connecticut's penal code was taken from the New York code and deviates substantially from the recommended felony murder provisions of the Model Penal Code. Id., 641. New York courts have construed the phrase "in furtherance of" to impose the requirement of a logical nexus between the felony and the homicide. Specifically, " '[m]ore than the mere coincidence to time and place . . . the nexus must be one of logic or plan. Excluded are those deaths which are so far outside the ambit of the plan of the felony and its execution as to be unrelated to them.' " Id., quoting People v. Lewis, 111 Misc. 2d 682, 686, 444 N.Y.S.2d 1003 (1981); see also State v. Gomez, 225 Conn. 347, 622 A.2d 1014 (1993). Our Supreme Court agreed with the New York courts that the phrase "in the furtherance of" is intended to impose the requirement of a relationship between the underlying felony and the homicide beyond that of mere causation in fact, similar to the concept of proximate cause in the law of torts. State v. Young, supra, 191 Conn. 642. The phrase serves to exclude those murders that are committed during the course of an underlying felony but that are wholly unrelated; id., 643; but does not serve to exclude killings that were not intended. State v. Cobbs, 203 Conn. 4, 6, 522 A.2d 1229 (1987). In order to sustain a conviction of felony murder, it is "not enough . . . that the defendant committed [the crime] and caused the death of the victim unless the death was part of the [crime] and directly involved in it." Id., 6. In overturning the conviction in Cobbs, the Supreme Court noted that "the connection between [the crime] and the murder was that the two crimes involved the same participants and victim. This answer falls far short of establishing beyond a reasonable doubt that the victim was killed in the course of being robbed and in furtherance of that crime. . . . [There was] no evidence from which a trier of fact could reasonably have concluded, without resort to speculation or conjecture, that this element of the crime was established." Id., 13. The court stated that there was no convincing evidence that the underlying felony, robbery, had been committed at all. It, therefore, concluded that the victim was not killed in the course of being robbed and in furtherance of a robbery. Id. In order for Elaine and David Cluny's deaths to be considered "in the course of and in furtherance of" the respondent's alleged burglary of their home, there must be evidence to support a burglary, as well as a nexus of logic or plan such that the killings were directly involved in the burglary, and there must be sufficient evidence that there was such a nexus without resort to speculation or conjecture. It is very likely that in the course of committing a burglary a burglar will encounter an occupant of the dwelling, who may resist, and, in furtherance of the burglary, death of the dweller may likely result. State v. MacFarlane, 188 Conn. 542, 553, 450 A.2d 374 (1982). There is probable cause to believe, on the basis of the direct and circumstantial evidence and the reasonable inferences to be drawn therefrom, that there is a nexus between the two crimes because it is probable that the respondent killed David and Elaine Cluny while committing burglary. Ill The Capital Felony Charge General Statutes § 53a-54b defines capital felony as, inter alia, the "(8) murder of two or more persons at the same time or in the course of a single transaction." That there were two victims is clearly not at issue, and we have already established that there is sufficient evidence to sustain a finding of probable cause as to the two counts of murder. The third element is the requirement that the murders occur either at the same time or in the course of a single transaction. The state alleges that the two murders of Elaine and David Cluny constituted a single transaction. Both the state and the respondent have noted in their briefs and at oral argument that there is no Connecticut case law squarely determining the issue of when two murders have been committed in the course of a single transaction for the purposes of § 53a-54b. The transfer court found that the two murders were a single transaction because there was probable cause to believe that the respondent committed the murders as part of a series of related acts constituting a single course of conduct over a period of time that could not have lasted longer than one hour and fifteen minutes, specifically from 2:30 p.m. when David Cluny arrived home to 3:45 p.m. when John Cluny arrived home. In its brief, the state argues that the first step in interpreting "in the course of a single transaction" is to examine the words "in the course of," which denote a temporal limitation. State v. Young, supra, 191 Conn. 636. The state then contends that two murders constitute a single transaction when they are committed within the bracket of time between the commencement and end of a sequence of events of an unlawful nature. Here, the state argues, the unlawful events began with the respondent's entry into the Cluny home and ended with his flight from the scene. The respondent argues that there is no forensic evidence to support the conclusion that both of the deaths occurred in the course of a single transaction, and that, given the relationship he had with David Cluny, as well as the lack of evidence as to motive, it is a reasonable conclusion that at least David Cluny's death was not intentional. The gist of this argument appears to be that without the requisite intent to murder David Cluny, the respondent could at most have committed the murder of only Elaine Cluny and the manslaughter of David Cluny, and therefore there were not two murders for the purposes of General Statutes § 53a-54b. The reported case law better supports the state's argument. While our Supreme Court has never interpreted the phrase "in the course of" in the context of the double murder provision of the capital felony statute, it has done so for the purposes of the kidnapping provision of the capital felony statute. State v. Ross, 230 Conn. 183, 194-95, 200, 646 A.2d 1318 (1994). General Statutes § 53a-54b (5) proscribes "murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety." In Ross, our Supreme Court held that Connecticut had jurisdiction over two murders committed in Rhode Island because the two murders were the consequences of a kidnapping that began in Connecticut. Id., 195. The reasoning behind the court's decision was that kidnapping is a continuous crime, namely, a crime that consists of a series of acts, rather than one act. Id., 196. The reasoning in another kidnapping case, State v. Gomez, supra, 225 Conn. 347, involving felony murder rather than capital felony, is also useful in our analy sis. The defendant in Gomez was charged with felony murder, the predicate crime being kidnapping. Id., 348. The defendant in that case argued that since all the elements necessary to establish the crime of kidnapping had occurred prior to the murder, the murder could not have occurred ' 'in the course of" and "in furtherance of" the kidnapping as required by the felony murder statute. Id., 350. The court disagreed, noting that "[k]idnapping is a continuous crime." Id., 351. The court reasoned that the victim's death occurred "in the course of" the kidnapping because that phrase "focuses on the temporal relationship between the murder and the underlying felony." Id., 352. It had previously defined "in the course of" to include "the period immediately before or after the commission of the crime." Id. The court concluded that if "in the course of" included the periods before and after the crime, the phrase must encompass the "murder in this case, which took place during the period of the crime itself." (Emphasis added.) Id. The reasoning in both State v. Ross, supra, 230 Conn. 183, and State v. Gomez, supra, 225 Conn. 347, is applicable by analogy to the present case. We conclude that the respondent's alleged burglary and his alleged murders were committed along a continuum where the elements of space and time were so closely interrelated that the murders can be considered to have been committed in the course of a single transaction, namely, the burglary. The phrase "a single transaction" has also been interpreted in other contexts, such as assault and resisting arrest, to mean a series of related but separate events occurring within a brief interval. See State v. Laffin, 155 Conn. 531, 235 A.2d 650 (1967); State v. Hassett, 155 Conn. 225, 230 A.2d 553 (1967). " '[A] crime' " means a single criminal act or transaction, out of which one or more criminal charges might arise." State v. Tyler, 6 Conn. App. 505, 506 A.2d 562 (1986). A single transaction is a series of events with a "temporal continuity or clear connection." Id., 511. The transfer court drew reasonable inferences from the state's evidence. Because David Cluny arrived home at 2:30 p.m. and Elaine Cluny at 3:05 p.m., and because the perpetrator had already fled by 3:45 p.m. when John Cluny arrived home, the deaths could not have been more than one hour and fifteen minutes apart. The position of the bodies indicates that Elaine Cluny had been kneeling over her son's body when she was shot, which suggests that the actual time between their deaths was less than one hour, perhaps as little as thirty-five to forty minutes, if she discovered her son's body as soon as she arrived home, or even less time than that if David Cluny was killed after 2:30 p.m. There was sufficient evidence to conclude that the two murders were committed during the course of a series of events directly related to the respondent's alleged unlawful entry of the Cluny home and his departure therefrom in the Cluny vehicle, all comprising a single transaction. See State v. Velicka, 143 Conn. 368, 122 A.2d 739 (1956). We therefore agree with the transfer court's finding of probable cause to believe that the respondent had violated General Statutes § 53a-54b (8) because of the probability that the murder of the two victims occurred in the course of a single transaction. IY The Evidentiary Claim The respondent claims that the transfer court improperly denied his request to admit evidence that he claims would rebut a finding of probable cause. The proffered evidence at issue was the preliminary and supplemental criminal reports from the state police forensic science laboratory, which indicate that there was no evidence to establish that the human blood found on the respondent's clothing was that of either Elaine or David Cluny, and that John Cluny's hands tested positive for lead. Our analysis of challenges to the evidentiary rulings by a trial court is guided by a well settled standard of review. "It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court's rulings will not be disturbed on appellate review absent abuse of that discretion. ." (Citations omitted; internal quotation marks omitted.) Curry v. Burns, 33 Conn. App. 65, 68, 633 A.2d 315 (1993). Prior to 1990, the rules of evidence did not apply to hearings on transfers from the juvenile docket to the criminal docket under General Statutes § 46b-127. See In re Ralph, 211 Conn. 289, 307, 559 A. 2d 179 (1989). Section 46b-127 has since been amended to provide that the procedures required by General Statutes § 54-46a, the statute governing probable cause hearings on the adult criminal docket, apply to juvenile transfer hearings as well. The rules of evidence, therefore, now apply to juvenile transfer hearings. See In re Jose M., 30 Conn. App. 381, 384-85, 620 A.2d 804, cert. denied, 225 Conn. 921, 625 A.2d 821 (1993). Under § 54-46a (b), and therefore under § 46b-127, if the court finds probable cause based on the state's evidence, then the accused may make a specific offer of proof to rebut the finding of probable cause. In re Keijam T., supra, 221 Conn. 126. The accused gains the right to present that evidence only "if the court determines [in its discretion] that such evidence would be sufficient to rebut the finding of probable cause." General Statutes § 54-46a (b); In re Keijam T., supra, 126; State v. Zaporta, 36 Conn. App. 250, 252, 650 A.2d 582 (1994). The purpose of this procedure is to exclude evidence that, even if believed, would not undermine the court's antecedent finding of probable cause while, at the same time, safeguarding the accused's interest in attempting to persuade the court that, despite the state's evidence, probable cause is lacking. In re Keijam T., supra, 126. Here, the court ruled that the evidence sought to be offered was not sufficient to rebut its finding of probable cause as to any of the charges. Giving the proffered items their most favorable construction, the court acknowledged the fact that the blood on the respondent's clothing was never positively identified as that of either Elaine or David Cluny, and that that might be an issue at trial. The court ruled, however, that that was not enough, in light of the state's circumstantial evidence, to rebut probable cause to believe that the respondent had committed the murders. Similarly, the court ruled that although John Cluny's hands tested positive for lead, there were no traces of barium and antimony, which would have been expected in the presence of gunshot residue. There was, however, sufficient evidence, specifically the gunshot residue on the respondent's hands and on the steering wheel of the Cluny car, to support a finding that the respondent had fired a weapon that day. The court, therefore, concluded that the evidence of lead on John Cluny's hands was insufficient to rebut the finding of probable cause as to the murder charges. The court then ruled that with respect to the felony murder and capital felony counts, the proffered evidence did not relate to any element of those two offenses except the identity of the person who entered the Cluny home and caused the victims' deaths. The court, therefore, concluded that the proffered evidence was insufficient to rebut the state's evidence that there was probable cause to believe that that person was the respondent. The transfer court appropriately exercised its discretion in not admitting the proffered evidence. The order of transfer is affirmed. In this opinion the other judges concurred. The state's attorney was granted permission by the trial court to participate in matters related to the transfer hearing. In re Michael B., 43 Conn. Sup. 38, 638 A.2d 651 (1993). That court ruled that both officials had a legitimate interest in the outcome of the transfer hearing and, therefore, both should be permitted to participate fully in the proceedings. Id. That ruling is not involved in this appeal. The motion was made pursuant to General Statutes § 46b-127, which provides in relevant part: "(a) The court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years . "(b) No such transfer shall be valid unless, prior thereto, the court has made written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged. . . ." General Statutes § 53a-54a (a) provides in relevant part: "A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . ." General Statutes § 53a-54b provides in relevant part: "A person is guilty of a capital felony who is convicted of . . . (8) murder of two or more persons at the same time or in the course of a single transaction." General Statutes § 53a-54c provides in relevant part: "A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary . . . and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . ." Adult defendants found guilty of capital felony charges under General Statutes § 53a-54b can receive the death penalty under General Statutes § 53a-46a. The fact that the respondent was under the age of eighteen at the time he allegedly committed the murders would be a mitigating factor preventing the imposition of the death penalty. General Statutes § 53a-46a (g) (1). The respondent was born on March 21,1978. The alleged offenses took place on May 24, 1993. There were no eyewitnesses to the killing of Elaine and David Cluny, and the state offered no inculpatory statements by the respondent. The neighbor's testimony at the transfer hearing indicates that she did not personally know the respondent. The weapon used to commit those murders was never found. The transfer court noted that, at a minimum, the respondent was trespassing.

The petitioner Arthur J. Davis' petition for certification for appeal from the Appellate Court, 32 Conn. App. 296 (AC 11789), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 31 Conn. App. 599 (AC 11526), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 31 Conn. App. 582 (AC 11656), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 31 Conn. App. 806 (AC 11300), is granted, limited to the following issue: The Supreme Court docket number is SC 14822. Decided September 15, 1993 James E. Kernan, in support of the petition. James A. Mulhall, Jr., in opposition. "Under the circumstances of this case, did the Appellate Court properly conclude that the trial court was required by General Statutes § 52-192a, the offer of judgment statute, to award prejudgment interest?"

The state of Connecticut's petition for certification for appeal from the Appellate Court, 31 Conn. App. 797 (AC 11523), is granted, limited to the following issue: "Is a defendant subject to prosecution for drunk driving while under suspension under General Statutes § 14-215 (c) at a time when his suspended license could have been restored to him?"

The defendant's petition for certification for appeal from the Appellate Court, 32 Conn. App. 553 (AC 10352), is granted, limited to the following issues: "1. Was the Appellate Court correct in concluding that the statement made by the defendant to police officers Tony Dostank and John Módica was admissible into evidence? "2. Was the Appellate Court correct in deciding that the trial court properly denied the defendant's motion for a competency exam under General Statutes § 54-56d?"

The petition of the petitioner Lawrence J. Pelletier, Jr., for certification for appeal from the Appellate Court, 32 Conn. App. 38 (AC 11479), is denied.

Per Curiam. The judgment is affirmed.

Per Curiam. The decision of the compensation review board is affirmed.

Heiman, J. Whittaker Corporation, the plaintiffs employer, appeals from the decision of the trial court denying its motion to intervene in its employee's action against a third party. On appeal, the employer claims that it did not receive proper notice of the pending action pursuant to General Statutes § 31-293. The following facts are relevant to this appeal. The plaintiff is employed by Whittaker Corporation (employer) as director of procurements. On January 23, 1989, while acting in the course of her employment, the plaintiff sustained various injuries when she slipped and fell in the hallway leading into her office. The employer extended benefits to the plaintiff under the Workers' Compensation Act. On December 19, 1990, the plaintiff issued a complaint against the defendant, Frank Ritacco, as owner of Ocean State Cleaning. Her complaint alleged that the defendant was liable to her for her injuries, asserting that the defendant was negligent both in allowing a slippery wax to remain on the floor and in failing to warn the plaintiff of the dangerous condition. The summons and complaint were thereafter delivered to the sheriff with a return date of January 22, 1991. On December 20, 1990, the plaintiff mailed notice to her employer of her intention to bring an action against the defendant. The notice was sent by certified mail and was acknowledged as received by the employer on January 7,1991. On June 18,1993, the employer moved to intervene as a coplaintiff. The plaintiff objected, asserting that the motion was not timely in that it was not filed within thirty days of the plaintiffs notice of the pending action. The motion to intervene was denied by the trial court on August 23, 1993, and this appeal followed. On appeal, the employer claims that the trial court improperly denied its motion to intervene because the notice it received did not comport with the requirements of § 31-293. Essentially, the employer argues that § 31-293 requires that an employee send notice after the summons and complaint have been returned to court in order to give an employer the full benefit of the thirty day period in which to intervene. We agree and reverse the decision of the trial court. " 'In construing a statute, common sense must be used, and the courts will assume that the legislature intended to accomplish a reasonable and rational result. . . . A statute . . . should not be interpreted to thwart its purpose.' (Citations omitted; internal quotation marks omitted.) Board of Education v. State Board of Labor Relations, [217 Conn. 110, 126-27, 584 A.2d 1172 (1991)]." Police Dept. v. State Board of Labor Relations, 225 Conn. 297, 303, 622 A.2d 1005 (1993). "General Statutes § 31-293 grants to an employer who has paid worker's compensation [benefits] a right to join as a party plaintiff in actions by employees against third party tortfeasors . . . ." (Citations omitted; internal quotation marks omitted.) Durrschmidt v. Loux, 230 Conn. 100, 103, 644 A.2d 343 (1994), quoting Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 537, 582 A.2d 1174 (1990); see also Gurliacci v. Mayer, 218 Conn. 531, 578, 590 A.2d 914 (1991). This statute gives an employer a means of obtaining reimbursement for any worker's compensation benefits paid by it for which a third party may be liable. Quire v. Stamford, 231 Conn. 370, 375, 650 A.2d 535 (1994). The failure of an employer to intervene within thirty days after notification of an action prohibits it from later asserting a right to any recovery that the plaintiff employee may be awarded. General Statutes § 31-293. The thirty day limitation period of § 31-293 is not triggered without proper notice to the employer of the action in which it may intervene. Durrschmidt v. Loux, supra, 230 Conn. 103; Gurliacci v. Mayer, supra, 218 Conn. 578. "Fundamental tenets of due process . . . require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses. . . ." (Citations omitted.) Kron v. Thelen, 178 Conn. 189, 193, 423 A.2d 857 (1979). We, as well as our Supreme Court, have consistently interpreted adequate and proper notice under § 31-293 to require a plaintiff to notify an employer "of two facts: (1) the fact that the action has been brought; and (2) the name of the court to which the writ in the action is returnable." Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. 538; see also Durrschmidt v. Loux, supra, 230 Conn. 104. It is well established in Connecticut that an action has not been brought until service of process has been made upon a defendant; Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991); and returned to court. Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 433, 559 A.2d 1110 (1989); see also General Statutes § 52-45aand 52-46a. Until such service has been made and returned to court, no action exists in which an employer may intervene. Proper notice of a pending action must, therefore, await service of process on the defendant and return of process to the court in order to give to an employer the full benefit of the thirty day period outlined in § 31-293 in which to exercise its rights to intervene. We note also that the plaintiff's focus on the word "returnable" in § 31-293 is misplaced. Despite her claim that the word returnable implies something that will occur in the future, we cannot interpret the language of a statute to achieve bizarre results. State v. Jiminez, 228 Conn. 335, 341, 636 A.2d 782 (1994). To hold that an employee may give notice of an action before service has been made on a defendant and returned to court would allow a plaintiff to thwart the purposes of § 31-293. In civil actions, a return day may be set up to two months after the date of process. General Statutes § 52-48 (b). Such process need not be served on the defendant until twelve days prior to the return day and need not be returned to the court until six days prior to the return day. General Statutes § 52-46 and 52-46a. If a plaintiff were allowed to send § 31-293 notice on the date that the complaint is issued, the thirty day period provided in the statute could run before there was any action in existence in which the employer could intervene. We cannot interpret a statute in a way that would allow a party to impede due process and its requirements of notice. Police Dept. v. Board of Labor Relations, supra, 225 Conn. 303; Kron v. Thelen, supra, 178 Conn. 193. Because the plaintiffs employer did not receive proper notice of the plaintiffs action against the third party tortfeasor, the thirty day limitation period of § 31-293 cannot be used to bar its intervention in that action. "An employer who does not receive notice from an employee concerning the institution of a third party action in accordance with § 31-293 [cannot] be barred from intervening by the passage of the [thirty day filing period] which this statute prescribes, because, until notice is given, the time does not begin to run." (Internal quotation marks omitted.) Durrschmidt v. Loux, supra, 230 Conn. 103; Gurliacci v. Mayer, supra, 218 Conn. 578. The trial court, therefore, improperly denied the employer's motion to intervene. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. In this opinion the other judges concurred. The trial court's denial of Whittaker Corporation's motion to intervene, although interlocutory, constitutes an appealable final judgment. See Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 536, 582 A.2d 1174 (1990). "The test for determining whether an order denying a motion to intervene constitutes a final judgment is whether the would-be intervenor can make 'a colorable claim to intervention as a matter of right.' Ricard v. Stanadyne, Inc., 181 Conn. 321, 322 n.1, 435 A.2d 352 (1980); Common Condominium Assns., Inc. v. Common Associates, 5 Conn. App. 288, 291, 497 A.2d 780 (1985)." Id. An employer seeking to join as coplaintiff in an employee's action against a third party tortfeasor makes a colorable claim to intervention as a matter of right because General Statutes § 31-293 specifically grants an employer the right to intervene. Id. The denial of the motion to intervene in this case, therefore, constitutes a final judgment and we will review the merits of Whittaker Corporation's claims. General Statutes § 31-293 provides in pertinent part: "(a) When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a third person other than the employer a legal liability to pay damages for the injury . the injured employee may proceed at law against the third person to recover damages for the injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against the third person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If either the employee or the employer brings an action against the third person, he shall immediately notify the other, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the other may join as a party plaintiff in the action within thirty days after such notification, and, if the other fails to join as a party plaintiff, his right of action against the third person shall abate. . . ." The content of the plaintiffs notice to Whittaker Corporation is as follows: "In accordance with Section 31-293 of the Connecticut General Statutes, this will inform you that suit has been commenced on behalf of Barbara Rana in the above-noted matter. Enclosed please find copy of Writ, Summons and Complaint which has this day been forwarded to our sheriff for service on the named defendant. You will note that this action is being brought in the New London Judicial District at Norwich and has a return date of January 22, 1991."

Palmer, J. The sole issue presented by this certified appeal is whether, under General Statutes § 49-41, a municipality owes a duty to a subcontractor or material supplier to obtain a payment bond from the general contractor. The plaintiff subcontractor, O and G Industries, Inc., brought an action against the defendant, the town of New Milford, claiming that the defendant's failure to secure a payment bond from the general contractor hired to perform a municipal paving project rendered the defendant liable for damages resulting from the general contractor's failure to pay the plaintiff for materials supplied. Both parties moved for summary judgment, and the trial court granted the plaintiff's motion and rendered judgment for the plaintiff in the amount of $93,334.95. On appeal, the Appellate Court reversed the judgment and remanded the case to the trial court with direction to render judgment for the defendant, holding that the defendant owed no statutory duty to the plaintiff to secure a payment bond from the general contractor. We granted the plaintiff's petition for certification, and affirm the judgment of the Appellate Court. The material facts are not in dispute. On May 1,1990, the defendant awarded a contract to Austin Driveway Services, Inc. (general contractor), to perform paving work on certain public roads and parking lots in New Milford. The general contractor hired the plaintiff to supply asphalt and other road construction materials for the project, and the plaintiff did so in a timely man ner. Upon substantial performance of the contract by the general contractor, the defendant paid the general contractor in full. Shortly thereafter, however, the general contractor filed for bankruptcy without having paid for the materials supplied by the plaintiff. The general contractor had failed to post a payment bond as required by § 49-41. The plaintiff contends that the defendant was obligated to ensure that a payment bond had been posted because § 49-41 directs that the general contractor shall furnish a bond "[bjefore any contract . . . is awarded . . . ." We do not agree with the statutory construction urged by the plaintiff. Section 49-41 provides in relevant part that "[bjefore any contract . . . for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof is awarded to any person . . . that person shall furnish to the state or the subdivision a bond in the amount of the contract . . . for the protection of persons supplying labor or materials in the prosecution of the work provided for in the contract . . . .''In determining whether the legislature, in enacting § 49-41, intended to impose a duty on a state or municipality to secure a payment bond from the general contractor for the benefit of a subcontractor, "we are guided by the well established principles of statutory construction which require us to ascertain and give effect to the apparent intent of the legislature. . . . When the language of the statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent." (Citations omitted.) State v. White, 204 Conn. 410, 421, 528 A.2d 811 (1987); see also Sanzone v. Board of Police Commissioners, 219 Conn. 179, 186-87, 592 A.2d 912 (1991); Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 537-38, 582 A.2d 1174 (1990). Section 49-41 is clear and unambiguous: the general contractor is solely responsible for furnishing the payment bond. The statutory language relied upon by the plaintiff, namely, that the general contractor shall furnish the payment bond "[b]efore any contract . is awarded," merely sets forth the time frame within which the general contractor is required to post the bond, and imposes no obligation upon the state or local agency to ensure that the general contractor does so. Moreover, our conclusion that the defendant owed no duty to the plaintiff to require the general contractor to post a payment bond is fully supported by the legislative history of § 49-41. The original predecessor of § 49-41, chapter 118 of the Public Acts of 1917, was enacted in response to our decision in National Fireproofing Co. v. Huntington, 81 Conn. 632, 71 A. 911 (1909), wherein we held that sovereign immunity prohibited the filing of a mechanic's lien against the state or any of its subdivisions. See Nor'easier Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 477-78, 542 A.2d 692 (1988). Chapter 118 remedied the harsh consequences of that decision by requiring the state or municipal contracting officer to secure a surety bond from each contractor for the protection of any subcontractor providing labor or materials to the project. In 1941, the legislature enacted General Statutes § 694f, which eliminated the requirement that the contracting officer obtain a payment bond from the general contractor, and substituted the provision that the general contractor "shall furnish . a bond . . . for the protection of persons supplying labor or materials" under the contract. It is apparent that, in enacting § 694f and, subsequently, § 49-41, which is in all material respects identical to § 694f, the legislature intended to relieve the state or municipality from any obligation to a subcontractor to ensure the posting of a bond. Moreover, because § 49-41 is "patterned after and operate[s] in general conformity with the federal statutes popularly known as the 'Miller Act'; 40 U.S.C. § 270a through 270e"; Nor'easter Group, Inc. v. Colossale Concrete, Inc., supra, 207 Conn. 476 n.7; Baldwin-Lima-Hamilton Corp. v. Aetna Casualty & Surety Co., 163 Conn. 331, 335, 307 A.2d 1109 (1972), cert. denied, 409 U.S. 169, 93 S. Ct. 910, 34 L. Ed. 2d 689 (1973) (intent of legislature in enacting § 49-41 same as that of Congress in enacting Miller Act); we look to federal judicial interpretations of the Miller Act for guidance. Nor'easter Group, Inc. v. Colossale Concrete, Inc., supra, 476-77 n.7. Federal courts interpreting the Miller Act have concluded that the United States owes no duty to a subcontractor to ensure that the general contractor has furnished a payment bond, and, therefore, that the government is not liable in damages to a subcontractor for its failure to do so. See, e.g., Hardaway Co. v. United States Army Corps of Engineers, 980 F.2d 1415, 1416-17 (11th Cir. 1993); Westbay Steel, Inc. v. United States, 970 F.2d 648, 650 (9th Cir. 1992); Arvanis v. Noslo Engineering Consultants, Inc., 739 F.2d 1287, 1290 (7th Cir. 1984). A number of states have passed legislation similar to the Miller Act, and while the cases construing those statutes have turned on the language and legislative history of the particular statutory provisions at issue, there is substantial state judicial authority in accord with our determination that a state or municipality has no affirmative obligation to a subcontractor to require the posting of a payment bond. The decision of the Michigan Court of Appeals in Barnes & Sweeney Enterprises, Inc. v. Hazel Park, 169 Mich. App. 422, 425 N.W.2d 572 (1988), is particularly persuasive because that case involved the interpretation of a statute nearly identical in both language and history to our own. The statute at issue in that case provided that "[bjefore any contract . is awarded . . . the [general contractor] shall furnish at his or her own cost to the governmental unit a performance bond and a payment bond . . . ." Id., 425. The Michigan Court of Appeals held that the statute did not impose a duty on the public agency to ensure the posting of those bonds. In so holding, the court noted that a predecessor statute had required the government agency to obtain a payment bond from the general contractor, and that the elimination of that language from the amended statute reflected the intent of the legislature to relieve the public contracting authority of any obligation to a subcontractor to ensure the posting of the bonds. Id., 425-26. We reach the same conclusion on the basis of the similarly unambiguous language and legislative history of § 49-41. The plaintiff relies primarily on Royal School Laborartories, Inc. v. Watertown, 236 F. Sup. 950 (D. Conn. 1965) (Royal School I), rev'd on other grounds, 358 F.2d 813 (2d Cir. 1966) (Royal School II), as authority for the proposition that the defendant owed a duty to the plaintiff, under § 49-41, to secure a payment bond from the general contractor. In Royal School I, a subcontractor brought an action against the town of Watertown for failure to ensure the posting of the payment bond required by § 49-41. The District Court acknowledged that the issue was one of first impression in Connecticut, and conceded that a majority of courts had held that a municipality is not liable to a subcontractor for failure to obtain a statutorily required payment bond. Royal School I, supra, 953. The court held, nonetheless, that the town was liable to the subcontractor for a breach of duty under § 49-41, concluding that Connecticut probably would adopt the minority view. Id., 954-55. On appeal, the Court of Appeals for the Second Circuit reversed the judgment of the District Court, but did so without deciding the issue of the town's liability to the subcontractor under § 49-41. The Court of Appeals expressly noted, however, that it had "no confidence" that Connecticut would adopt the minority view. Royal School II, supra, 816. We now decline to do so. As we have discussed, the legislature, in enacting § 49-41, did not intend to impose upon the state or its subdivisions the duty to obtain a payment bond for the protection of subcontractors. Under the statute, it is the obligation of the general contractor to furnish the bond and the responsibility of the subcontractor to assure itself that the bond has been posted. Because the defendant owed no legal duty to the plaintiff to obtain the payment bond required by § 49-41, the Appellate Court properly concluded that the defendant was entitled to summary judgment. The judgment of the Appellate Court is affirmed. In this opinion the other justices concurred. General Statutes § 49-41 provides in relevant part: "public structures. BONDS FOR PROTECTION OF EMPLOYEES AND MATERIALMEN, (a) Before any contract exceeding twenty-five thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof is awarded to any person, except a design professional, as defined in section 4b-55, that person shall furnish to the state or the subdivision a bond in the amount of the contract which shall be binding upon the award of the contract to that person, with a surety or sureties satisfactory to the officer awarding the contract, for the protection of persons supplying labor or materials in the prosecution of the work provided for in the contract for the use of each such person O & G Industries, Inc. v. New Milford, 29 Conn. App. 783, 617 A.2d 938 (1992). We granted the plaintiff's petition for certification to appeal limited to the following issue: "Under General Statutes § 49-41, does a municipality owe a duty to a subcontractor or material supplier to obtain a payment bond from the general contractor?" O & G Industries, Inc. v. New Milford, 225 Conn. 905, 621 A.2d 286 (1993). We have held that a construction contract is voidable if the general contractor fails to furnish a payment bond as required by General Statutes § 49-41. Norwalk v. Daniele, 143 Conn. 85, 89, 119 A.2d 732 (1955). Neither party, however, has claimed that the contract was invalid in this case. Chapter 118 of the Public Acts of 1917 provided: "Any officer or agent contracting in behalf of the state or any sub-division thereof for the construction, alteration, removal or repair of any public building or any bridge constructed under the provisions of chapter 337 of the public acts of 1915, shall require from each contractor, as a condition precedent to the execution of a contract for any such construction, alteration, removal or repair, a bond with sufficient surety, which bond shall be conditioned for the faithful execution of the contract according to its provisions and for the payment for all materials and labor used or employed in the execution of such contract. Any person, firm or corporation having any claim for materials or labor furnished in the execution of any such contract, shall file with the officers or agents contracting for any such construction, alteration, removal or repair, a statement of such claim within sixty days after he ceased to furnish such materials or labor, which claim, if correct, shall be paid by such officer or agent, who shall recover the amount thereof with costs from the surety on such bond." General Statutes (Sup. 1941) § 694f provided in relevant part: "Before any contract exceeding one thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof is awarded to any person, such person shall furnish to the state or such subdivision a bond in the amount of the contract which shall be binding upon the award of the contract to such person, with a surety or sureties satisfactory to the officer awarding the contract, for the protection of persons supplying labor or materials in the prosecution of the work provided for in such contract for the use of each such person." General Statutes § 49-41 differs from General Statutes (Sup. 1941) § 694f in only two respects: (1) § 49-41 applies to state or municipal contracts exceeding $25,000, whereas § 694f concerned public contracts in excess of $1000; and (2) design professionals are exempt from the requirements of § 49-41, while no category of general contractor was exempt under § 694f. Neither of these distinctions bears upon the issue in this case. We also note that prior to 1941, the state or municipal contracting agent was responsible for the administration of any claims filed by a subcontractor on the bond. See Public Acts 1917, c. 118; General Statutes (Sup. 1933) § 1594c. In 1941, however, the legislature "divested the contracting agent or official of the state or municipality of the responsibility for the payment of a subcontractor's claims"; Nor'easter Group, Inc. v. Colossale Concrete, Inc., supra, 207 Conn. 478-79; and, instead, placed the responsibility with the subcontractor to initiate an action on the bond. General Statutes (Sup. 1941) § 695f. General Statutes § 49-42, a successor to § 695f, retains the provision whereby the subcontractor, rather than the state or municipal contracting authority, bears the responsibility for obtaining payment on the bond. This modification of the procedure in order to make a claim on the bond is further evidence of the legislative intent to relieve the public contracting authority of any obligation to a subcontractor with respect to the payment bond. Section 270a (a) of title 40 of the United States Code provides in relevant part: "Before any contract, exceeding $25,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States the following bonds, which shall become binding upon the award of the contract to such person . . . "(1) A performance bond with a surety or sureties satisfactory to the officer awarding such contract, and in such amount as he shall deem adequate, for the protection of the United States." See, e.g., Barnes & Sweeney Enterprises, Inc. v. Hazel Park, 169 Mich. App. 422, 425 N.W.2d 572 (1988) (no government liability); Penstan Supply, Inc. v. Pennsylvania State University, 44 Pa. Commw. 347, 403 A.2d 1054 (1979) (no government liability); Heldenfels Bros., Inc. v. Corpus Christi, 832 S.W.2d 39 (Tex. 1992) (no government liability); but see Medical Clinic Board v. Smelley, 408 So. 2d 1203 (Ala. 1981) (government liable); Cowin & Co. v. Merrill, 202 Wis. 614, 233 N.W. 561 (1930) (government liable). The Court of Appeals held that the District Court had improperly denied the town's petition for interpleader, and remanded the case to the District Court for further proceedings. Royal School II, supra, 358 F.2d 815-17.

Per Curiam. The judgment is affirmed.

Foti, J. The defendant CCC Corporation (CCC) appeals from a judgment rendered in favor of the plain tiff, after a trial to the court, for the amount of $111,612.08 together with interest and costs. The defendant claims that the trial court (1) improperly-concluded on the basis of the facts found that a ratification had occurred, (2) applied an improper legal standard for ratification, (3) improperly concluded on the basis of the facts found that apparent authority existed, (4) applied an improper legal standard in determining the existence of apparent authority, and (5) improperly concluded on the basis of the facts found that the plaintiff had acted in good faith. The plaintiff has cross appealed, alleging that the trial court improperly calculated damages. We affirm the judgment of trial court on the appeal and reverse the judgment, in part, on the cross appeal. This is an action brought in separate counts against CCC and Hector Cyr, alleging payment due and owing for goods sold and delivered on an open account pursuant to a credit agreement. On March 27, 1991, Cyr entered into a credit agreement with the plaintiff. Cyr signed that agreement twice, once as president of CCC and once individually as a personal guarantor of payment on the account. Neither defendant disputed the amount of the debt. The record discloses the following facts. The plaintiff, a Connecticut corporation engaged in the business of selling roofing materials, had been selling goods to General Roofing and Sheet Metal, Inc. (General), on credit. In 1991, sales on credit to General ceased and the plaintiff entered into a credit agreement with CCC, knowing that Cyr, president of CCC, was also president of General. Thereafter, goods were supplied to CCC and the plaintiff issued corresponding invoices to CCC. The credit agreement provided for the payment of interest on the outstanding balance. The outstanding balance at the time of trial was $133,512.82 and the outstanding interest was $32,131.54, totaling $165,644.36. At some point during the transactions, the plaintiff had received three checks totaling $30,000, which were drawn on General's bank account and applied to CCC's outstanding balance pursuant to instructions from Cyr. The plaintiffs complaint sought payment of the amount remaining after deducting the $30,000 payment. CCC does business as a real estate company. It is authorized, under its certificate of incorporation and bylaws, to transact any lawful business. General is a tenant of CCC, leases equipment from CCC and uses a CCC truck to transport roofing materials. The materials sold to CCC through the credit agreement were used by General. By its pleading, CCC denied that it owed a debt to the plaintiff, and set forth five special defenses. Two of these special defenses stated the following: (1) "The defendant, Hector Cyr, had no authority to bind CCC Corp. to any credit agreement or make purchases on behalf of CCC Corp. which the plaintiff was aware of at the time the goods described in the complaint were purchased and the credit application was signed"; and (2) "The defendant, CCC Corp., is not a partnership but a corporation and Hector Cyr had no authority to make the purchases described in the complaint or bind the corporation to such a credit agreement." I The Appeal We begin our analysis with the trial court's finding that CCC ratified the credit agreement and is estopped from denying ratification. Our Supreme Court has 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 . . . [requiring an] acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances. ." (Citations omitted; internal quotation marks omitted.) Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 185, 510 A.2d 972 (1986). In its memorandum of decision, the trial court stated that '[notwithstanding Cyr's argument that the materials were ordered for the benefit of General Roofing, the court finds that CCC, with knowledge of the facts, accepted and retained the benefits of the goods and supplies provided by the unauthorized act; it thereby ratified the credit agreement and will be estopped to deny ratification." The trial court relied on Perry v. Simpson Waterproof Mfg. Co., 37 Conn. 520 (1871), as authority for its conclusion that CCC is estopped from denying ratification. The defendant argues that the facts found by the court in its memorandum of decision do not support a finding of ratification. The defendant also claims that the trial court made factual errors in finding that CCC knew of Cyr's conduct or had full and complete knowledge of all material facts connected with the sales agreement, and that CCC retained the benefit of the contract. "An appellate court cannot find facts or draw conclusions from primary facts found, but may only review such findings to see whether they might be legally, logically and reasonably found." Katz Realty, Inc. v. Norwalk Fabricators, Inc., 14 Conn. App. 396, 401, 541 A.2d 519 (1988). The duty of providing us with a record adequate to review claims, including those of a factual nature, rests with the appellant. Practice Book § 4061. We cannot guess as to the existence of a factual predicate. State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). The trial court did not set forth any facts or reasons to support its conclusion that CCC had ratified -the credit agreement. The defendant did not seek an articulation, nor did it seek to correct any finding in the trial court's memorandum of decision. While it is the duty of the judge who tried the case to set forth the basis of that decision; Powers v. Powers, 183 Conn. 124, 125, 438 A.2d 845 (1981); if the defendant, as appellant, claims that the court's memorandum of decision lacks a sufficient factual basis or is unclear or incorrect, it is that party's burden to have corrected or perfected that record. It is incumbent on the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Walton v. New Hartford, 223 Conn. 155, 165-66, 612 A.2d 1153 (1992). Without an adequate record, we can only speculate as to the basis for the trial court's decision. Our role "is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court." (Internal quotation marks omitted.) State v. Hoeplinger, supra, 27 Conn. App. 647. Because the defendant has not provided us with an adequate record on which to review its claim, its claim must fail. II The Cross Appeal The plaintiff has cross appealed, alleging that the trial court improperly calculated damages. It was established at trial that the outstanding balance owed by the defendant, excluding interest, was $133,512.82. The amount of outstanding interest was $32,131.54. The total debt was determined to be $165,644.36. The trial court awarded the plaintiff $111,612.08, with interest from the time of judgment. The plaintiff claims that the trial court (1) should not have deducted $30,000 from its calculation of the plaintiff's damages and (2) improperly calculated the amount of interest owed. We reverse the judgment in part and affirm it in part. The plaintiff points out that it had received three checks totaling $30,000 drawn on General's bank account and applied to CCC's outstanding balance pursuant to instructions from Cyr. The outstanding balance claimed by the plaintiff was the amount remaining after deducting the $30,000 payment. Despite the fact that the plaintiff had already deducted the $30,000 from the amount owed by CCC, the trial court deducted $30,000 in its calculation of damages. The trial court held, "However, the General Roofing Co. submitted three checks to [the plaintiff]. . . . The checks were issued by General Roofing to [the plaintiff] without any marking indicating where the checks should be applied. The plaintiff claims he was issued an oral order to apply the checks to CCC. The court cannot find any valid argument to justify that claim. Therefore, the court gives CCC credit of $30,000 against the outstanding debt. Therefore, utilizing the balance as shown on the plain tiffs balance sheet, which amounts to $141,612.08, deducting the $30,000 received and applied erroneously to the CCC Corporation, the court finds for the plaintiff in the amount of $111,612.08 with interest and costs, interest from the time of this judgment only, as the interest has been factored in by the plaintiff in his demand." A The plaintiff first claims that the trial court improperly calculated damages by deducting the $30,000 from the outstanding balance owed by the defendant. We agree. As a general rule, the determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous. Beckman v. Jalich Homes, Inc., 190 Conn. 299, 309-10, 460 A.2d 488 (1983); Amwax Corp. v. Chadwick, 28 Conn. App. 739, 745, 612 A.2d 127 (1992). On the basis of our review of the record, we conclude that the trial court's determination of damages in this case was clearly erroneous. The amount of the plaintiff's claim reflected outstanding amounts only, after crediting all payments, and the amount of the claim was not disputed by the defendant. After the trial court noted that the $30,000 had been applied to the balance owed by CCC, the court improperly proceeded to deduct $30,000 from the balance claimed by the plaintiff. This resulted in the $30,000 being subtracted twice from CCC's balance, first by the plaintiff upon receipt and then by the court. The action of the trial court in deducting this money from the plaintiff's claim was clearly erroneous. B The plaintiff also claims that the trial court improperly omitted a substantial amount of interest from the damage award. The court calculated the amount of interest awarded on the basis of the outstanding balance reflected in an attachment to the plaintiffs original complaint. The court found that interest was included by the plaintiff in this amount and, therefore, awarded interest only from the time of judgment. The plaintiff claims that the trial court should have included interest from the commencement of the action to the time of judgment. We find this claim to be without merit. The plaintiff has not demonstrated that the court's determination of interest was clearly erroneous. The judgment is affirmed on the defendant's appeal. The judgment is reversed in part on the plaintiff's cross appeal and the case is remanded with direction to render judgment for the plaintiff in the amount of $141,612.08 with interest from the date of judgment and costs. In this opinion the other judges concurred. In addition to the named defendant, Hector Cyr is a defendant. He has not appealed. Thus, when we refer to the defendant, we refer only to CCC Corporation. The trial court found that the plaintiff sustained its burden of proof that Cyr had apparent authority as CCC had invested him with unfettered managerial control. The court found that Cyr, a corporate officer, was authorized to act on behalf of CCC, that Cyr signed the credit agreement on behalf of CCC, and that the plaintiff acted in good faith in reliance on that agreement with CCC. The court also accepted the alternative argument that CCC had ratified the agreement and was estopped from denying ratification. Because of our disposition of this claim, we find it unnecessary to address the defendant's other claims. The holding in Perry v. Simpson Waterproof Mfg. Co., supra, 37 Conn. 534, states: "A corporation will also be bound by the unauthorized acts of its president if it subsequently ratifies those acts, or so conducts itself with reference to them as that it ought to be estopped from denying his authority; and generally, the doctrine of estoppel will apply whenever the corporation receives and retains the benefit of the contract." The defendant acknowledges that the memorandum of decision is not very clear as to whether the knowledge was found to be actual or imputed and whether it was of some or all of the facts connected with the agreement. The defendant also points out that the court never spelled out the benefit to CCC. The plaintiff filed a motion to correct that was denied by the court. The plaintiff's original complaint, dated July 16, 1992, showed the amount due as $141,612.08.

Peters, C. J. The dispositive issue in this consolidated appeal is the extent of the jurisdiction of the Superior Court to inquire into a plaintiffs authority to bring a lawsuit in the name of an Indian tribe. The plaintiff, representing itself to be the Golden Hill Pau-gussett Tribe of Indians (plaintiff), brought an action to quiet title to land located in the town of Southbury (town). In its complaint, the plaintiff requested that the town be designated representative of a proposed defendant class of current owners of that land. The state of Connecticut (state) and a party representing itself as the General Tribal Council of the Golden Hill Paugussett Indian Nation (council) moved separately to intervene as defendants, and the trial court granted both motions. Thereafter, the defendants separately moved to dismiss the action on the grounds that, inter alia, the plaintiff had no authority to bring this lawsuit in the name of the tribe. After an evidentiary hearing, the trial court found that the tribe had not authorized the suit and rendered judgment dismissing the action. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm. This action arises out of events that are alleged to have occurred more than 300 years ago. In its complaint, the plaintiff claimed that its tribe, from time immemorial until the arrival of English colonists, had possessed, occupied and controlled much of present-day southwestern Connecticut. The plaintiff further claimed that, in a deed of 1706, the tribe had transferred to a group of colonists the tribe's Indian title to certain lands, but had "reserved" to the tribe the land now in dispute. The plaintiff admitted that, in the years 1733 to 1759, a series of additional deeds had purported to transfer to the colonists the reserved land as well. The plaintiff contended, however, that those later deeds had been void ab initio, because the transfers had occurred without the Colonial General Court's express consent in violation of General Court enactments of 1663, 1680 and 1717. In light of the alleged invalidity of the later deeds, the plaintiff contended that its "Indian title" in the reserved land never had been properly extinguished, and, therefore, that it has a present right to occupy the land. After filing its complaint, the plaintiff filed a notice of lis pendens in the Southbury town clerk's office and began to serve copies of the notice on all 1200 recorded current owners of the land. Alleging that the lis pen-dens was causing irreparable harm to the current land owners by making their titles uninsurable, the town filed motions for a temporary injunction against continued service of the notice of lis pendens and for discharge of the lis pendens itself. After a hearing, the trial court granted both motions. Thereafter, all three defendants moved to dismiss the action on the grounds that the lawsuit, although brought in the name of the tribe, actually had not been authorized by the tribe. The trial court held an eviden-tiary hearing on the motions to dismiss, at which the plaintiff refused, on grounds of tribal sovereignty, to offer any evidence of its authority to sue on behalf of the tribe, other than copies of documents filed with the governor pursuant to General Statutes § 47-66Í. Those documents did not directly authorize any individual to sue on behalf of the tribe, but they did indicate that the tribe's "leader" was its "Traditional Chief," Chief Big Eagle. The documents also indicated that Chief Big Eagle had appointed his son, Chief Quiet Hawk, to be the tribe's "Council Chief." Although neither Chief Big Eagle nor Chief Quiet Hawk testified at the hearing, the parties stipulated that someone identifying himself as Chief Quiet Hawk had authorized the plaintiff's counsel to file the lawsuit. In support of their motions to dismiss, the defendants offered testimony, which the trial court found credible, that Chief Quiet Hawk lacked authority to sue on behalf of the tribe. R. Michael Smith, a member of the tribe, testified that (1) notwithstanding the documents filed with the governor, the tribe was governed by an elected tribal council, (2) only the council could authorize a lawsuit in the name of the tribe and (3) in this case, the council specifically had decided not to authorize the action. Michael S. Haney, executive director of the American Indian Arbitration Institute, confirmed that pursuant to the customs and practices of the Golden Hill Paugussetts, only the tribal council could authorize a lawsuit in the name of the tribe. Haney testified, further, that a survey of the tribe's members disclosed no one who supported Chief Quiet Hawk in the bringing of the lawsuit. After finding that "the Council, and not Quiet Hawk, has control of the group calling themselves members of the tribe" and that the council "wishes the case withdrawn," the trial court granted the motions to dismiss. On appeal, the plaintiff argues, for two reasons, that the trial court improperly dismissed the case. First, the plaintiff maintains that the trial court had no jurisdiction to determine whether the plaintiff actually had power to act in the name of the tribe, as that question was a matter of tribal sovereignty not cognizable in civil court. Second, the plaintiff contends that, even if the trial court had jurisdiction to determine whether the plaintiff had authority to sue, the court was bound to make that determination solely on the basis of the documents filed with the governor pursuant to § 47-66Í and was required to allow this suit to proceed because the individual who had authorized the suit was listed in those documents as a "leader" of the tribe. We disagree with both arguments. I The plaintiff's initial claim is that the trial court exceeded its jurisdiction when it decided that the plaintiff lacked authority to sue in the name of the tribe. The plaintiffs claim requires us to examine the interrelationship of three propositions: (1) courts always have jurisdiction to determine whether they have jurisdiction; (2) courts lack jurisdiction over suits brought in the names of parties by persons unauthorized to sue on behalf of those parties; and (3) instrumentalities of the state have no jurisdiction over the internal affairs of bona fide Indian tribes. In essence, the plaintiff asks us to hold that the third proposition superseded the first two—that is, that because of tribal sovereignty, the trial court had no power to decide the jurisdictional question of whether the plaintiff had authority to sue on the tribe's behalf. In the circumstances of this case, however, we need not decide whether a tribe's inherent sovereignty outweighs a court's inherent power to decide its jurisdiction. Contrary to the plaintiff's implicit assertion, we are persuaded that all three propositions not only are compatible in this case, but are complementary, and that the trial court respected all of them by dismissing the action. A We first address the trial court's power to determine its jurisdiction. As we have held repeatedly, the power to determine its jurisdiction is one of the core inherent powers of a court. "[0]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case. . [A] court must have jurisdiction to determine its own jurisdiction once that has been put in issue." (Citations omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 429-30, 541 A.2d 1216 (1988); accord Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 227, 429 A.2d 478 (1980); Aaron v. Conservation Commission, 178 Conn. 173, 178, 422 A.2d 290 (1979). As we also have held, "[i]t is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has . . . some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 693, 600 A.2d 1019 (1991); Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983). The standing requirement is "designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) Rose v. Freedom of Information Commission, 221 Conn. 217, 223, 602 A.2d 1019 (1992); Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 649, 556 A.2d 1020 (1989); Maloney v. Pac, 183 Conn. 313, 320, 439 A.2d 349 (1981). To fulfill these goals, the standing doctrine requires a plaintiff to demonstrate two facts. First, the complaining party must be a "proper party to request adjudication of the issues." Nye v. Marcus, 198 Conn. 138, 141, 502 A.2d 869 (1985). Second, the person or persons who prosecute the claim on behalf of the complaining party must have authority to represent the party. See, e.g., Orsi v. Senatore, 230 Conn. 459, 470, 645 A.2d 986 (1994) (standing of foster parent to sue child's guardian on behalf of child); State v. Nardini, 187 Conn. 109, 112-16, 445 A.2d 304 (1982) (standing of state's attorney to challenge recommendation of sentence review division on behalf of state); Barrett v. Southern Connecticut Gas Co., 172 Conn. 362, 370, 374 A.2d 1051 (1977) (standing of shareholder to file derivative action on behalf of corporation); Vaitekunene v. Budrys, 156 Conn. 547, 554, 244 A.2d 408 (1968) (standing of legatee's purported attorney to appeal order of Probate Court on behalf of legatee). A complaining party ordinarily can show that it is "a proper party" when it "makes a colorable claim of [a] direct injury [it] has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy." (Citations omitted; internal quotation marks omitted.) Rose v. Freedom of Information Commission, supra, 221 Conn. 223-24; Board of Pardons v. Freedom of Information Commission, supra, 210 Conn. 649; Maloney v. Pac, supra, 183 Conn. 321. To demonstrate authority to sue, however, it is not enough for a party merely to show a "colorable claim" to such authority. Rather, the party whose authority is challenged has the burden of convincing the court that the authority exists. See Orsi v. Senatore, supra, 230 Conn. 470; Vaitekunene v. Budrys, supra, 156 Conn. 554; see also Meredith v. Ionian Trader, 279 F.2d 471, 474 (2d Cir. 1960) ("A party to . a suit may by motion or pleading dispute the authority of the opposing party 'to act for the party in whose name he is proceeding, and, if the authority is not shown, the court will dismiss the action for want of parties before it.' "). The burden of proof for questions of authority is higher than that for questions of propriety because the former questions are more important. Lawsuits must be authorized not only to ensure that the litigants " 'fairly and vigorously' " represent the party's views; Rose v. Freedom of Information Commission, supra, 221 Conn. 223; but also because, if unauthorized lawsuits were allowed to proceed, future rights of the named parties might be severely impaired. Because of the doctrines of collateral estoppel (issue preclusion) and res judicata (claim preclusion), parties named in an unauthorized suit might later be unable to relitigate issues decided in that suit or to bring new claims. Barrett v. Southern Connecticut Gas Co., supra, 172 Conn. 371. In this case, as it was not disputed that the tribe itself had at least "a colorable claim of [a] direct injury [it] ha[d] suffered . . . in an individual or representative capacity"; (internal quotation marks omitted) Rose v. Freedom of Information Commission, supra, 221 Conn. 223; the motions to dismiss did not allege that the tribe was not a "proper party" to bring an action to quiet title to the disputed lands. The motions to dismiss argued only that the person who had brought suit on behalf of the tribe lacked authority to do so. In light of the precedents cited above, those motions properly called into question the jurisdiction of the trial court and required the court to determine its jurisdiction. B The plaintiff alleges, however, that even if a court normally is empowered to investigate a litigant's authority to represent a party, the court does not have such power here, because any exercise of that power would violate the inherent sovereignty of the tribe. To avoid interfering with tribal sovereignty, according to the plaintiff, the trial court was required to accept the plaintiff's assertion that it had authority to sue and therefore was required to adjudicate the merits of the plaintiff's case. Interestingly, the state joins the first part of the plaintiffs argument, agreeing that the trial court lacked jurisdiction to resolve who had authority to sue, because doing so interfered with the sovereignty of the tribe. From this agreement with the plaintiff, however, the state draws the opposite conclusion. The state reasons that, because the trial court had no power to decide who had authority to sue, the court was unable to make an affirmative finding that the plaintiff had standing, and thus it could not exercise jurisdiction over the case. We agree with both the plaintiff and the state that our courts may not interfere with tribal sovereignty. We disagree with both parties, however, that the trial court's decision as to whether the plaintiff had authority to sue on behalf of the tribe amounted to such an interference. On the contrary, greater threats to tribal sovereignty are posed by the positions taken by the plaintiff and the state than by the actions of the trial court. Like all instrumentalities of the state of Connecticut, our courts are powerless to intervene in the exercise of tribal self-government. Federal statute, federal common law and state statute all require us to treat bona fide Indian tribes as sovereign nations and to protect tribal rights to self-determination. Schaghticoke Indians of Kent, Connecticut, Inc. v. Potter, 217 Conn. 612, 626-29, 587 A.2d 139 (1991). Because of the continuing inherent sovereignty of Indian tribes, for example, federal common law forbids states from "unlawfully infring[ing] on the right of reservation Indians to make their own laws and be ruled by them." (Internal quotation marks omitted.) White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142, 100 S. Ct. 2578, 65 L. Ed. 2d 665 (1980); Williams v. Lee, 358 U.S. 217, 220, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1959). Similarly, state statutes explicitly provide that "the indigenous tribes, [including] . . . the Golden Hill Paugussett are self-governing entities possessing powers and duties over tribal members and reservations. Such powers and duties include the power to . . . (2) determine the tribal form of government . . . and (5) determine tribal leadership in accordance with tribal practice and usage." General Statutes § 47-59a (b). Any action by a state court that infringed on tribal sovereignty or interfered in tribal self-government would therefore be improper. Our recognition of tribal sovereignty does not, however, render all matters touching upon tribal decisions nonjusticiable. As the United States Supreme Court has made clear, tribal sovereignty does not impede state court jurisdiction unless "the exercise of state-court jurisdiction in [the] case would interfere with the right of tribal Indians to govern themselves under their own laws." Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 148, 104 S. Ct. 2267, 81 L. Ed. 2d 113 (1984). If the exercise of state court jurisdiction is "compatible with tribal autonomy"; id., 149; judicial action not only is permitted, but may be required. See id., 151-52 (suggesting that failure to exercise jurisdiction could violate Indians' rights under due process clause, equal protection clause and 42 U.S.C. § 1981). The question before us, therefore, is whether, in deciding if the plaintiff had authority to sue on behalf of the tribe, the trial court actually interfered with the exercise of tribal sovereignty. Notwithstanding the plaintiff's and the state's arguments, we are persuaded that the trial court's actions were consistent with such sovereignty. By determining whether the suit had been brought by the tribe, the trial court preserved the autonomy of the tribe to choose its own form of government (i.e., government by tribal council) and enforced the tribe's sovereign decision not to sue. The propriety of the trial court's actions is further established by a decision of the United States Supreme Court, in a case strikingly similar to the case at bar, more than sixty years ago. In Pueblo of Santa Rosa v. Fall, 273 U.S. 315, 317, 47 S. Ct. 361, 71 L. Ed. 658 (1927), as in this case, a suit had been filed in the name of an Indian tribe pursuant to a power of attorney executed by a man who purported to be the "Captain" or chief of the tribe. The defendant, by way of a motion to dismiss, alleged that counsel had no authority to sue in the name of the tribe. Id., 319. At an evidentiary hearing, the defendant offered evidence of "inquiries, conducted among the Indians . . . [that] failed to disclose anyone who knew of any authority from the Indians to bring or maintain the suit. . . . The evidence further show[ed] that no suit properly could have been brought without the prior consent of the Indians in council and that no council for that purpose was ever assembled. . . . Indeed, there [was] no evidence to the contrary worthy of serious consideration." Id., 318-20. The proper result, the court declared, was that the trial court should "dismiss the bill, on the ground that the suit was brought by counsel without authority . . . ." Id., 321. Had the trial court followed the plaintiffs or the state's suggested courses of action, on the other hand, it would have risked a substantial infringement of tribal sovereignty. If, as the plaintiff desired, the suit had gone forward, the tribe might later have been precluded from relitigating issues decided against the plaintiff, or barred from bringing new claims not raised by the plaintiff. Likewise, if, as the state desired, the suit had been dismissed because there was a "dispute" about who was authorized to sue on behalf of an Indian tribe, the tribe might be forever foreclosed from bringing even an authorized lawsuit in its own name. Cf. id., 321 (cautioning that trial court should dismiss unauthorized suit only without prejudice to "the bringing of any other suit hereafter by and with the authority of the alleged Pueblo of Santa Rosa"). Both parties' suggestions, therefore, lead to results far more detrimental to tribal sovereignty than the path followed by the trial court. In conclusion, we reiterate that the inherent sovereignty of Indian tribes bars courts from intervening in many matters of tribal self-government. The principle of tribal sovereignty, however, does not bar courts from acting to protect tribal sovereignty and thus did not bar the actions of the trial court in this case. II The plaintiff's second claim is that, even if the trial court was empowered to decide whether the plaintiff was authorized to sue on behalf of the tribe, the court was required to decide the issue of standing solely on the basis of documents filed with the governor pursuant to § 47-66Í. We disagree. We note, first, that the statute itself does not require a trial court to look only to § 47-66Í documents when deciding a litigant's authority to sue. The statute's only stated purpose in requiring the documents to be filed is to limit a court's role in reviewing an optional dis pute resolution mechanism also established by the statute. The statute provides that "[u]pon request of a party to a dispute, the dispute may" be submitted to a panel of three arbitrators. (Emphasis added.) General Statutes § 47-66Í (b). On appeal from the arbitral procedure, the statute then directs the Superior Court to determine "if provisions of the written description filed . . . pursuant to this section have been followed" and to vacate the decision and remand the case to the arbitrators if "the dispute was not resolved in accordance with the provisions of the written description." General Statutes § 47-66Í (b). Section 47-66Í, therefore, is consistent with other legislation limiting the scope of judicial review of consensual arbitration awards. See General Statutes § 52-418 (a). Because nothing in the legislative history otherwise suggests, we are persuaded that the legislature, in enacting § 47-66Í, did not intend to limit the Superior Court's role in deciding whether an individual had authority to represent a tribe in an action brought to the Superior Court in the first instance. Our conclusion is buttressed by the limited reliability of the documents contemplated by § 47-66Í with respect to a leader's actual authority to act on behalf of a tribe. On its face, the statute empowers any individual purporting to be the "leader" of a tribe to file documents confirming his leadership and power. The statute provides no procedure to guarantee that the tribe consents to the contents of the documents before they are filed by its purported leader. Cf. 25 U.S.C. § 476. The statute also establishes no procedure by which the executive officials who receive the documents can inquire into the documents' provenance. Cf. State v. Bertrand, 61 Wash. 2d 333, 341, 378 P.2d 427 (1963) (before issuing resolution effectuating decision of tribal counsel, governor must be "satisfied that the body presenting the resolution was duly qualified"). If the statute were read, therefore, to preclude courts from looking behind such documents and considering evidence offered by tribal members that their leaders had not been authorized to sue, tribal sovereignty and self-determination would be significantly impaired. In sum, the documents filed pursuant to § 47-66Í will constitute evidence of a purported tribal leader's authority only to the extent that the trial court finds those documents to be reliable and accurate. In this case, the trial court found, as a matter of fact, that the documents were unreliable, and that the lawsuit had not been authorized by the tribe. As the plaintiff has raised no challenge to the trial court's findings of fact, and as we have rejected the plaintiff's challenges to the legal standards employed by the trial court, we accordingly conclude that the trial court acted appropriately. The judgment is affirmed. In this opinion Callahan, Katz and Palmer, Js. concurred. "[Although fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation [Great Britain] and later the original States and the United States—a right of occupancy in the Indian tribes was nevertheless recognized. That right, sometimes called Indian title and good against all but the sovereign, could be terminated only by sovereign act. " Oneida Indian Nation of New York v. Oneida, 414 U.S. 661, 667, 94 S. Ct. 772, 39 L. Ed. 2d 73 (1974). The trial court concluded that service of the notice of lis pendens was not necessary in this case, as, inter alia, "the very nature of Indian land claims [is that] hundreds of years and thousands of good faith purchases are claimed to be of no effect." It further concluded that the lis pendens was itself improper, as there was no probable cause to support the plaintiff's claimed title in the subject property. General Statutes § 47-66Í provides: "method of selecting tribal leaders, disputes, (a) Each tribal leader shall file with the governor his name and a written description of the method of selecting tribal leaders and the process by which tribal leaders exercise their authority. The governor shall file such description with the secretary of the state and the Indian Affairs Council established under section 47-59b. "(b) A leadership dispute shall be resolved in accordance with tribal usage and practice. Upon request of a party to a dispute, the dispute may be settled by a council. Each party to the dispute shall appoint a member to the council and the parties shall jointly appoint one or two additional members provided the number of members of the council shall be an odd number. If the parties cannot agree on any joint appointment, the governor shall appoint any such member who shall be a person knowledgeable in Indian affairs. The decision of the council shall be final on substantive issues. An appeal may be taken to the superior court to determine if provisions of the written description filed with the secretary of the state pursuant to this section have been followed. If the court finds that the dispute was not resolved in accordance with the provisions of the written description, it shall remand the matter with instructions to reinstitute proceedings, in accordance with such provisions." The trial court provided three alternative reasons for its decision to dismiss the case. First, the trial court noted that if "a tribe is a group or band of Indians following a leader," the court was required to dismiss for lack of standing because "[t]he designated plaintiff in this lawsuit is . . . not a tribe or representing a tribe . . . ." The trial court explained that, because "[n]o other members of the group calling themselves members of the Golden Hill Tribe of Indians support the bringing of this lawsuit on Quiet Hawk's authority . no tribe exists which followed Quiet Hawk at the time suit was filed [that] may be designated as the plaintiff Golden Hill Pau-gussett Tribe of Indians." Second, the trial court held that if its determination of the plaintiff's standing implicated an "issue of disputed tribal leadership," it was required to dismiss because such issues were "unsuited to judicial inquiry' ' and ' 'reserved by the Legislative Branch for resolution by a tie breaker appointed by the Executive Branch." Third, the trial court held that if it did have "inherent jurisdiction to determine the identity and capacity of a party filing a lawsuit," it would be required to dismiss because, as a matter of fact, Quiet Hawk had no authority to sue on the tribe's behalf. We affirm the trial court's judgment only on the last of these three grounds. Like the trial court, we offer no opinion as to who did have authority to sue on the tribe's behalf, and affirm only the finding that Quiet Hawk did not have such authority. The plaintiff also argues on appeal that the trial court should not have imposed the temporary injunction against service of the notice of lis pen-dens or discharged the lis pendens. Because we affirm the trial court's determination that the plaintiff lacked authority to sue, however, these other issues on appeal are moot, and we need not reach them. See Patterson v. Council on Probate Judicial Conduct, 215 Conn. 553, 561-62, 577 A.2d 701 (1990). Because the plaintiff does not raise the issue on appeal, we have no occasion to decide whether the individuals who purportedly authorized the suit, including Chief Quiet Hawk, could have sued in their own names to quiet title to the disputed lands. Compare United States v. Dann, 873 F.2d 1189, 1196 (9th Cir.), cert. denied, 493 U.S. 890, 110 S. Ct. 234, 107 L. Ed. 2d 185 (1989), (individual Indians may sue to enforce Indian title if their lineal ancestors held and exclusively occupied, as individuals, particular tract of land from time immemorial), with Epps v. Andrus, 611 F.2d 915, 917-18 (1st Cir. 1979), and cases cited therein (only tribe, but not individual tribal member, has standing to sue under Indian Nonintercourse Act to reclaim tribal lands transferred in violation of that act). As the plaintiff's claim in this case concerns lands outside the current borders of "Indian country"; see Schaghticoke Indians of Kent, Connecticut, Inc. v. Potter, supra, 217 Conn. 620; and as none of the parties has pointed us to any federal statute addressing a state court's jurisdiction to decide who has authority to sue on behalf of a tribe, we will focus our inquiry only on the jurisdictional limits imposed by federal common law and state law. General Statutes § 47-59a provides: "Connecticut Indians; citizenship, civil EIGHTS, LAND eights, (a) It is hereby declared the policy of the state of Connecticut to recognize that all resident Indians of qualified Connecticut tribes are considered to be full citizens of the state and they are hereby granted all the rights and privileges afforded by law, that all of Connecticut's citizens enjoy. It is further recognized that said Indians have certain special rights to tribal lands as may have been set forth by treaty or other agreements. "(b) The state of Connecticut further recognizes that the indigenous tribes, the Schaghticoke, the Paucatuck Eastern Pequot, the Mashantucket Pequot, the Mohegan and the Golden Hill Paugussett are self-governing entities possessing powers and duties over tribal members and reservations. Such powers and duties include the power to: (1) Determine tribal membership and residency on reservation land; (2) determine the tribal form of government; (3) regulate trade and commerce on the reservation; (4) make contracts; and (5) determine tribal leadership in accordance with tribal practice and usage." Although the state cites Felix S. Cohen's monumental treatise, Handbook of Federal Indian Law (reprint 1986) (1942) p. 126, to support its proposition that courts are powerless to examine whether an individual represents an Indian tribe, Cohen actually supports the opposite principle. Cohen wrote: "The question of whether action taken in the name of an Indian tribe is in truth tribal action, has been before state and federal courts on many occasions, and in every case the courts have held that the definition of the form of tribal government is a matter for the decision of the Indians themselves." Id. To ensure that "the decision of the Indians themselves" are upheld, Cohen continued, courts are obligated to decide, based on tribal law, whether an individual had authority to represent a tribe: "Not only must officers presuming to act in the name of an Indian tribe show that their acts fall within their allotted function and authority, but likewise the procedural formalities which tradition or ordinance require must be followed in executing an act within the acknowledged jurisdiction of the officer or set of officers." Id., p. 127; see also id., pp. 126-28 and nn.34 and 46. See also Meredith v. Ionian Trader, supra, 279 F.2d 473-74 (following Pueblo of Santa Rosa v. Fall, supra, 273 U.S. 315, dismissing suit by insurer of damaged cargo because statements of cargo's owner, the sovereign government of Pakistan, showed that insurer had no authority to sue on owner's behalf). The state suggests that the trial court would only need to wait until the dispute had been resolved pursuant to the arbitration procedures outlined in § 47-66Í. Because those statutory procedures are discretionary, however, a court has no guaranty that the dispute ever would be submitted for resolution. In addition, the state does not explain how a court could prevent opposing parties from making false allegations that there were "disputes" as a means to deprive the court of jurisdiction. If, as the state contends, a court has no power to hear evidence on the internal decision-making processes of the tribe, the court apparently would have to find that there was a bona fide "dispute," and then dismiss the case, whenever anyone challenged a litigant's standing to sue on behalf of a tribe. The statutory language, its legislative history, and policy considerations all support our conclusion that § 47-66Í does not require disputing parties to submit to arbitration before a court can determine an individual's authority to sue. In the same statute providing that disputes "may" be submitted to arbitration, the legislature also provided that disputes "shall" be resolved in accordance with tribal usage and practice, that parties submitting to arbitration "shall" each appoint one arbitrator, that the governor "shall" appoint a tie-breaking arbitrator if the parties cannot agree on a joint appointment, that the arbitrators' decision "shall" be final on substantive issues, that an appeal from the arbitration award "may" be taken to the Superior Court, and that the court on appeal "shall" remand the case to the arbitrators if the dispute was not resolved in accordance with the written documents. "This use of shall and may in the same statute, which is commonly mandatory and directory in connotation is a factor that evidences affirmative selectivity of terms with specific intent to be distinctive in meaning. The words shall and may must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings." (Internal quotation marks omitted.) Builders Service Corp. v. Planning & Zoning Commission, 208 Conn. 267, 304-305, 545 A.2d 530 (1988); Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978); Mazzola v. Southern New England Telephone Co., 169 Conn. 344, 365 n.19, 363 A.2d 170 (1975); Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428-29, 226 A.2d 380 (1967). There is no legislative history contradicting the clear language of the statute and suggesting that disputants were to be required to submit to arbitration before a court could determine an individual's authority to sue on behalf of a tribe. Moreover, because § 47-66Í constrains the arbitrators to decide a dispute "in accordance with the provisions of the written description," policy con siderations counsel against reading the statute to require arbitration on questions of authority to sue. If we refused to recognize disputants' statutory rights to opt out of the arbitration procedure, disputants theoretically would become bound by documents they alleged to be inaccurate or fraudulent. See following text. General Statutes § 52-418 (a) provides: "Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made." We furthermore decline to hold that notwithstanding the optional nature of § 47-66Í arbitration, the trial court should have stayed the action until such time as arbitration occurred, pursuant to the doctrine of "primary jurisdiction." See Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 58 (2d Cir. 1994); Sharkey v. Stamford, 196 Conn. 253, 256, 492 A.2d 171 (1985); Mazzola v. Southern New England Telephone Co., 169 Conn. 344, 349, 363 A.2d 170 (1975). None of the parties has argued in this case that the arbitration panels established by § 47-66Í are "administrative bod[ies]" having "special competence" over the question of authority to sue on behalf of an Indian tribe. (Internal quotation marks omitted). Mazzola v. Southern New England Telephone Co., supra, 349. Nor has any party explained how an arbitration decision identifying an individual as a tribe's "leader" pursuant to § 47-66Í would "materially ai[d]" the court in determining whether that leader had authority to sue on the tribe's behalf. Golden Hill Paugussett Tribe of Indians v. Weicker, supra, 60 (question of tribal existence within special competence of Bureau of Indian Affairs [BIA]; BIA's decision will aid District Court in deciding tribe's claim under Non-Intercourse Act). We do not mean to suggest that the documents would have to be approved democratically to be valid. The tribe's right to choose its own form of government surely allows it to choose a nondemocratic government. Even nondemocratic governments, however, derive their legitimacy only from the consent of the governed. The tribal documents, therefore, cannot accurately represent the choices of the tribe unless made with the consent of the tribe, however such consent is expressed. Title 25 of the United States Code, § 476 provides in relevant part: "ORGANIZATION OF INDIAN TRIBES; CONSTITUTION AND BYLAWS AND AMENDMENT THEREOF; SPECIAL ELECTION "(a) ADOPTION; EFFECTIVE DATE "Any Indian tribe shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws, and any amendments thereto, which shall become effective when . . . ratified by a majority vote of the adult members of the tribe or tribes at a special election authorized and called by the Secretary . "(b) REVOCATION "Any constitution or bylaws ratified and approved by the Secretary shall be revocable by an election open to the same voters and conducted in the same manner as provided in subsection (a) of this section for the adoption of a constitution or bylaws." Because the statute similarly does not contemplate an exercise of executive discretion in recognizing and/or accrediting the tribal leaders listed in the documents, we need not consider whether it would be appropriate for our courts to defer to the exercise of that discretion, much as courts defer to the decisions of the United States president as to who represents a foreign sovereign. See, e.g., Bank of China v. Wells Fargo Bank, 104 F. Sup. 59, 66 (N.D. Cal. 1952), aff'd, 209 F.2d 467 (9th Cir. 1953); State v. Bertrand, supra, 61 Wash. 2d 341 (applying international law principles to recognition of Indian tribes). We reject, for two reasons, the plaintiff's final argument that even if we affirm the reasoning of the trial court, we should still reverse the judgment and remand the case to allow the plaintiff to offer additional evidence of its authority to sue on behalf of the tribe. The plaintiff maintained, at oral argument in this court, that it withheld such evidence at the initial hearing only because it feared that introduction of the evidence would waive its challenge to the jurisdiction of the trial court to decide who had authority to sue. This argument, however, is supported neither by legal precedent nor by the factual record in this case, the latter of which indicates that the plaintiff persisted in its refusal to offer evidence at the hearing even after the defendants had stipulated, on the record, that they would not argue that the plaintiff had waived its jurisdictional challenge. We therefore decline to grant the plaintiff's request.

Katz, J. The principal issue in this certified appeal is whether the defendant's inability to remember the events of his life from two weeks before to five weeks after a motor vehicle accident prevented him from receiving a fair trial and thereby resulted in his being improperly convicted, after a jury trial, of manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b, misconduct with a motor vehicle in violation of General Statutes § 53a-57, and operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. In upholding the trial court's judgment, the Appellate Court held that under the facts of the case, the defendant had not been deprived of his rights to due process of law as provided by the fourteenth amendment to the United States constitution and article first, § 8 and 20, of the Connecticut constitution. State v. Gilbert, 30 Conn. App. 428, 436, 620 A.2d 822 (1993). We agree. The pertinent undisputed facts as set forth in the Appellate Court opinion are as follows. "On August 3, 1990, at approximately 8:30 p.m., the defendant, Michael J. Gilbert, left Hank's Restaurant on Route 6 in Brooklyn, Connecticut. He had been there for a few hours and had consumed some alcoholic drinks and pizza. Outside the restaurant, he smelled of alcohol, his speech was slurred and his balance was unsteady. He shuffled when walking and faltered getting into his vehicle, a 1981 Ford Escort. He slumped out of the driver's window and dropped his keys. His eyes were bloodshot and watery. He was upset and planned to drive to another bar located in another town. "Some time before 9 p.m., the defendant, driving in the westbound lane on Route 6 with his headlights off, collided with a vehicle being operated in the eastbound lane. Route 6 is a two lane road, with one lane in each direction; the posted speed limit is forty-five miles per hour. The weather at the time was clear, and the road conditions were dry. The driver of the other vehicle, a 1980 Toyota Corolla, died as a result of injuries she received in the accident. The defendant was found unconscious in the driver's seat of his car. He smelled of alcohol, and there were several open and empty beer cans in the vehicle, as well as a number of unopened cans of beer. The point of impact appeared to be in the eastbound lane, in which the victim was driving. "The defendant was taken to Day Kimball Hospital in Putnam, where, as part of the hospital's regular course of diagnosis and treatment of trauma patients, a blood sample was taken. The test revealed that the defendant's blood alcohol level per deciliter was 0.226, which translates to a 0.194 percent alcohol ratio. As a result of the accident, the defendant suffered a traumatic brain injury which resulted in temporary paralysis and coma. In addition, the defendant suffered some loss of memory." Id., 429-30. Following a competency hearing held pursuant to General Statutes § 54-56d, at which the court, Sfer razza, J., found the defendant competent to stand trial, the trial court considered the defendant's motion to dismiss in which he raised the claim that he could not receive a fair trial because of his amnesia. At the hearing on the motion to dismiss, the defendant argued, pursuant to Wilson v. United States, 391 F.2d 460, 463-64 (D.C. Cir. 1968), for the application of a multifactor approach to the question of whether a defendant's loss of memory precludes his prosecution. Under Wilson, in determining the effect of amnesia on the trial's fairness the trial court should consider six factors: (1) the extent to which the amnesia affected the defendant's ability to consult with and assist his lawyer; (2) the extent to which the amnesia affected the defendant's ability to testify on his own behalf; (3) the extent to which the evidence in the suit could be extrinsically reconstructed in view of the defendant's amnesia, including evidence relating to the crime itself as well as any reasonably possible alibi; (4) the extent to which the government assisted the defendant and his counsel in that reconstruction; (5) the strength of the prosecution's case, with the most important consideration pertaining to whether the government's case is such as to negate all reasonable hypotheses of innocence; and (6) any other facts and circumstances that would indicate whether or not the defendant had a fair trial. Id. The trial court considered the specific findings required by Wilson to be "impractical and unnecessary to a determination of whether a defendant would be denied due process of law if forced to stand trial." The court instead adopted the approach employed by the Second Circuit Court of Appeals in United States v. Sullivan, 406 F.2d 180, 186 (2d Cir. 1969). Unlike the Wilson test that requires a trial court both to conduct a pretrial competency hearing and make a posttrial determination as to whether the defendant had been able to perform " 'the functions essential to the fairness and accuracy of the particular proceedings in which he [was] presently involved' " as measured by six factors; Wilson v. United States, supra, 391 F.2d 463; the Sullivan test requires a more limited inquiry. The Sullivan test focuses on whether amnesia prevented the defendant from forming the requisite intent for the offenses charged and on whether the defendant was competent at the time of trial to consult rationally with counsel and to understand the nature of the proceedings against him. United, States v. Sullivan, supra, 186. Although, in deciding the motion to dismiss, the trial court expressed its preference for the Sullivan test, it nevertheless performed a case-by-case analysis and concluded that the defendant's amnesia did not severely undermine his present ability to consult rationally with his attorney or strip him of the opportunity to reconstruct events independent of his recollections. As part of its evaluation, the court reviewed both reports that had been prepared pursuant to § 54-56d for assessment of the defendant's competency to stand trial. Each report concluded that the defendant could communicate and consult rationally with his attorney and could provide information regarding some of the related charges, including the lapse of insurance on his vehicle. The trial court found that the only significant consequence of the accident had been the defendant's loss of memory. The court noted that the charges did not require specific intent or guilty knowledge. It further remarked that there was an open file policy with regard to discovery, so that the defendant had access to: the state's accident reconstruction report; names, addresses and statements of witnesses; photographs and information as to the physical evidence found at the scene; and medical information, including blood alcohol levels, on both the victim and the defendant. The court observed that the defendant could not claim alibi or mistaken identification in light of the evidence that he had been found alone in his car immediately after the accident. The court determined, therefore, that the significant issues were intoxication and causation, matters usually proven by physical evidence and independent witnesses. In denying the defendant's motion to dismiss, the trial court concluded that the defendant had access to all of the available information necessary to reconstruct the accident, and that his amnesia did not interfere with his ability to have a fair trial. During the trial before Judge Dunn, the defendant made a motion in limine to prevent the introduction of "testimony concerning phis] conversations . . . during the period immediately preceding the accident," claiming that he could not confront such witnesses due to his amnesia. Specifically, the defendant argued that his amnesia prevented him from "confronting" two witnesses, Delana O'Neill and Henry Hewig, with whom he allegedly had conversed outside of Hank's Restaurant before the accident. After the trial court denied the defendant's motion in limine, O'Neill and Hewig testified for the state. The defendant cross-examined the latter regarding the direction Hewig saw him take outside the restaurant, the appearance of the defendant's eyes, and certain purported inconsistencies between Hewig's testimony and the statement that Hewig had given to the state police two days after the accident. The defendant did not cross examine O'Neill, and did not present any independent evidence regarding his encounter with those two men. Following the jury's verdict of guilty of all the crimes charged, the defendant moved for a judgment of aequit tal, relying on the Wilson factors. The trial court denied the motion, and rendered a judgment of conviction. The defendant appealed from the judgment of conviction to the Appellate Court. Without specifically endorsing the Wilson or the Sullivan approach, the Appellate Court concluded from its review of the record that "the trial court reasonably could have concluded that the defendant possessed a 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding— and . a rational as well as factual understanding of the proceedings against him' . . . and that the defense had an ample opportunity to reconstruct the events of the evening in question and to cross-examine witnesses, even without the defendant's specific recollection of events." (Citation omitted.) State v. Gilbert, supra, 30 Conn. App. 436. Accordingly, the Appellate Court affirmed the judgment of conviction. This appeal followed. The defendant asks this court to adopt the analysis set forth in Wilson v. United States, supra, 391 F.2d 462, in considering his claim that his memory loss should have precluded his prosecution. In Wilson, the court of appeals rejected the argument that amnesia should result in an absolute bar to prosecution when the defendant is fully competent to stand trial. See Leach v. Kolb, 911 F.2d 1249, 1260-61 (7th Cir.), cert. denied sub nom. Leach v. McCaughtry, 498 U.S. 972, 111 S. Ct. 441, 112 L. Ed. 2d 424 (1990) (amnesia is not a per se bar to prosecution of an otherwise competent defendant); accord Davis v. Wyrick, 766 F.2d 1197, 1202 (8th Cir. 1985), cert. denied, 475 U.S. 1020, 106 S. Ct. 1209, 89 L. Ed. 2d 322 (1986); State v. McClendon, 103 Ariz. 105, 107, 437 P.2d 421 (1968); Reagon v. State, 253 Ind. 143, 153-54, 251 N.E.2d 829 (1969); Commonwealth v. Lombardi, 378 Mass. 612, 615, 393 N.E.2d 346 (1979); see also annot., Amnesia As Affecting Capacity to Commit Crime or Stand Trial, 46 A.L.R.3d 544 (1972 & Sup. 1993). Notwithstanding that position, the Wilson court also rejected the government's contention that amnesia, without an accompanying disease or defect, can never render an accused incompetent to stand trial. Wilson v. United States, supra, 463; see United States v. Rinchack, 820 F.2d 1557, 1564 (11th Cir. 1987). Rather, the court held that due process requires a pretrial hearing, and in the event that a trial is held, a posttrial hearing to evaluate, on a case-by-case basis, the effect of amnesia both on the defendant's competency to stand trial and on the fairness of the trial. Wilson v. United States, supra, 463. This accords with the principle articulated by this court that "in all cases involving what is or is not due process . no hard and fast rule can be laid down. The pattern of due process is picked out in the facts and circumstances of each case." (Internal quotation marks omitted.) State v. Lovelace, 191 Conn. 545, 552, 469 A.2d 391 (1983), cert. denied, 465 U.S. 1107, 104 S. Ct. 1613, 80 L. Ed. 2d 142 (1984); see Tedesco v. Stamford, 222 Conn. 233, 244, 610 A.2d 574 (1992). We continue to adhere to that position and agree with the many jurisdictions that have either followed the Wilson approach strictly or have engaged in a factual analysis of the effect of amnesia on the fairness of the trial. See United States v. Villegas, 899 F.2d 1324, 1341 (2d Cir. 1990); United States v. Rinchack, supra, 820 F.2d 1569; United States v. Mota, 598 F.2d 995, 998 (5th Cir. 1979), cert. denied sub nom. Flores v. United States, 444 U.S. 1084, 100 S. Ct. 1042, 62 L. Ed. 2d 770 (1980); United States v. Borum, 464 F.2d 896, 899-900 (10th Cir. 1972); State v. McClendon, supra, 103 Ariz. 107-109; State v. Ferguson, 26 Ariz. App. 285, 287-88, 547 P.2d 1085 (1976); Parson v. State, 275 A.2d 777, 787 (Del. 1971); State v. Wynn, 490 A.2d 605, 608 (Del. Super. 1985) Aldridge v. State, 247 Ga. 142, 146, 274 S.E.2d 525 (1981); State v. Owens, 248 Kan. 273, 280, 807 P.2d 101 (1991); State v. Gilder, 223 Kan. 220, 224, 574 P.2d 196 (1977); State v. Blake, 209 Kan. 196, 200-201, 495 P.2d 905 (1972); Commonwealth v. Lombardi, supra, 378 Mass. 615-16; People v. Francabandera, 33 N.Y.2d 429, 436-38, 310 N.E.2d 292, 354 N.Y.S.2d 609 (1974); State v. Vassar, 279 N.W.2d 678, 682-83 (S.D. 1979); State v. McIntosh, 137 Wis. 2d 339, 347, 404 N.W.2d 557 (1987). In examining the factors set forth in Wilson, we particularly note that it is "the probability of prejudice, not [the] lack of memory per se, [that is] controlling." Wilson v. United States, supra, 391 F.2d 464 n.4. All that is required is that the defendant and counsel be able to " 'perform the functions essential to the fairness and accuracy of the particular proceedings .'" Id., 463. The Wilson court held that the standard of review is whether there exists a "reasonable basis for any contention that the outcome was significantly affected by [the] appellant's lack of memory." Id., 464 (Levanthal, J., concurring). Due to the plethora of evidence available to reconstruct events, independent of both the defendant and the victim, and the absence of a showing that the defendant was unable to present any potential defense, we conclude that the defendant's amnesia did not "significantly affect" the outcome of the trial. Under Wilson, the first factor is the extent to which the defendant's amnesia has affected his ability to consult with and assist his attorney, separate and apart from his memory loss. United States v. Rinchack, supra, 820 F.2d 1569; United States v. Swanson, 572 F.2d 523, 526 (5th Cir. 1978). The trial court found that the defendant had "no difficulty" understanding the nature of the proceedings or in "communicating with others," and that he was competent to stand trial and therefore was able to assist his attorney in his defense. The defendant does not challenge that finding on appeal. The trial court also found that the defendant did not appear to have difficulty consulting with his counsel as to potential defenses and witnesses. As the defendant states in his brief to this court, his defense was to contest "two essential elements of the state's case, namely, that he was under the influence . . . [and] that . . . the accident took place in the other driver's lane." There was no paucity of witnesses or evidence on these elements from the five defense witnesses: the bartender and permittee of the restaurant; an expert in accident reconstruction; and two employees of the automobile repair shop where the defendant's car was taken. It was also reasonably possible for counsel to identify and question other potential witnesses, i.e., relatives and persons who worked with, lived near or otherwise had been associated with the defendant during that time period. Nonetheless, the defendant contends that his inability to remember events that had occurred prior to the accident left his counsel with "no idea how to cross-examine" the state's witnesses O'Neill and Hewig, who testified as to his intoxicated condition at the restaurant. We cannot fathom, however, how the defendant's ability to recall these events would have served to alter or improve defense counsel's cross-examination. The defendant failed to suggest any scenarios upon which the trial court could have ruminated. The defendant also complains that he was "stuck with any inculpatory answers" as to his own statements given at the restaurant. The record belies this assertion. In fact, the defendant presented evidence to contradict the state's witnesses. Tracy Elliott, the bartender, and Roland LaCharite, the permittee of Hank's Restaurant, testified to the defendant's apparent sobriety during the same time frame. Elliott remembered that the defendant had eaten one half of a pizza and had used the telephone, and both she and LaCharite noted that the defendant had not staggered or swayed. Elliott also indicated that O'Neill and Hewig had not been at the restaurant that night. In addition, the automobile repair shop personnel indicated that there had been leftover pizza in the defendant's car, which neither O'Neill nor Hewig mentioned, and which might have indicated both that the defendant had been less affected by his alcohol consumption than the state's evidence suggested and that the state's witnesses' observation of him had been less than accurate. Moreover, the defendant overestimates the significance of the brief conversation O'Neill and Hewig related having had with him. According to O'Neill and Hewig, the defendant admitted that he had had a few drinks, that he was upset, that he was driving to another bar and that he did not want a taxi. The state did not, however, rely on that testimony as its primary evidence. On the contrary, the state's case largely depended upon later events, such as the reconstruction of the accident itself and the medical testimony regarding the effects of the defendant's blood alcohol level. Furthermore, the evidence of what had occurred prior to the accident consisted largely of behavioral and not testimonial evidence. The defendant's actions—his shuffling, faltering, unbalanced walk, his slumping out his window, and his dropping of his keys—together with his bloodshot and watery eyes, his slurred speech, and his odor of alcohol, were significantly more important to the state's case than his few words. The second factor under Wilson, whether amnesia affected the defendant's ability to testify on matters other than the event that gave rise to his amnesia; see United States v. Rinchack, supra, 820 F.2d 1569; also weighs against him. Because "inebriation and causation" were, as the trial court remarked, the only real issues in the case, in the absence of any claim that he was otherwise unable to take the stand and testify, the defendant presumably could have provided, for example, the following pertinent exculpatory testimony: that he was not an alcoholic; that he did not drink and drive; that he knew the road and the accident site; that O'Neill and Hewig were not truthful; and that he could not have been inebriated in light of the fact that he had eaten one half of a pizza. Other testimony that could have been exculpatory, but for the defendant's amnesia, was very limited. As the trial court found, this case did not involve a defense of alibi or mistaken identity: "[T]he question of operation appears uncontrovertible given the evidence that the defendant was found alone in his own vehicle after the crash and witnesses observed him driving onto Route 6 just before the crash." Although the defendant was obviously unable to provide a specific self-serving denial of wrongdoing, he has not provided any explanation or offer of proof regarding the type of testimony that he could have offered, the reasons he did not take the stand, or why we should presume that, but for the amnesia, he could have established a defense. "It is always possible that a defendant could gain an acquittal by perjuring himself, or more conscionably by presenting such a sympathetic figure on the witness stand that the jury would have used the mercy-dispensing power that it has in fact, though not in law. But such possibilities of prejudice, however realistic, do not suffice to prohibit the entry of a judgment on a verdict of guilty." Wilson v. United States, supra, 391 F.2d 465 (Leventhal,- J., concurring). The present record fails to demonstrate that the defendant would not have made the same tactical decision not to testify even if amnesia had not been a factor. Furthermore, the record does not indicate that, aside from his amnesia, the defendant's ability to testify had otherwise been unfairly limited. The third inquiry under Wilson explores whether the facts were capable of being reconstructed independent of the defendant's own recollection. Here, there was an abundance of evidence as to what had occurred: four witnesses, two for the state and two for the defense, testified to events at the restaurant immediately preceding the accident; four accident reconstruction experts, three for the state and one for the defense, along with a large amount of physical evidence, served to reconstruct the accident itself; and medical evidence informed the jury about the defendant's blood alcohol level shortly after the accident, and offered "relation back" testimony as to his alcohol level, and its effects on his ability to drive. Finally, as the trial court noted, because the offenses at issue do not require specific intent or knowledge, they were "particularly amenable to reconstruction, despite the defendant's memory loss, because the defendant's contemporaneous mental state is immaterial." See Commonwealth v. Lombardi, supra, 378 Mass. 616 (listing nature of crime as factor to examine). The fourth factor under Wilson is the extent to which the government assisted the defense in the reconstruction of the accident. The trial court found that the state had "provided the defense with open discovery," including a copy of a "twenty-two page accident investigation report . . . [that] provides the names and statements of the defendant's friends who talked with him and observed his physical condition as he exited the restaurant, entered his vehicle, and drove off onto Route 6." The report also provided the names and statements of witnesses at the accident scene, and disclosed "a wealth of physical evidence obtained at the scene and thereafter, including debris dispersal analysis, diagrams, measurements, an inventory of the contents of the vehicles, and other material pertinent to accident reconstruction. It comprises medical information regarding the cause of death of the victim and the medical condition of the defendant, including the blood alcohol ratio for both parties." The report also indicated that "photographs of the accident scene and the vehicles on the date of the accident and at later times" had been taken. When the state called Trooper Robert Mantho of the Connecticut state police to the stand, the defendant noted that he had no information about him. The defendant now argues that because the state failed to disclose Mantho's "role and conclusions prior to his testimony," the state failed adequately to assist him in the reconstruction of the accident. This argument is without merit. Mantho, the state's accident reconstruction expert in the present case, testified that his conclusions were "dependent on the photograph evidence, primarily, and the documented measurements that were provided to me by the on-scene troopers." As the trial court indicated at the hearing on the motion to dismiss, the defendant had the twenty-two page accident report that disclosed all material pertinent to accident reconstruction. In addition, when the defendant complained that he did not know who Mantho was, other than that he was an expert witness, the court offered defense counsel additional time to prepare for cross-examination and to call a rebuttal expert, and allowed him to discuss Mantho's testimony with the defense expert despite the sequestration order. The defendant has not claimed a violation of any Practice Book provision, and does not dispute that the state had an open file policy in this case. Nor does the defendant suggest that his own reconstruction expert had been hindered in any way. There is little question that the defendant, therefore, received ample assistance by the state in reconstructing the accident. The fifth factor under Wilson is the strength of the state's case. The record reflects that three separate officers with experience in accident reconstruction opined, based upon an extensive evaluation of all pertinent evidence at the scene, that the defendant's car had crossed over into the victim's lane. Two lay witnesses, friends of the defendant with no apparent reason to accuse him falsely, testified that they had been concerned about his driving because his actions and speech had indicated that he was under the influence. An expert medical witness also testified that shortly after the accident the defendant had had a blood alcohol level of 0.226, far above the level required for conviction under General Statutes § 14-277a (a) or (b). The defendant argues that there was conflicting testimony, both as to whether he had been under the influence and as to the lane in which the vehicles collided. The mere fact that there was conflicting evidence, however, does not necessarily make the state's case weak. In sum, the evidence, if credited, amply supported the jury's verdict. The last area of inquiry under Wilson allows the trial court to consider any other relevant criteria in assessing whether the defendant's amnesia should preclude his prosecution. For the first time in this case, the defendant claims that "he could not exercise his civil rights due to his mental disability," i.e., his amnesia, in violation of article first, § 20, of the Connecticut constitution. We decline to consider this claim because, as the state correctly points out, the defendant did not raise it in his appeal to the Appellate Court or in the certified question to this court. On certification, our focus is on the judgment of the Appellate Court. Cahn v. Cahn, 225 Conn. 666, 671, 626 A.2d 296 (1993); Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 599, 539 A.2d 101 (1988). The defendant did not raise the state constitutional claim in the Appellate Court and it does not appear anywhere in the opinion of the Appellate Court. Unlike State v. Joyce, 30 Conn. App. 164, 188-90, 619 A.2d 872 (1993) (Heiman, J., dissenting), rev'd, 229 Conn. 10, 639 A.2d 1007 (1994), in which the Appellate Court dissent relied on the state constitution and we specifically certified the issue, neither situation is present here. The judgment of the Appellate Court is affirmed. In this opinion the other justices concurred. We granted the defendant's petition for certification limited to the following issue: "Under the circumstances of this case, did the defendant's amnesia prevent him from receiving a fair trial?" State v. Gilbert, 225 Conn. 917, 623 A.2d 1025 (1993). General Statutes § 54-56d provides in pertinent part: "(Formerly See. 54-40). COMPETENCY TO STAND TRIAL, (a) COMPETENCY REQUIRED. DEFINITION. A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense. "(b) PRESUMPTION OF COMPETENCY. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by clear and convincing evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry. "(c) REQUEST FOR EXAMINATION. If at any time during a criminal proceeding it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant's competency. "(d) EXAMINATION OF DEFENDANT, report. If the court finds that the request for an examination is justified and that, in accordance with procedures established by the judges of the superior court, there is probable cause to believe that the defendant has committed the crime for which he is charged, the court shall order an examination of the defendant as to his competency. The court either may appoint one or more physicians specializing in psychiatry to examine the defendant or it may order the commissioner of mental health to conduct the examination either by a clinical team consisting of a physician specializing in psychiatry, a clinical psychologist and a psychiatric social worker, or by one or more physicians specializing in psychiatry. If the commissioner of mental health is ordered to conduct the examination, he shall select the members of the clinical team or the physician or physicians. If the examiners determine that the defendant is not competent, they shall then determine whether there is substantial probability that the defendant, if provided with a course of treatment, will regain competency within the maximum period of any placement order under this section. The court may authorize a physician specializing in psychiatry, a clinical psychologist or a psychiatric social worker selected by the defendant to observe the examination. Counsel for the defendant may observe the examination. The examination shall be completed within fifteen days from the date it was ordered. The examiner or examiners shall prepare and sign, without notarization, a written report and file it with the court within ten days of the completion of the examination. On receipt of the written report, the clerk of the court shall cause copies to be delivered immediately to the state's attorney and to counsel for the defendant. "(e) hearing. The court shall hold a hearing as to the competency of the defendant no later than ten days after it receives the written report. Any evidence regarding the defendant's competency, including the written report, may be introduced at the hearing by either the defendant or the state. If the written report is introduced, at least one of the examiners must be present to testify as to the determinations in the report, unless his presence is waived by the defendant and the state. Any member of the clinical team shall be considered competent to testify as to the team's determinations. A defendant and his counsel may waive the court hearing only if the examiners, in the written report, determine without qualification that the defendant is competent. "(f) COURT FINDING OF COMPETENCY OR INCOMPETENCY. If the court, after the hearing, finds that the defendant is competent, it shall continue with the criminal proceedings. If it finds that the defendant is not competent, it shall also find whether there is substantial probability that the defendant, if provided with a course of treatment, will regain competency within the maximum period of any placement order permitted under this section." In ruling on the motion in limine, the trial court, Dunn, J., did not engage in an evaluation like the one conducted in connection with the motion to dismiss. Instead, the trial court expressed familiarity with the earlier ruling and then denied the motion. Following the trial, the defendant made a motion for judgment of acquittal and again relied upon Wilson v. United States, supra, 391 F.2d 460. Once again, the trial court, well aware of the issues, denied the motion. In his statement, given twenty-four hours after the accident, Hewig failed to mention that he had tried to prevent the defendant from driving. Notably, the defendant remarked, Hewig first remembered that fact eighteen months later while on the witness stand. As the Appellate Court explained in State v. Geisler, 22 Conn. App. 142, 162, 576 A.2d 1283, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990), vacated on other grounds, 498 U.S. 1019, 111 S. Ct. 663, 112 L. Ed. 2d 657, on remand, 25 Conn. App. 282, 594 A.2d 985 (1991), aff'd, 222 Conn. 672, 610 A.2d 1225 (1992), General Statutes § 14-227a requires expert evidence extrapolating the results of a blood alcohol test back to the time of the operation of the motor vehicle. Practice Book § 741 provides: "Upon a written motion made by a defendant within ten days after the entry of a plea, the prosecuting authority, within the time set by the judicial authority, shall disclose in writing the existence of and allow the defendant to inspect, copy, photograph and have reasonable tests made on any of the following relevant materials; "(1) Exculpatory information or materials; "(2) Books, tangible objects, papers, photographs, or documents obtained from or belonging to the defendant; "(3) Adequately identified books, tangible objects, papers, photographs, or documents which are within the possession, custody, or control of any governmental agency, and which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence in chief at the trial; "(4) Copies of records or reports of physical or mental examinations of the defendant made in connection with the offense charged which are within the possession, custody, or control of any governmental agency, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting authority, and which are obtainable with the permission of the defendant; "(5) Copies of the defendant's prior criminal record, if any, which are within the possession, custody, or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting authority; "(6) Copies of results or reports of scientific tests, experiments or comparisons made in connection with the particular case which are known to and obtainable by the prosecuting authority and within the possession, custody, or control of any governmental agency, and which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence in chief at the trial; or "(7) Buildings, places, or portions thereof, which are in the possession, custody, or control of any governmental agency and which are material to the defense or about which the prosecuting authority intends to introduce evidence in chief at the trial. "In addition to the foregoing, the defendant shall be entitled to disclosure of exculpatory materials in accordance with any applicable constitutional and statutory provisions." The defendant has not claimed that the state failed to disclose any report by Mantho based upon his examination of the data collected by officers at the scene. This exact inquiry was not made by the trial court at the hearing on the motion to dismiss. The trial court, however, did acknowledge the "wealth of physical evidence" taken from the scene, photographs of the accident scene, medical information including the blood/alcohol ratio for both drivers, as well as "other material pertinent to accident reconstruction." This report certainly provided the trial court with a good analysis of the strengths and weaknesses of the state's case. General Statutes § 14-227a provides in relevant part: "operation while UNDER THE INFLUENCE OF LIQUOR OR DRUG OR WHILE IMPAIRED BY LIQUOR. (a) operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten hundredths of one per cent or more of alcohol, by weight. "(b) operation while impaired. No person shall operate a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor. A person shall be deemed impaired when at the time of the alleged offense the ratio of alcohol in the blood of such person was more than seven-hundredths of one per cent of alcohol, by weight, but less than ten-hundredths of one per cent of alcohol, by weight." We have said that in order for a defendant to be convicted by proof beyond a reasonable doubt, the jury must conclude that the evidence was sufficient to negate any reasonable hypothesis of innocence. State v. Carpenter, 214 Conn. 77, 84, 570 A.2d 203 (1990), and cases cited therein. This is the measure by which the evidence prong of the Wilson test is judged; Wilson v. United States, supra, 391 F.2d 464; and in this case was satisfied. Article first, § 20, of the Connecticut constitution provides: "No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability." In State v. Joyce, 225 Conn. 911, 623 A.2d 1021 (1993), we certified the following issue: "In the circumstances of this case, were the police, while lawfully in custodial possession of the defendant's clothing, required by either the federal or state constitution to obtain a warrant before transferring the clothing to a state laboratory and subjecting it to chemical analysis?"

Foti, J. The plaintiff appeals from the judgment of the trial court approving a foreclosure by sale of property owned by the named defendant et al. The plain tiff alleges that the trial court acted improperly by failing (1) to follow the mandates of General Statutes § 49-25, (2) to find the actions of the committee of sale improper in its refusal to reopen the bidding process, and (3) to disapprove of the foreclosure sale because it resulted in an inequity. We reverse the judgment in part. The following facts are relevant to this appeal. The plaintiff commenced this action to foreclose its mortgage on property located in Chaplin. A judgment of foreclosure by sale was rendered on April 19,1993. The value of the property was found to be $170,000 and the debt was found to be $139,728.72. The foreclosure sale was ordered to take place at the premises on July 10, 1993, at noon. A committee of sale was appointed and an appraiser was also appointed to prepare an appraisal, which was to be filed with the clerk of the court by June 1,1993. The court further ordered that bidders be required to deposit $17,000 in the form of a bank check or certified check with the committee. The plaintiff was excused from that requirement. On the date of the sale, the committee began the auction at noon. Although approximately twenty-two people arrived to inspect the property, only Gary R. DeMayo registered with the committee as a bidder and submitted his deposit check. His was the only bid, at $30,000. There being no other bids, the committee accepted DeMayo's bid, closed the bidding and concluded the sale. At approximately 12:10 p.m., the plaintiff's attorney arrived and requested that he be permitted to submit a bid on behalf of the plaintiff. The committee refused the request. At that time, the successful bidder, DeMayo, was in the process of executing a bond for deed with the committee. On January 3,1993, a hearing was held on the committee's motions seeking approval of the sale, deed and report, along with an allowance for committee's fees and expenses. The plaintiff, prior to this hearing, filed an objection to the committee's motions. The plaintiff noted that its attorney had arrived late because he was unable to locate the property, that the bid accepted was inadequate compared to the value of the property that had previously been found to be $170,000, and that the plaintiff was prepared to bid $101,000 in the event a resale was ordered. The trial court confirmed the sale. No current appraisal report had been filed with the court at that time. The record is clear that the trial court did not have such an appraisal, as ordered pursuant to § 49-25, on the date that the sale was confirmed. I The plaintiff first claims that the trial court failed to obtain an appraisal of the subject property as required by § 49-25, thereby having no basis for determining the fairness of the single bid accepted by the committee. DeMayo concedes that the trial court did not have the benefit of the appraisal report required by § 49-25, but argues that there was, nonetheless, sufficient evidence by which the court could determine whether to approve the sale. DeMayo points to two previous appraisals indicating values of $180,000 and $170,000. He notes that the house had a dirt cellar containing various animals, that the attic contained bats, and that, despite extensive efforts to attract buyers, only one bid of $30,000 was submitted. From this, he concludes that a property is worth only what a prospective purchaser is willing to pay for it, and that the court was justified in determining that the actual value of the property was closer to $30,000 than to $170,000. We do not agree with DeMayo's reasoning that, under these circumstances, the sale price was determinative of value and the appraisal required pursuant to § 49-25 need not have been utilized by the court. As a preliminary matter, we note that this claim by the plaintiff was not raised before the trial court. As a general rule, we will not consider a claim on appeal that was not distinctly raised at the trial level. Sarad jian v. Saradjian, 25 Conn. App. 411, 419, 595 A.2d 890 (1991). The plaintiff, however, asks that we review this claim under the plain error doctrine. "Plain error is reserved for instances where the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Our Supreme Court has stated that a trial court's failure to follow the mandatory provisions of a statute prescribing trial procedures . . . constitutes plain error." (Citation omitted.) State v. Robins, 34 Conn. App. 694, 706, 643 A.2d 881 (1994). The plain error doctrine is properly invoked in this case. Section 49-25 provides in relevant part that in a foreclosure by sale "the court shall appoint one disinterested appraiser who shall, under oath, appraise the property to be sold . Upon motion of the owner of the equity of redemption, the court shall appoint a second appraiser in its decree. ." While an appraisal under the statute is not conclusive as to the value of the property for purposes of fixing the amount of a deficiency; Cronin v. Gager-Crawford Co., 128 Conn. 688, 692, 25 A.2d 652 (1942); it serves to assist the court in determining whether to approve the sale as one that fairly realized the value of the property. Bryson v. Newton Real Estate & Development Corp., 153 Conn. 267, 274, 216 A.2d 176 (1965). While the trial court is not bound to accept the appraised value; Dan-bury Savings & Loan Assn., Inc. v. Hovi, 20 Conn. App. 638, 641, 569 A.2d 1143 (1990); it may assist the trial court in the exercise of its discretion, in accepting or rejecting a proposed sale. See Fidelity Trust Co. v. Irick, 206 Conn. 484, 490, 538 A.2d 1027 (1988). The trial court in a foreclosure matter acts as a court of equity and has full authority to refuse to confirm a sale on equitable grounds where an unfairness has taken place or where the price bid was inadequate. Id.; see also Citicorp Mortgage, Inc. v. Burgos, 227 Conn. 116, 121-23, 629 A.2d 410 (1993). The court must exercise its discretion and equitable powers with fairness not only to the foreclosing mortgagee, but also to subsequent encumbrancers and the owners. Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 354, 579 A.2d 1054 (1990). The appraisal procedure provided by § 49-25 performs the function of giving the trial court guidance on the question of whether to approve the sale. New England Savings Bank v. Lopez, 227 Conn. 270, 279, 630 A.2d 1010 (1993). This function of providing the trial court with guidance on the question of whether to approve the sale could not be accomplished in the present matter. The court therefore could not reasonably exercise its discretion. Without an appraisal, the court could not determine whether to approve the sale as fairly realizing the value of the property. DeMayo argues that the court used other evidence to determine the value of the property, and that the court's determination should be upheld unless it is found to be clearly erroneous. We are aware that a fair market value is generally achieved where a sale results from fair negotiations between a willing buyer and a willing seller, neither being under pressure to deal. New Haven Savings Bank v. West Haven Sound Development, 190 Conn. 60, 71, 459 A.2d 999 (1983). We are also aware that foreclosure sales are often at a price substantially less than fair market value. Cronin v. Gager-Crawford Co., supra, 128 Conn. 692. An appraisal under § 49-25, however, is a prerequisite for the exercise of the court's discretion in determining whether to approve a foreclosure sale. Further, while the confirmation of a foreclosure sale is a final determination that the mortgaged property was sold at a fair price; id., 693; unless an appraisal is conducted pursuant to § 49-25, the criteria for determining when a deficiency judgment may be obtained, in accordance with General Statutes § 49-28, cannot be satisfied. We conclude that a new hearing, subject to compliance with the appraisal procedure of § 49-25, is necessary for a determination of the fair value of the property. Accordingly, we reverse. II The plaintiff also claims that the trial court abused its discretion in confirming the sale because the committee, as an agent of the court, acted improperly in not reopening the bidding process and in obtaining a grossly inadequate sales price at the foreclosure sale. The plaintiff relies on principles of equity and fairness in arguing that the committee should have reopened the bidding process. The court is the vendor in a foreclosure by sale resulting from a judicial proceeding, and the committee of sale is the mere agent of the court. Citicorp Mortgage, Inc. v. Burgos, supra, 227 Conn. 120; Raymond v. Gil-man, 111 Conn. 605, 614, 151 A. 248 (1930). The balancing of the equities and the determination of what is required by equity in a particular case are matters of discretion for the trial court. Harbour Landing Develop ment Corp. v. Herman, 27 Conn. App. 98, 102, 603 A.2d 779 (1992). Our review of the particular facts and circumstances of this case leads us to the determination that the trial court did not abuse its discretion. According to its articulation, the trial court found that the plaintiffs attorney had arrived after the bidding had closed and DeMayo's bid had been approved by the committee. The court further found that DeMayo and the committee had "played by the rules," and that the plaintiff had not been present for the bidding "because of its own mistake or error." The court concluded that it could not reject the sale under these circumstances without undermining the integrity of the foreclosure by sale concept. Our review of the court's factual determinations is limited to whether those facts are supported by the evidence, or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). We conclude, on the basis of the record before us, that the trial court did not abuse its discretion when it declined to set aside the sale on the basis of the committee's refusal to reopen the bidding process. The judgment is reversed as to the approval of the sale only, and the case is remanded for further proceedings consistent with this opinion. In this opinion the other judges concurred. The defendants are W. Brian Grisel and Karen W. Grisel, owners of record, and the Federal Deposit Insurance Corporation (FDIC), a subsequent encumbrancer to the plaintiff's claim. On April 20,1994, we granted the motion of the successful bidder, Gary R. DeMayo, to appear as an appellee. We also determined during oral argument that because the deed of sale has not been executed, title has not vested in DeMayo, and this appeal is not moot. See Barclays Bank of New York v. Ivler, 20 Conn. App. 163, 166, 565 A.2d 252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989). The only appellee before us is DeMayo. General Statutes § 49-25 provides: "When the court in any such proceeding is of the opinion that a foreclosure by sale should be decreed, it shall, in its decree, appoint a person to make the sale and fix a day therefor, and shall direct whether the property shall be sold as a whole or in parcels, and how the sale shall be made and advertised; but, in all cases in which such sale is ordered, the court shall appoint one disinterested appraiser who shall, under oath, appraise the property to be sold and make return of the appraisal to the clerk of the court. Upon motion of the owner of the equity of redemption, the court shall appoint a second appraiser in its decree. If the plaintiff is the purchaser at sale, or if the property is redeemed at any time prior to the approval of the sale, or if for any reason the sale does not take place, the expense of the sale and appraisal or appraisals shall be paid by the plaintiff and be taxed with the costs of the case. If, after judgment has been rendered, the amount found to be due and for which foreclosure is decreed, together with the interest and the costs, is paid to the plaintiff before the sale, all further proceedings in the suit shall be stayed." As to whether the court made a finding of value and the basis for that finding, the court articulated: "Yes, to the extent that the value was closer to the $30,000 successful bid than the appraisal. This was based on: "a) The sale was approximately seven (7) months after the appraisal of December 21,1992, which was not updated. The prior appraisal of March, 1992, was higher, reflecting a decline in the market. "b) More importantly, twenty-two (22) prospective bidders were at the sale, notices and invitations had been sent to forty (40) real estate agents, and extensive advertising had been done. Weather and traffic were not a problem at time of sale, property was well kept although it had been vacant for over one (1) year. See Committee Report dated July 10, 1993, and Recommendation of Committee dated November 10,1993. Everything had been done to attract buyers who would pay a fair/competitive price." (Emphasis in original.) General Statutes § 49-28 provides in relevant part: "If the proceeds of the sale are not sufficient to pay in full the amount secured by any mortgage or lien thereby foreclosed, the deficiency shall be determined, and thereupon judgment may be rendered in the cause for the deficiency against any party liable to pay the same . If the property has sold for less than the appraisal provided for in section 49-25, no judgment shall be rendered in the suit or in any other for the unpaid portion of the debt . . . of the party . . . upon whose motion the sale was ordered, nor shall the same be collected by any other means than from the proceeds of the sale until one-half of the difference between the appraised value and the selling price has been credited upon the debt . . . as of the date of sale . . . ." While our remand requires a new hearing, we deem it necessary to address this claim dealing with the committee's refusal to reopen the bidding process. This issue is subsumed in the first issue. The plaintiff did not seek to correct the court's articulation.

Schaller, J. The defendant appeals from the judgment of conviction, rendered after a jury trial, of sale of a narcotic substance in violation of General Statutes § 21a-277 (a). The defendant claims that the trial court (1) improperly refused to give a separate instruction on testimony by police officers, (2) allowed an improper in-court demonstration, (3) permitted the prosecutor to engage in misconduct during the trial and closing argument, and (4) improperly denied the motion for judgment of acquittal, which the defendant based on insufficient evidence of his identity. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On February 24, 1992, police officers Michael DiMaria and Randy Velez of the tactical narcotics team of the Waterbury police department were on a stakeout. At approximately 4 p.m. in front of 18 West Liberty Street in Waterbury, the officers witnessed the defendant and Javier Roman exchange money for two small plastic vials. Later, these vials were found to contain "crack" cocaine. Immediately after witnessing the exchange, the officers followed and apprehended Roman, the buyer, on River Street. Two other officers, Michael Ricci and John Kennelly, joined DiMaria and Velez in search of the defendant. Velez and Ricci proceeded to scan the area in a police car. During their search, they spotted the defendant, a Hispanic male wearing grey sweatpants, a blue coat and a baseball cap, on West Liberty Street. The officers immediately apprehended the defendant and waited for DiMaria and Kennelly to arrive. When DiMaria arrived, he confirmed that this was the Hispanic man whom he had observed earlier handing Roman a small object in exchange for money. The officers found a beeper and $370 in the defendant's possession. The defendant was arrested and taken into police custody. At trial, the state called six Waterbury police officers and a toxicologist from the Connecticut department of health. The toxicologist and one officer testified as expert witnesses. The defendant presented the tes timony of two witnesses, William Deming and Rosalie Nieves, the defendant's mother, in addition to his own testimony. I The defendant claims that the trial court improperly refused to give the jury a separate instruction on testimony by police officers. We do not agree. At the close of the evidence, the defendant filed a request to charge on police testimony. The relevant portion of the requested instruction is as follows: "As you will remember there was testimony here from police officers. The testimony of a police officer is entitled to no special or exclusive sanctity merely because it comes from a police officer. A police officer who takes the witness stand subjects his testimony to the same examination and the same tests that any other witness does. And in cases of police officers, you should not believe them merely because they are police officers. You should recall their demeanor here on the stand, consider the training, if any, in the field in which they gave evidence, their manner of testimony, the substance of their testimony, their capacity for observing facts and relating them to you accurately. And you should weigh and balance that testimony just as carefully as you would weigh the testimony of any other witness." This instruction is routinely given in criminal cases involving police testimony. See 5 Connecticut Practice, D. Borden & L. Orland, Criminal Jury Instructions (1986) § 3.11, p. 94. The court, however, did not charge separately on police testimony as requested by the defendant. Instead, the court combined that instruction with instructions on several types of witnesses. In the general portion of its instruction, the trial court directed the jury to consider each witness' appearance, inter ests, and ability to relate the facts accurately and truthfully. Regarding police officers, the court charged as follows: "Now there were some witnesses who testified here, a doctor, toxicologist, the police expert, and police officers. The testimony of such witnesses is entitled to no special or exclusive sanctity merely because of their occupation. Each witness subjects his testimony to the same examination, the same test as other witnesses that you've heard during this trial. . . . The mere fact that a witness is of a particular occupation should not mitigate for or against that witness' credibility. It's entirely up to you whether you credit their testimony and their expertise, bearing in mind the instructions I have given you concerning sizing up witnesses on the stand." The defendant claims that because the instruction on police officers was combined with the instructions on other types of witnesses, i.e., the toxicologist and the police expert, the charge failed to caution the jury adequately not to grant the police officers special and exclusive sanctity merely because of their status as police officers, thereby denying him a fair trial. Practice Book § 852 requires that the defendant either file a written request to charge or take exception to the charge as given to preserve the issue for appeal. There is no dispute that the defendant satisfied the requirements set forth in § 852. The defendant both filed a written request to charge and took exception to the charge given at trial. The trial court is under no duty to charge the jury in the exact language requested by the defendant as long as its instructions are adapted to the issues involved in the case and are sufficient for the guidance of the jury. Coble v. Maloney, 34 Conn. App. 655, 672, 642 A.2d 277 (1994); see also State v. Harrell, 199 Conn. 255, 268-71, 506 A.2d 1041 (1986); State v. Frazier, 7 Conn. App. 27, 37 n.3, 507 A.2d 509 (1986). It is well established that a refusal to charge in the exact words requested will not constitute error if the substance of the requested charge is given. State v. Arena, 33 Conn. App. 468, 488-89, 636 A.2d 398, cert. granted, 229 Conn. 918, 644 A.2d 914 (1994). The test is whether the charge as given, when compared to the charge requested, is comparable in its probable effect on jurors in guiding them to a correct verdict on the case. State v. Dickerson, 28 Conn. App. 290, 293-94, 612 A.2d 769 (1992). In the present case, reviewing the charge as a whole, we cannot say the instruction given was improper. The court was careful to instruct the jury that the testimony of the police officers, toxicologist, and expert police witness was to be weighed and balanced as carefully as that of any other witnesses. While it is preferable to give appropriate emphasis to the instruction on police testimony by devoting a separate instruction to that subject, we cannot say that in this case the charge was deficient merely because it was not given separately. II The defendant next claims that the court abused its discretion in allowing DiMaria to demonstrate in court the manner in which the buyer allegedly handed money to the defendant in the course of the transaction. We do not agree. Further facts are necessary to resolve this issue. At trial, the state asked DiMaria to perform an in-court demonstration of a transfer of currency that he testified he had observed between Roman and the defendant. The defendant objected to this demonstration claiming that, because of the inconsistencies in distance and conditions, the in-court demonstration would be so dissimilar to the original alleged transaction that it would be highly prejudicial and misleading. The trial court overruled the objection, but indicated to the defendant that it would instruct the jury that the demonstration was not being offered to show the distance between DiMaria's position and the location of the transaction. Specifically, counsel for the defendant insisted that "I would like to ask for an instruction to the jury that this is dissimilar . I think it's prejudicial and misleading." The court responded, after confirming with the prosecutor that she was "not offering [the demonstration to prove] that the distance is the same" that "I'll tell the jury that." After observing the demonstration outside of the jury's presence, the court allowed the demonstration to be repeated in the jury's presence. The court gave no limiting instruction at that time, nor did the defendant request any such instruction. In the jury charge, the court did not refer to the in-court demonstration of DiMaria. At the close of jury instructions, the court asked either party if they had any exceptions to the charge as given. Counsel for the defendant said, "I have no exceptions . . . except that I would request that you read the proper charge on police testimony that was given in the defendant's request to charge." Further, counsel for the defendant did not submit any written request to the court for a charge on the in-court demonstration. Although the court neglected to instruct the jury on the in-court demonstration as it indicated it would, the defendant failed both to file a written request to charge on the issue and to take an exception at the close of jury instructions. "Practice Book § 852 requires that a party either file a written request to charge or take exception to the charge as given in order to preserve the issue for appeal." State v. Jackson, 34 Conn. App. 599, 603-604, 642 A.2d 1223, cert. granted, 231 Conn. 917, 648 A.2d 165 (1994). In State v. Ramirez, 16 Conn. App. 284, 547 A.2d 559, cert. denied, 209 Conn. 828, 552 A.2d 434 (1988), we stated that we were not persuaded by the defendant's claim that an in-court discussion of whether a charge was warranted, held immediately before the jury charge, was an acceptable alternative to the requirements of the rules of practice. We reasoned that the purpose of § 852 is not well served by oral argument alone since the court is pressured to make an immediate decision on the issue without the benefit of time and effort spent scrutinizing the relevant law on the issue. Our Supreme Court has held that "[t]he failure of the defendant to state distinctly the matter being objected to immediately after the conclusion of the charge ordinarily renders the claim of error unreviewable on appeal." State v. Utz, 201 Conn. 190, 208, 513 A.2d 1191 (1986). We conclude that the failure of the defendant to file a written request to charge and to take exception to the charge as given renders this issue unpreserved for appeal. Accordingly, we decline to review this claim. Ill The defendant next claims that the state engaged in misconduct during the trial and the closing argument, thereby violating his right to a fair trial. This claim is without merit. The defendant claims that the state presented a misleading demonstration, asked misleading questions based on false information, influenced a witness called by the state to change his testimony and, in its closing argument, argued a new theory of guilt unsupported by the evidence. The threshold issue is whether the claim is reviewable. The defendant did not properly preserve this claim for appellate review. The defendant argues, however, that although no objection was made at the time of the closing argument, it was sufficient that he presented the objection to the trial court in his second motion for judgment of acquittal. Our Supreme Court has held that the failure of counsel for the defendant to take exception to remarks of the state's attorney either at the time they were made or at the close of the state's attorney's argument was a waiver of the right of the accused to press this claim as error. State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985). Section 4185 of the Practice Book provides in relevant part that we are not "bound to consider a claim unless it was distinctly raised at trial . . . ."We have noted that "[t]he purpose of the rule requiring that an exception be taken that distinctly states the objection and the grounds therefor is to alert the court to any claims of error while there is still an opportunity for correction." State v. Utz, supra, 201 Conn. 207. Because the defendant failed to make a timely objection to the challenged remarks and misconduct, he seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Our review of the record discloses that the remarks and conduct now challenged were isolated instances of alleged misconduct, unrepresentative of a pattern of conduct repeated throughout the trial. Under those circumstances, it is appropriate that we decline to review their propriety. State v. Castonguay, 218 Conn. 486, 507-508, 590 A.2d 901 (1991); see State v. Williams, 204 Conn. 523, 537, 529 A.2d 653 (1987). IV The defendant's remaining claim challenges the trial court's denial of the defendant's motion for judgment of acquittal in which the defendant challenged the sufficiency of the identification evidence. The defendant claims that there was insufficient evidence to support his conviction because the record does not contain proof beyond a reasonable doubt of his identity as the man who sold Roman the narcotics. We disagree. "In reviewing a sufficiency claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993). In this case, on the basis of the evidence and the inferences reasonably drawn therefrom, the jury could have concluded beyond a reasonable doubt that the defendant was the man who sold Roman the narcotics. DiMaria was the only witness who testified that he observed the defendant engaging in the sale of narcotics. Although DiMaria viewed the defendant for only a few minutes and from a considerable distance, he did have an unobstructed view both when the defendant and Roman first met, and when the exchange took place. When he arrived at the location where the defendant was being detained by other officers, DiMaria immediately identified the defendant as the person who had sold the narcotics to Roman. The United States Supreme Court, in discussing a challenge to an identification made by an undercover narcotics officer, said that "as a specifically trained, assigned, and experienced officer, he could be expected to pay scrupulous attention to detail, for he knew that subsequently he would have to find and arrest his vendor. In addition, he knew that his claimed observations would be subject later to close scrutiny and examination at any trial." Manson v. Brathwaite, 432 U.S. 98, 115, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). Although DiMaria was an observer rather than a buyer, the same rationale would apply. We conclude that there was sufficient evidence of identification for the jury to have concluded beyond a reasonable doubt that the defendant was the person who sold the narcotics to Roman. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 21a-277 provides in pertinent part: "(a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned . . . ." There was evidence that DiMaria had special training in the vice squad and special classes in identification of narcotics and that, in undercover work, he had made more than 700 narcotic arrests.

Per Curiam. The judgment is affirmed.

The defendant's petition for certification for appeal from the Appellate Court, 34 Conn. App. 694 (AC 11321), is granted, limited to the following issue: Decided September 20, 1994 The Supreme Court docket number is SC 15046. Neal Cone, assistant public defender, in support of the petition. Mary H. Lesser, assistant state's attorney, in opposition. "Whether the Appellate Court correctly decided that the state did not have to show as an element of larceny by defrauding a public community that the defendant obtained benefits to which he was not otherwise entitled."

The defendant's petition for certification for appeal from the Appellate Court, 35 Conn. App. 631 (AC 12638), is denied.

The defendant's petition for certification for appeal from the Appellate Court, 35 Conn. App. 212 (AC 12165), is denied.

Hennessy, J. The plaintiff, Ruth Tedesco, appeals from the judgment of the trial court granting the defendant department of transportation's motion to dismiss a personal injury suit brought pursuant to General Statutes § 13a-144. The plaintiff claims that the trial court improperly found as a matter of law that the plaintiff did not provide the defendant with sufficient notice as required by General Statutes § 13a-144. The following facts are relevant to this appeal. On April 13,1990, the plaintiff allegedly suffered injuries as a result of a fall due to a hole in the sidewalk on a bridge in downtown Torrington. On May 7, 1990, she provided notice of this incident to the defendant as required by General Statutes § 13a-144. In her letter of notice, the plaintiff stated that she had fallen because of a hole in the "sidewalk on Route 202, on April 13, 1990, at approximately 11:30 a.m. in the Town of Torrington at the bridge known as 'the Center Bridge' while walking north on the eastern side of said bridge, in the area adjacent to the Downtown Torrington Shopping Center." Attached to the notice, and made part thereof, was a copy of a police report relating to the incident. The police report included a statement by the plaintiff which indicated that she "left Dunkin' Donuts and started to walk north on the Center Bridge when [she] tripped on a hole in the sidewalk located on the bridge." The notice also reported that both the plain tiff's attorney and the Torrington police had taken photographs of the accident scene and that these photographs would be available to the defendant upon request. The plaintiff subsequently brought a civil action against the defendant in connection with this incident. The defendant moved to dismiss the suit on the ground that the notice was defective and the trial court granted the motion. In granting the defendant's motion to dismiss, the court found that the description provided by the notice letter of May 7,1990, patently failed to provide the general description of the injury, its cause, and the place and time as required by § 13a-144. This appeal followed. The plaintiff urges this court to reverse the trial court's dismissal of the complaint. She correctly notes that the sufficiency of notice "is to be tested with reference to the purpose for which it is required"; Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947); and argues that the notice given in this case satisfies the purpose of providing "such warning as would prompt [the defendant] to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection." Greene v. Ives, 25 Conn. Sup. 356, 358-59, 204 A.2d 412 (1964), quoting Cassidy v. South-bury, 86 Conn. 45, 49, 84 A. 291 (1912); see also Warkentin v. Burns, 223 Conn. 14, 20, 610 A.2d 1287 (1992); Morico v. Cox, supra, 223. We agree with the plaintiff's analysis. In Lussier v. Dept. of Transportation, 228 Conn. 343, 636 A.2d 808 (1994), our Supreme Court reiterated the legal standard against which notice of a claim pursuant to § 13a-144 is to be measured. "The notice need not be expressed with the fullness and exactness of a pleading. . . . [T]he notice must provide sufficient information as to the injury and the cause thereof and the time and place of its occurrence to permit the commissioner to gather information about the case intelligently." (Citation omitted; internal quotation marks omitted.) Id., 356-57. "[Reasonable definiteness is all that can be expected or should be required." (Internal quotation marks omitted.) Id., 356. "The plaintiff is not required to be a cartographer in order to be able to describe adequately to the commissioner the location of the defect." Id., 358. As long as notice provides "reasonable definiteness," it is not patently insufficient and the adequacy of the notice becomes an issue for the jury. Id., 354. In this case, the notice provided by the plaintiff both informed the defendant of the plaintiff's intent to file a claim and furnished the defendant with a guide as to how to conduct further inquiries to protect its interests. Accordingly, the complaint should not have been dismissed. Urging us to sustain the dismissal of the complaint, the defendant first notes that § 13a-144 "created a cause of action 'wholly unauthorized by the common law.' . . . Thus, the statutorily required notice is a 'condition precedent to the cause of action.' " (Citation omitted.) Warkentin v. Burns, supra, 223 Conn. 17-18. The defendant further notes that, as a statute in derogation of sovereign immunity, § 13a-144 should be strictly construed. White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990). The defendant argues that Connecticut courts have strictly construed the notice requirement of § 13a-144, and cites Schaap v. Meriden, 139 Conn. 254, 93 A.2d 152 (1952), Ozmun v. Burns, 18 Conn. App. 677, 559 A.2d 1143 (1989), and Collins v. Meriden, 41 Conn. Sup. 425, 580 A.2d 549 (1990). Our review of these cases finds them inapposite to the present case. In Schaap v. Meriden, supra, 139 Conn. 254, our Supreme Court found that the notice was defective because it specified only that the injury took place near the edge of a manhole cover, without identifying a particular manhole. In Ozmun v. Burns, supra, 18 Conn. App. 677, this court held that the notice was defective because the detailed description in the notice was incorrect, stating south instead of north. Thus, while the notice was specific, it directed the commissioner to an erroneous location. In Collins v. Meriden, supra, 41 Conn. Sup. 425, the Superior Court found that the descriptions of the cause and place of the injury were vague in that the notice provided merely that the injury occurred due to a "defective and improper condition of the sidewalk . . . 'adjacent to the front of the premises known as 243 West Main Street, Meriden, Connecticut.' " Id., 427. It is quite clear why the notices in Schaap, Ozmun, and Collins were defective. Lack of specificity, misdirection, and vagueness as to the location and cause of the injury undermine the purpose of the statute. In each case, insufficient notice denied the defendant the opportunity to gather information to protect itself in the event of a lawsuit. In the present case, there are no such defects; the notice sent by the plaintiff provided sufficient information about the alleged injury, its cause, and the time and place where it occurred to allow the defendant to gather information about the case and thereby to protect its interests. The judgment is reversed and the case is remanded for further proceedings. In this opinion the other judges concurred. General Statutes § 13a-144 provides in relevant part: "Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. . . ." At oral argument, the plaintiff withdrew all other claims. The notice provision of General Statutes § 13a-144 provides: "No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. . . ."

The defendants' petition for certification for appeal from the Appellate Court, 34 Conn. App. 584 (AC 11870), is denied.

Opinion FLYNN, J. The petitioner, Michael Edwards, appeals from the judgment of the habeas court denying his third amended petition for a writ of habeas corpus. The habeas court granted the petition for certification to appeal. On appeal, the petitioner claims that his attorney provided ineffective assistance of counsel in violation of the sixth amendment to the United States constitution by (1) failing to make a recommendation on whether to accept a plea agreement and (2) failing to conduct an adequate pretrial investigation. We affirm the judgment of the habeas court. The following facts and procedural history, as set forth by the habeas court, are relevant to this appeal. "[T]he petitioner . is presently incarcerated at the Cheshire Correctional Institution while serving a fifty (50) year sentence, having been convicted by a jury of the crime of murder. The petitioner was a defendant in a criminal trial before the court, Schimelman, J., charged with murder in violation of General Statutes § 53a-54a, criminal possession of a firearm in violation of General Statutes § 53a-217 and criminal possession of a pistol in violation of General Statutes § 53a-217c. On May 15,1996, a Hartford jury convicted the petitioner of one count of murder and acquitted the petitioner of both weapons charges. Thereafter, the petitioner, through trial counsel, Donald Cardwell, filed a motion for judgment of acquittal and a motion for a new trial, which motions were denied by Schimelman, J. On September 27, 1996, the petitioner was sentenced by the court to a term of fifty (50) years to serve. The Supreme Court affirmed the petitioner's conviction. State v. Edwards, [247 Conn. 318, 721 A.2d 519 (1998)]. The petitioner was represented through verdict and sentencing by Cardwell, who is now deceased." On June 28, 2003, the petitioner filed his third amended petition for a writ of habeas corpus, claiming, among other things, that his attorney had provided ineffective assistance of counsel in violation of the sixth amendment to the United States constitution by (1) failing to make a recommendation on whether to accept a plea agreement and (2) failing to conduct an adequate pretrial investigation. Following the habeas court's denial of his habeas petition, the petitioner filed a petition for certification to appeal to this court, which the habeas court granted. This appeal followed. The petitioner claims that he was denied his constitutional right to effective assistance of counsel guaranteed by the sixth amendment to the United States constitution. "Our standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. Although a habeas court's findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. . . . As such, that question requires plenary review by this court unfettered by the clearly erroneous standard. "The petitioner's right to the effective assistance of counsel is assured by the sixth and fourteenth amend ments to the federal constitution, and by article first, § 8, of the constitution of Connecticut. In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsels assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." (Citation omitted; internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn. App. 792, 797-98, 837 A.2d 849, cert, denied, 268 Conn. 907, 845 A.2d 413, cert, denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S. Ct. 301, 160 L. Ed. 2d 90 (2004). We now address each of the petitioner's claims in turn. I The petitioner first claims that his attorney provided ineffective assistance of counsel in violation of the sixth amendment by failing to make a recommendation on whether to enter a plea. Specifically, the petitioner argues that "[t]he unrebutted evidence on this record is that all [defense counsel] did was to advise the [petitioner] that a plea offer had been made. There was no advice about whether to accept the plea . . . ." The petitioner argues further: "Nothing in the record before the habeas court or this court suggests that [defense counsel] ever made a recommendation to the [petitioner]. As our courts have made clear, counsel has an obligation not merely to report possible consequences of a plea. Counsel also has the duty to make recommendations, to help a defendant understand the evidence against him and the likely outcome of trial. " In response, the respondent commissioner of correction argues: " [The] evidence relied upon by the habeas court demonstrates that the petitioner in fact was advised by counsel of the fact and content of the proposed plea agreement; of counsel's own opinion that the petitioner should not plead guilty to murder; of counsel's view of the alternative options available to the petitioner, and counsel's view of the petitioner's likelihood of success with each; and of the fact that the petitioner himself had to reach a decision about the proposed plea . Such advice is just the kind counsel is supposed to render . Thus, the habeas court's decision that counsel's advice was within the range of reasonable professional assistance comports with the factual record and the law." (Citation omitted.) We agree with the state. The habeas court found that the petitioner failed to meet his burden of establishing that his counsel had performed deficiently by not discussing with him the option of a plea, finding instead that the record belied the petitioner's claim. The court, after hearing the testimony of the petitioner and reviewing the trial transcripts and exhibits, wrote a well reasoned memorandum of decision. The habeas court focused on the following relevant colloquy between the trial court and the petitioner: "The Court: All right, Mr. Edwards, your case was discussed with your lawyer, the prosecutor and the court. There was an offer made to you to resolve the case without a trial. That offer was thirty-seven years with a right to argue for less . Is that your understanding of the offer? "[The Petitioner]: Yes. "The Court: And your lawyer has told us that you wish to reject that offer and go to trial. Is that correct? "[The Petitioner]: That's correct." The habeas court also referred to the petitioner's clear and unambiguous statement made at the habeas trial concerning the trial court's offer of thirty-seven years: "There was nothing to think about. I wasn't going to take the thirty-seven years." In addition, the habeas court found, on the basis of the record, that trial counsel had written to the petitioner, advising him of the court's offer and the continuance date for acceptance or rejection of that offer. The letter contained the following relevant language: "While I expect to meet with you in the very near future, I want to inform you completely as to what occurred at the pretrial conference . Also, because the issues are somewhat complex, I believe that it will be helpful to you if I set everything down in writing. . . . "Once the prosecutor told Judge Espinosa that she intended to stay with murder, the Judge asked if the prosecutor had a recommended sentence. The prosecutor replied that she did not and left it to the court. Judge Espinosa then offered thirty-seven years with the right to argue for less in exchange for a plea to the charge of murder. The case was continued to January 16,1996, for accept or reject. . I am not optimistic that there will be a further reduction [of bond] as the charge continues as murder. . . . "There is no doubt in my mind that you will be keenly disappointed with this information. Certainly I was when I learned of the prosecutor's position . At the same time you must understand the seriousness of your situation and the difficulty that we face in providing you with the best possible defense. In general there are three basic scenarios: "The first is your present circumstance where you are charged with murder. To convict you of this crime the state must prove that you intended to cause the death of the victim. In my opinion they most likely will not succeed with that charge because [two witnesses] contradict the testimony of the persons who testified at the hearing in probable cause. . I cannot as your lawyer recommend that you plead to the murder charge but, of course, the final decision must be made by you. "The second is where either the state reduces the charge to manslaughter or a jury, after trial, convicts you of manslaughter or some other lesser included offense. . A conviction under any of these lesser-charges could result in a maximum sentence of 40 years and a minimum sentence of one year. In my view a jury is most likely to return a verdict [somewhere] in this general area. "The third is that you obtain an acquittal after trial based on [self-defense]. . . . While there is a possibility that you could get an acquittal there are several issues that make this, at least in my view, unlikely. . . . Please understand that I am not saying that you cannot get an acquittal. I am saying, however, that I believe it is unlikely." The petitioner relies on Boria, v. Keane, 99 F.3d 492, 497 (2d Cir. 1996), cert, denied, 521 U.S. 1118, 117 S. Ct. 2508, 138 L. Ed. 2d 1012 (1997), for the proposition that "[effective assistance of counsel includes counsel's informed opinion as to what pleas should be entered." The petitioner argues that trial counsel did not tell him expressly whether he should accept the offer of thirty-seven years, and, that under Boria, this failure renders counsel's assistance constitutionally ineffective. We do not agree. In Boria, the United States Court of Appeals for the Second Circuit held that "an attorney had rendered constitutionally deficient assistance to the defendant by failing to discuss with him the advisability of accepting or rejecting a proffered plea bargain that would have resulted in a prison term of one-to-three years, where the attorney felt it would be 'suicidal' to go to trial and the defendant, after going to trial, received a sentence of 20 years to life." Roccisano v. Menifee, 293 F.3d 51, 59-60 (2d Cir. 2002). The Second Circuit, in Purdy v. United States, 208 F.3d 41 (2d Cir. 2000), explained that Boria has been misread by some: "Per se rules like the one [the petitioner] advocates — and mistakenly reads into Boria — are not well calibrated to gauge the ineffective assistance of counsel." Id., 48. "[W]e think it unwise to read Boria to have established a per se rule that defense counsel must always expressly advise the defendant whether to take a plea offer." Id. In Purdy, the court held it sufficient that counsel informed his client "fully of the strength of the government's case against him, together with the nature of the government's plea offer, without specifically advising [the client] to take the plea." Id. "On the one hand, defense counsel must give the client the benefit of counsel's professional advice on this crucial decision of whether to plead guilty. . . . As part of this advice, counsel must communicate to the defendant the terms of the plea offer . . . and should usually inform the defendant of the strengths and weaknesses of the case against him, as well as the alternative sentences to which he will most likely be exposed . On the other hand, the ultimate decision whether to plead guilty must be made by the defendant. . . . And a lawyer must take care not to coerce a client into either accepting or rejecting a plea offer. . . . Counsel's conclusion as to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide range of reasonableness because [Representation is an art . . . and [t]here are countless ways to provide effective assistance in any given case . Counsel rendering advice in this critical area may take into account, among other factors, the defendant's chances of prevailing at trial, the likely disparity in sentencing after a full trial as compared to a guilty plea (whether or not accompanied by an agreement with the government), whether defendant has maintained his innocence, and the defendant's comprehension of the various factors that will inform his plea decision." (Citations omitted; internal quotation marks omitted.) Id., 44-45. Here, counsel did not fail to offer advice to the petitioner or send him to trial despite thinking that trial would be "suicidal." To the contrary, the record demonstrates that counsel informed the petitioner of his options along with counsel's assessment of those options, and, quite clearly, the petitioner simply was not going to accept the offer of thirty-seven years. The evidence supports the habeas court's conclusion that the petitioner failed to meet his burden of proof that trial counsel provided constitutionally inadequate advice. II Next, the petitioner claims that his attorney provided ineffective assistance of counsel in violation of his rights under the sixth amendment to the United States constitution by failing to conduct an adequate pretrial investigation. Habeas counsel raises several claimed instances meant to demonstrate trial counsel's alleged failure to conduct an adequate pretrial inquiry but fails to provide analysis as to how any of these claimed instances caused prejudice to the petitioner. "While it is incumbent on a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction . . . counsel need not track down each and eveiy lead or personally investigate every evidentiary possibility. . In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation, but by demonstrable realities. . . . One cannot successfully attack, with the advantage of hindsight, a trial counsel's trial choices and strategies that otherwise constitutionally comport with the standards of competence." (Internal quotation marks omitted.) Torres v. Commissioner of Correction, 84 Conn. App. 561, 566-67, 854 A.2d 97 (2004). Because this court is constrained to evaluating demonstrable realities, we will not engage in mere speculation. Accordingly, we conclude that the petitioner has not met his burden of proof to show that counsel conducted a constitutionally inadequate pretrial investigation. The judgment is affirmed. In this opinion the other judges concurred. The petitioner also briefed an issue claiming that his attorney failed to object to a certain line of questioning, but he withdrew this claim during oral argument. Additionally, in his appellate brief, the petitioner claimed that he was deprived of his sixth amendment rights by his attorney's failure to explain to him lesser included offenses and to request a jury instruction on them, and by his attorney's failure to prepare adequately for the sentencing hearing. Despite a cursory mention of these issues, habeas counsel did not develop these claims in his brief or at oral argument, nor did he provide this court with any analysis or legal citation in support thereof. We, accordingly, deem these issues abandoned. See State v. Henry, 76 Conn. App. 615, 542 n.19, 820 A.2d 1076, cert, denied, 264 Conn. 908, 826 A.2d 178 (2003).

Opinion DiPENTIMA, J. The defendant, Duane Aldridge, appeals from the judgment of conviction, rendered after a jury trial, of one count of robbery in the second degree in violation of General Statutes § 53a-135 (a) (2), and one count of conspiracy to commit robbery in the second degree in violation of General Statutes § 53a-48 (a) and 53a-135 (a) (2). He claims that the filing of an amended information without his consent after trial commenced violated his due process right to notice because the charged offenses are not lesser offenses included within robbery in the first degree and conspiracy to commit robbery in the first degree, as alleged in the original information. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On September 11, 2002, Adam McCleery, Justin Miller and Steve Amaro arrived at a parking lot on the comer of Farmington Avenue and Kenyon Street in Hartford. As they exited their vehicle, two men passed them. Turning abruptly, the two men pulled the hoods of their sweatshirts over their heads and approached. As one of the men applied a choke hold on McCleery, the other placed a handgun against his head. They demanded money, and McCleery acquiesced, relinquishing his wallet. The assailants fled to their vehicle and drove away. Amaro identified both the vehicle make and license plate number. The police were notified. The defendant subsequently was identified as an assailant and charged with three counts of robbeiy in the first degree in violation of subdivisions (2), (3) and (4) of General Statutes § 53a-134 (a), and with one count of conspiracy to commit robbery in the first degree in violation of § 53a-48 (a) and 53a-134 (a) (2), (3) and (4). A jury trial commenced on July 14, 2003. After presenting its case, the state informed the court that an expert had confirmed that the pistol was inoperable. Consequently, the court ruled that the pistol was not a deadly weapon and that the state had failed to prove that the pistol was used as a dangerous instrument. It accordingly rendered a judgment of acquittal as to the first two robbery counts. When the defendant moved to dismiss the third robbery count, the court declined: "Oh, I'm certainly not going to dismiss the count. . . . [The court will] preclude the state from proceeding on robbery one. I'll charge robbery two on the third count." Thereafter, the court permitted the state to file an amended information that alleged one count of robbery in the second degree and one count of conspiracy to commit robbery in the second degree. The jury found the defendant guilty on both counts, and this appeal followed. The defendant claims that the filing of an amended information without his consent after trial commenced violated his due process right to notice because the charged offenses are not lesser offenses included within robbery in the first degree and conspiracy to commit robbery in the first degree, as alleged in the original information. The defendant did not preserve his claim before the trial court and now requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review his claim because the record is adequate for review and the claim is of constitutional dimension. The sole question before us is whether § 53a-135 (a) (2) is a lesser offense included within § 53a-134 (a) (4). "Unless the original and the amended informations charge the defendant with the same crime . . . amendment is permissible only to charge a lesser included offense." (Citation omitted.) State v. Kitt, 8 Conn. App. 478, 486, 513 A.2d 731, cert, denied, 202 Conn. 801, 518 A.2d 648 (1986). Resolution of the defendant's claim is governed by our decision in State v. Ortiz, 71 Conn. App. 865, 877, 804 A.2d 937, cert, denied, 261 Conn. 942, 808 A.2d 1136 (2002), in which we explained that "§§ 53a-134 (a) (4) and 53a-135 (a) (2) contain the same elements. The only difference between them in this case is whether the defendant proved that the weapon was inoperable." The defendant in Ortiz was charged with robbery in the first degree in violation of § 53a-134 (a) (4). As in the present case, evidence was introduced during the trial in Ortiz indicating that the firearm was inoperable. Id., 869. The Ortiz court concluded: "Given the uncon-troverted evidence of inoperability . it was plain error for the court not to instruct the jury on the lesser included offense of robbery in the second degree in violation of § 53a-135 (a) (2)." Id., 877. In the present case, the state belatedly submitted evidence that the pistol was inoperable after trial had commenced. The court immediately rendered a judgment of acquittal as to the first two counts of robbery in the first degree, but refused to dismiss the third count that alleged a violation of § 53a-134 (a) (4). Rather, it permitted the state to file an amended information charging the defendant with robbery in the second degree in violation of § 53a-135 (a) (2), and conspiracy to commit robbery in the second degree in violation of § 53a-48 (a) and 53a-135 (a) (2). Because such amendment charged lesser offenses included within the offenses that were charged in the original information, no due process violation arose. The judgment is affirmed. In this opinion the other judges concurred. It was later discovered that the handgun was a BB pistol. General Statutes § 53a-134 (a) provides in relevant part: "A person is guilty of robbery in the first degree when . he or another participant in the crime . (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. . . ." Under Golding, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. As the defendant recognizes, if the substituted count of robbery in the second degree is a lesser offense included within robbery in the first degree, as originally charged, the conspiracy count is a lesser included offense as well.

Opinion PER CURIAM. The petitioner, Clyde Meikle, appeals from the judgment of the habeas court, denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion by denying his petition for certification to appeal and (2) improperly denied his petition for a writ of habeas corpus. We dismiss the appeal. After a jury trial, the petitioner was convicted of murder. The petitioner admitted that he had shot the victim but claimed that the shooting was accidental. This court upheld the petitioner's conviction in State v. Meikle, 60 Conn. App. 802, 761 A.2d 247 (2000), cert, denied, 255 Conn. 947, 769 A.2d 63 (2001). In his direct appeal, the petitioner claimed, inter alia, "that the state violated his rights under the equal protection clause of the fourteenth amendment to the United States constitution by exercising a peremptory challenge in a racially discriminatory manner"; id., 804; in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The petitioner characterized as pretextual each of the state's four reasons for using a peremptory challenge to excuse an African-American member of the venire panel. State v. Meikle, supra, 811. This court disagreed, noting that the trial court had analyzed each of the state's claims under the six Batson factors and concluding that the record supported the court's conclusion that the petitioner had failed to meet his burden of establishing purposeful discrimination. Id. In his petition for a writ of habeas coipus, the petitioner alleged, among other things, that his constitutional right to the effective assistance of counsel was denied by the counsel who had represented him both at trial and on appeal. Specifically, the petitioner claimed that although his counsel had filed a motion raising a Batson claim, his counsel did not argue with sufficient vigor that the court should perform a dual motivation analysis of the reasons given by the state; see State v. Hodge, 248 Conn. 207, 223, 726 A.2d 531 (adopting in certain instances dual motivation analysis set forth in Howard v. Senkowski, 986 F.2d 24, 30 [2d Cir. 1993]), cert, denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999); and failed to preserve a dual motivation claim for appeal. After a hearing, the court denied the petition for a writ of habeas coipus and subsequently denied the petition for certification to appeal. On appeal, the petitioner claims that the court abused its discretion by denying him certification to appeal. We must first address the threshold question regarding certification before reaching the allegations of the petition for a writ of habeas corpus, if at all. "In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary. . . . Faced with a habeas court's denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A. 2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . . "To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel's performance was deficient and that there is a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different." (Internal quotation marks omitted.) Anderson v. Commissioner of Correction, 83 Conn. App. 595, 597, 850 A.2d 1063, cert, denied, 271 Conn. 905, 859 A.2d 560 (2004). On the basis of our review of the record and briefs, we conclude that the petitioner has failed to meet his burden of proving that the court abused its discretion by denying his petition for a writ of habeas corpus. The habeas court determined that "trial counsel ably represented the petitioner on the dual motivation issue . . . [and although] the terminology [applicable to a dual motivation claim] had not yet been adopted when he tried the case, counsel presented the issues necessary for the trial court to hear the matter. Further, when the case law supported the use and recognition of the term 'dual motivation,' trial counsel pressed this issue on appeal." The petitioner agrees that if the trial court had made the requisite race neutrality and credibility findings with respect to the state's peremptory strike of an African-American venireperson, no dual motivation analysis would be required. He posits, however, that both a reading of the record and this court's opinion belies the state's contention that the trial court made a credibility finding with respect to the fourth reason given by the prosecutor in support of her decision to strike the venireperson at issue. This fourth reason was related to the so-called "Manchester incident." See State v. Meikle, supra, 60 Conn. App. 804-808. We do not agree. Although it is true that the petitioner never raised a dual motivation claim and the trial court neither addressed nor performed a dual motivation claim analysis, as such, the record reflects that the court did examine each of the reasons given by the prosecutor and analyzed each reason. The court concluded that the petitioner had failed to demonstrate that the prosecu tor's decision to strike the venireperson reflected purposeful discrimination. The prosecutor recited detailed facts concerning the Manchester incident as well as her personal views of the venireperson as it related to the incident. The court specifically based its decision, in part, on "the other out-of-court knowledge that the prosecutor had, [from] whatever source, relating to the Manchester arrest . . . ." This court has stated, at least impliedly, that if the defendant at trial was not satisfied with the extent of the court's findings, he could have moved for an articulation. State v. Meikle, supra, 60 Conn. App. 812. The fact that he did not take such action does not lessen the sufficiency of the court's findings, and, unless they are clearly erroneous, the court's findings must stand. The trial court found that each of the four reasons asserted by the state in support of its decision to exercise a peremptory challenge were race neutral. This corut already has concluded that the trial court's findings were not clearly erroneous. Id., 811. There were, therefore, no grounds for a dual motivation challenge or a reason for the court to perform such an analysis. See State v. Hodge, supra, 248 Conn. 226. We therefore conclude that the habeas court did not abuse its discretion in denying the petition for certification to appeal. The appeal is dismissed. Our Supreme Court, released State v. Hodge, supra, 248 Conn. 207, on April 6, 1999, subsequent to the completion of the defendant's trial in this matter.

Per Curiam. The habeas court did not abuse its discretion in denying the petition for certification to appeal. The appeal is dismissed.

Opinion WEST, J. The petitioner, Lloyd George Morgan, Jr., appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus and requests that we order a new habeas proceeding for reconsideration of his petition. On appeal, the petitioner does not challenge the court's rejection of the underlying claims in his petition. Rather, he claims that the court violated his due process right to effective assistance of habeas counsel and the correlative right to representation that is free from conflicts of interest. He asserts that the court did so by failing to inquire into the nature of three grievances that he filed against his habeas attorney with the statewide grievance committee prior to the habeas proceedings. Viewing the record before us, it is not possible for this court to determine whether an actual conflict of interest existed and, if so, whether it rendered counsel's assistance ineffective. We do agree with the petitioner, however, that the record demonstrates that the possibility of a conflict of interest became sufficiently apparent during the habeas proceeding so as to impose on the court a duty to inquire further. Accordingly, we remand the case to the habeas court to determine the nature of the three grievances; in the event that the habeas court finds that an actual conflict of interest existed that influenced habeas counsel in making basic strategic decisions, we reverse the judgment and remand the case for a habeas trial; in the event that the habeas court finds that there was no actual conflict of interest that influenced habeas counsel's basic strategic decision making, we affirm the judgment of the habeas court. The following facts and procedural history are relevant to our resolution of the petitioner's appeal. On April 25, 2000, the petitioner filed a petition for a writ of habeas corpus. The court subsequently appointed Kenneth P. Fox as habeas counsel for the petitioner. On February 10, 2003, the petitioner filed his second, and last, amended petition for a writ of habeas corpus. The petitioner's habeas proceedings took place on March 20 and April 10, 2003. At those proceedings, the petitioner, asking the court to disqualify his habeas attorney, alerted the court to what he believed were two possible claims of conflict of interest against Fox. First, the petitioner argued that a conflict of interest existed because he disagreed with the strategy that Fox employed at the habeas proceedings. At the proceeding on March 20, 2003, the court explained to the petitioner that "creative differences" in what "course should be taken [do] not constitute a conflict of interest." At the proceeding on April 10, 2003, responding again to the petitioner's dissatisfaction with Fox's strategy, the court stated: "That is not a conflict of interest." Second, at the proceeding on March 20, 2003, the court asked the petitioner, "How is there a conflict of interest between you and [counsel]?" The petitioner replied, "I have filed several grievances [against] him with the statewide [grievance committee], at least five." Fox promptly corrected the petitioner and informed the court that the petitioner had filed three grievances against him. Immediately after the petitioner had informed the court of the grievances and Fox had confirmed that the petitioner in fact had filed three grievances, the court stated that it "[did not] see any conflict, per se." At no point later in the proceedings did the court inquire into the nature of the grievances filed by the petitioner against Fox. On April 11, 2003, the court denied the petitioner's amended petition for a writ of habeas corpus and issued a memorandum of decision rejecting, on the merits, all of the underlying claims in that petition. On April 17, 2003, the petitioner filed a petition for certification to appeal. The court granted the petition and issued notice thereof on April 24, 2003. On May 5, 2003, the petitioner filed this appeal. The petitioner claims that the court improperly violated his due process right to effective assistance of counsel and the correlative right to representation that is free from conflicts of interest. He asserts that the court did so by failing to inquire into the nature of three grievances that he filed against his habeas attorney prior to the habeas proceedings. In support of his claim, the petitioner first argues in his brief that there is a right to effective assistance of habeas counsel that is predicated on the statutory right to habeas counsel under General Statutes § 51-296 (a). In support of his argument, the petitioner cites Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), and notes with particularity that in that case, our Supreme Court remarked that counsel appointed in postconviction matters must be effective and competent. Id., 838-39. Citing State v. Martin, 201 Conn. 74, 82, 513 A.2d 116 (1986), the petitioner then reminds us that "[t]o safeguard a criminal defendant's right to the effective assistance of counsel, a trial court has an affirmative obligation to explore the possibility of conflict when such conflict is brought to the attention of the trial judge in a timely manner." He notes that in Martin, our Supreme Court held that when counsel makes a timely assertion of a conflict of interest, "[t]he trial court's failure to inquire [is] error." Id., 83. He also cites State v. Vega, 259 Conn. 374, 788 A.2d 1221, cert, denied, 537 U.S. 836,123 S. Ct. 152,154 L. Ed. 2d 56 (2002), in which our Supreme Court reiterated that "[t]here are two circumstances under which a trial court has a duty to inquire with respect to a conflict of interest: (1) when there has been a timely conflict objection at trial . . . or (2) when the trial court knows or reasonably should know that a particular conflict exists . . . ." (Internal quotation marks omitted.) Id., 388. The petitioner next argues that when a court becomes aware that a party previously has filed a grievance against his court-appointed counsel, the court, to safeguard the party's right to effective assistance of counsel, must inquire into whether the substance of the grievance constitutes a conflict of interest. To support that argument, the petitioner discusses the facts of Vega. In that case, on learning that the defendant had filed a grievance against his court-appointed counsel, the trial court inquired into (1) when the grievance had been filed, (2) whether a copy of the grievance was available and (3) whether the defendant could recall the nature of the grievance. Id., 390-91 n.18. Our Supreme Court "conclude[d] that the trial court conducted an appropriate inquiry as to the conflict of interest alleged by [the defendant's counsel] and the potential violation of the defendant's sixth amendment rights." Id., 391. Having laid that foundation, the petitioner argues that by informing the court that he previously had filed three grievances against counsel, the court was obligated to inquire into whether the substance of any of those grievances constituted a conflict of interest. He further argues that by failing to conduct any inquixy into the nature of those grievances, the court deprived him of his due process light to effective assistance of counsel and the correlative right to representation that is free from conflicts of interest. To the extent that the court should have inquired into the nature of the grievances, we agree with the petitioner. Reviewing the legal principles that guide us in our analysis, we first note that although there is no constitutional right to counsel in habeas proceedings, "General Statutes § 51-296 . . . creates a statutory right to counsel . . for an indigent defendant . in any habeas corpus proceeding arising from a criminal matter . . . ." (Emphasis in original; internal quotation marks omitted.) Franko v. Bronson, 19 Conn. App. 686,691-92, 563 A.2d 1036 (1989). In addition to creating a right to counsel in habeas proceedings themselves, § 51-296 creates a right to counsel in appeals therefrom. Id., 692. We previously have concluded that "the [statutory] right to appeal in habeas corpus actions should be extended the same protections as those set out in [Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967)]." Franko v. Bronson, supra, 692. "The Anders decision [was] based upon constitutional requirements guaranteed by the sixth amendment in criminal cases." Id., 691. Given our willingness to extend the weight of sixth amendment protection to the statutory right to appeal in habeas actions, we therefore also extend the weight of sixth amendment protection to the underlying statutory right to counsel in habeas proceedings themselves. In so doing, we note that "[t]he sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to [the] effective assistance of counsel. . . . Where a constitutional right to counsel exists . . . there is a correlative right to representation that is free from conflicts of interest. . To safeguard a criminal defendant's right to the effective assistance of counsel, a trial court has an affirmative obligation to explore the possibility of conflict when such conflict is brought to the attention of the trial [court] in a timely manner. . In discharging this duty, the trial court must be able, and be freely permitted, to rely upon [defense] counsel's representation that the possibility of such a conflict does or does not exist. . . . The reliance in such an instance is upon the solemn representation of a fact made by [the] attorney as an officer of the court. . . . The course thereafter followed by the court in its inquiry depends upon the circumstances of the particular case." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Drakeford, 261 Conn. 420, 426-27, 802 A.2d 844 (2002). Given our Supreme Court's recitation of what sixth amendment protection means and our extension of the weight of that protection to the statutory right to counsel in habeas proceedings, we conclude that a petitioner in a habeas proceeding has both the right to effective assistance of habeas counsel and the right to be represented by habeas counsel who is free from conflicts of interest. We further conclude that in order to safeguard a habeas petitioner's right to the effective assistance of habeas counsel, a habeas court, like a criminal trial court, has an affirmative obligation to explore the possibility that habeas counsel has a conflict of interest when that possibility is brought to the attention of the habeas court in a timely manner. In discharging that duty, the habeas court must be able, and be freely permitted, to rely on habeas counsel's representation that the possibility of such a conflict does or does not exist. The court may rely on the solemn representation of a fact made by habeas counsel as an officer of the court. The course thereafter followed by the court in its inquiry depends on the circumstances of the particular case. Next, recognizing (1) that appellate review of a habeas court's actions at a habeas proceeding can be analogous to appellate review of a trial court's actions at a trial and (2) that "[w]hen a defendant . . . alleges that the trial court's failure to inquire about a possible conflict of interest led to the deprivation of a constitutional right during the criminal prosecution, the claim is proper for a direct appeal"; State v. Phidd, 42 Conn. App. 17, 35, 681 A.2d 310, cert, denied, 238 Conn. 907, 679 A.2d 2 (1996), cert, denied, 520 U.S. 1108, 117 S. Ct. 1115, 137 L. Ed. 2d 315 (1997); we apply the previously stated sixth amendment analysis to conclude that when a petitioner alleges that the habeas court's failure to inquire about a possible conflict of interest led to the deprivation of the statutory right to effective assistance of habeas counsel during the habeas proceeding, the claim is proper for a direct appeal. See id. In State v. Drakeford, supra, 261 Conn. 426, the defendant claimed that he was entitled to a new criminal trial because the trial court, having been alerted to the possibility that defense counsel had a conflict of interest, failed to conduct an adequate inquiry into the potential conflict. In that case, this court; see State v. Drakeford, 63 Conn. App. 419,777 A.2d202 (2001), aff'd, 261 Conn. 420, 802 A.2d 844 (2002); and the Supreme Court both agreed to review the petitioner's allegations that his lights under the sixth amendment and article first, § 8, of our state constitution had been jeopardized by the actions of the trial court. State v. Drakeford, supra, 261 Conn. 422. Similarly, the petitioner in this case claims that he is entitled to a new habeas proceeding because the court, having been alerted to the grievances and the possibility that counsel had a conflict of interest, failed to conduct an inquiry into whether any of the grievances evidenced a conflict. Given (1) our application of the weight of sixth amendment protection to the statutory right to counsel in habeas proceedings, (2) our previously stated analogy of appellate review of a trial court's actions at trial to appellate review of a habeas court's actions at a habeas proceeding and (3) our decision in Drakeford to review whether the actions of the trial court improperly deprived the defendant of his right to representation that is free from conflicts of interest, we choose to review the petitioner's allegation that his statutorily created due process rights have been jeopardized by the actions of the habeas court. Accepting that the petitioner's claim is proper for a direct appeal, we review for abuse of discretion; see State v. Webb, 238 Conn. 389, 417, 680 A.2d 147 (1996); Fiddelman v. Redmon, 31 Conn. App. 201,210, 623 A.2d 1064, cert, denied, 226 Conn. 915, 628 A.2d 986 (1993); the court's decision to deny the petitioner's motion to disqualify his habeas counsel for an alleged conflict of interest. "We accord wide discretion to a trial court's ruling on a motion for disqualification of counsel for conflict of interest. . In determining whether the trial court abused its discretion, we indulge every reasonable presumption in favor of the correctness of the court's decision." (Citation omitted.) Fiddelman v. Redmon, supra, 210. "The ultimate issue is whether the [habeas] court could reasonably have reached the conclusion that it did." (Internal quotation marks omitted.) State v. Webb, supra, 417. Whether the court in this case reasonably concluded that disqualification of the petitioner's counsel was not required depends on whether the substance of any of the aforementioned grievances constituted an actual conflict of interest. The court, however, did not conduct any inquiry into the nature of the grievances. Consequently, the record lacks the information required to determine whether the court's conclusion was reasonable. In State v. Martin, supra, 201 Conn. 77, the trial court, without inquiring into defense counsel's timely assertion that a conflict of interest existed, summarily denied both defense counsel's motion to withdraw and motion for a mistrial. Analyzing that case, our Supreme Court in State v. Vega, supra, 259 Conn. 374, stated: "[T]he trial court was under a duty to investigate the defense counsel's assertion of a conflict of interest. . Yet, without inquiry as to the legitimacy of the attorney's assertion, the court summarily denied the defendant's motion. This was error. To safeguard a criminal defendant's right to the effective assistance of counsel, a trial court has an affirmative obligation to explore the possibility of conflict when such conflict is brought to the attention of the trial judge in a timely manner." (Emphasis added; internal quotation marks omitted.) Id., 388-89. In Mickens v. Taylor, 535 U.S. 162, 164, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002), the United States Supreme Court addressed "what a defendant must show in order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known." In its analysis, the court first stated that "[a]s a general matter, a defendant alleging a Sixth Amendment violation must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]." Mickens v. Taylor, supra, 166. The Mickens court then noted an exception to the general rule: "We have spared the defendant the need of showing probable effect upon the outcome, and have simply presumed such effect, where assistance of counsel has been denied entirely or during a critical stage of the proceeding. When that has occurred, the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary. . . . But only in 'circumstances of that magnitude' do we forgo individual inquiry into whether counsel's inadequate performance undermined the reliability of the verdict." (Citations omitted.) Id., 166. The court further stated that it "[had] held in several cases that 'circumstances of that magnitude' may also arise when the defendant's attorney actively represented conflicting interests" and that "[t]he nub of the question before [the court was] whether the principle established by [those] cases provide [d] an exception to the general rule of Strickland under the circumstances of the [Mickens] case." Id., 166-67. To answer that question, the court examined several cases. Considering "Holloway v. Arkansas, [435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978), in which] defense counsel had objected that he could not adequately represent the divergent interests of three codefendants"; Mickens v. Taylor, supra, 535 U.S. 167; the Mickens court stated that Holloway "create[d] an automatic reversal rule only where defense counsel is forced to represent codefendants over his timely objection, unless the trial court has determined that there is no conflict." Id., 168. The Mickens court next examined Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). In that case, "the respondent was one of three defendants accused of murder who were tried separately, represented by the same counsel. Neither counsel nor anyone else objected to the multiple representation, and counsel's opening argument at [the defendant] Sullivan's trial suggested that the interests of the defendants were aligned." Mickens v. Taylor, supra, 535 U.S. 168. The Mickens court stated that in Cuyler, it had both "declined to extend Holloway's automatic reversal rule to [that] situation and held that, absent objection, a defendant must demonstrate that 'a conflict of interest actually affected the adequacy of his representation.' " Id. Finally, the Mickens court examined Wood v. Georgia, 450 U.S. 261,101 S. Ct. 1097,67 L. Ed. 2d 220 (1981), in which three indigent defendants each had been represented in a probation revocation hearing by their employer's attorney, whose fees were paid by the employer. Mickens v. Taylor, supra, 535 U.S. 169. The Mickens court stated that in Wood, "the possibility that counsel was actively representing the conflicting interests of [the] employer and [the] defendants 'was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further.' " Id. The Mickens court then stated that "[b]ecause [o]n the record before [it], [the Wood court] [could not] be sure whether counsel was influenced in his basic strategic decisions by the interests of the employer who hired him . . . [it] remanded for the trial court to determine whether the conflict of interest that [the] record strongly suggested] actually existed (Citations omitted; internal quotation marks omitted.) Id., 170. The petitioner in Mickens had argued that "the remand instruction in Wood established an 'unambiguous rule' that where the trial judge neglects a duty to inquire into a potential conflict, the defendant, to obtain reversal of the judgment, need only show that his lawyer was subject to a conflict of interest, and need not show that the conflict adversely affected counsel's performance. . He relie[d] upon the language in the remand instruction directing the trial court to grant a new revocation hearing if it determine [d] that 'an actual conflict of interest existed,' [Wood v. Georgia, supra, 450 U.S. 273], without requiring a further determination that the conflict adversely affected counsel's performance." (Citation omitted.) Mickens v. Taylor, supra, 535 U.S. 170-71. The Mickens court, however, disagreed with the petitioner. It stated: "As used in the remand instruction . 'an actual conflict of interest' meant precisely a conflict that affected counsel's performance — as opposed to a mere theoretical division of loyalties. It was shorthand for the statement in Sullivan that 'a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.' . . . This is the only interpretation consistent with the Wood Court's earlier description of why it could not decide the case without a remand: 'On the record before us, we cannot be sure whether counsel was influenced in his basic strategic decisions by the interests of the employer who hired him. If this was the case, the due process rights of petitioners were not respected . . . .' Petitioner's proposed rule of automatic reversal when there existed a conflict that did not affect counsel's performance, but the trial judge failed to make the Sullivan-mandated inquiry, makes little policy sense." (Citations omitted; emphasis in original.) Id., 171-72. The Mickens court further stated: "The trial court's awareness of a potential conflict neither renders it more likely that counsel's performance was significantly affected nor in any other way renders the verdict unreliable. . . . Nor does the trial judge's failure to make the Sullivan-mandated inquiry often make it harder for reviewing courts to determine conflict and effect, particularly since those courts may rely on evidence and testimony whose importance only becomes established at trial. Nor, finally, is automatic reversal simply an appropriate means of enforcing Sullivan's mandate of inquiry." (Citation omitted.) Id., 173. The present case is one of those in which the failure to make the Sullivan mandated inquiry makes it impossible for this court to determine whether a conflict existed and, if it did, its effect. We have no evidence before us in the record that reveals whether the nature of the grievances constituted an actual conflict of interest. The alleged conflict here is merely theoretical. As we previously noted, our Supreme Court has stated: "In discharging [its] duty [to inquire], the . . . court must be able, and be freely permitted, to rely upon . . . counsel's representation that the possibility of such a conflict does or does not exist. . . . The reliance in such an instance is upon the solemn representation of a fact made by [the] attorney as an officer of the court." (Citations omitted; internal quotation marks omitted.) State v. Drakeford, supra, 261 Conn. 427. The petitioner's habeas counsel, however, did not make any representation that the grievances did or did not evidence a possible conflict of interest. He asserted merely that the petitioner had filed three, not five, grievances against him. Those circumstances, in our opinion, warranted an inquiry into the nature of the grievances. The court, however, summarily denied the petitioner's motion to disqualify his attorney without inquiry as to the legitimacy of the petitioner's assertion that the grievances represented a conflict of interest. As in State v. Martin, supra, 201 Conn. 82, that was improper. We therefore conclude: (1) the possibility of a conflict of interest became sufficiently apparent during the habeas proceeding to impose on the court a duty to inquire further; (2) the court failed to inquire into the nature of the grievances; (3) consequently, the record is inadequate to determine whether the court reasonably could have reached its conclusion that no conflict existed; (4) on the record before us, we cannot ascertain whether counsel was influenced in his basic strategic decisions by any conflicts of interest; and (5) because the conflict, merely is theoretical, automatic reversal is not an appropriate means here of enforcing Sullivan's mandate of inquiry, as similarly was the case in Wood v. Georgia, supra, 450 U.S. 261. The case is remanded for further proceedings to determine the nature of the three grievances; in the event that the habeas court finds that an actual conflict of interest existed that influenced habeas counsel in making basic strategic decisions, and no timely appeal is taken from that decision, the judgment is reversed and the case is remanded for a new trial on the petition for a writ of habeas corpus; in the event that the habeas court finds that there was no actual conflict of interest that influenced habeas counsel's basic strategic decision making, and no timely appeal is taken from that decision, the judgment is affirmed. In this opinion the other judges concurred. In accord with State v. Vega, 259 Conn. 374, 388, 788 A.2d 1221, cert, denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002), the petitioner does not claim that the filing of a grievance in and of itself is sufficient to establish a per se conflict of interest and a violation of an individual's due process rights. The petitioner claims that the court's failure to inquire into the nature of the grievances denied him his right to effective assistance of counsel. Because the petitioner does not challenge the court's rejection of the underlying claims in his petition, we limit our discussion of the facts to those that are relevant to the issues on appeal. On appeal, the petitioner agrees that opposing counsel's strategy in and of itself does not constitute a conflict of interest. We therefore decline to consider that claim. Under General Statutes § 51-296 (a), an indigent person has a right to counsel "in any habeas corpus proceeding arising from a criminal matter The sixth amendment to the United States constitution provides in relevant part that "the accused shall enjoy the right . to have the assistance of counsel for his defense." Compare Gold v. Warden, 222 Conn. 312, 610 A.2d 1153 (1992) (reversing habeas court's judgment granting petition for writ of habeas corpus and ordering new habeas hearing where habeas court improperly refused to allow criminal trial judge to testify) with Reynolds v. Vroom, 132 Conn. 53, 42 A.2d 336 (1945) (setting aside trial court's judgment and ordering new trial where trial court improperly refused to allow certain testimony). The respondent, the commissioner of correction, concedes "that the petitioner, by distinctly raising the issue of a conflict of interest [in the habeas proceeding] preserved the question of whether the court's inquiry was adequate, at least under the particular circumstances of this case." We agree. As the respondent points out, given the unique problems presented by a claim of a conflict of interest, it would be unduly harsh to require a layperson who may have a legitimate claim of conflict of interest either (1) to appreciate the difference between a claim that counsel actually was conflicted and a claim that the court failed to inquire into a possible conflict or (2) to depend on the assistance of conflict laden counsel to preserve every aspect of his claim for him. We therefore conclude, under the circumstances of this case, in which the court did not make any inquiry into the nature of the grievances in question, that by alerting the court to the existence of the grievances when asked how there was a conflict of interest, the petitioner preserved for appellate review his claim that the court improperly failed to inquire into the nature of those grievances. Although this court, and the Supreme Court both agreed in Drakeford that the trial court had in fact conducted a sufficient inquiry into whether the defendant's sixth amendment rights had been jeopardized by the actions of the trial court, it is important to note that neither court excluded from the scope of review allegations that the trial court itself had acted improperly. In Lapointe v. Commissioner of Correction, 67 Conn. App. 674, 789 A.2d 491, cert, denied, 259 Conn. 932, 793 A.2d 1084 (2002), this court determined that the petitioner's claim could not be raised on direct appeal. In that case, we held that the petitioner improperly raised a claim of ineffective assistance of habeas counsel on direct appeal to this court from the dismissal of his habeas petition and that the proper forum in which to litigate that claim was the habeas court by way of a second habeas petition alleging ineffectiveness of his first habeas counsel. Id., 679-80. In the present case, however, we are not concerned as much with a claim involving the ineffectiveness of the petitioner's habeas counsel as we are with a claim that the court failed to comply with its affirmative duty to inquire about a potential conflict of interest. Under those circumstances, as noted in the text of this opinion, we are instructed by State v. Phidd, supra, 42 Conn. App. 17. In that case, we stated: "The defendant claims that the trial court's failure to inquire of him about a possible conflict of interest of his trial counsel violated his constitutional right to conflict free representation. Although this claim appears to be more appropriate for a habeas proceeding because the constitutional right at issue deals with the trial counsel's ability to represent his client effectively . . . it may be pursued on direct appeal because the defendant is challenging the actions of the trial court, not the actions of his counsel." (Citation omitted; emphasis added.) Id., 32-33. "When a defendant . . . alleges that the trial court's failure to inquire about a possible conflict of interest led to the deprivation of a constitutional right during the criminal prosecution, the claim is proper for a direct appeal." Id., 35. Likewise, then, when a petitioner alleges that the habeas court's failure to inquire about a possible conflict of interest led to the deprivation of the right to effective assistance of habeas counsel during habeas proceedings, the claim is proper for a direct appeal. The respondent, the commissioner of correction, argues that the court provided the petitioner with ample opportunity to discuss any potential conflicts of interest contained within the grievances and that it therefore satisfied its affirmative duty to inquire. The respondent argues that the court's thorough inquiry into the petitioner's first claim, namely, that a conflict of interest existed because the petitioner disagreed with his attorney's strategy, was sufficient. The respondent argues that the court was not obligated to question anyone specifically about the nature of the grievances. In light of case law discussed in the text of this opinion, we disagree with the respondent. We believe that the court did have an affirmative obligation to inquire specifically into the nature of the grievances. In State v. Lopez, 80 Conn. App. 386, 835 A.2d 126 (2003), cert, granted, 267 Conn. 912, 840 A.2d 1174 (2004), this court both reversed the habeas court's judgment denying the petitioner's petition for a writ of habeas corpus and remanded the case for new habeas proceedings because we determined that there was "an actual conflict as a result of defense counsel's position as a material witness in the case." (Emphasis in original.) Id., 397-98. In that case, the victim, who claimed that her mother and the defendant had forced her to write and to sign a statement recanting the allegations against him, told the defendant's attorney that the statement was true, and had signed the statement after it was typewritten onto defense counsel's stationery and acknowledged by him as an officer of the court. Id., 394. "We believe[d] [that] . . . case presented] a circumstance in which the structural integrity of the trial [was] more obviously compromised than was the case in [Wood v. Georgia, supra, 450 U.S. 261]. In Wood, the theoretical conflict involved the possibility that, to the extent that the interest of the defendants and their employer diverged, the defense attorney's representation would be compromised." (Emphasis in original.) State v. Lopez, supra, 397. "The problems posed by the conflicted representation in [Lopez] pose[d] the same difficulties as those involved in cases of joint representation of multiple criminal defendants, as set forth in Holloway." Id., 395. The present case, however, is more like Wood than it is like Holloway and Lopez. Unlike the conflicts in Holloway and Lopez, the conflict in this case, as in Wood, is merely theoretical, and it cannot be presumed that such a theoretical conflict actually affected the adequacy of habeas counsel's representation. See id., 397. Our decision here to remand the case, therefore, does not contradict our decision in Lopez to reverse the judgment and to remand the case for a new trial. "Some Courts of Appeals have read a footnote in Wood v. Georgia, [supra, 450 U.S. 272 n.18], as establishing that outright reversal is mandated when the trial court neglects a duty to inquire into a potential conflict of interest. . . . The Wood footnote says that Sullivan does not preclude 'raising . a conflict-of-interest problem that is apparent in the record' and that 'Sullivan mandates a reversal when the trial court has failed to make [the requisite] inquiry.' [Id.] These statements were made in response to the dissent's contention that the majority opinion had 'gone beyond' Cuyler v. Sullivan, see \Wood v. Georgia, supra, 272 n.18], in reaching a conflict-of-interest due process claim that had been raised neither in the petition for certiorari nor before the state courts, see id., at 280 (White, J., dissenting). To the extent the 'mandates a reversal' statement goes beyond the assertion of mere jurisdiction to reverse, it is dictum — and dictum inconsistent with the disposition in Wood, which was not to reverse but to vacate and remand for the trial court to conduct the inquiry it had omitted." (Citations omitted; emphasis in original.) Mickens v. Taylor, supra, 535 U.S. 170 n.3.

PER CURIAM. The habeas court dismissed the petition for a writ of habeas corpus that was filed by the petitioner, Jeffrey R. Perry, and then denied his petition for certification to appeal from that dismissal. After careful review of the record and briefs, we conclude that the petitioner has not demonstrated that the issues are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). The appeal is dismissed.

Opinion LAVERY, C. J. The defendant, Mario Pirozzoli, Jr., appeals from the judgment of the trial court finding him in breach of a partnership agreement and awarding $138,000 in damages to the plaintiff, Andrew Párente. The defendant claims on appeal that the court lacked jurisdiction to enforce the agreement between the parties because the purpose of that agreement was to violate the law. We conclude that the agreement is unenforceable because it is contrary to public policy and, accordingly, reverse in part the judgment of the trial court. The following facts, as found by the court, and procedural history are relevant to the defendant's appeal. Sometime in 1992, the owners of the Speak Easy Cafe in Berlin approached the plaintiff and offered him the opportunity to run that establishment. The plaintiff had known one of the owners and had leased space adjacent to the establishment since the mid-1970s. He was interested and decided to pursue the opportunity. The plaintiff and the owners reached an agreement whereby the plaintiff would purchase all of the liquor in stock, pay weekly rent and allow the owners to generate revenue from the amusement machines they kept in the establishment. According to the testimony of one of the owners, which the court credited, the plaintiff was the only person with whom the owners negotiated and the only one they would have allowed to operate the establishment. Because the plaintiff previously had been convicted of a felony, he was not able to secure a liquor license. The plaintiff asked the defendant to join him in the undertaking because the latter would be able to get the license. In April, 1993, the parties agreed to work together in some form of joint venture. Because of the plaintiffs felony conviction, all of the legal documentation associated with the business, including a real estate lease and the incoiporation papers, was in the defendant's name only. The business was incorporated as Centerfolds, Inc., on June 8, 1993, with the defendant as owner, and the parties began running the establishment in July, 1993. They generally had divided responsibility for the duties involved with the business. At about that time, the plaintiffs attorney drafted a comprehensive partnership agreement to govern the parties' relations. That agreement, however, was never signed. A less comprehensive agreement was prepared in early 1995 and was executed by the parties. In August, 1998, the defendant, without consulting the plaintiff, formed a holding company and caused the company to purchase the real estate on which the establishment was located. In April, 1999, the plaintiffs involvement in the day-to-day operation of the business ceased. For a few months thereafter, the defendant sent the plaintiff weekly checks in the amount of $750 that included the notation "buyout." On January 25, 2000, the plaintiff filed a four count complaint, alleging breach of contract, unjust enrichment, breach of implied contract and conversion. As to the breach of contract count, he averred that the parties owned equal shares of Centerfolds, Inc., by vir tue of the 1995 partnership agreement, that the agreement provided for the equal division of profits from the parties' joint business venture, and that the defendant had breached the agreement by denying the plaintiff access to the premises and his fair share of the business' profits since May, 1999. The defendant's answer set forth only general denials of the plaintiffs allegations. A trial to the court was held on October 22 and 30, 2003. The defendant in his posttrial brief argued, inter alia, that the agreement between the parties was illegal and unenforceable insofar as its purpose was to circumvent the state liquor control statutes. The court declined to consider the defendant's argument, noting in its written conclusions of law that illegality is a special defense that, pursuant to Practice Book § 10-50, must be specially pleaded, and that the defendant had not done so. It thereafter concluded that the 1995 partnership agreement constituted a valid contract between the parties and, according to its terms, the plaintiff was entitled to 50 percent of the value of the ongoing business, which value the court found to be $300,000. Accordingly, the court rendered judgment in favor of the plaintiff in part in the amount of $138,000. This appeal followed. On appeal, the defendant argues that the court improperly enforced the 1995 partnership agreement because it was an illegal contract. According to the defendant, the matter raises a question of the court's subject matter jurisdiction and, therefore, his failure to specially plead illegality did not amount to a waiver of the court's consideration of that issue. In response, the plaintiff claims that the court correctly found that the defendant had waived the defense by failing to specially plead it. According to the plaintiff, the court, "[cjonsis-tent with well established legal principles . . . was required to disregard the defendant's illegality argument and, thus, there is no error." He further contests the defendant's claim that the matter implicated the court's subject matter jurisdiction. I As an initial matter, we must determine whether the court properly decided that the defendant's illegality argument could not be addressed because it had not been specially pleaded. After a review of the applicable law, we conclude that the court abused its discretion in declining to consider that claim. A trial court's decision to decline to review a claim that has not been pleaded specially as required by the rules of practice is reviewable under a deferential standard. See Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273-74, 819 A.2d 773 (2003). "[W]hen a party properly objects to a violation of the rules of practice, the trial court may disregard the improperly raised claim if doing so is not an abuse of discretion." Id. Our rules of practice require certain matters to be raised as special defenses, including "illegality not apparent on the face of the pleadings . . . ." Practice Book § 10-50. "The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway." (Internal quotation marks omitted.) Sivilla v. Philips Medical Systems of North America, Inc., 46 Conn. App. 699, 704, 700 A.2d 1179 (1997), quoting Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 24, 664 A.2d 719 (1995). Nevertheless, when a matter required to be specially pleaded by a party is fully litigated at trial without objection from the opposing party, the latter's objection to the special pleading requirement is deemed to have been waived. See Sivilla v. Philips Medical Systems of North America, Inc., supra, 704-705. Relying on that principle, our Supreme Court has refused to find improper a trial court's consideration of an unpleaded special defense that was first argued by the defendant in its posttrial brief when the evidence relied on in support of that defense was introduced at trial by the plaintiff in support of its claim. See Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 349, 525 A.2d 57, following remand, 205 Conn. 479, 533 A.2d 1211 (1987). The court noted that in introducing the evidence, the plaintiff did not request any limitation on its use, and the defendant did not object to its introduction. Id. Essentially, by introducing the evidence itself, the plaintiff effectively waived any objection to the defendant's reliance on it in support of a special defense. See id.; see also Sidney v. DeVries, 18 Conn. App. 581, 587, 559 A.2d 1145 (1989) (holding that defendant waived objection to plaintiffs failure to plead special defense to counterclaim when evidence plaintiff relied on "was not objected to by the defendant and was, in part, introduced by the defendant"), aff'd, 215 Conn. 350, 575 A.2d 228 (1990); Nygren v. Potocek, 14 Conn. Sup. 405, 407 (1946) (finding assignment agreement illegal, although illegality not pleaded by defendant, when plaintiff needed to establish agreement's validity in order to recover), aff'd, 133 Conn. 649, 54 A.2d 258 (1947). In short, as the United States District Court for the District of Connecticut has explained in applying an analogous federal rule of pleading, "[f] allure to plead matter which constitutes an affirmative defense does not . . . preclude a party from taking advantage of the opposing party's proof, if such proof establishes the defense." (Internal quotation marks omitted.) Lomartira v. American Automobile Ins. Co., 245 F. Sup. 124,129 (D. Conn. 1965), aff'd, 371 F.2d 550 (2d Cir. 1967), quoting 2 J. Moore, Federal Practice (2d Ed. 1964) ¶ 8.27 [3], p. 1853. Those holdings are applicable here. At trial, it was the plaintiff, not the defendant, who first introduced evidence pertaining to the need for a separate partnership agreement and to explain why the plaintiff, an alleged coowner, was not named on any of the documents associated with the business. For example, the plaintiff called his former attorney, David P. Mester, as a witness. On direct examination, Mester testified as to the reason the plaintiff wanted a partnership agreement with the defendant, repeatedly indicating that the plaintiff could not be connected to the liquor permit due to his criminal record. The plaintiff also called Thomas Cadden, another attorney, who assisted the parties in incorporating Centerfolds, Inc., and in negotiating the lease. On direct examination, Cadden explained that the plaintiff was not involved in the corporation or named on the lease "[b]ecause of his felony conviction." Moreover, the plaintiff, himself, in response to his counsel's query, confirmed that prior to 1993, he had a criminal record of such a nature as would make him an unsuitable permittee or backer. He testified further on direct examination that his involvement with the defendant had "something to do with what [the plaintiff] felt was going to be [his] difficulty in getting a liquor license." Finally, when cross-examining the defendant, the plaintiffs counsel sought and received confirmation that the reason that the plaintiff was not named on the lease or corporate documentation was to avoid a problem with the liquor control commission. The defendant argued in his posttrial brief, in essence, that the partnership agreement was illegal and unenforceable due to its purpose of allowing the plaintiff to claim a share in the profits of the enterprise while keeping his identity as an owner-backer concealed so that the establishment could obtain a liquor permit. As previously discussed, the evidence tending to support that argument was introduced largely by the plaintiff in the advancement of his claims. Pursuant to the aforementioned case law, under those circumstances, the plaintiff could not then object to the defendant's arguing the defense of illegality without having pleaded it spe cially. By introducing the supporting evidence himself, the plaintiff had, in effect, waived any objection to its use by the defendant. The nature of the claim at issue provides an independent basis for our conclusion that the question of illegality was properly before the court. "[I]t is generally true that illegality [of a contract], if of a serious nature, need not be pleaded, as a court will generally of its own motion take notice of anything contrary to public policy if it appears from the pleadings or in evidence, and the plaintiff will be denied relief, for to hold otherwise would be to enforce inappropriately an illegal agreement . . . ." (Emphasis added.) 6 S. Williston, Contracts (4th Ed. Lord 1995) § 12:5, pp. 56-64; see also 17A Am. Jur. 2d 309, Contracts § 323 (2004) ("if a question of illegality develops during the course of the trial, a court must consider that question, whether pleaded or not"); 2 Restatement (Second), Contracts, c. 8, topic 1, introductory note, p. 5 (1981) ("The rules of substantive law [governing unenforceability of contracts due to their contravention of public policy] do not turn on niceties of pleading or of proof. . . . Even if neither party's pleading or proof reveals the contravention, the court may ordinarily inquire into it and decide the case on the basis of it if it finds it just to do so . . . ."). Our Supreme Court has embraced that notion and rejected a claim that a defendant's failure to plead illegality precluded that defense from being raised in a case involving a contract by which an attorney representing a wife in divorce proceedings would receive as compensation for his services a portion of any alimony she ultimately was awarded. The court found the arrangement to be contrary to public policy. McCarthy v. Santangelo, 137 Conn. 410, 414, 78 A.2d 240 (1951). According to the court, the "claim that illegality was not pleaded is, under the circumstances, without merit. A matter affecting public policy should not be decided on a question of pleading." Id. We conclude that under the circumstances, the issue of the 1995 partnership agreement's illegality was not barred from consideration by the defendant's failure to plead it specially and, therefore, the court should have decided that issue. Its failure to do so was an abuse of discretion. II We next consider the defendant's claim that the 1995 partnership agreement was illegal and hence unenforceable. We conclude that the agreement's purpose was to violate the liquor control laws, and that it is contrary to public policy. Accordingly, the court's enforcement of its terms was improper. In considering that claim, we must defer to the court's findings of fact unless they are clearly erroneous. De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432, 849 A.2d 382 (2004). We also are mindful, however, that "[wjhether a contract is enforceable or illegal is a question of law for the court, to be determined from all the facts and circumstances of each case. Similarly . . . the question whether a contract is against public policy is [a] question of law dependent on the circumstances of the particular case, over which an appellate court has unlimited review." 17A Am. Jur. 2d 312, supra, § 327. Because our review of a trial court's determination as to the illegality of a contract is plenary, it is of no consequence that the court here did not consider whether the 1995 partnership agreement was illegal. See Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 76-77, 102 S. Ct. 851, 70 L. Ed. 2d 833 (1982) (deciding illegality of contract issue that had been argued but not adjudicated by federal District Court or federal Circuit Court of Appeals); cf. 6 S. Williston, supra, § 12:5, p. 70 ("appellate courts will refuse to sanction bargains seriously inimical to public policy although the question of their illegality has not been raised in the lower court"). That is particularly so because the underlying facts as found by the court are adequate to support our determination. It is well recognized that "no court will lend its assistance in any way toward carrying out the terms of a contract, the inherent propose of which is to violate the law." (Internal quotation marks omitted.) 12 Havemeyer Place Co., LLC v. Gordon, 76 Conn. App. 377, 385, 820 A.2d 299, cert, denied, 264 Conn. 919, 828 A.2d 618 (2003). "In case any action is brought in which it is necessary to prove the illegal contract in order to maintain the action, courts will not enforce it, nor will they enforce any alleged right directly springing from such contract . . . ." (Internal quotation marks omitted.) Robertson v. Stonington, 253 Conn. 255, 260, 750 A.2d 460 (2000); Solomon v. Gilmore, 248 Conn. 769, 785, 731 A.2d 280 (1999). "Generally, agreements contrary to public policy, that is those that negate laws enacted for the common good, are illegal and therefore unenforceable. Contractual rights arising from agreements are subject to the fair exercise of the power of the state to secure health, safety, comfort or the general welfare of the community." 12 Havemeyer Place Co., LLC v. Gordon, supra, 389. Agreements that are legal on their face, yet which are designed to evade statutory requirements, are routinely held unenforceable. For example, in Homami v. Iran-zadi, 211 Cal. App. 3d 1104, 260 Cal. Rptr. 6 (1989), the trial court refused to hold the defendant liable for the principal amount due to the plaintiff under an interest free promissory note. Id., 1111-13. In proving the amount due, the plaintiff testified that the parties had agreed orally on an interest rate of 12 percent and that the reason the loan documents did not reflect any interest was so that the plaintiff could avoid reporting interest income to the Internal Revenue Service. Id., 1108. Similarly, in Flynn Bros. Inc. v. First Medical Associates, 715 S.W.2d 782 (Tex. App. 1986), the Texas appeals court held unenforceable a management agreement pursuant to which the plaintiff management corporation was to receive 66.67 percent of the profits of the defendant medical corporation. Id., 785. The court found the agreement illegal because its purpose was to allow the principals of the plaintiff corporation indirectly to practice medicine without a license in violation of state statutes. Id. This court recently has had occasion to consider, in a context similar to the present one, a claim that an agreement was unenforceable due to illegality although, due to a choice of law provision in the agreement, the matter was governed by Massachusetts substantive law. Zenon v. R. E. Yeagher Management Corp., 57 Conn. App. 316, 748 A.2d 900 (2000). In that case, the plaintiff leased premises to the defendant corporation, which premises the latter wanted to operate as a pub. Id., 318. The parties intended that another defendant, Robert Yeagher (Yeagher), would purchase the plaintiffs liquor permit, pursuant to a separate agreement, for purposes of operating the pub. Id., 319. After the Massachusetts liquor control authorities disapproved transfer of the permit to Yeagher for reasons of financial unsuitability, the parties devised a scheme whereby Yeagher would operate his pub under the plaintiffs liquor permit. Id., 320. Specifically, "[t]he plaintiff pretended that it was he who owned the pub instead of [the defendant] corporation, and Yeagher pretended that he was merely a manager rather than the principal shareholder of the coiporation that owned the business." (Internal quotation marks omitted.) Id. "To carry this plan forward, the plaintiff had Yeagher execute a promissory note, payable to the plaintiff, in the amount of $16,280. Yeagher testified that he signed the note because he wanted to operate the pub; the plaintiff said that he needed the note because he was having trouble with his bank and that it was agreed that the amounts paid on the note would come from the sales of the restaurant." Id. Thereafter, Yeagher failed to make payments due on the promissory note, and the plaintiff brought an action in which he sought, among other things, to collect the balance due on the note. Id., 320-21. The trial court concluded that the note was unenforceable, as it was an agreement "made to facilitate, foster, or support patently illegal activity." Id., 328. Specifically, it found that the note "served to undermine the Massachusetts liquor licensing system and permit prohibited conduct to occur. Both parties willingly and knowingly engaged in this subterfuge in order to achieve their own goals despite the strong public policy concerning control over who may sell alcoholic refreshments. . . . The promissory note was integral to implement the unlawful operation of the pub because the plaintiff demanded its creation as part of the transaction." (Internal quotation marks omitted.) Id., 329. "[T]he court concluded that the liquor licensing requirements are for the protection of the public and common good"; id., 330; and that "the parties by their arrangement effectively substituted their own judgment for that of the local licensing authority. To permit the plaintiff to recover under its illegal arrangement would reward it for its illegal conduct and would contravene public policy by elevating the plaintiffs private interests over those of the public." (Internal quotation marks omitted.) Id., 330-31. We agreed with the court's conclusions and, accordingly, affirmed its judgment. Id., 331-32. Applying Connecticut law and public policy, we conclude that the same result is warranted in the present matter. "A public policy against the enforcement of promises or other terms may be derived by the court from (a) legislation relevant to such a policy . . . ."2 Restatement (Second), supra, § 179. Connecticut, like Massachusetts, has a strong public policy concerning control over who may sell alcoholic beverages, as reflected in our liquor control statutes. See Nelesco Navigation Co. v. Dept. of Liquor Control, 226 Conn. 418, 422, 627 A.2d 939 (1993) ("Because of the danger to the public health and welfare inherent in liquor traffic, the police power to regulate and control it runs broad and deep, much more so than the power to curb and direct ordinary business activity. . . . The Liquor Control Act . . . was adopted in the light of these well-recognized principles." [Internal quotation marks omitted.]); see also Rivera v. Liquor Control Commission, 53 Conn. App. 165, 170, 728 A.2d 1153 (1999). Pursuant to those statutes, a person desiring a liquor permit must make a sworn application to the department of consumer protection, providing, inter alia, the names of the applicant and any backer, and indicating "any crimes of which the applicant or his backer may have been convicted. ." General Statutes § 30-39 (b) (1). The department of consumer protection, in its discretion, may refuse a permit to an applicant who has been convicted of a felony or who has a criminal record that the department of consumer protection reasonably believes makes him an unsuitable permittee. General Statutes § 30-47 (5). The same reasons for disqualification also are applicable to any backer. General Statutes § 30-47. Absent the requisite permit, it is illegal to sell liquor from a bar or other establishment where it is kept for sale. General Statutes § 30-74. Here, the 1995 partnership agreement, like the promissory note in Homami, was not offensive on its face, but had an illegal, ulterior purpose, namely, to evade the strictures of the liquor control laws. Like the parties in Zenon, the plaintiff and the defendant willingly and knowingly engaged in this subterfuge to achieve then-own goals notwithstanding a strong public policy concerning control over who may sell alcoholic refreshments. See Zenon v. R. E. Yeagher Management Corp., supra, 57 Conn. App. 329. Through their agreement, the parties in this case, as did the parties in Flynn Bros., Inc., arranged for the plaintiff effectively to act as an owner-backer of Centerfolds, Inc., without disclosing his involvement, and his felony record, to the department of consumer protection as required by § 30-39 (b) (1). In so doing, they substituted their judgment for that of the department of consumer protection under § 30-47 (5) as to whether the plaintiff, a convicted felon, was a suitable permittee for the purveyance of alcoholic beverages. Because the 1995 partnership agreement was "made to facilitate, foster, or support patently illegal activity"; (internal quotation marks omitted) Zenon v. R. E. Yeagher Management Corp., supra, 328; we conclude that it is illegal as against public policy and, consequently, that the court's enforcement of it was improper. Although the end result of holding the 1995 partnership agreement illegal may be to allow the defendant to receive a windfall at the plaintiffs expense, our Supreme Court has stated "that this result is common, and . . . necessary in many cases in which contracts are deemed unenforceable on the grounds of furthering overriding public policies." Solomon v. Gilmore, supra, 248 Conn. 793. "[I]t is in order to effectuate an underlying public policy, rather than to sanction a party seeking to enforce an 'illegal' contract, that courts refuse to lend assistance to those who have contributed to the illegality that taints the contract." Dowling v. Slotnick, 244 Conn. 781, 808, 712 A.2d 396, cert, denied sub. nom. Slotnick v. Considine, 525 U.S. 1017,119 S. Ct. 542, 142 L. Ed. 2d 451 (1998). Thus, in the case of a contract whose inherent purpose is to violate the law, "if both parties [thereto] are in pari delicto, the law will leave them where it finds them." (Internal quotation marks omitted.) Id., 807. "Knowing that they will receive no help from the courts and must trust completely to each other's good faith, the parties are less likely to enter an illegal arrangement in the first place." (Internal quotation marks omitted.) Homami v. Iranzadi, supra, 211 Cal. App. 3d 1113. The judgment is reversed only as to the first count of the complaint and the case is remanded with direction to render judgment in favor of the defendant on that count. The judgment is affirmed in all other respects. In this opinion the other judges concurred. The agreement stated that it was between the plaintiff and the defendant, and provided in relevant part: "1. [Centerfolds, Inc.] will be operated for the mutual benefit of both parties. Any surplus profit will be shared equally after a reasonable reserve for operating capital is maintained. "2. Should eitherparty withdraw from this venture for any reason including death, the venture will continue and may be operated by the survivor. However, the survivor must pay to the withdrawing party, or his representative within 90 days, the value of the withdrawing party's interest in the venture." The defendant testified that he signed the agreement under duress, but the court found his testimony not credible. The plaintiff did not file a reply brief objecting to the illegality argument raised in the defendant's posttrial brief. He did file, however, a motion in limine prior to trial in which he sought to preclude the defendant from introducing evidence in support of any special defense listed in Practice Book § 10-50. It does not appear that the court ever ruled directly on the motion in limine. As to the other three counts of the complaint, the court rendered judgment in favor of the defendant. In so concluding, however, we do not agree with the defendant's rationale that the court lacked jurisdiction to enforce the agreement because it was illegal. In his brief, the defendant does not cite any authority for the proposition that illegality of a contract creates a jurisdictional issue, and our research has not uncovered any such authority. Rather, in order to make a determination as to whether a particular agreement is illegal or against public policy, a court necessarily must first exercise jurisdiction over the dispute involving that agreement. Mester read from his notes of a conversation with the plaintiff that stated in relevant part: "Mario P. can get the license. No record. Andy P. can't get on the liquor license. Can put it under Carol's name, AP's wife, and MP. But what happens if either MP or Carol tells us to fuck off? . . . needs partnership agreement with Mario P. wants liquor license . . . ." Mester then testified that "[i]t was going to be necessary at some point for a liquor license to be obtained. [The defendant] was going to be able to get a license, that is a liquor license, and become the permittee. [The plaintiff] wanted me to draw this partnership establishing a fifty-fifty interest in the partnership." When asked by the plaintiffs counsel why the plaintiff could not be a permittee under the liquor license, Mester replied, "He had a criminal, felony record." When later asked why the plaintiff would not have been a suitable person on the lease and corporate documents, Mester testified that "[i]t would be for the same reason. He had a criminal, felony record and that would prevent his — that would taint his application or even [the defendant's] application with the liquor license in order for somebody to be permittee for Centerfolds, Inc." According to Cadden, "[t]he whole purpose of entering into this discussion was to open up a place that served liquor, and I knew that it would be difficult. [The plaintiff] was not very happy about it, but I knew it would be difficult, if not impossible, to get a liquor license if we had to list him as a backer or partner."

Opinion McLACHLAN, J. These appeals arise from the acrimonious dissolution of the medical practice of the plaintiff Raafat R. Tadros and the defendant Giuseppe Tripodi, both of whom axe surgeons. Of the eight lawsuits filed between the parties and their various entities, six were consolidated and tried to the court, the seventh remains open following a foreclosure sale and the eighth was withdrawn. In short summary, after trial, the court concluded that the defendants, Tripodi and his wife, Concetta Tripodi, secretly had stolen $876,985.27 from the medical practice over the course of several years. The court ordered them to pay the plaintiff Raafat R. Tadros, Giuseppe Tripodi and Thomas Alosco, M.D., P.C. (professional corporation) treble damages totaling $2,630,955.81, plus interest in the amount of $537,418.50. In addition, the court concluded that Giuseppe Tripodi was hable to Tadros for unpaid rent in the amount of $211,875, plus interest. Finally, as a prejudgment remedy, the court garnished the proceeds of the foreclosure sale of a building owned by Tadros' and Guiseppe Tripodi's real estate corporation held by the clerk of the Superior Court after Giuseppe Tripodi purchased the property at a foreclosure auction. The defendants claim that the court improperly (1) admitted hearsay evidence for a limited nonhearsay purpose and then improperly considered the evidence for its truth as proof of the amount stolen, (2) concluded that Giuseppe Tripodi was hable for unpaid rent, (3) awarded the plaintiffs prejudgment interest pursuant to General Statutes § 37-3a and (4) concluded that it had the authority to garnish funds held by the clerk of the Superior Court. We affirm the judgments of the trial court. The following background facts essentially are undisputed. Tadros hired Giuseppe Tripodi in 1985, and the two later formed a professional corporation, Raafat R. Tadros and Giuseppe Tripodi, M.D., P.C. In 1990, Tadros and Giuseppe Tripodi purchased real estate and conveyed it to their newly formed real estate corporation, Middlebury Medical Center, Inc. (real estate corporation). The practice occupied the second floor of the building while the first floor was leased to other medical professionals. In 1996, Thomas Alosco, also a surgeon, joined the professional corporation and later became an equal shareholder with Tadros and Giuseppe Tripodi. Alosco did not at any relevant time own an interest in the real estate corporation. By the end of2000, both the personal and professional relationship between Tadros and Giuseppe Tripodi soured, and they terminated their practice effective January 1, 2001. Giuseppe Tripodi formed a new entity, the defendant Middlebury Surgical, LLC, and Tadros and Alosco formed a new professional corporation, Raafat R. Tadros and Thomas Alosco, M.D., P.C. The two new entities continued to share the same office space until March 24, 2001, when Tadros and Alosco moved their practice to a different location. By agreement of the parties, Giuseppe Tripodi remained in the practice's original offices in the building owned by the real estate corporation. The court in its memorandum of decision made the following findings of fact specifically related to the Tripodis' theft of funds from the plaintiff professional corporation. "Between 1991 and 2001, $876,985.27 of the corporation's revenues were 'discounted' in the corporation's records. The effect of the discount was to offset the accounts receivable of the corporation so that the corporate records would not show the revenue that it had earned. Although the evidence was circumstantial, the evidence points unequivocally to the conclusion that the Tripodifs] misappropriated and committed the theft of this money. . . . [T]he items entered in the corporation's computer records under 'discount' were accompanied by computer codes used exclusively by Concetta Tripodi. These codes were not used by Joyce Benoit, an administrative assistant in the office who was supervised by Concetta Tripodi in handling the office's financial records and who was the only other person in the office with substantial computer expertise. "Second, between February 13 and 20, 2001, while the professional corporation was in the throes of an acrimonious breakup, corporation counsel Mark Neikrie and his agents seized the corporation's computer. They returned the computer to the office on February 21 and then seized it again on March 9, [2001]. During the period between February [21] and March [9], 2001, when the computer was back in the office, Concetta Tripodi made over 200 deletions of prior computer entries, some of which involved patient balances. Almost half of the matters deleted had been originally entered prior to 2000, and some had been entered as far back as 1993. Although the exact economic effect of all of the deletions is not clear, they nonetheless reveal unauthorized tampering with the computer records at a particularly suspect time. "Third, numerous canceled patient or insurance payment checks bore an endorsement of Guiseppe Tripodi alone or, less frequently, some other endorsement different from that usually used by the professional corporation. These checks were deposited into bank accounts other than the one used by the corporation for deposits. The amount in these checks was then entered under 'discount' in the corporation's records. This money was, thus, plainly diverted from the corporation by the Tripodis. "Fourth, Guiseppe Tripodi requested and received cash for certain varicose vein procedures performed on Saturdays. Occasionally, the cash would be missing on Monday morning and, thus, would not be available for the daily deposit into the corporate bank account. Guiseppe Tripodi told Benoit that he took cash from patients and used the cash for the medication for the varicose vein procedure. Concetta Tripodi told Benoit that the former would take care of the related computer entries. "Fifth, Guiseppe Tripodi sought to end his medical practice with Tadros because Guiseppe Tripodi felt that he was not receiving adequate compensation for the work that he was doing. Tadros preferred to adhere to the original agreement whereby each partner would receive equal shares of the earnings. Guiseppe Tripodi's dissatisfaction with the compensation scheme forms a strong motive for the theft. "Sixth, at his deposition, Guiseppe Tripodi invoked the fifth amendment privilege against self-incrimination in response to questions concerning whether he was stealing from the business, depositing corporate revenues into noncorporate bank accounts and failing to pay income taxes on these moneys. At her deposition, Concetta Tripodi invoked the fifth amendment in response to questions concerning the deposit of corporate revenues to noncorporate accounts, her use of the office computer to discount these deposits and her use of the computer in late February or early March, 2001, to make changes to conceal the misappropriation of funds. The court can and does draw an adverse inference from the breathtaking scope of the Tripodis' invocation of the fifth amendment." Further facts will be provided as necessary to address the defendants' specific claims. I The defendants first claim that the court improperly admitted into evidence two exhibits that constituted inadmissible hearsay, and then, despite having admitted the exhibits for limited nonhearsay purposes, relied on the exhibits for their truth as proof of damages. The defendants argue that without those improperly admitted exhibits, there was an inadequate evidentiary basis to calculate damages related to the theft. We disagree. "[T]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion. . . . Additionally, before a party is entitled to a new trial because of an erroneous eviden-tiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . The harmless error standard in a civil case is whether the improper ruling would likely affect the result." (Citation omitted; internal quotation marks omitted.) Urich v. Fish, 261 Conn. 575, 580-81, 804 A.2d 795 (2002). Furthermore, "[i]t is well recognized that any error in the admission of evidence does not require reversal of the resulting judgment if the improperly admitted evidence is merely cumulative of other validly admitted testimony." (Internal quotation marks omitted.) Cadle Co. v. Errato, 71 Conn. App. 447, 466-67, 802 A.2d 887, cert, denied, 262 Conn. 918, 812 A.2d 861 (2002). A Exhibit forty-seven, introduced through the plaintiffs' expert, forensic accountant Alan Mandell, contained documents prepared by Mandell and by Mark Austin, a computer consultant, as well as supporting documentation. Following voir dire of Mandell regarding the exhibit, the defendants' counsel objected only to those portions of the document that were not actually prepared by Mandell. The court admitted those portions of exhibit forty-seven to which counsel objected for the limited purpose of demonstrating the basis for Man-dell's expert opinion. The remainder of exhibit forty-seven, which includes Mandell's analysis and his determination of the total amount of money the defendants stole, was admitted as a full exhibit without limitation. The court was well within its discretion to allow Mandell to testify as to the bases of his expert opinion, regardless of whether the documentation on which he relied was itself admissible. See Conn. Code Evid. § 7-4 (b); see also Carusillo v. Associated Women's Health Specialists, P.C., 72 Conn. App. 75, 85-86, 804 A.2d 960 (expert opinion regarded as evidence in its own right), remanded on other grounds, 262 Conn. 920, 812 A.2d 861 (2002). Most importantly, the defendants' counsel did not object either to Mandell's testimony regarding his conclusions as to the amount of money stolen or to those portions of exhibit forty-seven containing the gravamen of the plaintiffs' case for theft, including Man-dell's own analysis of the professional corporation's business records and his calculations of the total amount stolen. Either those portions of exhibit forty-seven to which counsel did not object or Mandell's testimony was sufficient evidence of the damages awarded. Thus, because the challenged evidence was cumulative of other, unchallenged evidence that was sufficient in itself to support the court's finding as to the amount stolen, any possible error in the admission of hearsay evidence was necessarily harmless and does not warrant reversal of the judgment. B Austin prepared the other challenged exhibit, number seventy-six, when Neikrie twice seized the professional corporation's computer. The exhibit demonstrated the alterations Concetta Tripodi had made to computer records following the initial seizure of the computer. The court admitted exhibit seventy-six for the limited purpose of showing that the changes had been made after the first seizure and before the second, but stated that it would not consider the substance of the changes. There is nothing to suggest that the court considered exhibit seventy-six for any purpose beyond that for which it allowed the exhibit to be admitted into evidence. Exhibit seventy-six is one piece of circumstantial evidence of the defendants' theft. Moreover, it is cumulative evidence because both Austin and Benoit testified without objection that someone had altered the computer information during the period between the first and second seizures of the professional corporation's computer. See Cadle Co. v. Errato, supra, 71 Conn. App. 466-67. Finally, exhibit seventy-six was not in any way employed by the court to calculate damages. In fact, the court specifically stated in its memorandum of decision that "the exact economic effect of all of the deletions is not clear" and that it considered the deletions as evidence of "unauthorized tampering with the computer records at a particularly suspect time." We accordingly conclude that the court properly admitted and considered exhibits forty-seven and seventy-six and that there was an adequate basis for the damages award. II The defendants next claim that there was an inadequate evidentiary basis for the court to hold Guiseppe Tripodi liable for unpaid rent. The court concluded that Guiseppe Tripodi had failed to make rent payments in the amount of $211,875 during the period after the professional corporation dissolved, but before Guiseppe Tripodi became the owner of the building. We find that there was an adequate evidentiary basis for the court to conclude as it did. The standard of review for a claim of insufficient evidence is well established. "[W]e must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the [court's judgment] . In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable. . In other words, [i]f the [court] could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it." (Internal quotation marks omitted.) Arnone v. Enfield, 79 Conn. App. 501, 508, 831 A.2d 260, cert, denied, 266 Conn. 932, 837 A.2d 804 (2003). Following the breakup of the professional corporation, Tadros and Alosco moved their practice to a different location. From April, 2001, when the parties agreed that Guiseppe Tripodi would remain in the practice's former offices, until May, 2003, when Guiseppe Tripodi acquired title to the building, Guiseppe Tripodi remained a tenant of the landlord real estate corporation. He did not, however, pay the full rent that the professional corporation previously had paid. Of the $316,875 in rent due during that period, Guiseppe Tripodi paid only $105,000, leaving an unpaid balance of $211,875. In its memorandum of decision, the court stated that "Tripodi had the opportunity to sublet his new office space or bring other partners into his new practice to help generate more income and defray the rental costs, but he did not do so." The defendants raise several arguments, all purporting to address the adequacy of the evidentiary basis of the court's decision. Specifically, they claim that (1) there was no evidence adduced at trial that Guiseppe Tripodi possessed authority to enter into a lease unilaterally or to sublease on behalf of the real estate corporation, (2) even if Guiseppe Tripodi had the legal authority to negotiate a lease or sublease, it was unlikely that he could have found a viable tenant due to the fact that the property was the subject of a foreclosure action and (3) the rent charged was inflated to allow for payment of debt service on the real estate corporation's loan. We address each argument in turn. A In order for the court to award damages for unpaid rent in this case, it had to make three findings of fact. It had to conclude that Guiseppe Tripodi occupied the office space as a tenant, that he did not pay the rent due and that the rent due was fair market rent. Guiseppe Tripodi's lack of authority to negotiate on behalf of the real estate corporation is of no consequence. His ability or inability to find a subtenant or partner to help defray costs is irrelevant to the court's decision to award damages. Thus, even if that finding of fact is unsupported by the evidence, it is harmless. Furthermore, the defendants attack only the court's finding that Guiseppe Tripodi could have sublet some of the office space to defray costs. They ignore the court's finding, announced in the same sentence, that Guiseppe Tripodi could have brought on other partners or employees to the same end. The defendants' argument necessarily fails where they dispute one finding of fact and ignore another independently sufficient factual basis for the same outcome. B We need not address the defendants' next argument, that a sublease would have been impracticable due to the foreclosure action, because of our conclusion regarding their first argument. C The defendants' third claim of insufficient evidence is that the evidence did not support the court's conclusion that the rent the real estate corporation charged Guiseppe Tripodi was a fair amount. Specifically, they argue that the rent was inflated to reflect the real estate corporation's debt and that because the parties were not on speaking terms, they did not negotiate a new rental amount after Tadros and Alosco moved their new practice to a different building. We are not persuaded. The evidence at trial showed that the parties, including Alosco, who did not own an interest in the real estate corporation, and Guiseppe Tripodi, himself, agreed on the rent to be paid by the professional corporation. The real estate corporation did not raise the rent after Alosco and Tadros moved out. Guiseppe Tripodi used the entire second floor of the office building and was charged the same rent that the professional corporation had been charged for the same space for more than one decade. We can find no reason to disturb the court's finding that the rent to which Guiseppe Tripodi had himself agreed in an arm's length transaction was the fair market rent. III The defendants next claim that the court improperly awarded prejudgment interest on the damages for unpaid rent. There is, however, no analysis of that claim in the defendants' brief. Accordingly, we consider that claim abandoned. E.g., Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 642-43, 850 A.2d 145 (2004). IV The defendants' final claim is that the court improperly ordered the garnishment of surplus funds held by the Superior Court clerk following the foreclosure sale of the real estate corporation's building. Specifically, they argue that the court lacked the authority to order the garnishment of funds held by the clerk of the Superior Court. Although it is true in the abstract that a court cannot order the garnishment of funds held by a court official or other state official; see Herzig v. Horrigan, 34 Conn. App. 816, 821, 644 A.2d 360 (1994); we do not agree that the court's order in this case was a garnishment. "Issues concerning a court's authority to act are issues of law over which our review is plenary." State v. Perez, 85 Conn. App. 27, 37, 856 A.2d 452, cert, denied, 271 Conn. 933, 859 A.2d 931 (2004). Guiseppe Tripodi purchased the real estate corporation's building at auction following the Supreme Court's order of remand to the trial court. See Tadros v. Mid-dlebury Medical Center, Inc., 263 Conn. 235, 820 A.2d 230 (2003) (inteipreting language granting right of first refusal to a third party as inapplicable in foreclosure situation and approving sale of real estate corporation's building to Tripodi). The clerk of the Superior Court currently holds the proceeds of the sale payable to the real estate corporation, which in turn is one-half owned by Guiseppe Tripodi. Following the entry of judgment for the plaintiffs in the consolidated trial, the plaintiffs successfully moved for a prejudgment remedy ordering the Superior Court clerk to hold the remaining funds left from the foreclosure sale and attaching other assets owned by the defendants in order to satisfy the judgments awarded. The same trial court, Schuman, J., presided over both the consolidated trial and the foreclosure action. This issue occurs at the intersection of legal and equitable doctrines. On the one hand is the principle of sovereign immunity, which prohibits the garnishment of funds held by court officers. See Herzig v. Horrigan, supra, 34 Conn. App. 821; 2 E. Stephenson, Connecticut Civil Procedure (3d Ed. 2002) § 107 (e), pp. 23-24. On the other hand, "[t]he distribution of a surplus from a foreclosure sale lies within the equity jurisdiction of the court." Bryson v. Newtown Real Estate & Development Corp., 153 Conn. 267, 273, 216 A.2d 176 (1965). The rejoinder is that the funds at issue were "brought into court" and held by the court pending further distribu tion by order of the court and, as such, the concerns that support the principle of sovereign immunity do not apply. See General Statutes § 49-27. "[T]he sovereign immunity doctrine rests . on the purpose of preventing serious interference with governmental functions and the imposition of enormous fiscal burdens on the state by subjecting its government to private litigation." Herzig v. Horrigan, supra, 34 Conn. App. 819. In this case, the court simply ordered its clerk to hold, rather than to distribute, funds. Thus, there is no concern with interference with governmental functions or the imposition of any fiscal burdens on the state. In Segal v. Segal, 86 Conn. App. 617, 637, 863 A.2d 221 (2004), this court recently affirmed the order of the trial court directing the court clerk to pay to a party the proceeds of a partition sale. We concluded that because the clerk came into possession of the proceeds as a direct result of a court order and because it was a one time disbursement that would not cause any administrative difficulty, this was not a garnishment implicating sovereign immunity concerns. Id. That is also the case here. This case, furthermore, is not the typical one of a third party garnishing his debtor's assets. The parties in interest in the foreclosure action are the same parties in interest in the consolidated cases we affirmed in parts I through III. We accordingly conclude that the court's order with respect to the funds from the foreclosure sale was not a garnishment of funds held by the court clerk and that the court had the authority to order the clerk to hold rather than to distribute the funds pending the outcome of this and any further appeal. The judgments are affirmed. In this opinion the other judges concurred. For clarity and for consistency with the trial court's memorandum of decision, we shall classify Tadros, Thomas Alosco, the professional corporation and the real estate corporation as the plaintiffs and Guiseppe Tripodi, his wife, Concetta Tripodi, and Guiseppe Tripodi's entity, Middlebury Surgical, LLC, as the defendants. In reality, each was a plaintiff in some of the actions and a defendant in others. See Tadros v. Middlebury Medical Center, Inc., 263 Conn. 235, 820 A.2d 230 (2003) (approving foreclosure sale of real estate corporation's building to Tripodi). In 1998, Alosco's name was added to the professional corporation, which became Raafat R. Tadros, Giuseppe Tripodi and Thomas Alosco, M.D., P.C. Concetta Tripodi handled billing and other administrative matters for the professional corporation. Concetta Tripodi was not aware that before returning the computer to the office for the first time, Neikrie had made a duplicate of the computer's hard drive, which later proved the existence of changes made by Concetta Tripodi during the period between the two seizures of the computer. After voir dire, during which the defendants' counsel learned from Man-dell those portions of exhibit forty-seven that Mandell had himself prepared, counsel framed his objection as follows: "Your Honor, I object to admission of that portion of the exhibit or those portions of the exhibit that were not actually prepared by Mr. Mandell. While I recognize that an expert is permitted to rely on various resources in forming his opinion, it's not established that he can therefore admit any of those sources into evidence unless they otherwise satisfy the requirements for laying a proper foundation. He has admitted that 1he third document in the packet, for instance, was prepared by Mr. Austin. The second document contains a packet of checks that he admits he doesn't — he didn't prepare. I have no objection with respect to the portion that he actually did put together." As the defendants have conceded at oral argument that the court properly considered portions of exhibit forty-seven containing Mandell's summaries and conclusions, we need not address the plaintiffs' argument that this hearsay claim was not properly presented to this court for appeal under Practice Book § 67-4 (d) (3). See footnote 5. Despite the apparent contradiction in terms, a prejudgment remedy may be granted after the entry of judgment but before appellate disposition in order to protect assets to satisfy the judgment. See Gagne v. Vaccaro, 80 Conn. App. 436, 451-54, 835 A.2d 491 (2003), cert, denied, 268 Conn. 920, 846 A.2d 881 (2004). Garnished assets include the Tripodis' real estate holdings and their interest in Guiseppe Tripodi's new entity, Middlebury Surgical, LLC. The foreclosure action, on remand from our Supreme Court, remains pending, as surplus funds have not yet been distributed. In addition to ordering the garnishment of funds held by the clerk, the court stayed the distribution of funds pending the outcome of these appeals. General Statutes § 49-27 provides in relevant part: "The proceeds of each such [foreclosure] sale shall be brought into court, there to be applied if the sale is ratified, in accordance with the provisions of a supplemental judgment then to be rendered in the cause, specifying the parties who are entitled to the same and the amount to which each is entitled. . .

Opinion DiPENTIMA, J. The plaintiff, Denise Ansell, an attorney licensed to practice of law in Connecticut, appeals from the judgment of the trial court dismissing her appeal from the reprimand issued to her by the defendant, the statewide grievance committee (committee). On appeal, Ansell claims that the court improperly concluded that (1) there was no legal significance to the fact that those judges presiding at the time of the ethics violations failed to reprimand her, (2) the evidence supported a reprimand under rule 3.4 (5) of the Rules of Professional Conduct, and (3) the evidence supported a reprimand under rule 8.4 (3) of the Rules of Professional Conduct. We affirm the judgment of the trial court. This case has its origin in a contentious family case in which Ansell and the complainant, attorney Gary Traystman, represented opposing parties. During the proceedings before the trial court, Ansell's predecessor, attorney James K. Kelley, filed a motion to preclude the psychological evaluation by and testimony of Ronald D. Anderson, alleging that Traystman had improper ex parte communications with Anderson. In cross-examining Anderson at a hearing on the motion, Kelley elicited that Anderson had spoken with Traystman regarding scheduling matters only and that the substantive information allegedly provided by Traystman had in fact come directly from his clients. Ansell was thereafter retained in lieu of Kelley. On August 15, 2001, before Hon. Robert I. Berdon, judge trial referee, Ansell raised the issue of ex parte communication between Anderson and Traystman, stating: "There was, also, a question, as I recall, with the last evaluator that brought in the case of In re David W. [254 Conn. 676, 759 A.2d 89 (2000)] because, apparently, there were communications ex parte between the evaluator and . . . attorney Traystman and information provided to him. It was not communicated to counsel for [Ansell's client], as she's reflected in the file, and this was one of the issues on appeal, as well." When asked by the court what kind of information the ex parte communication had involved, Ansell was initially unable to answer. When pressed again by Traystman and the court as to the nature of the ex parte communication, Ansell stated: "I was not prepared to argue this today. If the court would like to give me a few moments, I can go through the transcripts and I'll be very happy to point out the information that attorney Kelley, I believe, brought before Judge Foley his — I believe there was a motion filed. Since I was not trial counsel, it makes it a little bit more difficult for me, and Mr. Kelley isn't here. There was a motion filed to preclude Dr. Anderson's testimony as a result of that information, and I could find that information, probably, in one of the four transcripts that I have." On August 20,2001, the parties appeared before Judge McLachlan for a hearing on whether Anderson's evaluation should be updated. During that hearing, Ansell again raised the issue of ex parte communications, stating: "[P]art of the appealable issues, which are preserved per Justice — per the — well, per Justice Berdon's most recent letter to [the chief clerk of the appellate courts] is that . . . Anderson was subject to ex parte communication with both the guardian ad litem . . . and attorney Traystman, rendering a problem." Later, the following colloquy took place between Ansell and the court: "[The Plaintiff]: But my objection to Ron Anderson was that, as I recall reading the transcript, he was given materials that were not agreed upon by all the parties to be given to him. And there were communications, admitted communications between him and attorneys Traystman and [Susan] Connolly, which were unbeknownst to other counsel, which were objected to. "The Court: But did they have anything to do— "[The Plaintiff]: And since Judge Keller's— "The Court: — did they have anything to do — this is not a juvenile matters proceeding — did they have anything to do with anything other than scheduling, the communications with— "[The Plaintiff]: Yes, Your Honor. "The Court: And what— "[The Plaintiff]: That's— "The Court: — do you claim they had to do with? "[The Plaintiff]: I don't have the transcripts in front of me, Your Honor. They're voluminous. And I'm sorry— "The Court: Well, that's — that's not good— "[The Plaintiff]: — but I don't have them memorized. "The Court: — that's not — that's not good enough, attorney Ansell. You think there's something in the transcript, but you can't tell me what it is. Is that what you're really telling me? "[The Plaintiff]: I just told you what it was. That they had communicated— "The Court: No. I asked you if it had something to do with something other than scheduling. And you told me, yes. "[The Plaintiff]: Yes. "The Court: And I said, what was it? And you told me you didn't know. "[The Plaintiff]: It had to do with information. They were giving information to . . . Anderson regarding the case, the history of the case." At the close of the hearing Judge McLachlan ordered that Anderson update the psychological evaluation. On August 24, 2001, Traystman sent a facsimile to Ansell expressing surprise that she had represented to Judge Berdon and Judge McLachlan that he had had ex parte communications with Anderson. He requested a copy of the transcript that confirmed the communication and warned her that he would be filing a grievance against her should the transcript not confirm her claim. Ansell replied by facsimile the same day, stating that she did not believe Traystman's surprise and attaching a copy of the motion to preclude originally filed by Kelley. Traystman filed a grievance with the committee on September 10, 2001. On September 14, 2001, the parties again appeared before Judge McLachlan, and Ansell once again raised the issue of ex parte communications, stating that she had the supporting transcript excerpts. The following exchange ensued: "[Attorney Traystman]: Your Honor, I would love to see those transcripts of what attorney Ansell claims was the testimony that had to do with an affirmative finding that there was ex parte communication between myself and Dr. Anderson. Is she indicating to the court right now before you that she has transcripts that confirm that I had ex parte communication? "The Court: Was that your claim? "[The Plaintiff]: No, Your Honor. I said that there was conflict between the parties regarding ex parte communication and that the claim was that that evaluation had been tainted." Ansell proceeded to read from the transcript of the hearing where Kelley cross-examined Anderson, who testified that the only communication between him and Traystman concerned scheduling. The court again asked Ansell what information Traystman improperly gave Anderson. Following Ansell's response, the court stated: "All right, and this is the last time I'm going to ask this question. What specific information did you claim Mr. Traystman improperly supplied to Dr. Anderson?" Ansell replied that her predecessor and client had initially claimed that background reports had been supplied, but that it had later been determined that those reports were given to Anderson directly by Traystman's clients. Thereupon, Traystman directed the court's attention to the fact that Ansell had indicated to Judge Berdon and to Judge McLachlan that her information on the ex parte communication came from the transcripts. The court replied, "And I've asked her that three times, and she has not— the only thing she has told me [was that] there was some dispute about information." On November 5, 2001, the New London judicial district grievance panel found probable cause to believe that Ansell violated rules 3.1, 3.3 (a) (1) and (4), 3.4 (5) and 8.4 (1) and (3). The reviewing committee conducted a hearing on January 10, 2002, at which Ansell, with counsel, and Traystman were present, and testimony was heard from Kelley, Ansell and Ansell's client in the family case. The reviewing committee issued its decision May 9, 2003, finding by clear and convincing evidence that Ansell had violated rules 3.3 (a) (1), 3.4 (5) and 8.4 (3) and issued a reprimand accordingly. On June 2, 2003, Ansell filed a request for review, which was considered by the committee on June 19, 2003. The committee concluded that the reviewing committee correctly determined that Ansell had violated rules 3.4 (5) and 8.4 (3), but erred in finding she had violated rule 3.3 (a) (1) and, accordingly, dismissed the finding as to that rule. Ansell appealed from the committee's determination to the Superior Court. By memorandum of decision dated March 1, 2003, the court determined that it could not "find that the imposition of the reprimand was not supported by substantial evidence or involved a clearly erroneous application of law" and dismissed the appeal. This appeal followed. "[I]n reviewing a decision of the statewide grievance committee to issue a reprimand, neither the trial court nor this court takes on the function of a fact finder. Rather, our role is limited to reviewing the record to determine if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct. . . . Additionally, in a grievance proceeding, the standard of proof applicable in determining whether an attorney has violated the [Rules] of Professional [Conduct] is clear and convincing evidence. . . . The burden is on the statewide grievance committee to establish the occurrence of an ethics violation by clear and convincing proof. . . . "[C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Citation omitted; internal quotation marks omitted.) Shelton v. Statewide Grievance Committee, 85 Conn. App. 440, 443-44, 857 A. 2d 432, cert, granted on other grounds, 272 Conn. 914, 866 A.2d 1285 (2005). I Ansell first claims the court improperly concluded that there was no legal significance to the fact that those judges presiding at the time of the ethics violations failed to reprimand her. She argues that the "absence of disciplinary action by Judge Berdon and Judge McLachlan [was], in effect, a determination that she did not violate the Rules of Professional Conduct." She contends that she is not arguing that the committee lacks jurisdiction, but that it failed to consider the significance of the courts' inaction. It is her position that the lack of sanction by the courts is clear evidence that the reviewing committee's logic was flawed. In essence, she asks this court to hold that when a trial court fails to sanction an attorney for alleged misconduct committed before the trial court, the committee should defer to the court's inaction because of the court's inherent power to regulate attorney conduct. We are not persuaded. "It is well established that [j]udges of the Superior Court possess the inherent authority to regulate attorney conduct and to discipline the members of the bar." (Internal quotation marks omitted.) Statewide Grievance Committee v. Egbarin, 61 Conn. App. 445, 451, 767 A.2d 732, cert, denied, 255 Conn. 949, 769 A.2d 64 (2001). In exercising this power, however, "the judges have authorized grievance panels and reviewing committees to investigate allegations of attorney misconduct and to make determinations of probable cause." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 444, 797 A.2d 1081 (2002). Practice Book § 2-47 (a) provides in relevant part that "[p]resentment of attorneys for misconduct whether or not the misconduct occurred in the actual presence of the court, shall be made by written complaint of the statewide grievance committee or a reviewing committee. ." (Emphasis added.) When the "misconduct occurs in the actual presence of the court, the . . . committee . . . shall defer . . . if the court chooses to exercise its jurisdiction." (Emphasis added.) Practice Book § 2-45. Although Ansell's conduct occurred before the Superior Court, the courts did not choose to exercise their inherent authority, and neither the trial court nor we can properly infer from the courts' silence a determination of no misconduct. See Practice Book § 2-32 (a) (2) (F) (grievance complaint may be dismissed if court made finding of misconduct, determined no misconduct occurred or directed alleged misconduct not be referred to committee). Furthermore, the apparent conflict Ansell sees between the exercise of disciplinary power by the court versus the committee, is better understood as a relationship in which the committee assists the court in its duty to safeguard the administration of justice, especially when the court may be unable to act or may lack a proper overview of the misconduct that has occurred. See Grievance Committee v. Goldfarb, 9 Conn. App. 464, 470, 519 A.2d 624, cert, denied, 203 Conn. 802, 522 A.2d 292 (1987). Here, the courts chose not to exercise their disciplinary power, and the committee, exercising the power delegated to it, properly undertook to investigate and to evaluate the alleged misconduct. II Ansell next claims that there was insufficient evidence to support a reprimand under rule 3.4, which provides in relevant part: "A lawyer shall not . (5) [i]n trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of the accused . . . ." The committee determined that Ansell's statements to Judge McLachlan, during the two hearings before him, were made recklessly, were false and were not supported by the evidence in the transcripts. Ansell argues that she indicated at the time of the allegedly improper statements that her recollection on the matter of ex parte communication was not clear and that her real concern was Anderson, who allegedly had admitted to receiving ex parte communications. Furthermore, because Judge McLachlan clarified what was actually at issue, she contends that no harm came from her statements. Finally, she maintains that any reprimand for her conduct will effectively chill robust attorney representation. We are not persuaded. Although Ansell did indicate at the conference with Judge Berdon that she was unprepared to argue the issue of ex parte communication, five days later, presumably after having enough time in which to refresh her recollection from the transcripts, Ansell again raised the issue of ex parte communication between Traystman and Anderson. She stated to Judge McLach-lan that those conununications regarded matters other than scheduling, a statement directly in conflict with the evidence presented in the transcript, which indicated that Anderson and Traystman had communicated only regarding scheduling matters. Furthermore, Ansell raised the issue again three weeks later, citing for support those portions of the transcript in which Anderson stated that he had communicated with Traystman, but only for scheduling purposes. It was not until the court had asked her three times what it was she alleged Traystman had improperly communicated to Anderson that Ansell referred to the allegation that Traystman had improperly provided background reports. That allegation, she then admitted, had been disproved prior to her involvement in the case. Thus, although she expressed some reservation in the first instance, Ansell continued to make statements of fact she could not support with evidence after having had the time and opportunity to research and to correct her position on the issue. Ansell's claim that her real concern was Anderson's reappointment as an evaluator is without merit. Ansell's concerns about Anderson in no way contradict a finding that she repeatedly made unsubstantiated allegations that Traystman had engaged in misconduct. Her claim that Judge McLachlan's questioning mitigated any potential harm from her mischaracterization of the communication between Traystman and Anderson is also unavailing. Rule 3.4 (5) does not state that the court must be misled or that any iryury must result. Rule 3.4 simply provides in relevant part that " [a] lawyer shall not . (5) [i]n trial, allude to any matter . . . that will not be supported by admissible evidence . . . ." Rules of Professional Conduct 3.4. An underlying purpose of rule 3.4 is to ensure that lawyers treat opposing counsel with fairness; leveling an unsubstantiated claim of misconduct against opposing counsel undeniably violates the spirit and intent of the rule. Ansell maintains that any reprimand for her conduct will chill vigorous attorney representation on behalf of their clients. We fail to see how effective representation will be undermined by requiring attorneys to have evidence to substantiate claims brought before the court. Having reviewed the record and considered Ansell's claims, we conclude that the committee's factual findings are supported by the evidence, its conclusions are legally sound, and it has established by clear and convincing evidence that Ansell's conduct violated rule 3.4 (5). Ill Ansell next claims that there was insufficient evidence to support a reprimand under rule 8.4 (3). Rule 8.4 provides in relevant part: "It is professional misconduct for a lawyer to . . . (3) [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . ." The committee determined that Ansell's state ments to the court concerning the ex parte communications constituted misrepresentation under the rule. Ansell argues, inter alia, that her comments were not intentional and, thus, not fraudulent misrepresentation, that no statement of fact on her part resulted in injury and that questioning by Judge McLachlan clarified the issue, preventing any harm. Ansell argues that because the committee found that her misstatements were reckless and not intentional, she did not have the requisite intent for fraudulent misrepresentation and, thus, could not have violated rule 8.4. Her contention might be correct were the rule phrased in terms of fraudulent misrepresentation. It is not. Rule 8.4 simply states in relevant part that "[i]t is professional misconduct for a lawyer to . . . (3) [ejngage in . . . misrepresentation . . . ," Fraud is listed as a separate ground for a finding of misconduct. The rule itself provides no scienter requirement, and Ansell provides no authority for the proposition that it does. Neither this court nor our Supreme Court has considered whether a violation of rule 8.4 (3) requires a finding of intent. The Superior Court has determined on at least two occasions that it does not. See Statewide Grievance Committee v. Salmon, Superior Court, judicial district of New Haven, Docket No. 269373 (February 8, 2000); Parese v. Statewide Grievance Committee, Superior Court, judicial district of Hartford, Docket No. 348079 (April 21, 1993). Furthermore, we have held that rule 8.4 (4) does not contain such a requirement. Daniels v. Statewide Grievance Committee, 72 Conn. App. 203, 210-11, 804 A.2d 1027 (2002). In Daniels, we stated that "[a] judge may be sanctioned for a wilful violation of one of the canons of judicial conduct if he intended to engage in the conduct for which he is sanctioned whether or not [he] knows that he violates the rule. . . . That reasoning equally is applicable to lawyers and, therefore, we conclude that the court properly held that rule 8.4 (4) does not have a scienter requirement." (Citation omitted; internal quotation marks omitted.) Id. The reasoning oí Daniels applies to rule 8.4 (3), and we accordingly conclude that the rule has no scien-ter requirement. Ansell attempts to distinguish this case from Párese and Salmon on the grounds that no statement she made resulted in injury and that questioning by Judge McLach-lan clarified the issue. As with rule 3.4 (5), however, there is no requirement that the court be misled or that injury result. Rule 8.4 addresses conduct that "indicate[s] lack of those characteristics relevant to law practice," including those involving dishonesty. Rules of Professional Conduct 8.4, commentary. In that context a "pattern of repeated offenses . . . can indicate indifference to legal obligation." Id. On three separate occasions, Ansell represented that Traystman had improper ex parte communications with Anderson. These statements were contrary to fact. Ansell therefore engaged in conduct involving misrepresentation within the meaning of rule 8.4 (3). Having reviewed the record and considered Ansell's claims, we conclude that the committee's factual findings are supported by the evidence, its conclusions are legally sound and that it established by clear and convincing evidence that Ansell's conduct violated rule 8.4 (3). The judgment is affirmed. In this opinion the other judges concurred. In support of this contention, Ansell cites § 586 of 3 Restatement (Second), Torts (1977), which provides that an attorney is privileged to publish a defamatory matter during a judicial proceeding. We note that this provision concerns an attorney's legal liability for defamation, while the Rules of Professional Conduct concern preserving the integrity of the legal profession and the orderly administration of justice. See generally Rules of Professional Conduct, Preamble: A Lawyer's Responsibilities; Scope. Misrepresentation is merely "[a]n untrue statement of fact." Black's Law Dictionary (6th Ed. 1990).

Opinion McLACHLAN, J. This case arises out of a property division order rendered by the trial court incident to a marital dissolution action. The sole claim on appeal is that the defendant, Mary Ann Fewtrell, impermissibly moved for a modification of the court's order after the entiy of the judgment of dissolution and that the court, therefore, lacked subject matter jurisdiction to entertain the pleading. We disagree that the pleading at issue constituted a motion for modification and, accordingly, conclude that the court had subject matter jurisdiction to consider and act on the motion. The parties' marriage was dissolved in November, 2002, following a contested hearing. In connection with the dissolution, the court rendered several financial orders, one of which pertained to a credit card debt that the defendant had incurred during the marriage. In its November 6, 2002 memorandum of decision, the court found, inter alia, the following: "Between December, 1999, and April, 2001, while the defendant and [the parties'] son . . . were out of the marital home, the defendant rented premises at $1000 per month. She testified that she used the joint account the parties had in the Essex Savings Bank and created credit card debts with a present balance of $15,000 to pay for rent and other living expenses for herself and [the] son . . . ." On the basis of these findings, the court ordered the following: "The plaintiff shall pay one half of the alleged $15,000 debt. The defendant shall pay the balance of said debt. Each party shall hold the other harmless on their portion of said debt." On January 27, 2003, the defendant filed a motion seeking an order of contempt against the plaintiff, Richard A. Fewtrell, for failing to make payment of his portion of the debt. Also on that date, the defendant sought a clarification of the court's order requiring him to pay one half of the $15,000 debt. At an August 8, 2003 hearing on these issues, the plaintiff advanced the argument that he was obligated to pay one half of the $15,000 debt only if a creditor demanded payment. The court disagreed with this interpretation and clarified its order as follows: "[The plaintiff is] to pay one half of the debt. Don't complicate this any more than it is. He's to pay one half of that debt. . . . Whether a creditor comes or not is not part of my judgment. He's obligated to pay one half of that debt. It's as simple as that." Apparently still unclear as to the court's order, the plaintiffs counsel stated that the plaintiff would pay the money only if a creditor claims it is owed the money. In response, the court stated: "He's to pay her $7500, okay. My order will be that he pay the . . . defendant wife $7500 because this is what she testified she incurred because of the fact that she had to live separate from him and with the child." When the plaintiff still had failed to pay his half of the debt weeks after the court's clarification, the defendant filed a pleading captioned "Motion to Modify — Post Judgment." In this pleading filed September 5, 2003, the defendant requested that the plaintiff "pay directly to the defendant . . . $7500 for his portion of the marital debt." The plaintiff filed an objection to the motion, arguing that the defendant was impermissibly seeking to modify a property distribution order after the dissolution decree was entered and that the court, therefore, lacked subject matter jurisdiction to consider its merits. On November 8, 2003, the parties appeared before the court to argue the motion and objection. The court overruled the plaintiffs objection and granted the motion, concluding: "It's going to be my order that the judgment be modified to include — to provide that the $7500 that the court said is owed by the plaintiff, be paid directly to the defendant. That will avoid any claimed uncertainty about the $7500 payment." The plaintiff now appeals. The plaintiff ar gues that the court improperly considered and acted on the defendant's September 5, 2003 motion because, following the entry of the judgment of dissolution, the court did not retain jurisdiction to modify its original property order. "[B]ecause [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary. . . . [A] lack of subject matter jurisdiction can be raised at any time and cannot be waived by either party." (Internal quotation marks omitted.) Fish v. Igoe, 83 Conn. App. 398, 402, 849 A.2d 910, cert, denied, 271 Conn. 921, 859 A.2d 577 (2004). We note at the outset the legal and factual issues as to which the parties are in agreement. First, the parties agree that General Statutes § 46b-81, which enables the trial court to transfer property in a marital dissolution action, does not confer upon the court continuing jurisdiction over any portion of the judgment that constitutes an assignment of property after the dissolution decree is entered. See Bunche v. Bundle, 180 Conn. 285, 289, 429 A.2d 874 (1980). Second, the parties do not dispute that the defendant's September 5, 2003 motion was filed more than one year after the dissolution decree was entered. Where the parties disagree, and the issue on which our resolution of this appeal turns, is whether the motion is characterized properly as a motion to modify. Underlying the plaintiffs argument that the motion at issue constituted a motion to modify is his interpretation of the court's original property order as requiring him to pay one half of the defendant's $15,000 debt only if a creditor makes demand for payment of the debt. Essentially, he views the order as requiring him to indemnify the defendant from liability to the credit card company. He argues, therefore, that the defendant's motion constituted a motion to modify because it requested the court to impose obligations different from those in the original property order in that it required him to make direct payment of one half of the $15,000 debt to the defendant, rather than simply to indemnify her from creditors. This argument misconstrues the court's original property order. The court's November 6, 2002 memorandum of decision states that "[t]he plaintiff shall pay for one half of the alleged $15,000 debt." The court neither explicitly nor implicitly conditioned such payment on demand being made by creditors. This interpretation was reinforced in the court's response to the defendant's January 27, 2003 motion for clarification where the court stated: "Whether a creditor comes or not is not part of my judgment. He's obligated to pay one half of that debt." Given the clear import of the court's original property order, we conclude that the defendant's September 5, 2003 motion, although regrettably captioned "Motion to Modify," did not actually constitute a motion to modify, but, rather, a motion for effectuation. "A modification is [a] change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact." (Internal quotation marks omitted.) Roos v. Roos, 84 Conn. App. 415,422, 853 A.2d 642, cert, denied, 271 Conn. 936, 861 A.2d 510 (2004). In contrast, an order effectuating an existing judgment allows the court to protect the integrity of its original ruling by ensuring the parties' timely compliance therewith. "Although the court does not have the authority to modify a property assignment, a court, after distributing property, which includes assigning the debts and liabilities of the parties, does have the authority to issue postjudgment orders effectuating its judgment." Id. "Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged. . . . Thus, if the . . . motion . . . can fairly be construed as seeking an effectuation of the judgment rather than a modification of the terms of the property settlement, this court must favor that interpretation." (Citations omitted; internal quotation marks omitted.) Clement v. Clement, 34 Conn. App. 641, 645, 643 A.2d 874 (1994). Although the defendant herself characterized her September 5, 2003 pleading as a "Motion to Modify," and the court, in its responsive ruling, utilized language indicating acquiescence to that characterization, neither of these factors influences the actual nature of the motion or the court's responsive ruling. It has been recognized by both this court and our Supreme Court that despite the movant's or the trial court's characterization of a motion, a reviewing court examines the practical effect of the responsive ruling in determining the nature of the pleading. See In re Haley B., 262 Conn. 406, 412-13, 815 A.2d 113 (2003); Jaser v. Jaser, 37 Conn. App. 194, 202, 655 A.2d 790 (1995). On review, we look to the substance of the relief sought by the motion and the practical effect of the trial court's responsive ruling. Roos v. Roos, supra, 84 Conn. App. 423. Here, the defendant's motion did not seek a modification of the court's original property order, but, rather, sought an effectuation of its original judgment by requesting the court to order the plaintiff to pay directly to her one half of the $15,000 debt. We accordingly conclude that the court had subject matter jurisdiction to consider and act on the September 5, 2003 motion. The judgment is affirmed. In this opinion the other judges concurred. On the actual motion, the court indicated in a handwritten note: "The plaintiff is to pay $7500 of the defendant's debts." The handwritten order states: "Motion is modified to provide that $7500 be paid directly to the defendant within 90 days." Such orders are, however, subject to being opened within four months from the date the judgment is rendered, as provided by General Statutes § 52-212a. See Passamano v. Passamano, 228 Conn. 85, 88-89 n.4, 634 A.2d 891 (1993). Our courts have recognized that "[i]t is within the equitable powers of the trial court to fashion whatever orders [are] required to protect the integrity of [its original] judgment." (Internal quotation marks omitted.) Clement v. Clement, 34 Conn. App. 641, 646, 643 A.2d 874 (1994).

Opinion STOUGHTON, J. The defendant, Rafael Walker, was charged in a three count substitute information with the crimes of burglary in the first degree in violation of General Statutes § 53a-101 (a) (l), attempt to commit robbery in the first degree in violation of General Stat utes § 53a-49 and 53a-134 (a) (2) and criminal possession of a firearm in violation of General Statutes § 53a-217. He elected a jury trial on the first two counts and a trial to the court on the third count. The jury found the defendant guilty of burglary in the first degree but not guilty of attempt to commit robbery in the first degree. The court convicted him of criminal possession of a firearm. Before a sentence was imposed, the defen dant filed a motion in arrest of judgment, claiming that the jury's verdict was logically and legally inconsistent, and that the trial court should not have accepted it. That motion was denied and a sentence was imposed. The defendant has appealed from the burglary conviction, claiming that it is legally and logically inconsistent with his acquittal of attempt to commit robbery in the first degree. We affirm the judgment of the trial court. The jury reasonably could have found from the evidence presented at the trial that, on December 14, 2001, the defendant went to Angel Velez's apartment at 937 South Main Street in Waterbury seeking drugs. He forced Velez at gunpoint to back through the door into Velez' apartment, held Velez and another occupant at gunpoint and demanded money. Velez, even though he was frightened, managed to calm the defendant and to give him two needles of heroin. A number of police officers responded to an emergency call, arrested the defendant as he exited Velez's apartment and recovered the defendant's operable, fully loaded handgun. The defendant testified that he is a heroin addict, that he had gone to the area to buy drugs and that he had not attempted to rob anybody. "[W]here the inconsistent verdicts claim involves a simultaneous conviction and acquittal on different offenses, the court, in testing the verdict of guilty for inconsistency as a matter of law, is necessarily limited to an examination of the offense charged . . . and the verdict rendered thereon without regard to what evidence the jury had for consideration. . If the offenses charged contain different elements, then a conviction of one offense is not inconsistent . . . with an acquittal of the other." (Citations omitted; internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 244, 745 A. 2d 800 (2000). The burglary charge required proof that the defendant entered unlawfully into a building, a requirement not found in the attempt to commit robbery charge. The attempt to commit robbery charge required proof that the defendant, acting with the intent to commit a robbery, did something which constituted a substantial step in a course of conduct planned to culminate in a robbery, a requirement not found in the burglary charge. The guilty verdict thus was not legally inconsistent with the acquittal. In this case, the state conceded and the court charged the jury that the crime the defendant allegedly intended to commit when he unlawfully entered the building was robbery. The defendant claims that, as charged, attempt to commit robbery in the first degree constituted a lesser included offense of burglary in the first degree, and that it was legally inconsistent to convict him of the greater offense while acquitting him of the lesser included offense. The test used to determine whether one crime is a lesser included offense of another crime is "whether it is not possible to commit the greater offense, in the manner described in the information . . . without having first committed the lesser . This . . . test is satisfied if the lesser offense does not require any element which is not needed to commit the greater offense." (Citation omitted; internal quotation marks omitted.) State v. Greco, 216 Conn. 282, 292, 579 A.2d 84 (1990). The defendant claims that the elements of attempt to commit robbery in the first degree with a deadly weapon are all contained within the charge of burglary in the first degree while armed with a deadly weapon with intent to commit a robbery. This claim rests upon the assertion that being armed with a deadly weapon with intent to commit robbery is essentially the same as attempting to commit robbery with a deadly weapon. General Statutes § 53a-49 (a) (2) provides in relevant part that "[a] person is guilty of an attempt to commit a crime if [he] . . . intentionally does [an act] . . . constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." Thus, the state was required to prove that the defendant had acted in a way constituting a substantial step toward commission of the robbery, an element not needed to prove the burglary. The defendant maintains, however, that by virtue of § 53a-49 (b) (4) and (5), this element is contained within the burglary charge as a matter of law. His claim is that to prove the burglary as charged, it was necessary to prove an unlawful entry with intent to commit robbery while armed. He asserts that as a matter of law, an unlawful entry while armed constituted a substantial step toward the attempted robbery, and that attempt to commit robbery therefore was a lesser included offense of burglary in the first degree as charged. This assertion derives from the defendant's reading of § 53a-49 (b). Section 53a-49 (b) provides in relevant part that "[c]onduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) . . . unless it is strongly corroborative of the actor's criminal purpose. ." Pursuant to subdivisions (4) and (5) of § 53a-49 (b), "unlawful entry of a structure . in which it is contemplated that the crime will be committed" and "possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances," if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law to constitute a substantial step. The defendant turns § 53a-49 (b) on its head to assert that either unlawful entry of a structure in which it is contemplated that a crime will be committed, or the possession of materials to be employed in commission of a crime is sufficient as a matter of law to constitute a substantial step toward commission of a crime. We reject this interpretation of the statute. If the defendant's argument were correct, the establishment of either of these elements would require a finding of guilty of a charge of attempt to commit robbery in the first degree. What constitutes a substantial step in any given case is a matter of degree and a question for the trier of fact. State v. Lavigne, 57 Conn. App. 463, 469, 749 A.2d 83 (2000). We agree with the trial court that the jury might have concluded that the defendant, armed with a dangerous instrument, entered the apartment unlawfully with the intent to commit a robbery therein, but once inside the apartment, he did not do anything which constituted a substantial step in a course of conduct planned to culminate in a robbery or he abandoned his attempt. The jury might have concluded, however, that the defendant did intend to commit a robbeiy when he unlawfully entered the apartment armed with a dangerous instrument and, therefore, did commit burglary in the first degree. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53a-101 (a) provides in relevant part: "A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument . . . ." General Statutes § 53a-49 provides: "(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. "(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) of this section unless it is strongly corroborative of the actor's criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime. "(c) When the actor's conduct would otherwise constitute an attempt under subsection (a) of this section, it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose." General Statutes § 53a-134 (a) provides in relevant part: "A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime . (2) is armed with a deadly weapon . . . ."

Opinion DRANGINIS, J. This criminal appeal returns to this court on remand from our Supreme Court; State v. Santiago, 269 Conn. 726, 763, 850 A.2d 199 (2004); for resolution of the remaining claim of the defendant, Daniel Santiago. The defendant was convicted, following a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55 (a) (1) and 53a-55a (a), and assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The defendant claims that the trial court improperly instructed the jury on the issue of intent with respect to manslaughter in the first degree with a firearm, thereby depriving him of a fair trial. We disagree and, thus, affirm the judgment of the trial court. The facts underlying the defendant's conviction were set out at length in State v. Santiago, 73 Conn. App. 205, 208-11, 807 A.2d 1048 (2002), rev'd in part, 269 Conn. 726, 850 A.2d 199 (2004). We will recite the facts, reasonably found by the jury, necessary to inform the issue on remand. "On November 26, 1997, the victim's brother, Craig Pitts, saw the victim, Barrett Applewhite, and the defendant having 'a few words' outside of an apartment building at 39 Wadsworth Street, Hartford. About one week earlier, Applewhite had 'fronted' the defendant cocaine to sell, and the defendant had agreed to pay Applewhite $500 after he sold the drugs. Although Pitts did not know what was said, the situation did not appear to him to be very serious, and Applewhite and the defendant soon went their separate ways. Afterward, Applewhite told Pitts that the defendant was 'crazy' and that he did not know what was wrong with him, but he did not give any details." Id., 208. Later that evening, Applewhite was in the company of a number of people at 39 Wadsworth Street. At some point, some members of the group decided to go elsewhere and left in a sport utility vehicle being driven by Michael Ibscher. Applewhite was in the front passenger seat. After the vehicle pulled away, Applewhite received a cellular telephone call that they had forgotten someone. Ibscher backed the vehicle along the street to the front of 39 Wadsworth Street. Id., 208-209. "At about that same time, the defendant . . . crossed Wadsworth Street and walked to the parked vehicle. He looked in the front passenger window directly at Applewhite and started 'talking junk,' saying, 'What? What?' Applewhite responded, 'What's your problem?' and asked why the defendant had approached the vehicle. Applewhite then said to the others, 'Let me see what's wrong with that [expletive].' Applewhite opened the door and stepped out of the vehicle to the sidewalk. He told the defendant that he was acting as if they had backed up the vehicle because of him, but that was not the case. He also told the defendant that they had no problem with him. The defendant, still facing Applewhite, moved toward the rear of the vehicle, saying, 'What? What?' Applewhite followed the defendant, reiterating that they had not backed up because of him and that he should leave. "Ibscher, noticing that the defendant was 'agitated,' decided to join Applewhite to help prevent any problems. Ibscher exited the vehicle, walked to Applewhite and told him to relax, that it was a holiday and that they did not need any trouble. Neither he nor Applewhite were armed, and there were no weapons in the vehicle. Sensing that Applewhite would not advance on the defendant, but merely would discuss the matter with him, Ibscher moved a few feet behind Applewhite. The defendant, however, kept saying, 'What? What?' and appeared to be agitated, upset and dazed. "At that time, Applewhite and the defendant were standing about eight to ten feet apart. Although neither Applewhite nor Ibscher moved toward the defendant, he suddenly pulled out a black automatic handgun from his sweatshirt pocket and began shooting at Applewhite because he saw Applewhite reach 'into his waist.' Applewhite immediately turned away from the defendant and started to run . . . but he was shot in the back. Ibscher told the defendant that he was 'crazy,' and the defendant 'swiveled' toward Ibscher and shot him, hitting him in the leg as he was running through an alley . In total, the defendant fired six or seven shots in rapid succession. After the defendant's automatic gun clicked twice, the defendant turned and ran . . . . " Id., 209-11. Applewhite died from his wounds. Id., 210 n.8. Witnesses at the scene identified the defendant as the shooter, and police obtained a warrant for his arrest. Id., 211. The defendant turned himself in to the police on December 1, 1997, and gave them a statement in which he admitted to shooting Applewhite and Ibscher, but claimed that it was done in self-defense. Id., 211. The defendant was charged in a long form information with murder in violation of General Statutes § 53a-54a (a), manslaughter in the first degree with a firearm in violation of § 53a-55 (a) (l) and 53a-55a (a), and assault in the first degree in violation of § 53a-59 (a) (1) and (5). The jury found the defendant guilty of manslaughter in the first degree with a firearm and assault in the first degree. State v. Santiago, supra, 73 Conn. App. 211. Following the verdict, the court sentenced the defendant to a total effective term of sixty years imprisonment. Id. The defendant appealed to this court. This court reversed the judgment of conviction on the basis of the defendant's claim of prosecutorial misconduct. Id., 212-31. Our Supreme Court granted the state's petition for certification to appeal; State v. Santiago, 262 Conn. 939, 815 A.2d 673 (2003); and subsequently reversed in part the judgment of this court and remanded the case to this court to consider the defendant's remaining claim of instructional error. State v. Santiago, supra, 269 Conn. 763. We asked the parties to submit supplemental briefs to address any new authority decided since the filing of their original briefs. On appeal, the defendant claims that the trial court improperly instructed the jury regarding intent with respect to the charge of manslaughter in the first degree with a firearm. Specifically, the defendant claims that the court improperly instructed the jury on the statutory definition of intent and several times referred to that general language in a case in which the defendant was charged with specific intent crimes. We disagree with the defendant's claim. "When reviewing a challenged jury instruction, [i]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. . In determining whether it was . . . reasonably possible that the jury was misled . . . the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied . is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result." (Citations omitted; internal quotation marks omitted.) State v. DeBarros, 58 Conn. App. 673, 682, 755 A.2d 303, cert, denied, 254 Conn. 931, 761 A.2d 756 (2000). "[A] request to charge which is relevant to the issues of [the] case and which is an accurate statement of the law must be given." (Internal quotation marks omitted.) Id., 690. The relevant portions of the court's instruction to the jury follow. "We're now going to some of the elements of the offense. Intent. Intent relates to the condition of mind of the person who commits the act, his purpose in doing so. As defined by our statute, a person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such result or engage in such conduct. Intentional conduct is purposeful conduct rather than conduct that is accidental or inadvertent. The existence of intent is a fact for the jury to determine. It must be proven beyond a reasonable doubt. What a person's purpose, intention or knowledge has been is usually a matter to be determined by inference. No person is able to testify that he looked into another's mind and saw therein a certain purpose or intention or a certain knowledge to do harm to another. The only way in which a jury can ordinarily determine what a person's purpose, intention or knowledge was at any given time, aside from that person's own statement or testimony, is by determining what that person's conduct was and what the circumstances were surrounding that conduct and from that infer what his purpose, intention or knowledge was. To draw such an inference is not only the privilege, but also the proper function of a jury, provided, of course, that the inference drawn complies with the standards for inferences as explained in connection with my instruction on circumstantial evidence. There will be further instructions concerning intent when I discuss the elements of the particular crimes. . . . "Now, turning to the specific crimes charged. Intentional murder under § 53a-54a (a). . A person is guilty of murder when, with the intent to cause the death of another person, he causes the death of such person. . . . [T]he state must prove the following elements beyond a reasonable doubt: One, that the defendant intended to cause the death of another person . With respect to the charge of intentional murder, there is no particular length of time necessary for the defendant to have formed the specific intent to kill. . . . You will recall that I stated that what a person's purpose or intention has been is necessarily very largely a matter of inference. No person can be expected to testify that he looked into another person's mind and therein saw a certain purpose or intent. However, the jury may determine what a person's purpose or intent was at a given time by determining what the person's conduct was and what the circumstances were surrounding the conduct and, from these, infer what his purpose or intention was. . . . "Intentional manslaughter in the first degree with a firearm. A person is guilty of the crime of manslaughter in the first degree with a firearm in violation of § 53a-55a (a) (1) of the Penal Code, which, insofar as is pertinent to this case, provides as follows. A person is guilty of manslaughter in the first degree when: (1) with intent to cause serious physical injury to another person, he causes the death of such person. A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree . . . and in the commission of such offense, he uses or is armed with or threatens the use of or displays or represents by his words or conduct that he possesses a pistol. For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: First, that the defendant caused the death of . . . Applewhite. The next element is that the defendant intended to cause serious physical injury to . . . Applewhite. The term serious physical injury means a physical injury that creates a substantial risk of death or that causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ. You will note that the basis of the charge under this statute is not that the defendant intended to kill, but that he intended to inflict serious physical injury. . . . "The intent instruction has already been given. Intent relates to the condition of mind of the person who commits the act, his purpose in doing it. As defined by our statute, a person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such result or engage in such conduct. If you find that the state has proven beyond a reasonable doubt each of the elements of the crime, that is, the defendant intended to cause serious physical injury and subsequently caused [the victim's] death with a firearm, then you shall find the defendant guilty." (Emphasis added.) In this case, the defendant claims that it was improper for the court to instruct the jury with the statutory language of intent as found in General Statutes § 53a-3 (11). The court stated, "As defined by our statute, a person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such result or engage in such conduct. Intentional conduct is purposeful conduct rather than conduct that is accidental or in advertent." Furthermore, the court charged: "The intent instruction has already been given. . As defined by our statute, a person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such result or engage in such conduct(Emphasis added.) The defendant relies in part on State v. DeBarros, supra, 58 Conn. App. 673, to support his contention, properly noting that "[i]t is improper for the trial court to read an entire statute to a jury when the pleadings or the evidence support a violation of only a portion of the statute . . . ." (Internal quotation marks omitted.) Id., 682. The defendant in DeBarros claimed that reading the jury the entire definition of intent set out in § 53a-3 (11) permitted the jury to find him guilty of specific intent crimes without necessarily finding that he intended to cause a specific result, but rather only that he intended to engage in conduct that caused a result. Id., 679. "The trial court not only improperly read the intent to 'engage in conduct' language in its initial and two supplemental charges, it also improperly referred back to that language seven times throughout its instructions to the jury. Under these circumstances, it does not strain reason to believe that the jury could have understood that the state needed to prove beyond a reasonable doubt only that the defendant intended to engage in the conduct of firing a gun, rather than prove on the charges of murder and attempt to commit murder that he intended to cause the death of the victim and [the victim's friend], and on the charge of assault in the first degree with a firearm that he intended to injure [the friend] seriously." Id., 683. Although the court here twice used the statutory definition of intent in its charge, the number of errors the court makes is not the basis on which we decide whether the defendant was denied a fair trial. The key is whether, when the court's instruction is read as a whole, there is a reasonable probability that the jury will be misled. Our review of the jury instruction at issue is informed by State v. Francis, 246 Conn. 339, 358, 717 A.2d 696 (1998) (although court provided entire statutory definition of intent in instruction, it repeatedly instructed jury that to find defendant guilty of murder, jury had to conclude defendant intended to cause death of victim); State v. Austin, 244 Conn. 226, 237, 710 A.2d 732 (1998) (court distinguished between specific intent to cause death, required for conviction of murder, and specific intent to cause serious physical injury, neces sary for conviction of intentional manslaughter); and State v. Prioleau, 235 Conn. 274, 322, 664 A.2d 743 (1995) (court repeatedly instructed juiy on specific intent necessary to be convicted of crime charged). As in Austin, the court here distinguished intent to murder and intent to cause serious physical injury in its charge. In addition, the facts of a particular case may mitigate against the possibility of juror confusion. "A court's charge is not to be examined in a vacuum. Rather, it is to be viewed in the context of the factual issues raised at the trial." (Internal quotation marks omitted.) State v. Austin, supra, 244 Conn. 237. Here, the defendant admitted that he shot the victim in self-defense. The question before the jury therefore was what the defendant intended to do when he fired the gunshots. Under the circumstances, it strains reason to believe that the jury could not have understood that the court's instruction required the state to prove beyond a reasonable doubt that the defendant intended to cause serious physical injury to the victim. See State v. Prioleau, supra, 235 Conn. 322. Furthermore, even if we were to assume that the court's reading of the statutory definition of intent rose to the level of a constitutional violation, which it did not, the instructional impropriety was harmless beyond a reasonable doubt; see State v. Kirk R., 271 Conn. 499, 517, 857 A.2d 908 (2004); because the issue of whether the defendant intended to shoot was not in question. The jury acquitted the defendant of the more serious charge of murder. Clearly, the jury understood that it was to determine the defendant's mental state with respect to the crimes with which he was charged. Finally, the state's theory of the case was that the defendant lured Applewhite and Ibscher from the vehicle to shoot them. The defendant claimed that the victims pursued him and that he shot them in self-defense. The jury rejected the self-defense claim and accepted the state's position that the defendant acted with specific intent to do harm. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 53a-54a (a) provides in relevant part: "A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . ." General Statutes § 53a-55 (a) provides in relevant part: "A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . ." General Statutes § 53a-55a (a) provides in relevant part: "A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. . . ." General Statutes § 53a-59 (a) provides in relevant part: "A person is guilty of assault in the first degree when: (1) With intent to cause serious physical ipjury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . or (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm." In a part B information, the state also charged the defendant with the commission of a class A, B, or C felony with a firearm. "The defendant raised five claims in the Appellate Court. On the claim of prosecutorial misconduct, the Appellate Court reversed the judgment of the trial court and ordered a new trial. The Appellate Court addressed three additional claims because they were likely to arise on remand, but declined to reach the defendant's final claim, which challenged the trial court's instruction to the jury regarding intent with respect to the charge of manslaughter in the first degree with a firearm, because it was not likely to arise on remand. State v. Santiago, [supra, 73 Conn. App. 208]." State v. Santiago, supra, 269 Conn. 728 n.4. The court also instructed the jury on the lesser included offenses of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) and manslaughter in the second degree with a firearm in violation of General Statutes § 53a-56a. The court defined recklessness for the jury: "A person acts recklessly with respect to a result or to a circumstance described by statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. The standard of conduct of a reasonable person in the same situation as the defendant is the doing of something that a reasonable, prudent person would do under the circumstances or omitting to do what a reasonable, prudent person would not do under the circumstances." In his supplemental brief, the defendant also relies heavily on State v. Sivak, 84 Conn. App. 105, 852 A.2d 812, cert, denied, 271 Conn. 916, 859 A.2d 573 (2004). Alter reviewing the challenged portion of the instruction in Sivak, we conclude that it is distinguishable from the instruction challenged in this case. The trial court in Sivak charged the jury in part: "In the first count, [which alleged aviolation of General Statutes § 53a-59 (a) (1)], the state must prove that the defendant had the intent to cause serious physical injury, had the intent to use a dangerous instrument, and he caused serious physical injury and was not acting in self-defense." (Emphasis added; internal quotation marks omitted.) State v. Sivak, supra, 109. Here, the court did not charge the jury that it had to find that the defendant intended to use a dangerous instrument, the intended conduct at issue in Sivak. Moreover, the instructions challenged in Sivak included other misleading language relating to intent that is not at issue in this case.

Opinion DRANGINIS, J. This appeal is similar to the appeal in America's Wholesale Lender v. Pagano, 87 Conn. App. 474, 866 A.2d 698 (2005), which we released on the same date as this opinion. The dispositive issue is whether a corporation that brings an action solely in its trade name, without the corporation being named as a party, has standing so as to confer jurisdiction on the court. We conclude that because a trade name is not an entity with legal capacity to sue, the corporation has no standing to litigate the merits of the case. We therefore reverse the judgment of the trial court. The following facts and procedural history are relevant to our disposition of this appeal. On October 16, 1998, the defendants Linda K. Silberstein and Morton H. Silberstein executed and delivered to the original plaintiff in this action, America's Wholesale Lender (America's), a note in the amount of $440,000 and a mortgage on the defendants' real property. America's is the trade name for Countrywide Home Loans, Inc. (Countrywide), a corporation with its principal place of business in California. On April 22, 2003, America's commenced this action, alleging that the defendants were in default on the note and seeking to foreclose on the defendants' property. On July 9, 2003, the defendants filed a motion to dismiss, arguing that the court lacked subject matter jurisdiction because America's did not have the legal capacity to sue. On July 28, 2003, America's filed a motion to substitute Mortgage Electronic Registration Systems, Inc. (Mortgage Systems), as the plaintiff to reflect an assignment of the note and mortgage that Countrywide had made to Mortgage Systems on October 16, 1998. The court, on July 28, 2003, denied the defendants' motion to dismiss and granted the motion to substitute Mortgage Systems as the plaintiff. The court concluded that Countrywide had commenced an action in the name of the wrong person and, therefore, substituted Mortgage Systems pursuant to General Statutes § 52-109. The court ultimately rendered summary judgment in favor of the substitute plaintiff, the defendants' default on the note not being disputed. This appeal followed. On appeal, the defendants claim that the trial court improperly denied their motion to dismiss challenging Countrywide's standing to bring an action solely in a trade name. The defendants argue that because the action was brought under a trade name, which is a fictitious name, the court lacked subject matter jurisdiction to decide the merits of Countrywide's claim. The defendants further argue that Countrywide could not cure this jurisdictional defect by substituting Mortgage Systems as the plaintiff. This case is controlled by our decision in America's Wholesale Lender v. Pagano, supra, 87 Conn. App. 474, in which we held that the court lacked subject matter jurisdiction because Countrywide had commenced an action solely in its trade name. Our decision in that case rested primarily on the mandate that parties not use fictitious names except in the rarest of cases, in which the issues litigated and the interests of the parties demand the use of a fictitious name. Id., 478; see also Buxton v. Ullman, 147Conn. 48,60,156A.2d508 (1959), appeal dismissed sub nom. Poe v. Ullman, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961). We also recognize the heightened interest of the public in knowing who is financially and personally hable for the actions of entities doing business under trade names. America's Wholesale Lender v. Pagano, supra, 479-80. These interests are no less important whether the argument is that the initial filing contained a circumstantial error, as in America's Wholesale Lender v. Pagano, supra, 477, or that the initial filing was in the name of the "wrong person," as the substitute plaintiff claims on appeal in this case. In reaching this conclusion, we look to the language of § 52-109, which provides in relevant part that the court may allow the substitution of a party plaintiff "[w]hen any action has been commenced in the name of the wrong person . . . ." Such a person, while perhaps not aggrieved in the manner necessary to have standing, possesses the legal capacity to sue. No such person commenced the action in this case, as a trade name is not a recognized legal entity or person. Mortgage Systems, the holder of the mortgage and the note at the time the action was commenced, claims, however, that any jurisdictional defect was cured when it was substituted as the plaintiff. An assignee, however, may not commence an action solely in a trade name either, regardless of the entity to which the trade name applies, because a trade name is not an entity with the legal capacity to sue. Nor could Countrywide cure the jurisdictional defect by substituting a party with the legal capacity to sue on behalf of the trade name. The named plaintiff in the original complaint never existed. As a result, there was no legally recognized entity for which there could be a substitute. See Isaac v. Mount Sinai Hospital, 3 Conn. App. 598, 602, 490 A.2d 1024, cert, denied, 196 Conn. 807, 494 A.2d 904 (1985). Furthermore, because America's had no standing to bring an action, no action in this case ever was commenced, as it was void ab initio. In the absence of standing on the part of the plaintiff, the court has no jurisdiction. Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 570-71, 651 A.2d 1246 (1995). The judgment is reversed and the case is remanded with direction to grant the defendants' motion to dismiss and to render judgment dismissing the complaint. In this opinion SCHALLER, J., concurred. BERDON, J., dissenting. For the reasons set forth in my dissent to the companion case of America's Wholesale Lender v. Pagano, 87 Conn. App. 474, 866 A.2d 698 (2005), I am unable to distinguish this case from Dyck O'Neal, Inc. v. Wynne, 56 Conn. App. 161, 742 A.2d 393 (1999). Accordingly, I believe we should affirm the judgment of the trial court. I therefore respectfully dissent. The other defendants in the underlying action, Konover Construction Company, Larry M. Loeb and Linda R. Silberstein, did not appeal. We therefore refer in this opinion to Linda K Silberstein and Morton H. Silberstein as the defendants. America's, in its complaint, alleged that it was incorporated in Texas. On the mortgage, New York is indicated as the state of incorporation. These inconsistencies, however, do not inform our decision in this case, as all parties agree that America's is a trade name by which Countrywide does business and not a corporation organized under the laws of any state. In a foreclosure action, the assignee may commence an action either in its name or in the name of its assignor. See, e.g., Jacobson v. Robington, 139 Conn. 532, 539, 95 A.2d 66 (1953); Dime Savings Bank of Wallingford v. Arpaia, 55 Conn. App. 180, 184, 738 A.2d 2d 715 (1999).

Opinion SCHALLER, J. The defendant, Jamaal Coltherst, appeals from the judgment of conviction, rendered after a juiy trial, of numerous crimes resulting in an effective sentence of eighty-five years incarceration. On appeal, the defendant claims that the court (1) improperly denied his motion for a mistrial, (2) improperly admitted into evidence testimony from his prior trial, (3) improperly instructed the jury as to an element of larceny and (4) violated the prohibition against double jeopardy by sentencing him on his conviction of six counts of conspiracy offenses. We agree with the defendant with respect to his fourth claim only and reverse in part the judgment of the trial court. We affirm all other aspects of the judgment. The jury reasonably could have found the following facts. On October 19,1999, the defendant, Carl Johnson and Rashad Smith were sitting in a stolen black Honda Accord near 85 Wolcott Hill Road in Wethersfield. The trio had smoked marijuana. Sometime after darkness fell, the victim, Michael Clarke, returned to Camilleri and Clarke Associates, Inc., the insurance brokerage firm located there, of which he was an owner. He had left his motor vehicle, a black Lincoln Mark VIII valued at approximately $28,000, in the firm's parking lot. After the victim had been in the building for some time, his dog began to bark, and so the victim went outside. After the victim left the building, he was accosted by the defendant and Johnson. The defendant wore a red sweatshirt or parka. The victim was instructed to turn over the keys to his vehicle. One of the men pointed a gun at the victim, and told him to go back into the building and to his office. In the office, while one of the men continued to point the gun at the victim, the other held the victim. The defendant and Johnson took the victim's laptop computer and credit card. They threatened the victim and ordered him to provide the access code for the card so that they could use it to obtain cash. Johnson took the computer while the defendant took the credit card. The defendant and Johnson stated that they were going to take the victim to the car, and after he protested and resisted, he was struck twice in the face with the gun. The victim was pushed outside, continued to struggle with the two men and broke away from them before being forced into the car. The victim started to flee and called out for help, but was soon tackled by Johnson. The victim then struggled with the defendant, who took out a .22 caliber Beretta and shot the victim in the head. The defendant and Johnson fled the scene in the victim's Lincoln while Smith drove the Honda Accord. Oscar Rivera, a Wethersfield police officer, arrived at the scene after being notified of the assault. He found the victim lying on the ground in the parking lot, which was otherwise empty. At that time, the victim was responsive, but had suffered visible injuries. Medical personal subsequently transferred the victim to Hartford Hospital for treatment. The victim was hospitalized for nine to ten days and then was transferred to a rehabilitation facility for an additional seven weeks of therapy. Leslie Higgins, an employee of United Services Automobile Association, the company that issued the victim's credit card, testified that on the night of the shooting, there were several attempts at various automatic teller machines to obtain cash with the card taken by the defendant. The first three attempts were declined due to an incorrect access code, and the fourth failed as a result of an automatic lock out due to the previous incorrect access codes. Higgins further testified that the defendant's card was used on October 21, 1999, to make several purchases, totaling several hundred dollars, at various stores in Manchester. Eventually, a hold was placed on the account due to suspected fraudulent activity. On October 24, 1999, Sergeant Robert Whitty of the Avon police department stopped a black Honda Accord carrying the defendant, Johnson, Smith and Damion Kelly. A search of that vehicle revealed the victim's credit card, credit card receipts that matched the victim's credit card, items purchased with the victim's credit card and a .22 caliber bullet that subsequently was determined to have been of the same caliber used in the shooting. Additionally, after searching the defendant's residence, the police recovered a pair of the defendant's boots that were stained with the victim's blood, a computer case containing the victim's business card and a red jacket. The defendant subsequently was arrested, tried before the jury and convicted on all of the fifteen counts with which he had been charged. This appeal followed. Additional facts will be set forth as necessary. I The defendant first claims that the court improperly denied his motion for a mistrial. Specifically, he argues that one of the state's witnesses made reference to his prior misconduct despite an agreement between the parties to avoid using such testimony and that no curative instruction could have alleviated the resulting prejudice. At the outset, we identify the appropriate standard of review. "While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. . . . If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. . . . The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court." (Internal quotation marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 316-17, 852 A.2d 703 (2004); State v. Taft, 258 Conn. 412, 418, 781 A.2d 302 (2001). Put another way, "[o]n appeal, the defendant bears the burden of establishing that there was irreparable prejudice to the defendant's case such that it denied him a fair trial." (Internal quotation marks omitted.) State v. Taveras, 49 Conn. App. 639, 652, 716 A.2d 120, cert, denied, 247 Conn. 917, 722 A.2d 809 (1998). The following additional facts are necessary for the resolution of the defendant's claim. Prior to the start of the trial, the defendant filed a motion in limine with respect to certain uncharged misconduct. Specifically, the defendant sought to prohibit reference to his involvement in a carjacking that had occurred in East Hartford and for which he had been convicted. Prior to the court's ruling, the prosecutor stated that he did not oppose the motion; furthermore, he did not intend to introduce any evidence relating to the East Hartford incident. He informed the court that all of the state's witnesses had been instructed to avoid discussing the East Hartford incident. The court noted that if the issue arose during the trial, the court was to be warned in advance and that it would make a ruling outside of the jury's presence. During the second day of evidence, Detective Mark Miele of the Wethersfield police department testified that he had met the defendant on October 25, 1999. He interviewed the defendant regarding the crimes underlying this appeal. After initially denying his involvement, the defendant subsequently admitted to being a participant in the Wethersfield incident. Miele testified in relevant part that the defendant "stated that [he], another individual . . . Johnson, and a third individual . . . Smith, were riding around in a stolen Honda Accord that they had acquired from another individual in the town of East Hartford some days before, and that that night, they were going to look to carjack another individual and . . : take the car from that person if they could find a car that they liked." Defense counsel immediately objected, and, outside of the presence of the jury, made an oral motion for a mistrial. The prosecutor apologized to the court, but argued that Miele's comment did not deprive the defendant of a fair trial and, therefore, a mistrial was not warranted. He further stated that he did not object to the court's striking that portion of Miele's testimony or the court's issuing a limiting instruction to the jury. The court denied the defendant's motion in an oral ruling and allowed the defendant time during the luncheon recess to consider whether to request a limiting instruction. The defendant subsequently declined any limiting instruction. On appeal, the defendant argues that Miele's testimony making reference to the East Hartford incident resulted in prejudice that warranted a mistrial. Our review of the record, however, persuades us that Miele's statement did not deprive the defendant of a fair trial, thereby requiring the court to grant the motion for a mistrial. See State v. Higgins, 265 Conn. 35, 75, 826 A.2d 1126 (2003). Miele testified after the jury had heard from several witnesses. Smith, who testified before Miele, stated that he had been arrested in East Hartford with the defendant and Johnson. Furthermore, Miele, prior to his statement, informed the jury that he knew that the defendant was in the custody of the East Hartford police department on a matter unrelated to Miele's investigation of the Wethersfield incident. It is clear that the jury was aware that the defendant had been involved in some activity that resulted in the East Hartford police taking him into custody. We also note that Miele did not state that the victim in the East Hartford incident was injured during the criminal activity; instead, the jury merely learned that the defendant previously had been involved in a carjacking. We cannot conclude that this information alone deprived the defendant of a fair trial. We have declined to find an abuse of the trial court's discretion in cases in which a party failed to adhere to a ruling on a motion in limine or some misstatement was made in the presence of the jury. See, e.g., State v. Vitale, 76 Conn. App. 1, 10-14, 818 A.2d 134 (two prejudicial remarks concerning defendant's misconduct made during testimony before jury), cert, denied, 264 Conn. 906, 826 A.2d 178 (2003); State v. Taveras, supra, 49 Conn. App. 650-53 (four references made to defendant's uncharged misconduct during testimony before jury). In those cases, the court issued a limiting instruction and struck the testimony. "A reviewing court gives great weight to curative instructions in assessing error." (Internal quotation marks omitted.) State v. Vitale, supra, 13. In this case, however, the defendant was given two opportunities to have the court issue such an instruction, once immediately after Miele's statement and once following the luncheon recess prior to the continuation of Miele's testimony. At both times, the defendant refused the limiting instruction and the offer to strike the statement. "[M]ost important, the defendant declined a cautionary instruction on the matter. The trial court could have decided that the testimony, even if prejudicial enough to warrant an instruction, did not call for a mistrial. Defense counsel cannot opt for a mistrial instead of a curative instruction, as if the two were interchangeable. If defense counsel decides to move for mistrial and altogether eschews the instruction, the trial court cannot be compelled by that decision to go further than it otherwise would." (Internal quotation marks omitted.) State v. McNellis, 15 Conn. App. 416, 437-38, 546 A.2d 292, cert, denied, 209 Conn. 809, 548 A.2d 441 (1988). On the basis of our review of the record, we conclude that Miele's isolated statement did not rise to the level of denying the defendant his right to a fair trial. Accord ingly, the court did not abuse its discretion in denying the defendant's motion for a mistrial. II The defendant next claims that the court improperly admitted into evidence testimony from his prior trial. Specifically, he argues that the court abused its discretion by allowing that testimony to be read to the jury. We are not persuaded. The following additional facts are necessary for the resolution of that issue. On March 28,2002, after several days of testimony, defense counsel filed a motion in limine to preclude the state from introducing evidence from the defendant's prior trial. The state sought to introduce a letter written by the defendant to Johnson. Although the letter was to be redacted, the state wanted to present to the jury the defendant's statement that if Johnson took responsibility for his crime, then the defendant would take responsibility for what he did. Defense counsel objected, arguing that the letter did not have any probative value and, in any case, the prejudicial impact was too severe. The court, after detailed discussions with counsel, allowed a portion of the defendant's prior testimony to be read to the jury. The following colloquy between the defendant and the prosecutor from the defendant's prior trial on December 13, 2000, was read to the juiy: "[The Prosecutor]: Now, turning your attention to state's [exhibit] forty, the letter that starts, 'Yo, Carl,' the third sentence says: 'Yo, if you take your body, I'll take responsibility for what I did.' Correct? "[The Defendant]: Correct. "[The Prosecutor]: You indicated yesterday [December 12, 2000] that that was reference to — that that phrase, 'I'll take responsibility for what I did,' was a reference to [the Wethersfield incident], an unrelated matter. "[The Defendant]: Correct. "[The Prosecutor]: Going on . . . 'When me and [Smith] were talking, made a lot of plans and got our'— that document says — 'stories straight' and you indicated that was, again, a reference to an unrelated matter, is that correct? "[The Defendant]: Correct. "[The Prosecutor]: Now, the reference . . . 'I'll take responsibility for what I did,' in that sentence where [the letter states] 'me and [Smith] were talking,' we 'made a lot of plans and got our stories straight.' Those two references are references to the Wethersfield incident, isn't that correct? "[The Defendant]: Correct. "[The Prosecutor]: And isn't it true, sir, that in the Wethersfield case on Tuesday, October 19, 1999, you, sir, were involved in an incident, which involved a robbery at gunpoint and the theft of a late model Lincoln car, and also [were] involved in the pushing of the gentleman, the owner of the Lincoln, into or an attempt to push the owner of that Lincoln into that vehicle? "[The Defendant]: I don't remember seeing nothing like that. "[The Prosecutor]: Pardon me? "[The Defendant]: I don't remember seeing nothing like that. "[The Prosecutor]: Were you involved in those situations, sir? "[The Defendant]: Yes. But I didn't see nobody get pushed into no car. "[The Prosecutor]: You were involved in a robbery and a larceny. "[The Defendant]: Correct. "[The Prosecutor]: The theft of a late model Lincoln. "[The Defendant]: Correct. "[The Prosecutor]: At gunpoint. "[The Defendant]: Correct." The defendant did not request that the court give a limiting instruction with respect to that testimony. The defendant now claims that the court improperly admitted the evidence. At the outset, we identify the standard of review and legal principles that guide the resolution of the defendant's claim. "Our standard of review regarding challenges to a trial court's evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [defendant] of substantial prejudice or injustice. . . . In reviewing claims that the trial court abused its discretion, great weight is given to the trial court's decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court's ruling only if it could not reasonably conclude as it did." (Internal quotation marks omitted.) State v. Hurdle, 85 Conn. App. 128, 137, 856 A.2d 493, cert, denied, 271 Conn. 942, 861 A.2d 516 (2004). "[E]vidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. . Of course, [a]ll adverse evidence is damaging to one's case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury." (Internal quotation marks omitted.) State v. Bennett-Gibson, 84 Conn. App. 48, 66, 851 A.2d 1214, cert, denied, 271 Conn. 916, 859 A.2d 570 (2004). In the present case, the court admitted into evidence the defendant's testimony from his prior trial. Such statements are generally admissible as an exception to the rule against hearsay. See State v. Calderon, 82 Conn. App. 315, 325, 844 A.2d 866, cert, denied, 270 Conn. 905, 853 A.2d 523, cert, denied, 543 U.S. 982 125 S. Ct. 487, 160 L. Ed. 2d 361 (2004); Conn. Code Evid. § 8-3 (1). The defendant argues that the testimony had little probative value and was clearly outweighed by its prejudicial effect. The defendant contends that once the jury heard his prior testimony, it was predisposed to conclude that because he had been involved in a prior violent carjacking, he was guilty of the present charges against him. We conclude that the court properly weighed the prejudicial impact that the testimony would have on the defendant, along with its probative value. The state argued that the testimony constituted an admission because the defendant acknowledged a fact or circumstance from which guilt may be inferred and, further, that it was offered to rebut the claim that the defendant was a passive or unknowing participant in the criminal activity. The court properly exercised its discretion in determining that the testimony was relevant on the basis of those rationales. We note further that the court minimized any potential prejudice by declining to admit the actual letter and redacting the testimony itself. Finally, the statement, "if you take your body, I'll take responsibility for what I did," does not indicate that the defendant engaged in prior violent activity, particularly when the statement is viewed in context. Instead, it demonstrates that Johnson was responsible for a "body" while the defendant was involved with what he "did," which does not necessarily mean a violent act. In short, we conclude that the court did not abuse its discretion in admitting the defendant's prior testimony into evidence. Ill The defendant next claims that the court improperly instructed the jury as to an essential element of larceny. Specifically, he argues that the court failed to define "to appropriate" during its instruction, thereby denying him due process of law. We conclude that any such error was harmless beyond a reasonable doubt. The following additional facts are necessary for the resolution of that issue. Count fourteen of the information charged the defendant with larceny in the first degree in violation of General Statutes § 53a-122 (a) (3) and alleged in relevant part that the defendant, "with intent to deprive another of property and to appropriate the same to himself and to a third person, did wrongfully take, obtain and withhold such property from an owner and such property was a motor vehicle, the value of which exceeded ten thousand dollars . . . ." The court instructed the jury that to find the defendant guilty, the state had to prove, beyond a reasonable doubt, that he had committed larceny, as defined in General Statutes § 53a-119, and that the property consisted of a motor vehicle, the value of which exceeded $10,000. The court then defined larceny, stating: "A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner." The court continued, stating that "[t]o intend to deprive another of property means to intend to withhold or keep it or cause it to be withheld from another permanently, or, for so long a period or under such circumstances that the major portion of its value is lost to that person." The court proceeded with its instruction without providing the jury with the statutory definition of the term "to appropriate." The defendant concedes that his claim was not preserved and seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). "In Golding, our Supreme Court held that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions axe met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail. The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances. . . . The first two questions relate to whether a defendant's claim is reviewable, and the last two relate to the substance of the actual review." (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Bangulescu, 80 Conn. App. 26, 32, 832 A.2d 1187, cert, denied, 267 Conn. 907, 840 A.2d 1171 (2003). We agree with the defendant that the record is adequate for our review and that the claim is of constitutional magnitude. See State v. Morales, 84 Conn. App. 283, 300-301, 853 A.2d 532, cert, denied, 271 Conn. 928, 859 A.2d 584 (2004). We conclude, however, that his claim fails under the fourth prong of Golding. "A jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was unconlesled and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . . . ." (Emphasis in original; internal quotation marks omitted.) State v. Kirk R., 271 Conn. 499, 517, 857 A.2d 908 (2004); see also State v. Faust, 237 Conn. 454, 470, 678 A.2d 910 (1996). In the present case, Smith extensively testified regarding the plan to steal the victim's motor vehicle. Smith stated that Johnson, after seeing the Lincoln, stated that he saw something that he wanted and that the defendant nodded in agreement. Smith watched the defendant and Johnson come out of the building, fight with the victim and then take the victim's motor vehicle. Smith followed in the Honda Accord as the defendant and Johnson drove the victim's vehicle to Johnson's home in East Hartford. The jury also heard testimony that the defendant had admitted to Miele in a written statement that he had been involved in the Wethersfield incident. "In the context of harmless error analysis, our Supreme Court has noted that a confession, if sufficiently corroborated, is the most damaging evidence of guilt . . . ." (Internal quotation marks omitted.) State v. Holliday, 85 Conn. App. 242, 248, 856 A.2d 1041, cert, denied, 271 Conn. 945, 861 A.2d 1178 (2004). Additionally, a confession that is corroborated generally "will constitute the overwhelming evidence necessary to render harmless any errors at trial." (Internal quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 596, 849 A.2d 626 (2004). Miele testified that the defendant had stated that he, Johnson and Smith had planned to take a vehicle by force if necessary. After seeing the victim's Lincoln, they decided that it was the vehicle they were going to steal. Miele read a portion of the defendant's written statement to the jury. In his statement, the defendant stated that "[i]t was Carl Johnson, Rashad Smith and me who robbed the guy in Wethersfield and stole his Lincoln sometime last week." The defendant's statement also included a description of what he was wearing "[t]he night we stole the Lincoln . . . ." The defendant's statements indicated that he and Johnson drove the victim's vehicle for a period of time before abandoning it. Finally, we note that the jury heard the defendant's statements from his other trial that he was involved in the theft of the Lincoln in Wethersfield that occurred on October 19, 1999. See part II. On the basis of the foregoing, including the defendant's confession, combined with the corroboration of Smith's testimony, we conclude that the record establishes beyond a reasonable doubt that the element of larceny that was incompletely defined by the court, namely, "to appropriate," was uncontested and supported by overwhelming evidence. We further conclude that the verdict would have been the same had the jury been given the definition that was missing. We determine that the court's incomplete jury instruction was harmless beyond a reasonable doubt, as the evidence establishing that the defendant had appropriated the victim's vehicle was overwhelming. IV The defendant's final claim is that the court improperly violated the prohibition against double jeopardy by sentencing him on six counts of conspiracy offenses. Specifically, the defendant argues that the jury convicted him of six conspiracies arising out of a single plan. The defendant further argues that pursuant to State v. Howard, 221 Conn. 447, 604 A.2d 1294 (1992), he can be punished only for the one conspiracy. In both its brief and at oral argument, the state agrees with the defendant's arguments with respect to that issue. "The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. . . . Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of article first, § 9, include protection against double jeopardy. . . . We have recognized that the Double Jeopardy Clause consists of several protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. . . . These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense. . . . "Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. . . . The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute . For such a violation, only the single penalty prescribed by the statute can be imposed." (Citation omitted; internal quotation marks omitted.) State v. Arceniega, 73 Conn. App. 288, 302, 807 A.2d 1028 (2002), on appeal after remand, 84 Conn. App. 326, 853 A.2d 586, cert, denied, 271 Conn. 926, 859 A.2d 581 (2004); see also State v. Elsey, 81 Conn. App. 738, 751, 841 A.2d 714, cert, denied, 269 Conn. 901, 852 A.2d 733 (2004). We agree with the parties that the court improperly sentenced the defendant. The appropriate remedy under these circumstances is to remand the case to the trial court with direction to merge the conviction of the six conspiracy offenses and to vacate the sentences for five of them. See State v. Howard, supra, 221 Conn. 463; see also State v. Stevenson, supra, 85 Conn. App. 814-15; State v. Elsey, supra, 81 Conn. App. 752-53; State v. Reyes, 81 Conn. App. 612, 620, 841 A.2d 237 (2004); State v. Arceniega, supra, 73 Conn. App. 302-303; State v. Vasquez, 66 Conn. App. 118, 127, 783 A.2d 1183, cert, denied, 258 Conn. 941, 786 A.2d 428 (2001). The judgment is reversed only as to the sentences on the six conspiracy offenses and the case is remanded with direction to merge the conviction on those offenses and to vacate the sentences for five of them. The judgment is affirmed in all other respects. In this opinion the other judges concurred. The defendant was convicted of kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a, burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), burglary in the first degree in violation of § 53a-101 (a) (2), attempt to commit murder in violation of General Statutes § § 53a-49 and 53a-54a, assault in the first degree in violation of General Statutes § 53a-59 (a) (1), assault in the first degree in violation of § 53a-59 (a) (2), robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), robbery in the first degree in violation of § 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48 and 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of § 53a-48 and 53a-134 (a) (1), conspiracy to commit kidnapping in the first degree with a firearm in violation of § 53a-48 and 53a-92a, conspiracy to commit burglary in the first degree in violation of § 53a-48 and 53a-101, conspiracy to commit assault in the first degree in violation of § 53a-48 and 53a-59 (a) (1), larceny in the first degree in violation of General Statutes § 53a-122 (a) (3) and conspiracy to commit larceny in the first degree in violation of § 53a-48 and 53a-122 (a) (3). The defendant and Johnson had stolen the car in East Hartford and, on October 15, 1999, after committing several additional crimes, Johnson shot and killed Kyle Holden. See State v. Coltherst, 263 Conn. 478, 483-88, 820 A.2d 1024 (2003). As a result of his participation in that criminal activity, the defendant was sentenced to a total effective term of life imprisonment without the possibility of release followed by seventy-one years imprisonment. Id., 487-88. The victim did not own the vehicle, but leased it instead. The victim testified that the red jacket recovered from the defendant's home was consistent with the jacket worn by the man who had assaulted him. The defendant and Johnson sold the laptop computer at a pawn shop for approximately $200. The victim inadvertently gave the defendant and Johnson his credit card rather than his automatic teller machine bank card. As a result, the numeric access code provided to the defendant did not work. As a result of the assault, the victim spent a significant amount of time recovering from his injuries and undergoing rehabilitation. He continued to suffer from permanent weakness on the right side of his body. The defendant, Johnson and Smith abandoned their plan to take the victim's car to New York City and instead abandoned it in a parking lot in Hartford. Defense counsel stated: "I will just put on the record, I'm not going to ask for any correcting instruction in regard to the issue that we just were talking about before the break. I think it's probably just better left alone rather than call more attention to it." General Statutes § 53a-118 (a) provides in relevant part: "(4) To 'appropriate' property of another to oneself or a third person means (A) to exercise control over it, or to aid a third person to exercise control over it, permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit, or (B) to dispose of the property for the benefit of oneself or a third person. . . We note that in State v. Spillane, 255 Conn. 746, 756, 770 A.2d 898 (2001), in which the sole basis of the state's case was the defendant's intent to appropriate a motor vehicle, our Supreme Court held that it was improper to omit the statutory definition of "appropriate" from the charge to the jury. In Spillane, the information charged the defendant only with the "intent to appropriate a motor vehicle . . . ." (Emphasis in original; internal quotation marks omitted.) Id., 751-52. During trial, the state emphasized that it was proceeding solely on that basis, and the court's charge to the jury reflected that specific course. Id., 752. In the present case, however, the state charged the defendant with the intent to deprive and the intent to appropriate. "Connecticut courts have interpreted the essential elements of larceny as (1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner." (Internal quotation marks omitted.) State v. Flowers, 69 Conn. App. 57, 69, 797 A.2d 1122, cert, denied, 260 Conn. 929, 798 A.2d 972 (2002). We conclude that, in this case, the court's charge included the essential elements of larceny, but failed to define one of these elements. See id., 68. The defendant was convicted of two counts of conspiracy to commit robbery in the first degree, and one count each of conspiracy to commit kidnapping in the first degree with a firearm, conspiracy to commit burglary in the first degree, conspiracy to commit assault in the first degree and conspiracy to commit larceny in the first degree. We have stated that "[t]o prove the crime of conspiracy, in violation of [General Statutes] § 53a-48, the state must establish beyond a reasonable doubt that an agreement existed between two or more persons to engage in conduct constituting a crime and that subsequent to the agreement one of the conspirators performed an overt act in furtherance of the conspiracy." (Internal quotation marks omitted.) State v. Gonzalez, 69 Conn. App. 649, 653, 796 A.2d 1225, cert, denied, 260 Conn. 937, 802 A.2d 91 (2002). Furthermore, "[t]o demonstrate the existence of a conspiracy between one or more parties, [t]he existence of a formal agreement between the parties need not be proved. It is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . . Because of the secret nature of a conspiracy, a conviction is usually based on circumstantial evidence. . . . The state need not prove that the defendant and a coconspirator shook hands, whispered in each other's ear, signed papers, or used any magic words such as we have an agreement. . . . " [W] e recognize that conspiracy is a specific intent crime. Intent is divided into two parts: (1) the intent to agree to conspire; and (2) the intent to commit the offense that is the object of the conspiracy. . . . Intent is generally proven by circumstantial evidence because direct evidence of the accused's state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . In a conspiracy prosecution, when determining both a defendant's specific intent to agree and his specific intent that the criminal ads be performed, the jury may rely on reasonable inferences from facts in the evidence and may develop a chain of inferences, each link of which may depend for its validity on the validity of the prior link in the chain." (Citations omitted; internal quotation marks omitted.) State v. Oberdick, 74 Conn. App. 57, 63-64, 810 A.2d 296 (2002). In the present case, the various charges of conspiracy offenses all originated from the agreement to steal the victim's car.

Per Curiam. The judgment is affirmed.

Opinion DRANGINIS, J. The issue in this appeal is whether the habeas court abused its discretion by denying the petition for certification to appeal filed by the petitioner, Robert M. Grant. The court granted the motion to dismiss the petition for a writ of habeas coipus filed by the respondent, the commissioner of correction, because the petitioner was not in custody at the time he filed the petition. We dismiss the appeal. The following facts are necessaiy for our resolution of this appeal. On September 29, 1988, the petitioner pleaded guilty to the crimes of larceny in the third degree and attempt to commit larceny in the second degree (larceny conviction) and was sentenced to two concurrent terms of two and one-half years in prison. On January 11, 1990, after a jury convicted him of the crime of murder as an accessory (murder conviction), the petitioner was sentenced to twenty-five years in prison. On October 28, 1997, the petitioner filed a petition for a writ of habeas corpus with respect to the larceny conviction, alleging, in part, that he was denied the effective assistance of counsel when he pleaded guilty and that he was being held illegally. The respondent filed a motion to dismiss the petition for a writ of habeas coipus on the ground that the court lacked subject matter jurisdiction because the petitioner was no longer confined under the larceny conviction. The court granted the motion to dismiss. Thereafter, the petitioner sought certification to appeal from the judgment of dismissal. The court denied the petitioner's certification request. The petitioner appealed. I We first must determine whether the record is adequate for our review. In any appeal, the appellant bears the burden of providing an adequate record for our review. See Practice Book § 60-5. The record here contains no memorandum of decision or signed transcript with respect to the court's having granted the respondent's motion to dismiss. See Practice Book § 64-1. In fact, the petitioner certified that no transcript was necessary for the resolution of his appeal. Whether a court has subject matter jurisdiction is purely a question of law; Oliphant v. Commissioner of Correction, 83 Conn. App. 10, 13, 847 A.2d 1080, cert, granted on other grounds, 270 Conn. 910, 853 A.2d 526 (2004); and a habeas court's legal analysis is not essential to appellate review of questions of law to which the plenary standard of review applies. See Norwalk v. Farrell, 80 Conn. App. 399, 406 n.10, 835 A.2d 117 (2003). The question of whether the court had subject matter jurisdiction to consider the petition for a writ of habeas coipus turns on whether the petitioner's sentence for murder as an accessory was imposed consecutive to or concurrent with his larceny sentences. See Ford v. Commissioner of Correction, 59 Conn. App. 823, 758 A.2d 853 (2000). In granting the respondent's motion to dismiss, the court articulated no such finding. In the alternative, the respondent has urged us to take judicial notice of the file, which contains a copy of the mittimus for the petitioner's sentencing on the murder conviction. "It is well known that appellate courts do not make findings of fact. . . . Appellate courts, however, review the whole record and do not overlook material contained in the trial court's file or the appendix to the defendant's brief. We may take judicial notice of the contents of the court's file." (Citation omitted.) State v. Pagan, 75 Conn. App. 423, 431, 816 A.2d 635, cert, denied, 265 Conn. 901, 829 A.2d 420 (2003). On the basis of our review of the habeas court file, we conclude that the record is adequate for our review, and we therefore will address the petitioner's claim that the court abused its discretion in denying his petition for certification to appeal. II When faced with the denial of certification to appeal, a petitioner must first demonstrate that the court abused its discretion. Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). We conclude that the petitioner has not demonstrated an abuse of discretion because, as a matter of law, the issue is not debatable among jurists of reason, a court could not have resolved the issue in a different manner and the question raised does not deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, supra, 612. "A court has subject matter jurisdiction if it has the authority to hear a particular type of legal controversy. This jurisdiction relates to the court's competency to exercise power." Vincenzo v. Warden, 26 Conn. App. 132, 134-35, 599 A.2d 31 (1991). "Habeas corpus provides a special and extraordinary legal remedy for illegal detention. . . . Questions which do not concern the lawfulness of the detention cannot properly be reviewed on habeas corpus." (Citations omitted; internal quotation marks omitted.) Id., 137-38. "[P]ursuant to General Statutes § 52-466, a Connecticut habeas court has subject matter jurisdiction only over those cases brought by a petitioner who is illegally confined or deprived of his liberty under the challenged conviction." (Emphasis added; internal quotation marks omitted.) Ford v. Commissioner of Correction, supra, 59 Conn. App. 826; see also Tracy v. Johnson, 156 Conn. 630, 631, 239 A.2d 477 (1968) (condition of court's jurisdiction to adjudicate petition for writ of habeas corpus that petitioner be in custody when jurisdiction can be effective). The mittimus for the petitioner's sentence on the murder conviction simply indicates that the petitioner was sentenced to twenty-five years incarceration. The mittimus does not state whether the sentence was to run concurrent with or consecutive to the petitioner's sentences for the larceny conviction. See General Statutes § 53a-37. "In the absence of a timely designation of the defendant's sentence as concurrent with or consecutive to his prior undischarged term of imprison ment, the common-law rule prevails, and the sentence will be treated as concurrent." State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981). We therefore conclude, as a matter of law, that the petitioner's sentence on the murder conviction was to be served concurrently with his larceny sentences. The petitioner's two and one-half year concurrent larceny sentences, imposed in September, 1988, expired, at the latest, in March, 1991, while he was incarcerated on the concurrent twenty-five year murder sentence that was imposed in January, 1990. The petitioner filed his petition for a writ of habeas corpus on his larceny conviction in October, 1997. He therefore was not in custody or deprived of his liberty under the larceny conviction at the time he filed the petition for a writ of habeas corpus here. Because he had served the larceny sentences, there was no relief that the court could grant him, as he could not obtain an earlier release from his concurrent murder sentence as the court might have granted if the sentence for murder as an accessory had run consecutively to the larceny sentences. See Ford v. Commissioner of Correction, supra, 59 Conn. App. 828, citing Garlotte v. Fordice, 515 U.S. 39, 115 S. Ct. 1948, 132 L. Ed. 2d 36 (1995) (prisoner serving consecutive sentences is in custody under any one sentence for purposes of habeas corpus). For these reasons, we conclude, as a matter of law, that the court did not abuse its discretion by denying the petition for certification to appeal. The appeal is dismissed. In this opinion the other judges concurred. Subsequent to filing the appeal on behalf of the petitioner, his counsel filed a motion for permission to withdraw his appearance pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). In granting the motion to withdraw, the court, J. Kaplan, J., attached a copy of the mittimus for the sentence imposed on the murder conviction to its memorandum of decision. General Statutes § 53a-37 provides in relevant part: "When multiple sentences of imprisonment are imposed . or when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively . to the undischarged term or terms in such manner as the court directs at the time of sentence. The court shall state . in conclusion the effective sentence imposed. . . ."

Opinion PETERS, J. In these consolidated appeals, a trial court sustained an appeal by a developer and a landowner from the decision of a planning and zoning commission denying their subdivision application because of the poor condition of an abutting town road. In their appeals to this court, the commission and neighboring intervenors have raised two principal issues. They maintain that the court lacked subject matter jurisdiction because the plaintiffs did not establish their aggrievement and standing to pursue their appeal. They further maintain that, on the merits, the court should have upheld the commission's denial of the subdivision application, either on the ground stated by the commission or on alternate unstated grounds supported by the record before the commission. We affirm the judgment of the trial court. The plaintiffs, The RYA Corporation (RYA) and Myers Nursery, Inc. (Myers, Inc.), appealed to the trial court from a decision of the defendant, the planning and zoning commission of the town of Enfield (commission), denying their application for approval of a residential subdivision in Enfield. Myers, Inc., the owner of the property, had consented, in writing, to the filing of the subdivision application. RYA, the subdivision applicant, is a corporation wholly owned by Werner O. Kunzli, with whom Myers, Inc., had contracted for the development of the property. In the commission proceedings and in the trial court, several neighbors (intervenors) were permitted to intervene to oppose the subdivision application. The trial court sustained the plaintiffs' appeal. The court acknowledged that the proposed subdivision would front on the west side of Laughlin Road in Enfield, a town road that is narrow and unpaved. It held, nonetheless, that the commission lacked the authority to deny the plaintiffs' subdivision application on this ground. The court also considered and rejected the merits of the intervenors' environmental claims. In response to two motions to dismiss that had been filed by the commission and the intervenors, the court further concluded that it had subject matter jurisdiction to hear the plaintiffs' appeal because each of the plaintiffs was aggrieved and had standing to pursue the appeal. The commission and two intervenors filed separate appeals that we have consolidated for hearing and reso lution. The appellants renew here the issues that they raised at trial. Procedurally, they claim that the court improperly found that it had subject matter jurisdiction to hear the plaintiffs' zoning appeal. Substantively, they claim that the court improperly set aside the decision of the commission, which, in their view, should have been sustained either on the ground on which the commission expressly relied or on other grounds that allegedly were established by the record of the proceedings before the commission. We are not persuaded and affirm the judgment of the trial court. I SUBJECT MATTER JURISDICTION It is common ground that the trial court's subject matter jurisdiction to hear the plaintiffs' appeal depended on the plaintiffs' showing that at least one of them had standing to challenge the decision of the commission and was aggrieved by its outcome. See General Statutes § 8-8 (j). In their respective motions to dismiss, the commission and the intervenors claimed that neither of the plaintiffs had made either jurisdictional showing. They appeal, claiming that the trial court improperly denied their motions to dismiss. We affirm the conclusion of the trial court that it had jurisdiction to hear the plaintiffs' appeal on its merits. In Gladysz v. Planning & Zoning Commission, 256 Conn. 249, 255-57, 773 A.2d 300 (2001), our Supreme Court reviewed the standards that determine whether an appellant in a land use case is aggrieved and has standing to appeal. The court stated: "The terms aggrievement and standing have been used interchangeably throughout most of Connecticut jurisprudence. We previously have stated that [t]he question of aggrievement is essentially one of standing . Although these two legal concepts are similar, they are not, however, identical. Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected. . . . We specifically have applied this standard to cases involving zoning disputes. . . . Because aggrievement is a jurisdictional question, and therefore, the key to access to judicial review, the standard for aggrievement is rather strict. T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 535." (Citations omitted; internal quotation marks omitted.) Gladysz v. Planning & Zoning Commission, supra, 255-57. "Conversely, the standard for determining whether a party has standing to apply in a zoning matter is less stringent. A party need have only a sufficient interest in the property to have standing to apply in zoning matters. . . . [I]t is not possible to extract a precise comprehensive principle which adequately defines the necessary interest . . . . " (Citations omitted; internal quotation marks omitted.) Id., 257. "Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. . . . These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injuiy [that] he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the out come of the controversy . . . provides the requisite assurance of concrete adverseness and diligent advocacy." (Emphasis added; internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 153, 851 A.2d 1113 (2004). The trial court based its determination that each of the plaintiffs was classically aggrieved and had standing on the following findings of fact. "Myers Nursery, Inc., is a Connecticut corporation which is wholly owned by Louis Myers. It is the owner of record of the property which was the subject of this appeal. RYA Corporation is a Connecticut corporation wholly owned by Werner O. Kunzli. RYA is a real estate developer. The [plaintiffs] had entered into an agreement concerning their rights and responsibilities for the codevelopment of various parcels of land, including the subject property. Myers [Inc. ] gave its consent to RYA and its agents or representatives to file the application for the subdivision approval. The application was accepted by the defendant commission with full knowledge of the agreement between the plaintiffs. During the entire application process and for a substantial period of time thereafter, the defendant commission never raised any issues concerning RYA as the applicant with the consent of Myers [Inc.] and the involvement of Myers [Inc.] as the property owner." The court decided that Myers, Inc., and RYA were classically aggrieved because the agreement between Myers, Inc., and Kunzli gave both Myers, Inc., and RYA a specific, personal and legal interest in the approval or disapproval of the subdivision application. The court further decided that Myers, Inc., had standing as the owner of the property and that RYA had standing as the applicant and proposed developer of the property. Our review of the court's determination that it had subject matter jurisdiction to hear the plaintiffs' appeal is limited to an inquiry into whether the facts on which the court relied in finding aggrievement and standing were clearly erroneous. Fox v. Zoning Board of Appeals, 84 Conn. App. 628, 635, 854 A.2d 806 (2004). Although the appellants have challenged some of these findings of fact, we conclude that, on the present record, the court's decision must be sustained. The appellants challenge three related findings of fact. They claim that the court erroneously found that (1) the plaintiffs had entered into an agreement for the development of the Myers, Inc., property, (2) the agreement between Myers, Inc., and Kunzli was an agreement between the plaintiffs, even though RYA was not named therein, and (3) the agreement provided RYA with financial benefits as the developer of the property. The difficulty with these contentions is that we do not know the underlying facts on which the trial court based its findings. The appellants might have asked the court for further articulation on this ground, but they did not do so. Practice Book § 60-2 and 66-5. On the present record, it is plausible that the court's factual analysis of the case was based on unstated subsidiary findings of agency. Specifically, the court might have found that RYA filed the subdivision application as Kunzli's agent because Kunzli testified that he, in fact, was RYA Corporation. The court also might have found that RYA filed the application as Myers, Inc.'s agent because Myers so testified. The court had no reason to disregard this testimony, which was not contradicted by other evidence at trial and was admitted into evidence without objection. The appellants maintain, however, that various provisions of the agreement between Myers, Inc., and Kunzli preclude any factual finding of an agency relationship between the parties. It is true that, because the agreement contains a merger clause, it is an integrated contract, which, under the parol evidence rule, may not be supplemented or varied by extrinsic evidence of the intent of the parties. Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 740, 557 A.2d 525 (1989). The appellants' argument depends, therefore, on a showing that testimony about RYA's agency relationship with the signatories of the agreement should be characterized as supplementing or varying the terms of agreement. We are not persuaded that it should. As best we can tell, nothing in the agreement requires the performance of nondelegable personal duties. As the commission itself observes, Kunzli had incorporated RYA long before his agreement with Myers, Inc. The appellants have cited no case, and we know of none, to support the proposition that the parties to an integrated contract normally would spell out their expectations that an agent, rather than a designated party, would undertake the performance of a land use agreement. In sum, we conclude that the fact that the agreement does not refer to RYA expressly did not make it erroneous for the trial court to have found that the parties implicitly agreed to have RYA act as their agent in filing the subdivision application. The appellants have not provided persuasive grounds for us to find that any of the court's express and implicit findings were clearly erroneous. Our inquiry into the propriety of the trial court's jurisdictional rulings must, therefore, take the trial court's findings as its point of departure. We will review separately the appellants' claims that, on the record before it, the court improperly found that both Myers, Inc., and RYA had the right to appeal from the denial of the subdivision application. A Myers, Inc. Turning first to Myers, Inc., we note that, in light of Myers, Inc.'s ownership of the property to be developed, neither the commission nor the intervenors challenge Myers, Inc.'s aggrievement. The issue is whether Myers, Inc., has standing. The trial court found that Myers, Inc., had standing because it was the owner of the property and because it had a financial stake in the development of the proposed subdivision. The appellants claim that Myers, Inc., had no standing to appeal because only RYA filed the subdivision application. We disagree. The crux of the appellants' argument is that Myers, Inc., could not be a coapplicant for subdivision approval without identifying itself as such on the face of the application. In their view, it is irrelevant that the application identified Myers, Inc., as the owner of the property and that the application was accompanied by an attached form manifesting Myers, Inc.'s consent to the filing of the application. We are not persuaded. Although Myers, Inc.'s consent form was attached to RYA's application for subdivision approval of a designated piece of property, the form does not describe the property to which it applies. Instead, it authorized RYA to apply "to any local, state or federal agency in connection with the development of a residential subdivision on this property." The appellants argue that the relationship between Myers, Inc., and RYA is established definitively by the terms of the consent form. In their view, because the consent form did not expressly designate RYA as Myers, Inc.'s agent to file this subdivision application and because RYA did not identify itself as Myers, Inc.'s agent on this application, the court improperly held that Myers, Inc., had standing to appeal. We disagree. In the absence of evidence at trial about the intent of the parties in agreeing to the placement of the consent form and to its terms, the meaning to be ascribed to these documents is a question of law. As a matter of law, we are not persuaded that the trial court was required to read these documents as narrowly as do the appellants. Taking into account the totality of the relationship between Myers, Inc., and RYA, the court had the authority to conclude that the physical linkage between the application and the consent form gave Myers, Inc., a sufficient interest to have standing to contest the denial of the proposed subdivision. This conclusion is supported not only by the nature of the documentation itself but because, as noted previously, the court reasonably might have found that RYA was acting as Myers, Inc.'s agent in filing the subdivision application. The appellants argue, however, that regardless of what the relationship between Myers, Inc., and RYA might have been in fact, our decision in D.S. Associates v. Planning & Zoning Commission, 27 Conn. App. 508, 607 A.2d 455 (1992), definitively establishes that Myers, Inc., did not have standing. In D.S. Associates, the question of standing arose in the following context. At the time of the appeal, the original applicant no longer owned the property, and the applicant's successor had not refiled the application. Id., 510, 512. The local subdivision regulations unambiguously required a subdivision application to be filed by "the owner(s) of record of the subject property or by an authorized agent . . . ." (Internal quotation marks omitted.) Id., 511. D.S. Associates held that the original applicant could not appeal because it was no longer aggrieved and that the applicant's successor could not appeal because it lacked standing to do so. Id., 512. We agree with the plaintiffs that D.S. Associates does not control this case. In contrast to the terms of the regulations in D.S. Associates, § 4.a.2 of the Enfield subdivision regulations provides in relevant part that "the record owner or developer may submit a formal application for subdivision approval." (Emphasis added.) Furthermore, in this case, the commission had before it a consent form expressly identifying Myers, Inc., as having an interest in the subdivision application. Michel v. Planning & Zoning Commission, 28 Conn. App. 314, 612 A.2d 778, cert, denied, 223 Conn. 923, 614 A.2d 824 (1992), is more closely analogous. In that case, the issue was whether a lessee of the property had standing to apply for a zone change and special excep tion permit. Id., 323-24. We agreed with the trial court's finding that the consent of two landowners to their lessee's application for a special use permit reasonably could be construed to make the landowners joint petitioners for the permit. Id. Although the underlying issue was the standing of the lessee rather than that of the landowners, we find the analysis in Michel to be persuasive here. In this case, the trial court reasonably could have found that Myers, Inc.'s consent made it a coappli-cant with RYA and thus gave it standing to appeal from the denial of the subdivision application. We came to a similar conclusion in DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 588 A.2d 244, cert, denied, 219 Conn. 903, 593 A.2d 129 (1991). Concededly, that case involved aggrievement rather than standing. In light of the close relationship between these two concepts, we nonetheless find its discussion of the significance of a landowner's consent to be enlightening. In DiBonaventura, we held that a landowner who had consented to an application for a regulated use of his property had a "specific, personal and legal interest in the proposed [use of his property]." Id., 375. Even in the absence of a formal lease, purchase contract or option, his consent was sufficient to establish that he had an interest in the land use application that distinguished him from other members of the community as a whole. Id., 376. In accordance with these precedents, the finding of the trial court that Myers, Inc., had standing was not clearly erroneous. As an expressly consenting landowner, Myers, Inc., has a specific, personal and legal interest in an application for improvement of its property. As a consequence, it had "a colorable claim of direct injury [that it had] suffered or [was] likely to suffer, in an individual or representative capacity." (Internal quotation marks omitted.) Broadnax v. New Haven, supra, 270 Conn. 153. No more is required. Because Myers, Inc.'s aggrievement and standing conferred subject matter jurisdiction on the trial court, we need go no further. The commission so concedes. B RYA In the exercise of judicial prudence, we will nonetheless briefly consider whether RYA was aggrieved. The commission does not take issue with the trial court's finding that RYA had standing because it expected to obtain financial benefits from the proposed development. The court found that RYA was aggrieved because it stood to profit from performance of the agreement between Myers, Inc., and Kunzli. Although the appellants challenge the propriety of the latter finding, we agree with the court. The plaintiffs acknowledge that RYA had to establish that it was classically aggrieved because there was no statutory basis for its appeal. "Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share. . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest." (Internal quotation marks omitted.) Stanton v. Planning & Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004). In this case, the trial court found that the agreement between Myers, Inc., and Kunzli gave RYA a specific, personal and legal interest in the proposed development. This finding is unassailable in light of our conclusion that the record before the court permitted it inf erentially to find that RYA had an agency relationship with Myers, Inc., and Kunzli. We may presume that RYA's participation in the subdivision plan was not intended to be eleemosynary. It follows that RYA had a specific, personal and legal interest in the approval of its subdivision application. In conclusion, the trial court properly found that it had subject matter jurisdiction to hear the plaintiffs' appeal from the commission's denial of RYA's subdivision application. Despite the appellants' argument to the contrary, Myers, Inc., and RYA were each aggrieved by this denial and each had standing to contest its validity. II In accordance with a stipulation between the parties, James Laughlin Sperry, Sharon Sperry Torrant, Marcia Lyman, Nathaniel Lyman and Suzanne Schreffler were granted intervenor status pursuant to General Statutes § 22a-19. In addition, Sperry, Sharon Sperry Torrant, Schreffler and Allan Torrant were deemed to be aggrieved pursuant to General Statutes § 8-8 a (1). Sperry and Sharon Sperry Torrant are parties to the present appeal. Their status is that of environmental intervenors as well as that of abutting landowners. The intervenors also claim that the plaintiffs were required to meet the jurisdictional requirements that apply to administrative appeals. This claim is a result of the trial court's mistaken reference to the standards for appellate review that govern administrative appeals. For practical purposes, under the circumstances of this case, we can see no significant difference between zoning appeals under General Statutes § 8-8 and administrative appeals under General Statutes § 4-183, and the intervenors have not pointed one out. The intervenors also question the court's finding that the commission was aware of the relationship between the parties. They rely on the fact that the agreement is not part of the return of record and that, at trial, with permission of the court, it became a sealed rather than an open document. The commission itself, however, has not claimed that it was not fully informed about the terms of the agreement. Our examination of the agreement reveals that the parts of the agreement that led to its being sealed have no bearing on this case. The intervenors do not claim that they were unable to read the agreement. If the intervenors think, nonetheless, that the court improperly sealed the agreement, they could have raised this issue in this appeal. It is telling that they have not done so. At trial, Kunzli answered affirmatively to the question: "As the 100 percent shareholder in RYA Corporation, is it fair to say that you, Mr. Kunzli, are in fact RYA Corporation?" There was no objection to this testimony. Myers testified, on behalf of Myers, Inc., that he had an agreement with Kunzli for the development of the property at issue. He further testified that the agreement allowed RYA to seek subdivisions for the property. Asked whether RYA had an agency relationship with Myers, Inc., he answered in the affirmative. Paragraph twenty-one of the agreement states: "This written Agreement constitutes the entire contract between the parties and all statements or any understandings not embodied herein shall be ineffective." The appellants note that other provisions in the Enfield subdivision regulations create an ambiguity about the meaning of § 4.a.2. Consistently, § l.e defines "developer" as "record owner or subdivider." Section l.i, however, defines "record owner or subdivider" in relevant part as "[t]he owner of record at the time application for subdivision is made . . . On the present record, we are disinclined to resolve this ambiguity by ignoring the express language of § 4.a.2. We recognize that the intervenors also challenge RYA's standing. Their argument is premised on their disagreement with the court's finding that RYA had standing because the agreement between Myers, Inc., and Kunzli clearly provided RYA with financial benefits as the developer of the property. The intervenors again rely on D.S. Associates v. Planning & Zoning Commission, supra, 27 Conn. App. 508. Much of the discussion in D.S. Associates, however, concerned the issue of aggrievement. With respect to standing, we did not question the standing of the partnership that originally had filed the land use application. We held only that a corporate successor to the partnership did not have standing because it had not refiled the application. Id., 512. In this case, by contrast, RYA itself filed the subdivision application. We are persuaded, therefore, that RYA had standing to appeal.

Per Curiam. The judgment is affirmed.

Opinion DUPONT, J. The plaintiff Arlene Cousins appeals from the judgment of the trial court rendered in favor of the defendants, Alan Nelson and Bridgeport Internal Medicine and Gastroenterology Associates, in this medical malpractice action. The judgment followed the court's denial of the plaintiffs motions to set aside the verdict and for a new trial. We affirm the judgment of the trial court. The plaintiff claims on appeal that the court improperly (1) denied her request to admit into evidence an article cited in a footnote of an article that had been admitted as a full exhibit, (2) prohibited her from cross-examining the defendants' expert witness regarding the article cited in the exhibit, (3) prohibited the plaintiff from cross-examining the defendants' expert witness regarding his role as a witness in a separate medical malpractice case involving the defendants and (4) denied the plaintiffs motion to set aside the verdict. The first three claims are evidentiary in nature and are discussed together. The plaintiff instituted this action seeking damages for injuries claimed to have been sustained as a result of the medical malpractice of the defendant physician, Nelson, a gastroenterologist, and the defendant medical group of which he is a member. Nelson performed a procedure on the plaintiff known as an endoscopic retrograde cholangiopancreatography (ERCP) to evaluate the plaintiffs bile duct system as well as an endoscopic sphincterectomy (ES), which utilizes an electric current to make an opening in the muscle that encircles the duct. Those procedures, both singularly and in combination, involve an inherent risk of pancreatitis. The plaintiff developed pancreatitis and associated conditions. She alleged that the medical procedures Nelson performed violated the applicable standard of care because they were not warranted or indicated by the plaintiffs history, by Nelson's findings or by test results. She also alleged that the medical procedures were the proximate cause of her injuries. Nelson claimed that the procedures were appropriate and warranted. A central issue at trial was what factors indicate that an ERCP should be performed and if the particular millimeter enlarge ment or dilation of the plaintiffs common bile duct warranted the performance of an ERCP. I EVIDENTIARY RULINGS A Standard of Review The plaintiffs claims relating to the introduction of evidence through (1) expert witnesses, (2) an article cited in a footnote of a full exhibit and (3) testimony-relating to another malpractice case to prove the violation by the defendants of the appropriate standard of care are challenges to evidentiary rulings of the court. "It is well settled that the trial court's evidentiary rulings are entitled to great deference. . . . The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the rulings amounted to an abuse of discretion." (Citation omitted.) Pestey v. Cushman, 259 Conn. 345, 368-69, 788 A.2d 496 (2002). Even if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated without a showing of harm. See Rokus v. Bridgeport, 191 Conn. 62, 70-71, 463 A.2d 252 (1983). In other words, the party claiming error also must prove that the outcome of the case would have been different were it not for the claimed error. Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467, 496-97, 806 A.2d 546, cert, denied, 262 Conn. 912, 810 A.2d 278 (2002). Further, if the same proffered evidence that was excluded could have been admitted at a later time in the trial, any inference that the error affected the verdict would be negated. Rokus v. Bridgeport, supra, 71. We conclude that the court did not abuse its discretion in connection with any of its evidentiary rulings. B Admissibility of the Article Cited in the Defendants' Exhibit We address first the plaintiffs claim that the court improperly denied the admission into evidence of an article cited in a footnote in an article previously admitted as defendants' exhibit II. The plaintiff claims that the cited article should have been admitted pursuant to the rule of completeness, as codified in § 1-5 (b) of the Connecticut Code of Evidence, or to counteract the defendant's alleged surprise tactics or to test the credibility of the defendants' expert witness on cross-examination. Testifying as to the relevant standard of care, and making repeated reference to "the literature," the plaintiffs expert witness, Jeffrey L. Ponsky of the Cleveland Clinic Foundation, stated that an ERCP was not indicated in this case, in part, because the plaintiffs common bile duct was at "the upper limits of normal" and that the "indications for the performance of an ERCP in the preoperative period would have included . . . perhaps a massively dilated bile duct on ultrasound, and I'm saying up to fifteen millimeters. Certainly, nothing of the size here." On cross-examination, Ponsky indicated that he was aware of nothing in the relevant medical literature stating that dilation of the common bile duct to eight millimeters is an indication that an ERCP should be performed. On cross-examination, the defendants showed Ponsky an article, published by the Cleveland Clinic Foundation in 2002 and written by a surgeon there, that clearly stated that dilation of the common bile duct of eight millimeters or greater is an indication for an ERCP. Ponsky testified that he disagreed with the conclusions stated in that article. The defendants sought to introduce into evidence the relevant portions of the article, at which point the plaintiff indicated that she did not have any objection to admitting the article in its entirety into evidence. The court admitted the article as defendants' exhibit H. Subsequently, after Ponsky returned to Ohio, the plaintiff sought to introduce the article cited in a footnote of the defendants' exhibit H, claiming that it was contrary to the opinion expressed in exhibit H. She offered the cited article when an expert witness for the defendants, Robert S. Rosson, was testifying, and again, by a separate offer of proof. The court denied both offers. The cited article was written in 1996 and published in the American Journal of Gastroenterology. It was not offered during redirect examination of Ponsky. The plaintiff argues that the cited article should have been placed into evidence in order to avoid misleading the jury. She argues that the jury should have been permitted to consider the expert testimony of Ponsky in light of the cited article, which, the plaintiff maintains, completely contradicts the defendants' exhibit H. The plaintiffs chief argument is that § 1-5 (b) of the Connecticut Code of Evidence permits the introduction of the article as a statement during the plaintiffs cross-examination of Rosson. Section 1-5 (b) applies to statements, and its purpose is to "ensure that statements placed in evidence are not taken out of context. . . . This purpose also demarcates the rule's boundaries; a party seeking to introduce selected statements under the rule must show that those statements are, in fact, relevant to, and within the context of, an opponent's offer and, therefore, are part of a single conversation." (Citation omitted.) State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991). "Although the cases upon which subsection (b) is based deal only with the admissibility of oral conversations or statements, the rule logically extends to written and recorded statements. Thus, like subsection (a), subsection (b)'s use of the word 'statement' includes oral, written and recorded statements. In addition, because the other part of the statement is introduced under subsection (b) for the purpose of putting the first part into context, the other part need not be independently admissible. " Conn. Code Evid. § 1-5, commentary, subsection (b); see State v. Paulino, 223 Conn. 461, 468-69, 613 A.2d 720 (1992); State v. Castonguay, supra, 496; cf. Starzec v. Kida, 183 Conn. 41, 47 n.6, 438 A.2d 1157 (1981). The plaintiff asks us to extend the meaning of the word "statement" to include learned treatises claimed to be "a part of' another treatise that previously was admitted into evidence. We are aware of no appellate authority in Connecticut extending the scope of § 1-5 (b) of the Connecticut Code Evidence to permit the admission of a learned treatise as a "part of' a different, independent learned treatise written by a different author. In this case, the defendants sought to impeach Pon-sky's credibility by challenging his knowledge of the relevant medical literature. Specifically, the defendants attempted to discredit Ponsky's testimony that an eight millimeter dilation, on ultrasound, of the common bile duct was not a factor predicting common bile duct stones and, thus, not an indication for the performance of an ERCP. The defendants achieved that result by confronting Ponsky with an article that stated that an eight millimeter dilation is an indication for the performance of an ERCP. Subsequently, during the cross-examination of Rosson, the plaintiff sought to introduce an article cited in the defendants' article. The defendants objected, noting that the plaintiff had failed to lay a proper foundation for the introduction of a learned treatise, and the court sustained the objection. In her offer of proof outside the presence of the jury, the plaintiff argued that the cited article should be admitted either under the rule of completeness or to remedy the defendants' unfair surprise tactics. In order for § 1-5 (b) to apply in this case, we must conclude that a learned treatise is a "statement," given the facts of this case, within the meaning of § 1-5. First, we note that neither Ponsky nor Rosson wrote or contributed to the writing of the defendants' exhibit H or to the cited article. Nothing, therefore, in the cited article can be fairly characterized as a "statement" or a "partial statement" by Ponsky or Rosson, or by the author of exhibit H. All of the Connecticut cases of which we are aware concern the introduction of other statements made by witnesses prior to their in-court statements that ought to be "in fairness" considered as well as the in-court statements of the witnesses. See State v. Jackson, 257 Conn. 198, 213, 777 A.2d 591 (2001); State v. Hines, 243 Conn. 796, 807, 709 A.2d 522 (1998) (statement to police by witness); State v. Castonguay, supra, 218 Conn. 496-97 (defendant's testimony in his prior trial); State v. Reese, 77 Conn. App. 152, 164-65, 822 A.2d 348 (statement by witness made prior to trial), cert, denied, 265 Conn. 910, 831 A.2d 252 (2003); State v. Colon, 71 Conn. App. 217, 233-35, 800 A.2d 1268 (statement by defendant to victim's mother), cert, denied, 261 Conn. 934, 806 A.2d 1067 (2002). No case cited by the plaintiff allows the introduction of the text of a treatise cited in a footnote of another treatise previously introduced in evidence when the witness has authored neither the admitted treatise nor the cited treatise. The cited treatise was not a clarification of, or a deviation from, a prior statement by the same author. There is no authority for extending the scope of § 1-5 (b) to allow a battle of statements made in two different treatises by two different authors. Unlike every other decisional situation in which § 1-5 has been applied, the alleged "statement" here was an article written six years earlier by a person who was neither a witness nor involved in the litigation. We conclude that, on the facts of this case, § 1-5 (b) is not applicable. We now turn to the plaintiffs alternative argument for the introduction of the cited article. Relying on § 4-3 of the Connecticut Code of Evidence and Hackling v. Casbro Construction of Rhode Island, 67 Conn. App. 286, 292, 786 A.2d 1214 (2001), the plaintiff argues that because the defendants' exhibit H should have been excluded from evidence to prevent an allegedly unfair surprise, the article cited in exhibit H should have been admitted into evidence to counteract the allegedly unfair surprise. The plaintiff contends that the defendants neither provided a copy to the plaintiff nor pre-marked for identification exhibit H as an exhibit that the defendants intended to use at trial, despite a civil jury trial management order requiring such premarking. The plaintiff claims that the defendants intentionally used exhibit H to surprise both the plaintiffs counsel and Ponsky. In this case, when the defendants' exhibit H was introduced into evidence, no claim of surprise was made by the plaintiff, and no objection was made to its introduction as a full exhibit. While the trial was still underway, the plaintiffs counsel read the article cited in footnote nine of exhibit H, but did not seek a continuance in order to introduce it as a learned treatise through another gastroenterologist more readily available than Ponsky, who had returned to Ohio. We note that the defendants' exhibit H was not introduced by the defendants during their case, but during the plaintiffs case. Furthermore, in the civil jury trial manage ment report, the parties reserved their rights to introduce additional exhibits depending on the evidence introduced by the other parties. The testimony of Ponsky could have been considered evidence that invoked the right of the defendants to introduce an exhibit that was not previously disclosed to the plaintiff. In Hackling v. Casbro Construction of Rhode Island, supra, 67 Conn. App. 292, unlike this case, the trial court found that a disputed piece of documentary evidence should have been given to the opposing party earlier in the case. When a party has been less than candid by manufacturing its cross-examination as a vehicle to introduce a document that should have been produced earlier, in an apparent effort to surprise the opposing party and to discredit the latter's expert witness, the withholding constitutes a litigation strategy featuring surprise that is not tolerated by the courts. Id., 292-93. The court in this case made no such findings, and we conclude that Hackling is not controlling. We do not disturb the court's exercise of discretion to exclude the article cited in the defendants' exhibit H. C Cross-examination of the Defendants' Expert Witness The plaintiff next claims that the court improperly precluded her from cross-examining the defendants' expert concerning the article cited in the defendants' exhibit. Arguing that because the court admitted the Cleveland Clinic Foundation article into evidence as a full exhibit, and because Rosson testified that he agreed with that article's conclusion, the plaintiff contends that the article cited in the Cleveland Clinic Foundation article was a proper subject of cross-examination in order to test the credibility of Rosson. The plaintiff further contends that "the foundation requirements that permit introduction of or reference to treatises or jour nal articles should not apply in this context." We do not agree. The plaintiff contends that she should have been permitted to cross-examine Rosson, who neither read the article cited in the exhibit nor acknowledged it as a standard authority, regarding the conclusions stated in that article so as to test his credibility. The plaintiff cites no authority in support of that proposition. In fact, the rule in this state is quite the opposite: "In the cross-examination of experts, extracts from treatises either relied on by the expert on direct or recognized by the expert as authoritative may be used in questions to test the expert's qualifications and opinion." (Emphasis added.) C. Tait, Connecticut Evidence (3d Ed. 2001) § 7.11.2, p. 539; Kaplan v. Mashkin Freight Lines, Inc., 146 Conn. 327, 330-31, 150 A.2d 602 (1959); State v. Wade, 96 Conn. 238, 250-51, 113 A. 458 (1921); see also Harlan v. Norwalk Anesthesiology, P.C., 75 Conn. App. 600, 605, 816 A.2d 719, cert, denied, 264 Conn. 911, 826 A.2d 1155 (2003). Rosson neither relied on the cited article during direct examination, nor recognized the article as authoritative. At no point during the trial was that article offered as a learned treatise. The court properly precluded the plaintiff, therefore, from cross-examining Rosson in connection with the substantive conclusions stated in the cited article, as if it were a learned treatise, under the guise of testing Rosson's credibility. D Cross-examination of the Defendants' Expert Witness Regarding Separate Malpractice Cases The plaintiff next claims that the court improperly precluded her from cross-examining the defendants' expert concerning both his previous and simultaneous service as the defendants' expert in unrelated malprac tice cases. Relying on Hayes v. Manchester Memorial Hospital, 38 Conn. App. 471, 474 — 75, 661 A.2d 123, cert, denied, 235 Conn. 922, 666 A.2d 1185 (1995), the plaintiff argues that the court, in precluding her from cross-examining Rosson in connection with his service as an expert witness for the defendants in unrelated malpractice actions against them, improperly precluded her from eliciting facts that would have raised legitimate questions about the credibility and, specifically, the bias, of Rosson. We disagree. Addressing that claim in its memorandum of decision denying the plaintiffs motion for a new trial, the court stated in relevant part that it "placed no restrictions on the plaintiff with respect to cross-examination of . . . Rosson as to any personal relationships between the witness and [Nelson] or [a partner of Nelson], The potential prejudice arising from reference to other malpractice claims, with or without reference to the settlement or result of those claims, would outweigh any evidentiary value that such testimony [could] have and would conceivably open the door to lengthy testimony on collateral issues." We agree with the court's finding that the evidence was unduly prejudicial. Although a basic and proper purpose of cross-examination of an expert is to test that expert's credibility; Richmond v. Longo, 27 Conn. App. 30, 38, 604 A.2d 374, cert, denied, 222 Conn. 902, 606 A.2d 1328 (1992); the plaintiffs proposed line of inquiiy could not have revealed any potential personal stake on the part of Rosson in the outcome of the trial. See Vasquez v. Rocco, 267 Conn. 59, 69-70, 836 A.2d 1158 (2003) (court improperly precluded plaintiff from cross-examining expert witness concerning expert's substantial connection to defendant's insurance carrier); see also Hayes v. Manchester Memorial Hospital, supra, 38 Conn. App. 475-76 (court improperly precluded plaintiff from cross-examining defendant's expert witness concerning pending malpractice action brought against expert). The court correctly concluded that the potential for prejudice outweighed any probative value of evidence regarding other malpractice claims brought against the same defendants and would have involved lengthy testimony on collateral issues. Furthermore, even if the court abused its discretion in excluding such cross-examination, the exclusion was unlikely to have affected the outcome. See Musorofiti v. Vleck, 65 Conn. App. 365, 385-87, 783 A.2d 36, cert, denied, 258 Conn. 938, 786 A.2d 426 (2001). II MOTION TO SET ASIDE VERDICT The plaintiffs last claim on appeal is that the court improperly denied her motion to set aside the verdict. The plaintiff argues that the defendants' surprise tactics ambushed her on two fundamental questions of liability. Specifically, the plaintiff claims that the defendants' introduction of exhibit H and the defendants' initial equivocation on an issue that previously had been admitted in response to the plaintiffs request for admissions amounted to unfair surprise tactics designed to place her at a strategic disadvantage. We already have concluded that the defendants' use of exhibit H did not constitute unfair surprise. We also have concluded that the defendants' initial equivocation concerning a fact previously admitted in response to the plaintiffs request for admissions was cured by the court's instruction to the jury. Our standard of review of a court's denial of a motion to set aside the verdict is well settled. "[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict. . . [is] the abuse of discretion stan dard. . In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached. . A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted." (Internal quotation marks omitted.) Arnone v. Enfield, 79 Conn. App. 501, 505-506, 831 A.2d 260, cert, denied, 266 Conn. 932, 837 A.2d 804 (2003). The trial court did not abuse its discretion in denying the motion to set aside the verdict. The judgment is affirmed. In this opinion the other judges concurred. The plaintiffs husband, Nicholas Cousins, originally sought damages for loss of consortium but withdrew his claim during the trial. We therefore refer in this opinion to Arlene Cousins as the plaintiff. The defendants argue that the record is inadequate for review of the claim because the plaintiff never had the cited article marked for identification. Although the failure to mark an exhibit for identification ordinarily precludes appellate review of its exclusion; Carpenter v. Carpenter, 188 Conn. 736, 745, 453 A.2d 1151 (1982); an adequate substitute identification exists here in the offer of proof of the contents of the cited article that was made by the plaintiff in the absence of the jury, and the article also was attached to the plaintiff's subsequent motion to set aside the verdict. See Plawecki v. Angelo Tomasso, Inc., 1 Conn. App. 48, 49-50 n.3, 467 A.2d 944 (1983), cert. denied, 192 Conn. 801, 470 A.2d 1218 (1984). Connecticut Code Evidence § 1-5 provides in relevant part: "Remainder of Statements . . . (b) Introduction by another party. When a statement is introduced by a party, another party may introduce any other part of the statement, whether or not otherwise admissible, that the court determines, considering the context of the first part of the statement, ought in fairness to be considered with it." Connecticut Code of Evidence § 4-3, titled, "Exclusion of Evidence on Grounds of Prejudice, Confusion or Waste of Time," provides: "Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence." The plaintiff does not rely on the learned treatise exception to the hearsay rule, as stated in § 8-3 (8) of the Connecticut Code Evidence, to argue that the article cited in footnote nine of the defendants' exhibit H should have been admitted. Section 8-3, titled, "Hearsay Exceptions: Availability of Declarant Immaterial," provides in relevant part: "The following are not excluded by the hearsay rule, even though the declarant is available as a witness . (8) Statement in learned treatises. To the extent called to the attention of an expert witness on cross-examination or relied on by the expert witness in direct examination, a statement contained in a published treatise, periodical or pamphlet on a subject of history, medicine, or other science or art, recognized as a standard authority in the field by the witness, other expert witness or judicial notice." As the court correctly noted, the witness, Robert S. Rosson, through whom the plaintiff intended to introduce the cited article, had never seen, read or relied on it. It, thus, could not be introduced as a learned treatise because there was no compliance with the provisions of § 8-3 (8), nor could it be used to attack the witness' credibility because nothing in his testimony related to the article. Furthermore, it could not be used to attack the substance of his testimony. See Harlan v. Norwalk Anesthesiology, P.C., 75 Conn. App. 600, 607, 816 A.2d 719, cert, denied, 264 Conn. 911, 826 A.2d 1155 (2003). Ponsky is the director of surgical endoscopy at the Cleveland Clinic Foundation in Cleveland, Ohio. We are concerned with subsection (b) rather than subsection (a) of § 1-5 of the evidence code because (a) pertains to contemporaneous statements. The plaintiff also claims that N elson "surprised" her by testifying contrary to his pretrial admission regarding the diameter of the scope used in the medical procedures at issue. Any prejudice relating to the failure of Nelson to stay true to his admission was countered by the court's instruction to the jury that his admission controlled the jury's deliberations, regardless of his trial testimony. See footnote 8.

Opinion SCHALLER, J. These two appeals arise from post-judgment orders by the trial court. The defendant, Bruce Zirinsky, appeals from certain postdissolution orders of the court, all of which essentially denied his request for modification of an agreement between the parties with respect to the payment of child support. In both appeals, the defendant claims that the court improperly (1) permitted the plaintiff, Sarah Zirinsky, to use a motion to strike to attack the legal sufficiency of post-judgment motions, (2) considered facts outside the pleadings when ruling on the plaintiffs motions to strike and (3) granted the motions to strike. We reverse the orders of the court. A detailed recitation of the facts and procedural history is necessary for the resolution of these appeals. The defendant and the plaintiff were married in New York on October 26, 1979. They have four children of the marriage, the oldest bom in 1984 and the youngest bom in 1987. The marriage was dissolved by the court on June 16,1999. Incorporated into the dissolution judgment was an extensive written agreement. The agreement, a twenty-four page document, provided that the parties would share joint legal custody of the four children, who would reside primarily with the plaintiff. The defendant was required to pay any costs or expenses associated with his visitation rights and was ineligible to receive any deduction from his payment obligation to the plaintiff. The agreement provided that the defendant was to pay a base amount of unallocated alimony and support of $21,000 per month. Paragraph 3.16 (a) of the agreement provided that the alimony orders were subject to modification pursu ant to General Statutes § 46b-86, except that the plaintiff was precluded from claiming additional alimony in the event that the defendant's income exceeded $2.5 million. Paragraph 3.16 (a) also referenced paragraph 3.23 of the agreement, which provided in relevant part that the "children ceasing to principally reside with the [plaintiff] shall not be a substantial change in circumstances for purposes of [§ 46b-86] . . . ." The parties signed the agreement on June 15, 1999, and the court incorporated it into the judgment on June 16, 1999. The defendant filed a postjudgment motion for modification in July, 2001. The defendant alleged that one of the children was attending boarding school and, when not at school, resided exclusively with him. He further alleged that another of the minor children lived exclusively with him. Finally, he claimed that during the period after judgment had been rendered and the filing of his motion, all of the children had spent substantial amounts of time in his home. The defendant referenced language in the agreement that the plaintiff "shall be responsible for support of the minor children" and on the basis of the aforementioned change in circumstances, he was entitled to received support payments for the children who lived with him. On September 27, 2001, the plaintiff filed a motion to dismiss the defendant's motion for modification, which the court denied. The plaintiff, pursuant to Practice Book § 25-16, subsequently filed on September 12, 2002, a motion to strike the defendant's motion for modification. She argued that the express terms of the agreement stated that the children's change of residence was not a ground for modification and therefore the defendant's motion was legally insufficient. The court held a hearing on the plaintiffs motion on September 30, 2002. At the conclusion of that hearing, the court granted the plaintiffs motion. On October 8, 2002, the defendant filed the appeal designated AC 23558, and on October 24, 2002, he filed a motion for articulation of the court's decision. On December 30, 2002, the court filed a written memorandum of decision articulating its prior oral order. The court determined that the parties clearly and unambiguously provided that if some or all of the children ceased to reside with the plaintiff, it would not constitute a substantial change in circumstances warranting modification. The court concluded, therefore, that the defendant's motion for modification, which was based solely on the changed residence of the minor children, was legally insufficient. Neither party moved for judgment and, as a result, the court did not render judgment following the granting of the plaintiffs motion to strike. On October 25, 2002, after the appeal designated AC 23558 had been filed, the defendant filed a postjudgment motion for contempt. In the motion, he again alleged that the plaintiff had failed to provide child support and wilfully disregarded the judgment of the court requiring her to pay support for the minor children. The defendant requested in relevant part that "(1) the plaintiff be found in contempt for her failure to pay for the reasonable support of her children as specifically required pursuant to paragraph 3.21 of the . . . [agreement; (2) the plaintiff be ordered to reimburse the defendant for the reasonable payments made by him for the support for the children; (3) the plaintiff be ordered to pay for the reasonable monthly support for those minor children that continue to reside with the defendant; and (4) the court enter such other and further relief that it deems just and proper." Simultaneous with the filing of the motion for contempt, the defendant filed a postjudgment motion for an order pertaining to child support. He again alleged that the plaintiff had failed to pay the support for the children. He requested that the court order the plaintiff to reimburse him for payments made to support the minor children living with him and to pay reasonable monthly support for those children. On December 26, 2002, the plaintiff filed a motion to strike or to dismiss the defendant's motions for contempt and for an order. The court issued its memorandum of decision on April 28, 2003. The court, at the outset, stated that the defendant was "testing the same provisions" of the agreement that he had challenged with the prior motion for modification. The court struck the defendant's motion for an order on the same basis that it had granted the motion to strike the defendant's motion for modification. As to the motion for contempt, the court struck only paragraphs two and three of the relief sought by the defendant, sustained the objection to the motion to strike with respect to paragraphs one and four and noted that an evidentiary hearing was required. Again, because neither party moved for judgment after the court granted the plaintiffs motion to strike, the court did not render judgment. The defendant filed an appeal on May 14, 2003, designated AC 24289, from the partial granting of the motion to strike. I AC 23558 We first address the appeal designated AC 23558. Before considering the merits of the issues framed by the parties, we must first determine whether the appeal has been brought from a final judgment. Second, we address the waiver issue raised by the plaintiff. Only if we conclude that an appealable final judgment exists and that the defendant did not waive his rights to appeal will we reach the merits of the appeal. A "We begin with established jurisdictional principles that guide, and indeed control, whether an order is appealable. Appellate jurisdiction is limited, with few statutory exceptions not pertinent to this case, to appeals from final judgments. See General Statutes § 51-197a, 51-199 and 52-263; see also Practice Book § 4000 [now § 61-1]. Consequently, interlocutory appeals must be dismissed. The difficulty comes not with the rule, but, rather, with its application. To help evaluate whether an otherwise interlocutory order is nonetheless final for purposes of appeal, we have in recent years relied on the standard set forth in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), which permits the immediate appealability of an order 'in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.' " Taff v. Bettcher, 243 Conn. 380, 384-85, 703 A.2d 759 (1997). Furthermore, "[b]ecause [appellate] jurisdiction over appeals, both criminal and civil, is prescribed by statute, [appellate courts] must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim." (Internal quotation marks omitted.) Ahneman v. Ahneman, 243 Conn. 471, 478-79, 706 A.2d 960 (1998). With respect to the appeal designated AC 23558, the court granted the plaintiffs motion to strike the motion for modification filed by the defendant. No judgment, however, was rendered following the decision. If this were a civil proceeding outside a postdissolution context, in which a motion to strike had been used to challenge the legal sufficiency of either a complaint, counterclaim or cross claim; see Practice Book § 10-39; the lack of a judgment would pose a serious, if not fatal, final judgment problem. "The granting of amotion to strike . . . ordinarily is not a final judgment because our rules of practice afford a party a right to amend deficient pleadings. See Practice Book § 10-44." Egri v. Foisie, 83 Conn. App. 243, 249, 848 A.2d 1266, cert, denied, 271 Conn. 931, 859 A.2d 930 (2004); see also Grier v. West Haven Police Dept., 8 Conn. App. 142, 143-44, 510 A.2d 1376 (1986) (party against whom motion to strike is granted must either replead within fifteen days or move for judgment in order to appeal.) The present case involves a unique set of circumstances that warrants a rare departure from the general rule requiring the parties to file a motion for judgment and the court to render judgment following the granting of the motion to strike in order to appeal. Our Supreme Court has stated that it "is well established that a ruling by a trial court regarding financial issues in a marital dissolution case . . . [including] a ruling issued in conjunction with a final dissolution judgment or a decision regarding a postjudgment motion — is a final judgment for purposes of appeal." (Emphasis added.) Ahneman v. Ahneman, supra, 243 Conn. 479. The court further stated: "The trial court's decision not to consider the defendant's motions was the functional equivalent of a denial of those motions. Like a formal denial, the effect of the court's decision refusing to consider the defendant's motions during the pendency of the appeal was to foreclose the possibility of relief from the court on those issues, unless and until the resolution of the appeal required further proceedings. Indeed, the refusal to consider a motion is more deserving of appellate review than a formal denial, because the defendant not only has been denied relief; she has been denied the opportunity even to persuade the trial court that she is entitled to that relief." Id., 480. In the context of a postdissolution setting, in which the trial court granted a party's motion to strike a post-judgment motion, we conclude that under this limited factual setting, the rights of the parties were concluded. Moreover, the court, by granting the plaintiffs motion to strike, effectively rendered judgment by foreclosing the possibility of relief from the trial court as to the child support issues raised in the defendant's motion for modification. We are satisfied that an appealable final judgment is present. "Appealability depends on the nature of the ultimate right sought to be vindicated and the effect of the trial court's decision on the vindication of this right." (Internal quotation marks omitted.) Sharon Motor Lodge, Inc. v. Tai, 82 Conn. App. 148, 155, 842 A.2d 1140, cert, denied, 269 Conn. 908, 852 A.2d 738 (2004). We emphasize that this decision is limited strictly to the facts presented and does not signify any change or departure from the general rule requiring the rendering of judgment in order to appeal following the granting of a motion to strike. B Having concluded that a final judgment exists, we turn to the plaintiffs claim that the defendant waived any right to appeal from the decision with respect to his motion for modification by subsequently filing a motion for contempt and a motion for an order pertaining to child support. The plaintiff relies on the general rule that "[t]he filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the [motion to strike] the original pleading." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 74, 700 A.2d 655 (1997). "After a trial court has sustained a motion to strike a complaint or a portion of the complaint, the plaintiff has two options. . . . The plaintiff may either amend his pleading, or he may stand on his original pleading, allow judgment to be rendered against him, and appeal the sustaining of the [motion to strike]. . . . The choices are mutually exclusive. The filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the [motion to strike] the original pleading. . . . When a [motion to strike] is sustained and the pleading to which it was directed is amended, that amendment acts to remove the original pleading and the [motion to strike] thereto from the case. The filing of the amended pleading is a withdrawal of the original pleading." (Citation omitted; internal quotation marks omitted.) Lawson v. Aetna Life Ins. Co., 59 Conn. App. 84, 90, 755 A.2d 351 (2000). At the outset, we note that "[a]n interpretation of the pleadings in the underlying action . . . presents a question of law and is subject to de novo review on appeal." (Internal quotation marks omitted.) Breiter v. Breiler, 80 Conn. App. 332, 335, 835 A.2d 111 (2003). As we previously have stated, the present case presents an unusual procedural setting, as all of the relevant motions occurred in a postdissolution context. The defendant did not file an amended pleading after the court struck his motion for modification. He filed two new motions on October 25, 2002. We conclude that the general rule that the filing of an amended pleading operates as a waiver to any appeal with respect to the original pleading simply does not apply under these unique facts and circumstances. Although all three of the defendant's motions touch on the issue of child support, we believe that the two October 25, 2002 motions, which seek reimbursement from the plaintiff, and "other and further relief that [the court] deems just and proper," are sufficiently distinct from the motion for modification filed on June 9, 2001. The motions for contempt and for an order, therefore, do not constitute amended motions for modification. As a result, the defendant did not waive his right to appeal from the court's order to strike the motion for modification. C We now examine the issues raised by the defendant in his appeal. The defendant claims that the court improperly (1) permitted the plaintiff to use a motion to strike to attack the legal sufficiency of a postjudgment motion, (2) considered facts outside the pleadings when ruling on the plaintiffs motion to strike and (3) granted the motion to strike. We agree with the defendant on his first claim. As a preliminary matter, we identify the appropriate standard of review. The defendant claims that the use of a motion to strike is not authorized by our rules of practice to challenge the legal sufficiency of a postjudgment motion. He argues that, on the basis of the language set forth in Practice Book § 10-39 and 25-16, motions to strike are limited to challenging one or more counts found in complaints, cross complaints and counterclaims. We are required to interpret the scope of those rules of practice; accordingly, we are presented with a question of law over which our review is plenary. See In re Samantha C., 268 Conn. 614, 638, 847 A.2d 883 (2004). In doing so, we are mindful that "[t]he rules of statutory construction apply with equal force to Practice Book rules." (Internal quotation marks omitted.) Johnson v. Atlantic Health Services, P.C., 83 Conn. App. 268, 276, 849 A.2d 853 (2004); see also State v. Valedon, 261 Conn. 381, 385, 802 A.2d 836 (2002). In Sheiman v. Sheiman, 72 Conn. App. 193, 804 A.2d 983 (2002), the defendant father filed a motion to strike the plaintiffs postjudgment motion to modify custody. We agreed with the trial court that "a motion to strike does not apply to a motion to modify custody." Id., 200. We elaborated by stating that "Practice Book § 10-39 (a) provides that a party wanting to contest the legal sufficiency of a complaint, counterclaim, cross claim or any counts contained therein or a prayer for relief, the joining of two or more causes of action or the legal sufficiency of an answer may file a motion to strike. A motion for modification of custody does not fall within the ambit of Practice Book§ 10-39. " (Emphasis added.) Sheiman v. Sheiman, supra, 200. We believe that the reasoning set forth in Sheiman with respect to a motion to modify custody applies equally to a motion to modify support. Although Sheiman controls the issue, we believe it appropriate to explain further our reasoning. The appropriate starting point is the language used in the relevant rules of practice. See Mariculture Products Ltd. v. Certain Underwriters at Lloyd's of London, 84 Conn. App. 688, 698, 854 A.2d 1100, cert, denied, 272 Conn. 905, 863 A.2d 698 (2004). Practice Book § 25-16 (a) provides in relevant part that "[w]henever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint or cross complaint, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any claim for relief in any such complaint or cross complaint. . . that party may do so by filing a motion to strike the contested pleading or part thereof." (Emphasis added.) The inclusion of the term "counterclaim" is the only appreciable difference found in Practice Book § 10-39. The motion to strike filed by the plaintiff was directed at the defendant's postjudgment motion for modification. Neither Practice Book § 25-16 nor Practice Book § 10-39 mentions motions of any type. This case calls to mind the "tenet of statutory construction known as expressio unius est exclusio alteráis, translated as the expression of one thing is the exclusion of another . . . ." (Citation omitted; internal quotation marks omitted.) Hatt v. Burlington Coat Factory, 263 Conn. 279, 295, 819 A.2d 260 (2003). Thus, "[a] statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way." (Internal quotation marks omitted.) Iovieno v. Commissioner of Correction, 222 Conn. 254, 258, 608 A.2d 1174 (1992). The language used in Practice Book § 10-39 and 25-16 specifically addresses certain identified pleadings, complaints, counterclaims and cross claims and, therefore, does not apply to motions. In further support of our conclusion, we note that the motions filed by the defendant are addressed in a different section of our rules of practice. Practice Book § 25-24, titled "Motions," provides in relevant part that "[a]ny appropriate party may move for alimony, child support, custody, visitation, appointment of counsel for the minor child, counsel fees, or for an order with respect to the maintenance of the family or for any other equitable relief." Practice Book § 25-24 (a). Other motions specifically mentioned in chapter 25 of the rules of practice include motions for exclusive possession, for modification of custody, alimony or support and for contempt. The use of those motions in family proceedings, therefore, is separate and distinct from the use of a motion to strike under Practice Book § 25-16. Finally, we note that a motion to strike is essentially a procedural motion that focuses solely on the pleadings. "Because the issues concern the granting of a motion to strike, we are limited to and must accept as true the facts alleged in the plaintiffs' amended complaint . . . ." Craig v. Driscoll, 64 Conn. App. 699, 702, 781 A.2d 440 (2001), aff'd, 262 Conn. 312, 813 A.2d 1003 (2003). It is, therefore, improper for the court to con sider material outside of the pleading that is being challenged by the motion. See Doe v. Marselle, 38 Conn. App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996). The defendant, however, filed a motion to modify child support and, therefore, the parties were under an affirmative obligation to submit certain sworn statements concerning income, expenses, assets and liabilities, as well as a child support guidelines worksheet. See Practice Book § 25-30. Such additional evidence would not be proper when resolving a motion to strike. To allow a motion to strike to be used in this case would result in a direct conflict with another section of our rules of practice. We are mindful of the admonition against favoring form over substance. See Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 34, 848 A.2d 418 (2004). This court, however, has found reversible error when the rules of practice have not been followed. See, e.g., Heim v. California Federal Bank, 78 Conn. App. 351, 828 A.2d 129, cert, denied, 266 Conn. 911, 832 A.2d 70 (2003). In that case, we stated that "[pjleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them. . . . Our rules of practice contain provisions for the framing of issues. . . . Given what may be the legal consequence to a party against whom such a motion is granted, the movants should be required to follow our rules of practice, especially as to the party or parties against whom it is directed." (Citations omitted; internal quotation marks omitted.) Id., 363. Additionally, "[w]e are mindful that it is a fundamental tenet of due process that persons directly concerned with the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses. . . . This case calls to mind the admonition that [e\ither we adhere to the rules [of practice] or we do not adhere to them." (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 364. In the present case, by granting the plaintiffs motion to strike the defendant's postjudgment motion for modification, the rules of practice were not followed. Accordingly, we determine that the court improperly granted the plaintiffs motion to strike the defendant's postjudgment motion for modification. II AC 24289 We now turn to the appeal designated AC 24289. Again, before we can reach the merits of the appeal, we must determine whether there is an appealable final judgment. If a final judgment exists, we will address the questions raised by the defendant concerning the propriety of the use of a motion to strike his postjudgment motions for contempt and for an order. A As we noted in part I A, the existence of an appealable final judgment is a jurisdictional prerequisite for this court. This appeal presents two final judgment questions: First, does a final judgment exist when the trial court strikes a postjudgment motion for an order, but does not render judgment accordingly? Second, does a final judgment exist when the trial court strikes two of the four requests for relief in a postjudgment motion for contempt and requires an evidentiary hearing on the remaining two requests? We resolve the first question by applying the reasoning and rationale set forth in part I A and conclude that under these unique facts and circumstances, the court's decision to strike the defendant's postjudgment motion for an order constituted an appealable final judgment, even in the absence of the rendering of judgment. We now turn to the second question, that is, whether the court's decision to grant the plaintiffs motion to strike with respect to two claims for relief and to deny the motion with respect to the remaining claims for relief qualifies as an appealable final judgment. At this point, it is useful to restate precisely what relief the defendant sought to obtain in his motion for contempt. The defendant's motion requested that "(1) the plaintiff be found in contempt for her failure to pay for the reasonable support of her children as specifically required pursuant to paragraph 3.21 of the Separation Agreement; (2) the plaintiff be ordered to reimburse the defendant for the reasonable payments made by him for the support of the children; (3) the plaintiff be ordered to pay for the reasonable monthly support for those minor children that continue to reside with the defendant; and (4) the court enter such other and further relief that it deems just and proper." The court stated in its memorandum of decision that because the defendant had sufficiently pleaded the basic elements of contempt, the court was required to conduct an evidentiary hearing. It further stated that "the court has the power to enter appropriate orders so as to either preserve the integrity of the original order . or to make one party whole due to the breach by the other party." (Citation omitted.) It is readily apparent that the court contemplated further proceedings as to the motion and did not render judgment. The court's ruling on the motion falls into the gray area between a final judgment and a nonappealable interlocutory order in which a Curdo analysis is required. See Bryant v. Bryant, 228 Conn. 630, 635, 637 A.2d 1111 (1994). The first prong of the Curdo test requires the termination of a separate and distinct proceedings. Id. We believe that the court, in striking two portions of the defendant's contempt motion, did not terminate a separate and distinct proceeding. "The first prong of the Curdo test requires the order being appealed to be severable from the central cause to which it is related so that the main action can proceed independent of the ancillary proceeding." (Internal quotation marks omitted.) Rocque v. Sound Mfg., Inc., 76 Conn. App. 130, 133, 818 A.2d 884, cert, denied, 263 Conn. 927, 823 A.2d 1217 (2003). The striking of two claims for relief is not sufficiently severable from the overall contempt motion that would warrant an immediate review by this court. The court's decision to strike two claims for relief in the contempt motion also fails to satisfy the second Curdo prong, which provides that the order is appeal-able immediately if it so concluded the rights of the parties that further proceedings cannot affect them. See Ragin v. Lee, 78 Conn. App. 848, 856, 829 A.2d 93 (2003). "The second prong of the two part test for finality under Curdo focuses on the nature of the right at issue. It requires the parties seeking to appeal to establish that the trial court's order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the [party] irreparably harmed unless they may immediately appeal. . . . Accordingly, the [appellant] must do more than show that the trial court's decision threatens him with irreparable harm. The [appellant] must show that that decision threatens to abrogate aright that he or she then holds." (Emphasis in original; internal quotation marks omitted.) Tappin v. Homecomings Financial Network, Inc., 265 Conn. 741, 751-52, 830 A.2d 711 (2003). We do not believe that the court's striking of two of the claims in the contempt motion caused the defendant an irretrievable loss or that he would be irreparably harmed. Once the court holds the evidentiary hearing and rules on the remaining claims for relief, the defendant may appeal from the decision of the court to refuse to hear certain of his claims for relief. At the present time, however, the pending issues set out in the contempt motion may affect the parties. Thus, we conclude that the portion of the appeal concerning the contempt motion must be dismissed for a lack of a final judgment. B The only remaining issue is whether the court improperly (1) permitted the plaintiff to use a motion to strike to attack the legal sufficiency of the postjudgment motion for an order, (2) considered facts outside the pleadings when ruling on the plaintiffs motion to strike and (3) granted the motion to strike. The same analysis that applied to our discussion in part I C with respect to the motion to strike the motion for modification results in the same conclusion with respect to the motion for an order. Without repeating that portion of our decision, we note simply that a motion to strike is an improper procedural vehicle to challenge the legal sufficiency of a postjudgment motion for an order and reverse the court's decision. In AC 23558, the judgment is reversed and the case is remanded for further proceedings in accordance with law. The appeal in AC 24289 is dismissed with respect to the striking, in part, of the defendant's motion for contempt; the judgment is reversed with respect to the striking of the defendant's motion for an order of child support and the case is remanded for further proceedings in accordance with law. In this opinion the other judges concurred. The plaintiff is currently known as Sarah Greenwood. The parties included a detailed, comprehensive payment schedule of additional alimony payments in the event that the defendant's income reached certain amounts. A recitation of those calculations is not necessary to resolve the appeal; it is sufficient to note that the defendant was required to pay monthly, unallocated alimony to the plaintiff. Paragraph 3.24 provides in relevant part that " '[ajlimony' . . . shall mean unallocated alimony and support if one or more [of the] minor children is living with the [plaintiff] or alimony only, if not. So long as the [defendant] is making payments . the [plaintiff] shall not seek payment of child support." The defendant labeled his motion a "motion for child support." In the court's memorandum of decision that was filed after the granting of the defendant's motion for articulation of the court's ruling granting the plaintiffs motion to strike the motion for child support, the court stated that the defendant's "filing of a motion seeking child support from the [plaintiff] is, in essence, a motion for modification, the net result of which, if granted, would be a shifting of his legal burden and a reduction in the moneys available to the [plaintiff]. " The court then proceeded to analyze the practical effect of the motion, rather than the label attached by the party. See In re Haley B., 262 Conn. 406, 412-13, 815 A.2d 113 (2003). At oral argument before this court, the defendant conceded that the court treated his motion for child support as a motion for modification and, thus, we will identify it as such. We raised the concern sua sponte and instructed the parties to discuss the final judgment issue at oral argument. We note that this departure from the general rule requiring the rendering of judgment following a motion to strike is particularly limited to the facts before us because we hold that a motion to strike is not the proper procedural vehicle to challenge the sufficiency of a postjudgment motion. Practice Book § 61-2 provides in relevant part that a "judgment on the granting of a motion to strike pursuant to Section 10-44 . . . shall constitute a final judgment. . . ." (Emphasis added.) Practice Book § 61-2 is consistent with prior appellate decisions regarding the nonappealability of the granting of a motion to strike when the trial court has not yet rendered judgment on the stricken pleading. Cf. Norwich v. Silverberg, 200 Conn. 367, 369 n.3, 511 A.2d 336 (1986); Breen v. Phelps, 186 Conn. 86, 89, 439 A.2d 1066 (1982). Because we conclude that a motion to strike cannot be used to challenge a motion to modify child support, the requirement of Practice Book § 61-2 is not applicable here. Although we need not resolve that issue, it is unclear whether this general rule even applies to motions rather than to amended pleadings. Because we conclude that a motion to strike is not a proper procedural vehicle to challenge the legal sufficiency of a post judgment motion, we need not address the remaining issues raised by the defendant. We note, however, that even if we were to conclude that a motion to strike were proper in the postjudgment context, it would have been improper for the court to grant such a motion in this case. It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents, such as the agreement between the parties. "We are limited, however, to a consideration of the facts alleged in the complaint. A 'speaking' motion to strike (one imparting facts outside the pleadings) will not be granted." Doe v. Marselle, 38 Conn. App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996). The plaintiff argues that Sheiman is distinguishable from the present ease because the motion in that case concerned custody while the motion in the present case focused on financial issues. To be sure, in the appropriate context, such as modification of a settlement agreement, that can be a crucial distinction. We do not, however, read Sheiman to turn on the fact that it was a motion for modification of custody. We therefore reject the plaintiffs attempt to distinguish Sheiman from the present case. Both Practice Book § 10-39 and 25-16 also permit the use of a motion to strike with respect to an answer or special defense. That fact is of no consequence to the present case. See Practice Book § 25-25. See Practice Book § 25-26. See Practice Book § 25-27. We point out that in reaching our decision, we express no opinion as to the merits of the defendant's motions. Furthermore, the question of whether a motion to strike postjudgment motions should be a viable procedural option to a party presented with a motion that very well may be legally insufficient is separate and distinct from whether it is available under the current rules of practice. We are aware that several decisions of the Superior Court have permitted the use of a motion to strike with respect to posljudgment motions. See Neway v. Bogner, Superior Court, judicial district of Fairfield, Docket No. 348109 (January3,2003) (33 Conn. L. Rptr. 648); Foster v. Foster, Superior Court, judicial district of New London, Docket No. 558204 (August 19, 2002) (33 Conn. L. Rptr. 24); Hillis v. Hillis, Superior Court, judicial district of Stamford-Norwalk, Docket No. 179465 (July 17, 2001); Smith v. Smith, Superior Court, judicial district of Stamford-Norwalk, Docket No. 164966 (April 12,2001) (29 Conn. L. Rptr. 536); but see Robinson v. Gwozdz, Superior Court, judicial district of Hartford, Docket No. 619118 (February 22, 2001) ("the court agrees with the defendant that the state's motion to strike is a particularly inappropriate vehicle with which to raise the issue. Motions to strike are provided in Practice Book § 10-39, and, in family cases, the nearly identical Practice Book § 25-16. The rule appears to provide a method to contest a complaint, cross complaint or answer. It is not apparent that is an appropriate response to a motion."). It is not for us, however, to rewrite the rules of practice in effort to favor practicality over process.

Opinion LAVERY, C. J. The plaintiffs, Michael Gaudino, Jacqueline Gaudino, Angelina Gaudino and Joseph Gau-dino, appeal from the summary judgment rendered by the trial court in favor of the defendant, the town of East Hartford. The court granted the defendant's motion for summary judgment on the grounds that the plaintiffs had not set forth a proper statutory claim under General Statutes § 7-465, and that the plaintiffs' common-law claims and statutory negligence claims under General Statutes § 52-557n were barred by governmental immunity. On appeal, the plaintiffs claim that the court improperly granted the defendant's motion for summary judgment because (1) the defendant's pleadings did not meet the standard for summary judgment and (2) governmental immunity does not apply in this case. We disagree and affirm the judgment of the trial court. The plaintiffs initiated this action after they suffered serious injuries in a head-on collision caused by a high speed police pursuit of a driver who had threatened to commit suicide by driving his vehicle into an oncoming car. The eight count complaint alleged that agents of the defendant were negligent, careless and wanton in their attempt to apprehend the suspect, who had declared that he intended to kill himself and others by causing an automobile collision. Additional facts will be provided as necessary. We begin by setting forth our standard of review. "The standard of review of a trial court's decision granting summary judgment is well established. Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court." (Citation omitted; internal quotation marks omitted.) Greenwich Hospital v. Gavin, 265 Conn. 511, 518-19, 829 A.2d 810 (2003). Generally, a municipality is immune from liability unless the legislature has enacted a statute abrogating such immunity. Caruso v. Milford, 75 Conn. App. 95, 99, 815 A.2d 167, cert, denied, 263 Conn. 907, 819 A.2d 838 (2003). Two such statutes are § 7-465 and 52- 557n. Those "statutes . . . coexist in that parties may choose to rely on either statute as long as they meet the requirements therein." Spears v. Garcia, 66 Conn. App. 669, 680, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003). Section 52-557n allows an action to be brought directly against a municipality for the negligent actions of its agents. Section 7-465 allows an action for indemnification against a municipality in conjunction with a common-law action against a municipal employee. In this case, the defendant filed a motion for summary judgment as to all counts of the complaint on the ground of governmental immunity. The court correctly noted that every count in the complaint contained a paragraph stating that "[tjhis action is brought pursuant to Connecticut General Statutes § 7-465." The court held that the plaintiffs' claims failed because they sued the municipality without bringing an action against employees or agents of the municipality. See Altfeter v. Naugatuck, 53 Conn. App. 791, 799, 732 A.2d 207 (1999) ("To invoke § 7-465, the plaintiffs first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof. Only then may the plain tiff go on to allege and prove the town's liability by indemnification." [Emphasis in original; internal quotation marks omitted.]). We agree with the court's ruling in favor of the defendant. The plaintiffs argue that the motion for summary judgment should have been dismissed because it was a disguised motion to strike. They rely on Gould v. Mellick & Sexton, 66 Conn. App. 542, 785 A.2d 265 (2001), rev'd, 263 Conn. 140, 819 A.2d 216 (2003), for the proposition that it was improper for the defendant to file a motion for summary judgment because that motion did not allow the plaintiffs an opportunity to replead. We stated in that case that "[i]n recent years, this court has noted that parties increasingly resort to motions for summary judgment when the proper procedural vehicle is a motion to strike. There is a substantial difference between a motion for summary judgment and a motion to strike. The granting of a defendant's motion for summary judgment puts the plaintiff out of court as it did in this case. See Practice Book § 17-49. The granting of a motion to strike allows the plaintiff to replead his or her case. See Practice Book § 10-44." (Internal quotation marks omitted.) Gould v. Mellick & Sexton, supra, 554. Although we do not condone the use of a motion for summary judgment as a response to a defective pleading when a motion to strike would suffice, we can find no statute, rule or case that prohibits the use of a motion for summary judgment in this context. In fact, our Supreme Court has stated that "[i]t is incumbent on a plaintiff to allege some recognizable cause of action in his complaint. If he fails so to do, it is not the burden of the defendant to attempt to correct the deficiency, either by motion, demurrer or otherwise. . . . Thus, failure by the defendants to demur to any portion of the amended complaint does not prevent them from claiming that the [plaintiffs] had no cause of action and that a judgment in their favor was not warranted." (Citation omitted; internal quotation marks omitted.) Brill v. Ulrey, 159 Conn. 371, 374, 269 A.2d 262 (1970). Because the statute abrogating municipal immunity that the plaintiffs pleaded in their action against the municipality also required an action against a municipal employee, summary judgment on the ground of municipal immunity properly was granted. The plaintiffs concede that § 7-465 was the incorrect statute to plead, but argue that this mistake was inconsequential. They contend in their brief that "[i]n any event, the plaintiffs submit that it did not matter, since the statutory basis for the claim against a municipality need not have been pleaded at all. Since the plaintiffs relied on § 52-557n in their opposition to summary judgment and because the trial court reached the question of that statute's applicability, the question is fully preserved." The plaintiffs rely on Spears v. Garcia, supra, 66 Conn. App. 676, in which this court held that "although a plaintiff should plead a statute in a complaint that abrogates governmental immunity, failing to do so will not necessarily bar recoveiy as long as the defendants are sufficiently apprised of the applicable statute during the course of the proceedings." (Emphasis in original.) Spears is distinguishable from this case. In that case, the plaintiffs' complaint was ambiguous in that it did not mention any statutory authority that abrogated governmental immunity. Id., 672. In contrast, the plaintiffs in the present case included in their complaint a clear citation to § 7-465, the statute on which they were relying. The plaintiffs could have pursued an action against the municipality under either § 7-465 or § 52-557n. They cannot, however, alter the statute under which their claim was based without amending their complaint. This they failed to do. We conclude, therefore, that the court properly granted the defendant's motion for summary judgment on the ground of municipal immunity because the plaintiffs brought suit under § 7-465 without also suing a municipal employee or agent. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 7-465 (a) provides in relevant part "Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded . . . lor physical damages to person or property, except as set forth in this section, if 1he employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty. . . . Govern mental immunity shall not be a defense in any action brought under this section. ." General Statutes § 52-557n provides in relevant part: "(a) (1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance . (2) Except as otherwise provided by law, apolitical subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." In fact, in this case, the defendant raised a defense that the pleadings were insufficient as a matter of law. The plaintiffs filed a motion to strike that defense for not being specific as to the deficiency in the complaint, and their motion was granted by the court. Although the defense was stricken, the plaintiffs' argument that they did not have notice of the deficiency and therefore could not file an amended complaint seems disingenuous. They were on notice that the defendant believed something was missing from the complaint. A review of the complaint and the governing law would have revealed the use of the incorrect statute. In their brief, the plaintiffs stated in relevant part: "The plaintiffs do not disagree with the trial court's conclusion that . . . General Statutes § 7-465 is an indemnification provision, which requires a successful action prosecuted directly against a public employee in the first instance. Tryon v. North Branford, 58 Conn. App. 702, 718, 755 A.2d 317 (2000). No allegations were made against individual municipal employees in this case." We note that the court also analyzed the motion for summary judgment under General Statutes § 52-557n. The court believed that the holding in Spears v. Garcia, supra, 66 Conn. App. 669, mandated that it address both statutes. We conclude that those alternate findings were not required. That issue is dispositive. We decline, therefore, to review the plaintiffs' other claims.

Per Curiam. The judgment is affirmed.

Per Curiam. The habeas court did not abuse its discretion in denying the petition for certification to appeal. The appeal is dismissed.

Per Curiam. The judgment is affirmed.

Opinion PER CURIAM. The pro se plaintiff, Terry Richardson, appeals from the judgment of the trial court, rendered following the granting of the motion for summary judgment filed by the defendants, the commissioner of correction and Virginia Golemba, John O'Neill and Gary Wright, employees of MacDougall-Walker Reception/ Special Management Unit (MacDougall), the prison where the plaintiff is incarcerated. The plaintiff claims that the court improperly held that he failed to exhaust his administrative remedies. We disagree and affirm the judgment of the trial court. On March 16, 2001, the plaintiff brought this action against the defendants, alleging denial of jobs, programs and legal mail, retaliation for filing a lawsuit, denial of access to the courts and the impairment of his parole possibilities. Before trial, the plaintiff and the defendants filed motions for summary judgment. In its memorandum of decision on those motions, the court found that the plaintiff had not alleged that he had filed a grievance or sought administrative review of the claims that he raised in his complaint, and, therefore, he failed to exhaust his administrative remedies. The court granted the defendants' motion for summary judgment, denied the plaintiffs motion for summary judgment and rendered judgment dismissing the plaintiffs action. This appeal followed. As an initial matter, we set forth the proper standard of review of a trial court's decision granting a motion for summary judgment. "Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Citation omitted; internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995); see also Practice Book § 17-49. "Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003). The plaintiff claims that the defendants violated his state and federal constitutional rights. "It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. . . . The exhaustion doctrine reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief . . . ." (Citations omitted; internal quotation marks omitted.) Simko v. Ervin, 234 Conn. 498, 503-504, 661 A.2d 1018 (1995). This requirement also is applicable to federal claims. "The United States Supreme Court in Porter v. Nussle, 534 U.S. 516, 519, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002), addressed the obligation of inmates, who claim their federal rights were denied while they were incarcerated, to exhaust prison grievance procedures before seeking judicial relief. The Supreme Court discussed the history of 42 U.S.C. § 1997e (a) and its predecessor, noting that in 1996, Congress invigorated the exhaustion provision of the Prison Litigation Reform Act. [Porter v. Nussle, supra], 524. The dominant concern of the act is to promote administrative redress, filter out groundless claims, and foster better prepared litigation of claims aired in court . . . ." (Internal quotation marks omitted.) Mercer v. Rodriquez, 83 Conn. App. 251, 262, 849 A.2d 886 (2004). As stated by the court, the plaintiff never presented evidence that he had filed a grievance in this case. "Under Connecticut's administrative scheme, if a complaint is brought to the attention of the [department of correction] and it investigates the matter and makes conclusions based on information provided in part by an inmate, that does not relieve the inmate of [his] responsibility to follow the proper procedures if [he] decides to bring a federal [or state] action based on such claims. . . . Furthermore, the department's directives set forth the procedures for an inmate to set into motion the grievance process. . . . [G]rievances that are rejected may be appealed . . . ." (Citations omitted; internal quotation marks omitted.) Id., 263. In this case, although the plaintiff presented evidence that he wrote letters and requests to certain MacDougall employees, he presented no evidence that a formal grievance or grievance appeal was ever filed. In fact, contradicting the plaintiffs assertion was the affidavit of John Breedlove, the grievance coordinator for Mac-Dougall, which indicated that the plaintiff had never filed a grievance or grievance appeal during his incarceration at MacDougall. We conclude that the court properly determined that there was no genuine issue as to whether the plaintiff had failed to exhaust his administrative remedies. Accordingly, the court properly granted the defendants' motion for summary judgment on that ground and dismissed the plaintiffs action. The judgment is affirmed. In their briefs, the parties dispute whether the plaintiffs claims are state or federal constitutional claims. We find that this is a distinction without a difference because the exhaustion doctrine applies to both state and federal constitutional claims. The plaintiff argues that his pro se status entitles him to leniency as to the requirement that he first exhaust his administrative remedies. We note that the liberal policy afforded pro se litigants does not grant them license to disregard relevant rules of procedural and substantive law. See Zanoni v. Hudon, 42 Conn. App. 70, 77, 678 A.2d 12 (1996); see also Mercer v. Rodriquez, supra, 83 Conn. App. 257 n.9. In light of the fact that the plaintiff has not filed a grievance as to his complaints and has not explained adequately why the remedies available through the grievance process would be inadequate, we cannot find merit in his argument that it would be futile for him to exhaust his administrative remedies. See Frank v. Dept. of Parks & Recreation, 78 Conn. App. 601, 607, 828 A.2d 692 ("[a]n administrative remedy, in order to be adequate, need not comport with the plaintiff['s] opinion of what a perfect remedy would be" [internal quotation marks omitted]), cert, granted on other grounds, 266 Conn. 914, 833 A.2d 465 (2003). Although the defendants additionally argue that the plaintiff also failed to exhaust his administrative remedies by not seeking a waiver of immunity from the claims commission, we need not address this argument in light of our conclusion that the judgment should be affirmed because of the plaintiffs failure to file a grievance or grievance appeal.

Opinion FLYNN, J. The defendant, Matthew Boseman, appeals from the judgment of the trial court finding him in violation of the conditions of and revoking his probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that (1) he was denied due process of law because he lacked notice sufficient to warn him that the conditions of his probation proscribed the specific conduct alleged to have placed him in violation, (2) there was insufficient evidence to support the court's finding that he violated the conditions of his probation, and the court, consequently, abused its discretion in making that finding, (3) the court imposed an illegal sentence and (4) if his conduct constituted a violation of the conditions of his probation, then the conditions improperly interfere with his constitutional right to visitation and contact with his child. We agree with the defendant's first and third claims and reverse the judgment of the trial court. In light of our conclusion that the defendant was denied due process, we analyze only that dispositive claim. The following facts are relevant to our resolution of this appeal. The defendant and his former girlfriend, Ronnie Booker, are parents of a child. On September 26,2000, the court issued a standing criminal restraining order against the defendant in favor of Booker. The court ordered that the defendant refrain from restraining, threatening, harassing, assaulting, molesting, sexually assaulting or attacking Booker. Additionally, the court ordered that the defendant refrain from entering Booker's home and refrain from having any contact with her. The court further ordered that all visitation with the child be pursuant to a court ruling. The defendant's current troubles began when Booker, who was not then under a restraining order herself, sent him a birthday card. In response, the defendant, in violation of the no contact portion of the standing criminal restraining order against him, sent Booker a card and letter on her birthday in which he generally expressed remorse for his responsibility in the deterioration of their relationship and indicated his desire to put the interests of their child first. On April 18,2001, for this transgression of the standing order, the defendant pleaded guilty to violating the criminal restraining order, and the court, Smith, J., sentenced him to four years incarceration, execution suspended after nine months, and three years of probation. The conditions of the defendant's probation included the standard conditions preprinted on the form JD-AP-110 and three court-ordered special conditions: No contact with Booker, obey the criminal restraining order and mental health counseling as appropriate. After being released from prison, the defendant sought an order for visitation from the Superior Court, and he and Booker, with the assistance of a family relations officer, came to a written agreement concerning visitation with their child. The agreement, which the court approved on August 21, 2002, provided: "Parties agree that father will have contact with [the child] . . . every other weekend on Saturday and Sunday from 2:00-7:00 p.m. Additionally, father will have contact with [the child] every Thursday evening from 4:30 to 7:30 p.m. Father will arrange transfer of [the child] with Craig Stallings, mother's boyfriend. If for any reason father is unable to keep the above schedule, his girlfriend, Lisa Boucher, will contact mother directly. Parties agree to return to court on November 20, 2002 to review the above and expand the contact schedule as appropriate." Stallings was to facilitate all drop off and pickup of the child. On August 29, 2002, the defendant was to have his first visitation with his child since the court approved the visitation agreement. Because the defendant had to work that evening, he discussed with Stallings a change in the pickup and drop off times. Booker then telephoned the defendant directly to discuss a revised pickup time of 11:30 a.m. at the Verplanck Middle School. Although there was a criminal restraining order prohibiting the defendant from any contact with Booker, Booker testified that the order did not apply to her contacting the defendant. It appears that although she knew that he was restrained from contact with her, she frequently telephoned him, although he refrained from telephoning her directly and made all contacts through Stallings. During the conversation concerning the new pickup time, Booker also told the defendant that their child had broken his lunch box. Booker testified that she informed the defendant about the broken lunch box and that the child might ask the defendant to purchase a new one. The defendant testified, however, that Booker specifically asked him to purchase a new lunch box. Stallings testified that he also explained to the defendant that the child wanted a lunch box. The defendant met Stallings at the school, where he picked up his child at 11:30 a.m. The defendant testified that he and Stallings did not discuss a drop off location. As the drop off time of 2 p.m. approached, the defendant attempted to contact Boucher to request that she telephone Stallings to confirm that he was to drop off the child at Booker's home, but he was not able to get through to Boucher at work. Additionally, he testified that although Boucher had Stallings' telephone number, he did not have the number. When the defendant could not get through to Boucher, he took his child to Booker's home, where he assumed that Stallings would be waiting for him. He also testified that he was running a little late. Stallings, in fact, was present at Booker's home when the defendant and the child arrived. Booker was not present, however, because she was working her normal 7:30 a.m. until 3:30 p.m. shift at Hartford Hospital. In contrast to the defendant's testimony, Stallings testified that the defendant was supposed to drop off the child to him at Manchester Community College at 2 p.m. Additionally, Stallings testified that he did go to the college to meet the defendant and that he waited fifteen minutes, but the defendant failed to arrive. After waiting fifteen minutes for the defendant, he returned to Booker's home. When asked by the defense attorney whether there was a contingency plan in the event that the defendant was running late, however, Stallings responded: "There was no contingency plan other than to call me. We usually . Let me think . Back then that was the first — Thursday was the first meeting that we had. It was the first visitation date. So, there was no contingency plan to meet at an alternative site or anything like that. I would simply just wait at [the college] until he showed up, basically. There was no contingency plan." Stallings stated that it was approximately 2:45 p.m. when the defendant finally returned the child to Booker's home, and the defendant informed him that he had not yet purchased the lunch box, but that he would go to a store and bring it to the house later. Prior to his sentencing, however, the defendant submitted his time record from work. This record showed that the defendant arrived at work on August 29, 2002, at 2:18 p.m. On Friday, August 30, 2002, the defendant went to Booker's home to drop off the new lunch box, under the assumption that Booker would be at work, but Stallings would be at the residence. He went to the porch, put down the lunch box, rang the doorbell and then walked to his car. Stallings' testimony regarding this incident was as follows: "I just came home . . . from picking [the child] up from school. We went to put our lunch down on the table, the doorbell rang, and I heard a little commotion or something like that as I was going to answer the door. When I opened the door, [the defendant] was getting in the car and driving off and there was a lunch box at my feet." The defendant testified that he did not see Booker when he dropped off the lunch box. Conversely, Booker testified that she had stayed home that day because she was sick, that she saw the defendant from her bedroom window, yelled at him as he walked back to his car and that he yelled back at her. She further testified, however, that the defendant did not restrain, assault, threaten, harass or molest her, nor did he attempt to gain entry into her home on either August 29 or August 30, 2002. On October 2,2002, the defendant's probation officer, Heather Cato, requested that a warrant be issued for the defendant's arrest on the ground that he was in violation of the conditions of his probation, specifically, the conditions that he not violate any criminal law, that he have no contact with Booker and that he obey the criminal restraining order. After a March 5, 2003 violation of probation hearing, the court found that the defendant had violated the conditions of his probation by going to Booker's home. More precisely, it found that the state had proven, by a fair preponderance of the evidence, that the defendant wilfully and intentionally violated the special condition of his probation not to have any contact with Booker. Although the defendant already had served nine months of the original four year sentence that had been imposed, the court revoked the defendant's probation and sentenced him to four years incarceration, execution suspended after twelve months, and forty-eight months of probation. After rendering judgment, the court granted the defendant's request that an appeal bond be set and further ordered, as a condition of bond, that the defendant not enter Booker's home or go onto her property and that he not come within 100 yards of her residence. This appeal followed. Although the state and the defendant do not agree on all of the facts, they do agree that the defendant twice went to Booker's home, first to drop off the child to Stallings and then, again, to deliver a new lunch box. Where the parties diverge, however, is on the question of whether the conditions of the defendant's probation proscribed those activities and, if so, whether the defendant had notice of those proscriptions. The first question for us to resolve, therefore, is not whether the defendant engaged in specific conduct, but whether his conduct could constitute a violation of a valid condition of probation on the facts of this case. See State v. Reilly, 60 Conn. App. 716, 727, 760 A.2d 1001 (2000). The defendant argues that as a matter of law, he lacked notice that his behavior could be interpreted as a violation of the specific condition of probation that he not have any contact with Booker. The claim that the defendant lacked sufficient notice concerning this condition presents a question of law over which our review is plenary. See id., 727. "[T]he interpretation of a probation condition and whether it affords a probationer fair warning of the conduct proscribed thereby are essentially matters of law and, therefore, give rise to de novo review on appeal." (Internal quotation marks omitted.) Id., quoting United States v. Gallo, 20 F.3d 7, 11 (1st Cir. 1994). We are called on to interpret the specific condition that the defendant not have any contact with Booker to determine whether this condition prohibited the defendant from going to Booker's house when he believed that Booker would be at work. We first consider whether the defendant received fair and sufficient warning that his behavior would consti tute a violation of probation. "Due process requires, at a minimum, that an individual receive notice of probation conditions and an opportunity to be heard. . . . The purpose of notice of conditions is to ensure that the probationer understands the precise terms of his obligations and that he risks termination of his probation if he fails to meet those obligations. "Written conditions of probation formally imposed by a court order usually provide notice sufficient to satisfy due process. Therefore, where there is an alleged violation of an explicit condition, it would be difficult for a defendant to claim successfully that he was denied due process on the ground of no lair notice. Obviously, a finding of actual notice impliedly includes a finding of fair notice. "Where criminal activity forms the basis for the revocation of probation, the law imputes to the probationer the knowledge that further criminal transgressions will result in a condition violation and the due process notice requirement is similarly met. An inherent condition of any probation is that the probationer not commit further violations of the criminal law while on probation. . . . "Where noncriminal activity forms the basis for the revocation of probation, due process requires specific knowledge that the behavior involved is proscribed. [W]here the proscribed acts are not criminal, due process mandates that the [probationer] cannot be subjected] to a forfeiture of his liberty for those acts unless he is given prior fair warning." (Citation omitted; internal quotation marks omitted.) State v. Reilly, supra, 60 Conn. App. 728-29. These principles guide us in considering whether the defendant violated any condition of his probation. We conclude that no court imposed or written condition of the defendant's probation specifically prohibited him from going to, but not attempting to enter, Booker's home. The criminal restraining order did not limit the defendant from going to Booker's house to have contact with Stallings, the court-appointed intermediary in visitation matters, or with the defendant's child, although it specifically did prohibit him from entering the home or from having any contact with Booker. The court imposed condition that the defendant not have any contact with Booker likewise did not limit him from contact with Stallings or the defendant's child at or near Booker's home. Despite our conclusion that the court-ordered conditions of probation did not specifically prohibit the defendant from going to Booker's home, we must also determine whether the defendant had prior knowledge from the probation officer's comments that she was adding to his conditions of probation a new condition prohibiting him from going to Booker's home, even when he reasonably believed that Booker was at work and not present at the home. Unless he received prior fair warning that his acts could result in revocation of probation, the court's revocation violated the defendant's right to due process. See id., 730. Here, the court specifically found that the defendant violated the no contact condition of his probation merely by going to Booker's home on August 29 and 30, 2002. In United States v. Gallo, supra, 20 F.3d 13, the United States Court of Appeals for the First Circuit found it significant that the defendant's probation officer and the court repeatedly explained to the defendant that, because of his actions, he was running a risk of violating the conditions of his probation. In finding that the defendant had fair warning that his actions would violate the conditions of his probation, that court held that the repeated, warnings of the court and the probation officer "may be considered as a component of the notification process. . . . Furthermore, the district judge . . . urged [the probationer] on more than one occasion to relent and told him in no uncertain terms that, if his intransigence did not abate, he would be found in violation of the probation order." (Citations omitted.) Id., 13. As we explained in Reilly, "[c]ourts recognize . . . that a defendant may receive notice and fair warning sufficient to comport with due process without necessarily receiving that notice from a court. Indeed, probation officers can provide adequate fair warning." State v. Reilly, supra, 60 Conn. App. 731. "General Statutes § 53a-30 (b) specifically allows the office of adult probation to require the defendant to comply with any conditions a court could have imposed so long as this condition is not inconsistent with any condition actually imposed by the court." State v. Reilly, supra, 731 n.19. "Courts universally require, however, some set of circumstances, be it in a courtroom or in a meeting with a probation officer, a prohibition or common sense inference of a prohibition drawn from the situation, that creates an understanding and appreciation that engaging in certain conduct may result in a termination of conditional liberty." Id., 731. The state argues that the testimony of the defendant's probation officer, Cato, establishes that the defendant had adequate fair warning that his actions would violate the conditions of his probation because Cato had informed him that he would be in violation merely by going to Booker's home. We disagree. Cato testified that she explained the conditions of probation to the defendant and that she instructed him that he could not go to Booker's home, telephone her or be on her street. The defendant was not presented with a revised conditions of probation form that prohib ited him from going onto Booker's property or her street, however, and he testified that Cato did not explicitly inform him that if he went to the outside of Booker's home, he would be in violation of the conditions of his probation. According to the defendant, Cato informed him only that she would not recommend that he go to Booker's house. The question comes down to whether the defendant had prior notice that going to the outside of Booker's house to drop off his child to the court-appointed visitation intermediary and to deposit a requested lunch box on the front porch could have been contemplated reasonably by the no contact condition. "In determining whether the no contact provision provided definite notice of prohibited conduct, we consider whether a person of ordinary intelligence would reasonably know what acts are permitted or prohibited by the use of his common sense and ordinary understanding." (Internal quotation marks omitted.) State v. Calderon, 82 Conn. App. 315, 331, 844 A.2d 866, cert, denied, 270 Conn. 905, 853 A.2d 523, cert, denied, 543 U.S. 982, 125 S. Ct. 487, 160 L. Ed. 2d 361 (2004). The defendant's conditions of probation form specifically prohibited him from contacting Booker and from violating the criminal restraining order. Nowhere, in either the criminal restraining order or the conditions of probation form, was the defendant specifically prohibited from going to the outside of Booker's home. Neither condition covered the precise behavior alleged to have caused the violation of the conditions of his probation. The defendant did not attempt to enter the home, to have contact with Booker or to harass, to assault or to threaten her. He went to the home specifically to drop off his child to Stallings and to deliver a new lunch box for his child to replace the one that Booker told him had broken. Accordingly, we conclude that this behavior was not listed specifically or reasonably contemplated by the no contact condition of the defendant's probation. "In revocation hearings where the alleged violative behavior is noncriminal, we hold that where the specific condition did not explicitly proscribe the defendant's conduct and could not be reasonably interpreted to proscribe the defendant's conduct, the defendant must receive actual notice that the continuation of the conduct could result in a charge of a violation of a condition of probation." State v. Reilly, supra, 60 Conn. App. 732-33. In this case, Cato testified that the defendant posed several hypothetical situations to her, asking what would be allowed and what would not be allowed under his conditions of probation, including questioning her as to whether he could go onto Booker's street. Cato verbally instructed the defendant that he could not contact Booker, go to her home, telephone her or be on her street. When the court, Swords, J., specifically asked Cato why she informed the defendant that he could not be on Booker's street, she responded that she thought that was consistent with the conditions that the court had ordered. The defense attorney asked Cato: "When you responded to [the defendant's] question concerning could he be on the street that Ms. Booker lived on, did he elaborate any further . . . concerning what he was intending to do?" Cato responded: "No, he didn't elaborate." The defense attorney then asked Cato: "If [the defendant] had a friend or relative that lived on the same street . . . and [he] was actually asking whether or not it would be all right for him to visit that person, would your advice to him be the same?" Cato responded: "No." The defense attorney additionally questioned Cato as to whether she discussed certain hypothetical situations with the defendant such as what he should do if he inadvertently encountered Booker, and Cato responded that she could not recall having any such discussions with the defendant. The corut concluded that Cato had informed and ordered the defendant not to go to Booker's home and not to go onto her street and that, when the defendant did so, he wilfully and intentionally violated the no contact condition of his probation. This leads us to the final question presented, which is whether, as a matter of law, the defendant received actual, fair and sufficient notice that his conduct could result in a violation of the no contact condition of his probation. As the United States Court of Appeals for the Second Circuit explained in United States v. Barth, 899 F.2d 199, 203 (2d Cir. 1990), cert, denied, 498 U.S. 1083,111 S. Ct. 953, 112 L. Ed. 2d 1042 (1991), a concern is raised when a "probation officer orally modifie[s] the conditions of probation without committing that modification to writing [because] . . . such conduct invites litigation over what the actual terms of probation [are]. Given that the penalty for violating a condition of probation can be a jail sentence, this is an area about which there should be as little uncertainty as possible. The better practice would be to write down the oral modification, thus diminishing the likelihood of later court battles and swearing matches between probationers and probation officers. This need not bean elaborate document; a simple letter outlining the modification would suffice." In this case, in which the specific condition the corut found the defendant to have violated could not be interpreted reasonably to prohibit his behavior, and Cato did not provide a written modification of that condition or a new condition, we conclude that the defendant was not afforded actual, fair and sufficient notice. Under the circumstances, he could not have known that his conditions of probation included a blanket prohibition against going to the outside of Booker's home. "It is of the first importance that the people should know to what law they are subject." (Internal quotation marks omitted.) Caldwell v. Meskill, 164 Conn. 299, 313, 320 A.2d 788 (1973), quoting State v. South Norwalk, 77 Conn. 257, 261, 58 A. 759 (1904). Had Cato provided the defendant with a written provision prohibiting him from going within 100 yards of Booker's residence, as the court did in granting the defendant's appeal bond, or some firm prohibition against going to Booker's residence, we certainly would conclude that such a condition comported with the requirements of due process. Here, however, we have no written condition that reasonably could be interpreted to include such a blanket prohibition. Furthermore, despite Cato's testimony that she specifically instructed the defendant that he could not go to Booker's street, she also testified that she would not have advised the defendant that he was prohibited from going there if his purpose was to visit a friend or relative. With this in mind, we question how the defendant could have had adequate notice that he could not go to the outside of Booker's home to visit Stallings, to drop off his child and to deliver a requested lunch box. Indeed, it appears that even Cato did not think that a blanket prohibition of going onto Booker's street was consistent with the conditions of the defendant's probation. Certainly, a probation officer can provide adequate, fair and sufficient warning of a condition of probation, but that warning was not present in this case. We conclude that the defendant did not have adequate, fair and sufficient warning that merely going to the front of Booker's home was a violation of the conditions of his probation. The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendant. In this opinion the other judges concurred. Booker contacted the police and asked that the defendant be charged with a violation of the criminal restraining order. She filed two different statements with the Manchester police department on August 30, 2002. One of the statements, which is contained in the appendix to the defendant's brief and which seems contrary to her court testimony, was as follows: "I am giving this statement to [Officer David] Patria and the Manchester police of my own free will, without fear or promise. I have a protective order against [the defendant]. He has visitation of his son who lives here with me. On 8/29/02, [the defendant] came to this residence and dropped off our son. [The defendant] does not have the right to do this. He is to have visitation and to pick up our son at [Manchester Community College]. He is also to drop off our son at [Manchester Community College], not this address. He was to drop off our son around 1:30 p.m. [The defendant] showed up at the [Manchester Community College] drop off at 2:15 p.m., he was 45 minutes late. I had given him the benefit of the doubt due to the inclement weather. I was present to receive my child. This location for the drop off is acceptable to both of us. It should be noted that [the defendant] told my boyfriend, Craig, that I had given him permission to return our son to this address. I did not give him permission, and Craig believed it was legitimate. I wish to have him arrested for a violation of the order." The other statement, which the defendant submitted as exhibit B at the violation of probation hearing, was as follows: "I am giving this statement to [Officer] Patria and the Manchester police of my own free will. When the doorbell rang, I looked outside from the upstairs window and saw [the defendant] standing on my stoop. It was around 11:00 a.m. He is not to be here. I have an active family violence protective order against him. I spoke to him from the upstairs window and told him that he was not supposed to be at this address. [The defendant] threw up his arms and left in his vehicle. He left a small [lunch box] on the stoop for my son. I wish to have charges pressed against [the defendant]." Although we conclude that there is no need to analyze the defendant's claim that this sentence was illegal, we do recognize its illegality as a matter of law because the court could not enlarge the sentence, but was limited to sentencing the defendant to all, some or none of the unexecuted portion of it. There was no evidence, nor an allegation, that the defendant attempted to enter the home or tried to contact Booker.

Opinion DRANGINIS, J. The defendant, Michael Gay, appeals from the judgment of the trial court, finding him in violation of his probation pursuant to General Statutes § 53a-32 and committing him to the custody of the commissioner of correction for a period of seven years with respect to his conviction for robbery in the first degree, carrying a pistol without a permit and kidnapping in the second degree with a firearm. On appeal, the defendant claims that (1) the court improperly used a violation of probation hearing to subject him to a new sentence for a new crime, and (2) the state's delay in charging him with violation of probation for assault with a motor vehicle prejudiced him and denied him a fair probation hearing. We affirm the judgment of the trial court. The following facts and procedural history are relevant to the defendant's appeal. In 1994, the defendant was convicted of robbery in the first degree in violation of General Statutes § 53a-134, kidnapping in the second degree with a firearm in violation of General Statutes § 53a-94a and carrying a pistol without a permit in violation of General Statutes § 29-28. The defendant was sentenced to twenty years incarceration, execution suspended after nine years, with five years of probation. The defendant was released from prison in March, 2000, and began his probation. In January, 2001, the defendant's probation was downgraded to a less intensive level because he had been deemed in compliance with the conditions of his probation since his release from prison. While on probation, the defendant obtained gainful employment and attended school. He had earned an associate's degree and had full-time employment when the events giving rise to his violation of probation hearing transpired. On the evening of November 16, 2001, the defendant went to a club, where, according to his testimony, he had a few alcoholic drinks and smoked a small amount of marijuana. The defendant obtained a ride to his then girlfriend's house from someone at the club. When he arrived there, he went into an upstairs bedroom and went to sleep. The defendant was awakened by his girlfriend because Joy Lee, who was the defendant's former girlfriend, had come to the house in an angry mood and was causing a commotion. The defendant drove Lee's car to take her home. While driving southbound on Martin Luther King Boulevard in Norwalk, the car suddenly veered to the right, mounted the curb and struck a guardrail. The car came to rest in some bushes approximately 500 feet away. The collision rendered Lee unconscious, and, by the time police and an ambulance arrived on the scene, the defendant was semiconscious. An officer at the scene recovered small plastic bags at the foot of the gumey on which the defendant was lying, which were later discovered to contain phencyclidine (PCP). The defendant also had blood and urine tests when he arrived at the hospital, and he tested positive for both alcohol and cocaine. Both the defendant and Lee remained in the hospital for an extended period of time. As a result of the accident, Lee was paralyzed from the neck down and had to have one of her arms amputated. In January, 2002, the state issued a warrant for the defendant's arrest for operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. In July, 2002, by substitute information, the state added a charge of assault in the second degree with a motor vehicle in violation of General Statutes § 53a-60d. Some time thereafter, the office of the state's attorney contacted the defendant's probation officer, who, in February, 2003, applied for and obtained an arrest warrant for violation of probation. The warrant application described the accident scene, and included information regarding the presence of the plastic bags of PCP and the blood test that positively identified the presence of cocaine and alcohol in the defendant's blood. The defendant was arrested on February 28, 2003. Following a hearing on the defendant's violation of probation, the court found the defendant in violation of his probation and sentenced him to the custody of the commissioner of correction for a period of seven years. This appeal followed. The defendant concedes that he preserved neither of his claims for appeal and now seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The defendant can prevail "only if all of the following condition are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id., 239-40. "The first two questions relate to whether a defendant's claim is reviewable, and the last two relate to the substance of the actual review." State v. Newton, 8 Conn. App. 528, 531, 513 A.2d 1261 (1986). We, therefore, must determine first whether the record is adequate for review with respect to each of the defendant's claims. I The defendant first claims that the court improperly used the violation of probation hearing to subject him to a new sentence for a new crime. Specifically, the defendant claims that the court found him guilty of the crime of assault in the second degree with a motor vehicle, not guilty of violating his probation. He argues that because the state must prove guilt in a criminal proceeding beyond a reasonable doubt but must prove a violation of probation by only a preponderance of the evidence, the court lowered the state's burden of proof when it imposed a new sentence on the defendant for a new crime via a violation of probation hearing. Both the defendant and the state argue that the record is clear. They disagree, however, as to what it demonstrates. The defendant claims that the record indicates that the court believed it was imposing a new sentence on the defendant for committing the crime underlying his violation of probation. The state contends, however, that the record shows that the court understood that it was presiding over a violation of probation hearing and illustrates the court's awareness of the state's burden of proving the offense and its own role in sentencing the defendant. Our review of the defendant's and the state's arguments and our independent review of the record leads us to conclude that, contrary to the contentions of both parties, the record is ambiguous on this matter. Although we could conjecture as to the court's understanding of its role in this violation of probation hearing, that is not our role. See Lambert v. Donahue, 78 Conn. App. 493, 511, 827 A.2d 729 (2003). It ultimately is the defendant's responsibility to provide a record that is adequate to review his claim of constitutional error, which the defendant could have done by filing a motion for an articulation of the basis of the corut's decision. See Wellington Systems, Inc. v. Redd-ing Group, Inc., 49 Conn. App. 152, 180, 714 A.2d 21 ("[Pjroper utilization of the motion for articulation [and the motion for review] serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . . [I]t is the . . . appellant's responsibility to provide this court with an adequate record for review . . . ." [Citations omitted; internal quotation marks omitted.]), cert, denied, 247 Conn. 905, 720 A.2d 516 (1998). Because the defendant has failed to provide us with a record adequate to review his claim, this claim fails under the first prong of Golding. II The defendant also claims that his due process rights were violated by the state's delay in charging him with violation of probation for assault in the second degree with a motor vehicle. The defendant claims that he had no notice that the initial charge against him for operating a motor vehicle while under the influence of intoxicating liquor was going to be upgraded to a felony, thereby implicating his probation privileges, and that he was prejudiced by this delay because he lost the opportunity to preserve evidence, obtain witness statements and engage in similar acts designed to prepare his defense to such a charge. We assume, without deciding, that the standard for evaluating the constitutional infirmity of preaccusation delay in a violation of probation hearing is the same as that used in formal criminal proceedings. "In order to establish a due process violation because of pre-accusation delay, the defendant must show both that actual substantial prejudice resulted from the delay and that the reasons for the delay were wholly unjustifiable, as where the state seeks to gain a tactical advantage over the defendant. . . . [United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971)] makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." (Citations omitted; internal quotation marks omitted.) State v. Morrill, 197 Conn. 507, 522, 498 A.2d 76 (1985). Despite the defendant's conclusory statements to the contrary, we have found nothing in the record that would substantiate either of these requirements. There is a complete absence of proof concerning the cause or effect of the preaccusation delay. There is nothing in the record to suggest the cause of the delay, and the defendant did not claim even once at trial that his presentation of the case was hindered because he lacked access to any possible evidence. To establish a constitutional claim that preaccusation delay violated his due process rights, the defendant needed to develop a record showing the reasons for the delay and that he suffered actual prejudice because of the delay. Only after the defendant has made some indication on the record that the delay was wholly unjustifiable and that he suffered actual prejudice because of the delay can we review the defendant's claim to determine whether, in fact, a constitutional violation exists. The defendant has failed to develop such a record in this instance and his claim, therefore, fails under the first prong of Golding. The judgment is affirmed. In this opinion the other judges concurred. A standard condition of probation is that the probationer not violate any criminal law ol' the United States, this state or any other state or territory. General Statutes § 53a-30 (a) (7). At the time of the violation of probation hearing, the defendant had eleven years remaining on the twenty year sentence imposed for the crimes for which he was convicted in 1994. Pursuant to General Statutes § 53a-32 (b), if a violation of probation is established, the court may revoke the defendant's probation and sentence him to serve the sentence imposed or any other lesser sentence. To support this contention, the defendant cites the language the court used during the disposition phase of the hearing: "I want to make this very clear for the record. I know we have some confusion with the commissioner of correction regarding sentences that go up under the same file number. I want to make it clear that the sentence that I impose is a new sentence even though it is going up under the same docket number. It is a new sentence for a new crime." To support its contention, the state cites language the court used during both the liability phase and during the disposition phase of the violation of probation hearing. In concluding that the defendant had violated a condition of his probation, the court stated: "I am going to malee a finding that the reliable and probative evidence that was presented to this court supports a finding that the state has met its burden of proving, by a preponderance of the evidence, that the defendant has, in fact, violated one more of the laws of the state of Connecticut, and, therefore, I am going to find the defendant guilty of violating his probation." Then, during the disposition phase, the court commented on argument by defense counsel suggesting a lighter sentence by comparing the defendant's conduct with tire conduct of o1 her defendants in other cases where operating a motor vehicle while under the influence of alcohol was involved: "I assume that they were sentences on the underlying crime, be they [operating a motor vehicle while intoxicated] or whatever. This is a totally different case. This is a violation of probation case." We note that because the basis of the violation of probation was that the defendant violated a law of the state of Connecticut, the court's decision could have rested as easily on the charge of operating a motor vehicle while under the influence of intoxicating liquor as on the charge of assault in the second degree with a motor vehicle.

Opinion McLACHLAN, J. The novel issue in this appeal is whether a dealer that sells used automobiles breaches the implied warranty of merchantability when it innocently sells a vehicle with a salvage history, charging the buyer the price of a nonsalvaged used vehicle. We conclude that General Statutes § 42a-2-314 places the risk of loss associated with such an occurrence squarely on the seller and, accordingly, respond in the affirmative. When the plaintiff, Laura Ann Krack, realized that the defendant, Action Motors Corporation of Danbury, had sold her a salvaged vehicle without her knowledge, she sued, pro se, in the small claims session of the Superior Court. The defendant transferred the case to the regular civil docket pursuant to Practice Book § 24-21, and the plaintiff, who hired an attorney, prevailed. What began as a small claims matter limited to $3500 in damages ultimately was transferred to the complex litigation docket of the Superior Court, and resulted in awards of $9715.10 in damages and $38,626 in costs and attorney's fees after trial to the court. The defendant claims on appeal that the court (1) improperly concluded that the defendant had breached the implied warranty of merchantability and (2) abused its discretion in awarding unreasonably high attorney's fees. We affirm the judgment of the trial court. Following the transfer to the regular civil docket, the plaintiff filed an amended, three count complaint alleging a breach of the implied warranty of merchantability, and violations of the Magnuson-Moss Warranty-Federal Trade Commission Act and the Connecticut Unfair Trade Practices Act (CUTPA). The matter was tried to the court, which found in the plaintiff's favor as to the first two counts and in the defendant's favor as to the CUTPA count. In its memorandum of decision, the court made the following relevant findings of fact. "On February 23, 1999, the plaintiff purchased a 1994 General Motors Corporation Suburban station wagon from the defendant for $19,688. The defendant disclosed in the purchase contract that the vehicle had previously been driven 73,610 miles. . . . Unbeknownst to the plaintiff, an insurance company had acquired the Suburban in Illinois as a salvage vehicle. At the time, the car had been driven 47,902 miles. The car was rebuilt and a salvage title [was] issued to it. An automobile dealer in New York then purchased the car and sold it to an individual in New Jersey. The state of New Jersey deleted or 'washed' the salvage history of the car and issued a clean title. The New Jersey owner sold the car to a New York resident in 1997, and the state of New York issued another clean title. The New York owner sold the car to the defendant in early February, 1999. "The defendant's policy is not to sell vehicles that it knows have branded, salvaged or otherwise infirm titles. In this case, the defendant had no actual knowledge that the car had been salvaged. As a general rule, the defendant would have its finance department review the title documents of any vehicle it obtains. The title conveyed to the defendant by the New York owner for the Suburban was clean. Two people working for or contracted by the defendant appraised the car. There were no problems with the body work or painting, or any other evidence during the appraisal process, that gave the appraisers any indication of the car's salvage history. . . . "In August, 2001, the plaintiff brought the car for servicing to a General Motors Coiporation dealer in New York in response to a General Motors Corporation service bulletin. Apparently because of the vehicle's blemished title, the New York dealer would not cover the $47.10 charge for maintenance. It was as a result of this incident that the plaintiff first learned of the car's salvage history. . . . Although the car has run well, as a salvaged vehicle it has a stigma attached to it because subsequent purchasers would not know the reason for its salvage history. This stigma diminishes its fair market value. Generally, the fact that a car has a salvage history, without more, reduces its value by 50 percent. The reasonable fair market value at the time of purchase for the vehicle in this case was $10,000." I The defendant claims that its innocent sale of a salvaged vehicle to the plaintiff could not have constituted a breach of the implied warranty of merchantability because the plaintiff did not prove that the defendant was at fault in failing to discover the salvage history. Whether a plaintiff must prove fault in order to prevail in an action for a breach of the implied warranty of merchantability is an issue that has never been squarely decided by an appellate court of this state. It is a question of law over which our review is plenary. See, e.g., Gilberts. Beaver Dam Assn. of Stratford, Inc., 85 Conn. App. 663, 672, 858 A.2d 860 (2004), cert, denied, 272 Conn. 912, 866 A.2d 1283 (2005). In Prishwalko v. Bob Thomas Ford, Inc., 33 Conn. App. 575, 636 A.2d 1383 (1994), this court stated: "In Connecticut, strict liability for innocent misrepresentation in the sale of goods is well established." (Internal quotation marks omitted.) Id., 588. Although the defen dant correctly distinguishes Prishwalko as a case involving an express rather than an implied warranty, the defendant ends its examination of the issue there, failing to support its claim that the implied warranty of merchantability ought to be regarded differently in that respect from an express warranty. The authorities on the subject do not support the defendant's claim. To the contrary, it is clear that the purpose of the implied warranty of merchantability is not to assign blame, but to assign risk and that, accordingly, fault is not an element of the plaintiffs case for breach of that warranty. "[Uniform Commercial Code] § 2-314 imposes warranty liability for the protection of buyers. The purpose behind . . . § 2-314 is to hold a merchant seller responsible when inferior goods are passed along to an unsuspecting buyer. Thus, whether or not the defects could, or should, have been discovered by the merchant seller, the merchant seller is liable to the buyer whenever the goods are not, at the time of delivery, of a merchantable quality . The Uniform Commercial Code is designed to protect the buyer from bearing the burden of loss where merchandise does not live up to normal commercial expectations . . . ." 3 L. Lawrence, Anderson on the Uniform Commercial Code (3d Ed. 2002) § 2-314:5. "The effort has been made by some to force warranty liability into the category of liability based on fault. This effort is misguided. In the case of the implied warranty of merchantability, there is liability without fault. Although the goods must be nonconforming [for a breach to occur], no distinction is made in terms of the 'fault' of the defendant. The implied warranty of merchantability is breached whether or not the seller could have prevented the nonconformity. . . . The only practical and logical conclusion is that the warrantor is made hable, although free from moral or personal fault, because society for one reason or another wants to place the burden of harm resulting from nonconform ing products upon the warrantor rather than upon the buyer . . . ." Id., § 2-314:11; see also 1 J. White & R. Summers, Uniform Commercial Code (4th Ed. 1995) § 9-7, pp. 510-11 (listing elements required to prove breach of implied warranty of merchantability without mention of fault or negligence on part of seller); cf. Schenck v. Pelkey, 176 Conn. 245, 254-55, 405 A.2d 665 (1978) (noting similarities between strict liability for sale of unreasonably dangerous products and implied warranty of merchantability). We note, finally, that Connecticut's long history of a "very strong public policy in favor of protecting purchasers of consumer goods"; Fairfield Credit Corp. v. Donnelly, 158 Conn. 543, 551, 264 A.2d 547 (1969); is in line with the national authorities on the Uniform Commercial Code. The defendant argues that this decision places on automobile dealers the additional onerous burden of researching the history of facially clean titles, which is in contravention of General Statutes § 14-174 (d). In so arguing, the defendant injects the language of the law of negligence into a situation in which it has no place. In fact, we do not hold that the defendant was negligent in failing to research the title for a history of salvage. See footnote 7. Instead, we hold that the defendant seller rather than the plaintiff buyer bore the risk that the vehicle was salvaged. Section 14-174 (d) does not, as the defendant claims, conflict with our holding today. It provides in relevant part: "A certificate of title issued by the commissioner [of motor vehicles] is prima facie evidence of the facts appearing on it. . . ." The defendant essentially asks us to interpret that subsection to mean that it can rely on the nonexistence of all facts not appearing on the title. That is not a logical reading of the statute. The title at issue contained no affirmative representations as to whether the vehicle had a salvage history. Most importantly, in light of the no-fault liability imposed by § 42a-2-314, the appropriateness of the defendant's reliance on the certificate of title is irrelevant. We accordingly conclude that fault is not an element of a plaintiffs case under the implied warranty of merchantability. See General Statutes § 42a-2-314. II We next consider whether the court's award of attorney's fees was reasonable. The defendant claims that the court's award was "arbitrary and capricious and constitutefd] an impermissible penalty on the defendant for exercising its right to remove the case to the regular docket of the Superior Court." We disagree. We review the award of attorney's fees for a clear abuse of discretion. "Whether any award is to be made and the amount thereof lie within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case. . A court has few duties of a more delicate nature than that of fixing counsel fees. The issue grows even more delicate on appeal; we may not alter an award of attorney's fees unless the trial court has clearly abused its discretion . . . ." (Citation omitted; internal quotation marks omitted.) LaMontagne v. Musano, Inc., 61 Conn. App. 60, 63-64, 762 A.2d 508 (2000). The factors a court normally applies in determining a reasonable attorney's fee include "(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee for similar work in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases." (Internal quotation marks omitted.) Jacques All Trades Corp. v. Brown, 57 Conn. App. 189, 198, 752 A.2d 1098 (2000); see also Rules of Professional Conduct 1.5. That list of factors is not, however, exclusive. The court may "assess the reasonableness of the fees requested using any number of factors . . . ." Smith v. Snyder, 267 Conn. 456, 480, 839 A.2d 589 (2004). Following trial, the court criticized the defendant for, inter alia, making the tactical decision to transfer the case to the regular docket, which would prolong and complicate the issues. The court was also particularly critical of the defendant for refusing to settle or to acknowledge the vehicle's salvage history, for giving evasive answers to the plaintiffs requests for admissions and for utilizing its superior economic resources to gain an advantage over the plaintiff. The court stated: "The defendant's move [transferring the case from the small claims session] has backfired. In a court of law, might does not make right. Now that the court has declared the defendant responsible for the plaintiffs damages, the defendant must pay for the consequences of its improvident denial of responsibility. Those consequences, as a matter of logic, fairness and statutory authorization, are the plaintiffs attorney's fees and costs." The court awarded the plaintiff $38,626 in attorney's fees, nearly all of the amount that the plaintiffs counsel requested, subtracting only the costs attributable to a junior attorney who assisted the plaintiffs counsel during the trial. The court acknowledged the discrepancy between the damages awarded on the merits and the attorney's fees, explaining that there were significant start-up costs associated with litigation and that the defendant's unreasonable, win at all costs behavior drove up the amount of time the plaintiffs counsel had to spend and, consequently, the costs. The court stated that this case "provide[d] a perfect justification for [General Statutes § 52-251a]." The defendant claims that the court's unwarranted animosity was the driving force behind its excessive award of attorney's fees and that it actually was the plaintiff who unreasonably adopted a win at all costs attitude and never considered the resources being expended relative to the potential recovery. The court mentioned its consideration of the enumerated reasonableness factors, but did not give a full explanation of its process in applying them. The defendant claims that this necessarily indicates that the court did not, in fact, even apply the factors. We, on the other hand, believe that the court, within its broad discretion, could have applied the relevant factors, enumerated and otherwise, and reached the result that it did. The court was in the best position to weigh the factors and the parties' competing arguments. Weighing heavily in favor of the court's award are the deterrent purpose behind § 52-251a, the defendant's unreasonable behavior after transferring the case from the small claims docket and the undesirability to attorneys of similar consumer cases. The applicability of § 52-251a distinguishes this case from others in which the particular award of attorney's fees at issue might be questionable. The very purpose of § 52-251a is to deter similarly situated defendants from transferring a case from the small claims session and turning a relatively clear-cut case into a pitched legal battle. The defendant claims that the court's award was punitive, and that is not entirely untrue. As stated by our Supreme Court: "Section 52-251a thus creates a substantial and effective disincentive for a defendant who might otherwise raise defenses bordering on the frivolous in an effort to gain a tactical advantage over a plaintiff by obtaining a transfer of a case from the Small Claims division." Burns v. Bennett, 220 Conn. 162, 169, 595 A.2d 877 (1991). The defendant's related argument, that § 52-251a punishes defendants for exercising their right to transfer a case to the regular docket, was raised in 1973 prior to the adoption of the precursor to § 52-251a. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1973 Sess., pp. 230-31, remarks of John Ahem, counsel to the Insurance Association of Connecticut. Thus, the legislature considered and rejected the identical argument the defendant now repeats. Another factor that supports the court's high award of attorney's fees, relative to the plaintiffs recovery, is the undesirability to Connecticut attorneys of relatively small dollar amount consumer cases such as the plaintiffs case. The plaintiffs counsel testified that he knew of only one other lawyer in the state who may have taken the plaintiffs case. Given the social benefit of consumer protection cases, it is good public policy to encourage the prosecution of claims that, although small, are meritorious by awarding attorney's fees. As evidenced by 15 U.S.C. § 2310 (d), that policy clearly has been adopted by Congress as well. Several other factors justify the strong message the court has sent, including the defendant's overzealous defense of this case, its failure to cite any support for its legal argument and its evasive answers to discovery requests that ultimately led to the imposition of sanctions. Finally, the record reveals that several of the enumerated factors weigh in favor of the court's award of attorney's fees, including the significant time and labor spent on the case, counsel's experience and excellent reputation, and the fact that counsel's fee was contingent rather than fixed. We accordingly conclude that although the court's irritation with the defendant is readily apparent, it is clear that the court's decision was founded on the law and, as such, is not a clear abuse of discretion. The judgment is affirmed. In this opinion DRANGINIS, J., concurred. General Statutes § 42a-2-314 (2), which is identical to § 2-314 (2) of the Uniform Commercial Code, provides in relevant part: "Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description . . . ." The parties' contract described the salvaged vehicle at issue as "used." The court found, and the defendant does not challenge on appeal, that a salvaged vehicle cannot pass without objection as a used vehicle. The court awarded $9668 in expectation damages and $47.10 in consequential damages. See General Statutes § 42a-2-714 (2) and (8). See 15 U.S.C. § 2301 through 2312 (2000). The court's finding in the plaintiffs favor under that theory was duplicative of its finding under the implied warranty of merchantability and, as such, we do not discuss the substantive provisions of the Magnuson-Moss Warranty-Federal Trade Commission Act in this opinion. See General Statutes § 42-110a et seq. The plaintiff alleged in the CUTPA count of her complaint that the defendant had "actual knowledge" of the vehicle's salvage history, but was unable to prove that fact. The court stated in its memorandum of decision: "Although there was testimony that a car can become branded as a salvage vehicle for a variety of reasons, such as damage from an accident or because it was stolen, there was no evidence concerning the precise reason why the car in this case became a salvage vehicle." Because we conclude that the defendant's fault is irrelevant to whether it breached the implied warranty of merchantability, we may assume without deciding that the defendant did everything reasonably appropriate in examining the vehicle's title history. We note that the second sentence of General Statutes § 14-174 (d), which provides that "[i]n any criminal proceeding, a certified copy of a certificate of title shall be prima facie evidence as to the ownership of a motor vehicle, " betrays its purpose as part of the legislature's effort to combat the traffic in stolen vehicles and not to protect used automobile dealers from the possibility that they will unwittingly sell a salvaged vehicle. The defendant's claim that the plaintiffs failure to allege an "innocent misrepresentation" was a material variance from the counts pleaded is wholly without merit. The plaintiff alleged a breach of the implied warranty of merchantability, which, as a matter of law, includes innocent misrepresentations. The court awarded attorney's fees and costs pursuant to General Statutes § 52-251a, Practice Book § 13-25 and 15 U.S.C. § 2310 (d). Because the award would be duplicated under those provisions, we need only address § 52-251a, on which the court primarily relied as statutory authority for its award. Section 52-251a provides: "Whenever the plaintiff prevails in a small claims matter which was transferred to the regular docket in the Superior Court on the motion of the defendant, the court may allow to the plaintiff his costs, together with reasonable attorney's fees to be taxed by the court." The plaintiffs counsel testified at a hearing and submitted an affidavit and billing statement in which he disclosed the number of hours billed and the bases for the rates charged. He requested fees in the amount of $39,763.50. The plaintiffs counsel had, on his own, subtracted a substantial number of billed hours from his request for fees, including all time attributable solely to the unsuccessful CUTPA claim. See footnote 10. Although General Statutes § 52-251 authorizes attorney's fees in cases transferred from the small claims session to the regular docket, it appears that the defendant's overall manner of conducting the litigation played a significant role in the amount of the fee award. The defendant's unreasonable behavior is evident in its answer, in which it stated that it lacked sufficient information on which to form a belief as to whether it was a merchant or whether the subject vehicle constituted "goods." The plaintiff paid counsel a retainer of $500, but the fee agreement stated that counsel would receive his hourly rate only on the successful completion of the plaintiffs case. Thus, counsel took a substantial risk by agreeing to represent the plaintiff.

Opinion DRANGINIS, J. The question presented in this appeal is whether an arbitration conducted pursuant to General Statutes § 4-61 is an action to which General Statutes § 52-592, the accidental failure of suit statute, applies. We conclude that a § 4-61 arbitration proceeding is not an action under § 52-592 and affirm the judgment of the trial court. The following facts, as alleged in the complaint, are relevant to our resolution of this appeal. On November 30,1989, the plaintiff, Arute Brothers, Inc., entered into a contract with the defendant, the department of transportation, to construct and repair certain bridges in Fairfield County. On October 30,1995, the plaintiff submitted to the defendant a claim for additional services provided and delay related costs under the provisions of the contract. In November, 1998, the plaintiff filed a demand for arbitration pursuant to § 4-61 (b). The defendant did not respond to the demand for arbitration until October, 2000, when it filed a motion to dismiss the claim for lack of jurisdiction. At a hearing held on February 20, 2001, the defendant asserted for the first time that the plaintiffs demand for arbitration did not contain a copy of the October 30, 1995 claim letter and therefore subject matter jurisdiction was wanting. The arbitration panel held a hearing on July 10, 2001, and ruled on September 13, 2001, that the matter should be dismissed for lack of subject matter jurisdiction. On September 12,2002, the plaintiff commenced this action pursuant to § 52-592. The defendant filed a motion to dismiss the action for lack of subject matter jurisdiction, claiming, among other things, that the plaintiff improperly relied on § 52-592 because that statute applies only to cases that previously have been brought in court, not to arbitration. The court granted the motion to dismiss on the ground that the action was not commenced within the three year limitation period contained in § 4-61 and that the action was not saved by the accidental failure of suit statute because it was not commenced within one year after the determination of an original action for the same cause. The court held that "[t]he term 'action,' for the purpose of [§ 52-592] means a civil action commenced in a court of law, not an arbitration before a panel of arbitrators as an alternative to a civil action." The plaintiff appealed, claiming that the court improperly dismissed the action by concluding that the word action means a civil action commenced in a court of law rather than an arbitration proceeding. We agree with the trial court. The standard of review concerning an appeal from the granting of a motion to dismiss is well established. "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 250-51, 851 A.2d 1165 (2004). Whether the trial court has subject matter jurisdiction is a question of law over which we exercise a plenary standard of review. Id., 251. In this instance, the legal issue is whether an arbitration proceeding is an action pursuant to § 52-592, which requires us to construe the statute. The plenary standard of review also applies to statutory construction. Tighe v. Berlin, 259 Conn. 83,89, 788 A. 2d 40 (2002). Section 52-592 provides in relevant part: "(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . because the action has been dismissed for want of jurisdiction . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action. . . . (d) The provisions of this section shall apply to . . . the same cause of action or subject of action brought to any court in this state . . . and to any action brought to the United States circuit or district court for the district of Connecticut which has been dismissed . . . because of lack of jurisdiction in such court. . . ." (Emphasis added.) The question before us is whether the word action encompasses an arbitration proceeding under § 4-61. The very nature of the issue in this appeal requires us to examine both § 52-592 and § 4-61. "The meaning of the statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Emphasis added.) Public Acts 2003, No. 03-154, § 1. The plaintiff properly argues that the accidental failure of suit statute is to be construed liberally; see Metcalfe v. Sandford, 271 Conn. 531, 538, 858 A.2d 757 (2004); and we are aware of numerous appellate court decisions construing the word action pursuant to § 52-592. Id., 538-39. We therefore acknowledge that the word action in the context of the statute is not plain and unambiguous. Our Supreme Court has "consistently held that our accidental failure of suit statute . § 52-592, is remedial and is to be liberally interpreted. . . . Further, [our Supreme Court has] recognized that the word action may encompass a broad scope. In a general sense the word action means the lawful demand of one's right in a court of justice; and in this sense it may be said to include any proceeding in such a court for the purpose of obtaining such redress as the law provides." (Citation omitted; internal quotation marks omitted.) Id., 538; see also Isaac v. Mount Sinai Hospital, 210 Conn. 721, 557 A.2d 116 (1989). "[T]he word action has no precise meaning and the scope of proceedings which will be included within the term as used in the statutes depends upon the nature and purpose of the particular statute in question. . . . Because the word action may have different meanings in different contexts . we [take] a functional approach in our construction of the [word], eschewing the application of inflexible rules in favor of contextual analysis." (Internal quotation marks omitted.) Metcalfe v. Sandford, supra, 271 Conn. 538; see also Carbone v. Zoning Board of Appeals, 126 Conn. 602, 607, 13 A.2d 462 (1940). "[T]he extension of time [in § 52-592 is] in terms made applicable to all cases where a suit seasonably begun [has] failed for the causes stated . Therefore, § 52-592 applies only when there has been an original action that had been commenced in a timely fashion. . . . Although the term action is not defined within the terms of § 52-592, we have generally defined the term as the lawful demand of one's right in a court of justice-, and in this sense it may be said to include any proceeding in such a court for the purpose of obtaining such redress as the law provides." (Citation omitted; emphasis in original; internal quotation marks omitted.) Capers v. Lee, 239 Conn. 265, 271, 684 A.2d 696 (1996). "Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiffs complaint. The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable." General Statutes § 52-45a. An arbitration demand made pursuant to § 4-61 (b) does not meet the straightforward statutory summary of the contents of a civil action. See footnote 1; see also Isaac v. Mount Sinai Hospital, supra, 210 Conn. 729. The relevant language of § 4-61 supports our conclusion that an arbitration proceeding- is not an action under § 52-592. Section 4-61 provides in relevant part: "(a) Any . . . corporation . . . which has entered into a contract with the state . . . may, in the event of any disputed claims under such contract . . . bring an action against the state to the superior court for the judicial district of Hartford . . Qd) As an alternative to the procedure provided in subsection (a) of this section, any such . . . corporation having a claim under said subsection (a) may submit a demand for arbitration of such . . . claims . . . ." (Emphasis added.) Clearly and unambiguously, § 4-61 provides that a corporation that enters into a contract with the state may choose one of two ways in which to resolve a dispute under the contract: The corporation may bring an action in the Superior Court or the corporation may submit a demand for arbitration. The fact that subsection (a) of § 4-61 uses the term action and subsection (b) uses the terms alternate procedure and demand for arbitration is significant. "[T]he legislature is always presumed to have created a harmonious and consistent body of law . [T]his tenet of statutory construction . . . requires [this court] to read statutes together when they relate to the same subject matter . Accordingly, [i]n determining the meaning of a statute . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction. . . . [T]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them." (Citations omitted; internal quotation marks omitted.) Hatt v. Burlington Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003). Our construction of subsection (d) of § 52-592 is consistent with this court's decision in Lippmann v. Rashkoff, 32 Conn. App. 187, 628 A.2d 624 (1993). In Lippmann, the plaintiffs first commenced an action in the United States District Court for the Southern District of New York. Id., 188. The action was dismissed for lack of personal jurisdiction. Id. Thereafter, the plaintiffs commenced an action pursuant to § 52-592 in the Superior Court in Connecticut. Id. "The defendant filed a motion to dismiss the action claiming that § 52-592 does not apply to the plaintiffs' lawsuit because the action was first filed in the federal court in New York and not in a Connecticut state or federal court." Id. The trial court granted the motion to dismiss and this court upheld the dismissal, stating: "The applicability of General Statutes § 52-592, construed according to its plain and ordinary meaning, hinges on the parties bringing the action initially within a state or federal court in this state. General Statutes § 52-592; see also Gilbert v. Selleck, 93 Conn. 412, 417, 106 A. 439 (1919) (discussing amendment to precursor to § 52-592 in which legislature extended coverage of the accidental failure of suit statute to actions brought in federal court in Connecticut). The plaintiffs failed to file their original action in either a state court in Connecticut or a federal court in Connecticut. . . . General Statutes § 52-592 (d) does not save the plaintiffs' action from the running of the statute of limitations." (Emphasis added.) Lippmann v. Rashkoff supra, 190. Although the issue in Lippmann was whether the accidental failure of suit statute applied to an action originally filed in a federal district court outside of Connecticut, we cannot overlook the fact that the statute itself and the language of Lippmann limit its application to an action brought in a Connecticut court. For these reasons, we conclude that an arbitration proceeding is not an action for the purpose of the accidental failure of suit statute and that the court properly granted the defendant's motion to dismiss the plaintiffs action. The judgment is affirmed. In this opinion the other judges concurred. General Statutes § 4-61 provides in relevant part: "(a) Any . . . corporation which has entered into a contract with the state, acting through any of its departments . . . for the . . . construction [or] repair . of any . . . bridge . of the state . . . may, in the event of any disputed claims under such contract . . . bring an action against the state to the superior court for the judicial district of Hartford for the purpose of having such claims determined, provided notice of each such claim under such contract and the factual bases for each such claim shall have been given in writing to the agency head of the department administering the contract within the period which commences with the execution of the contract. . . and which ends two years after the acceptance of the work by the agency head . "(b) As an alternative to the procedure provided in subsection (a) of this section, any such . . . corporation having a claim under said subsection (a) may submit a demand for arbitration of such claim or claims for determination under (1) the rules of any dispute resolution entity, approved by such . . . corporation and the agency head and (2) the provisions of subsections (b) to (e), inclusive, of this section . The provisions of this subsection shall not apply to claims under a contract unless notice of each such claim and the factual bases of each claim has been given in writing to the agency head of the department administering the contract within the time period which commences with the execution of the contract . . . and which ends two years after the acceptance of the work by the agency head . No action on a claim under such contract shall be brought under this subsection except within the period which commences with the execution of the contract or the authorized commencement of work on the contract project, whichever is earlier, and which ends three years after the acceptance of the work by the agency head . or three years after the termination of the contract, whichever is earlier. . . ." (Emphasis added.) The arbitrators found that, pursuant to § 4-61 (b), the demand for arbitration filed by the plaintiff was a single page form demand, which did not allege the facts and contractual or statutory provisions that formed the basis of the claim and that it failed to establish sufficient facts to bar the defendant from raising the defense that the plaintiff had failed to comply with § 4-61 (b). The defendant also claimed that the arbitrators' award constituted a full settlement of the plaintiffs claims and the plaintiff failed to move that the award be vacated, the plaintiffs statutory notice to the agency head was insufficient as a matter of law, the demand for arbitration was insufficient as a matter of law and the complaint failed to state a cause of action. We note that a literal construction of subsection (d) provides that General Statutes § 52-592 applies to actions brought in the state and federal courts of Connecticut, but that it contains no language limiting the application of § 52-592 to actions brought in these courts. "The legislature is presumed to be aware of the interpretation which the courts have placed upon one of its legislative enactments and of the effect that its own nonaction, thereafter may have." Herald Publishing Co. v.Bill, 142 Conn. 53, 63, 111 A.2d 4 (1955). "[W]e presume that . its subsequent nonaction may be understood as a validation of that interpretation." (Internal quotation marks omitted.) White v. Burns, 213 Conn. 307, 333, 567 A.2d 1195 (1990). The legislature's failure to take action on this court's construction of § 52-592 in Lippmann v. Rashkoff, supra, 32 Conn. App. 190, suggests that the legislature agrees with it.

Opinion DRANGINIS, J. The defendant, Anderson Vazquez, appeals from the judgment of conviction, following a jury trial, of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). On appeal, the defendant claims that the trial court improperly (1) failed to charge the jury on the definition of intent, an element of the underlying crime of larceny, (2) admitted into evidence an identification of him that was made pursuant to unnecessarily suggestive police procedures, (3) admitted the fruits of a search conducted in violation of his fourth amendment rights and (4) failed to conduct an inquiry into a possible jury taint. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On the evening of September 2, 2002, the defendant placed a telephone call from his home to Pizza Valley restaurant. He ordered a large pepperoni pizza and a two liter bottle of soda, and he directed the delivery to 761 Grand Street in Bridgeport. He purported to give his telephone number to the restaurant. It later was discovered that the number did not correspond to the number that registered on the restaurant's caller identification box. The staff at the restaurant recorded the order, the delivery address, the telephone number given and the cost of the order on the front of the pizza box. The victim, Radesh Kanniganti, drove to the address indicated on the front of the box to deliver the order. He sounded his vehicle's horn at the designated address and then saw someone, whom he later identified as the defendant, approach him from the alley between 761 and 775 Grand Street. The victim left his car, holding the pizza box and the soda bottle. He tried to hand the defendant the soda bottle, but the defendant grabbed at the pizza box instead. A tussle for the pizza box ensued, and the victim fell to the ground, the defendant having gained possession of the pizza box. The defendant then demanded money from the victim, and the victim noticed that the defendant was pointing a small black gun at him. The victim gave the defendant the $55 in his pocket, and the defendant ran back into the alley. The victim returned to his car and sounded the horn several times. He then returned to the restaurant where he told his employer to call the police because he had been robbed. The police arrived at the restaurant shortly thereafter and recovered the defendant's telephone number from the caller identification box. The box identified the defendant as the person to whom the number was registered with the telephone company. The police escorted the victim to the police station to make an identification from a computerized array of photographs. They also broadcast a description of the perpetrator over the police radio. The victim, after looking through numerous photographs, identified the defendant as the perpetrator. The police then drove the victim by the defendant's home, where the defendant was being escorted outside by police officers, and the victim again identified the defendant as the perpetrator. Prior to that identification, police had obtained the consent of the defendant's girlfriend to search for a gun in the apartment in which the couple lived. During the search, the police saw the defendant halfway hidden under a bed and seized $55 in cash lying on a dresser near the defendant. The defendant's girlfriend then withdrew her consent, and the police ceased the search of the apartment's interior. The police conducted a search of the backyard and uncovered a Pizza Valley pizza box with two slices of fresh pizza inside. The receipt on the box indicated that it was the stolen pizza box. Additional facts will be set forth as necessary. I The defendant first claims that the court improperly failed to charge the jury on the definition of intent, one of the elements of the crime of larceny. The defendant concedes that he did not preserve his claim at trial and requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). His claim is renewable under Golding because the record is adequate for review and the claim of instructional error is of constitu tional magnitude. See State v. Denby, 235 Conn. 477, 483, 668 A.2d 682 (1995). With regard to the third prong of Golding, the state concedes that the court did not instruct the jury on the definition of intent and focuses its argument instead on the harmlessness inquiry incorporated into Golding's fourth prong. "[A] jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . . . ." (Emphasis in original; internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 738, 759 A.2d 995 (2000), citing Neder v. United States, 527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). In determin ing whether the defendant contested the omitted element, we do not look at the charge in a vacuum, but rather in the context of the whole trial. See, e.g., State v. Davis, 255 Conn. 782, 794-96, 772 A.2d 559 (2001), State v. Montgomery, supra, 254 Conn. 738; State v. Barksdale, 79 Conn. App. 126, 132-37, 829 A.2d 911 (2003); State v. Feliciano, 74 Conn. App. 391, 404-406, 812 A.2d 141 (2002), cert, denied, 262 Conn. 952, 817 A.2d 110 (2003). The following additional facts, therefore, are necessary for our resolution of the defendant's claim. The defendant presented his case solely through cross-examination of the state's witnesses. The thrust of his defense was that the victim had identified the wrong man as the perpetrator. The defendant argued his theory of the case first during opening statements, when defense counsel stated: "Just briefly, it is the defendant's contention that they have the wrong man. There is a misidentification by [the victim]. And we think the defense can show through cross-examination, as well as other things, that there would be evidence that will lead you to believe that there is a reasonable doubt that the defendant isn't the man." That theory of the case was reflected throughout the cross-examination of the state's witnesses and again during closing arguments to the jury. At no time did the defendant contest the fact that the victim had been robbed; he merely contested that he was the perpetrator. The evidence that a robbery took place was patent and undisputed. Because the defendant did not contest that the victim was robbed and because the jury found beyond a reasonable doubt that the defendant was the perpetrator, the court's failure to instruct on the definition of intent, which pertained to the issue of whether a robbery had occurred and not to the identity of the perpetrator, was harmless beyond a reasonable doubt. II The defendant next claims that the court improperly admitted into evidence the victim's prior identification of the defendant as the perpetrator. Specifically, the defendant claims that the police procedures by which the victim identified the defendant were unnecessarily suggestive and, therefore, the admission of the victim's prior identification of the defendant violated the right to a fair trial. Prior to trial, the defendant filed a motion to suppress the victim's out-of-court identification of him on the ground that the procedures used were unnecessarily suggestive. The court held a hearing on the motion during which the victim testified that he had first identified the defendant through a computerized array of photographs at the police station and that he had viewed approximately 300 photographs in that array. That identification process took place within two hours of the robbery, and during the robbery, the victim came within an arm's length of the perpetrator. The victim also testified that the identification procedure at the police station was interrupted when he was taken to a location in Bridgeport to make a one-on-one identification of someone other than the defendant. The victim did not identify that other suspect as the individual who had robbed him. The victim testified that he returned to the computerized array of photographs and identified the defendant as the perpetrator. The police then took him to the defendant's home where he subsequently identified the defendant in a one-on-one procedure. The court heard some conflicting testimony from a police officer who testified that he took the victim to the one-on-one identification of the defendant directly after the one-on-one identification of the other suspect. On further questioning from both the prosecutor and defense counsel, the victim testified that he could not recall exactly when he identified the defendant from the photograph, but he knew he did not view more photographs after he had identified the defendant in the one-on-one identification procedure. We first set forth our standard of review. "Upon review of a trial court's denial of a motion to suppress, [t]he court's conclusions will not be disturbed unless they are legally or logically inconsistent with the facts. . . . [W]e will reverse the trial court's ruling [on evidence] only where there is abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court's ruling. . . . Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error." (Internal quotation marks omitted.) State v. Nogueira, 84 Conn. App. 819, 823-24, 856 A.2d 423 (2004). "[B]ecause the issue of the reliability of an identification involves the constitutional rights of an accused [however] . we axe obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court's ultimate inference of reliability was reasonable. . . . [T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. . To prevail on his claim, the defendant has the burden of showing that the trial court's determinations of suggestiveness and reliability both were incorrect. . An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification." (Internal quotation marks omitted.) State v. Harris, 85 Conn. App. 637, 648-49, 858 A.2d 284, cert, denied, 272 Conn. 901, 863 A.2d 695 (2004). In this instance, the court found that the victim had identified the defendant from among 300 photographs of individuals similar in appearance and that the victim was not urged to pick out the defendant's photograph from the other photographs by police suggestion. That determination necessarily required the court to find that the victim identified the defendant from the photographs prior to the one-on-one identification. There is substantial evidence in the record to support that factual finding, and we conclude, therefore, that the procedure for the victim's identification of the photograph of the defendant was not unnecessarily suggestive. Because we conclude that the identification procedure was not unnecessarily suggestive, we do not need to address its reliability. See State v. Gardner, 85 Conn. App. 786, 791, 859 A.2d 41 (2004). The court properly denied the defendant's motion to suppress the victim's out-of-court identification of him. Ill The defendant's third claim is that the court improperly admitted the fruits of a police search of his home where the search was not made pursuant to a warrant and where the police did not have valid consent. We disagree with the defendant's claim that the consent the police obtained from the defendant's girlfriend was invalid for purposes of the search and, therefore, conclude that the court properly admitted the fruits of that search. The following additional facts are necessary for our resolution of the defendant's claim. At approximately midnight on the evening of the robbery, Jeremy DePie-tro, a detective with the Bridgeport police department, went to the defendant's home to conduct a follow up investigation. He, and the three officers who accompanied him, had received the defendant's address from other officers involved in the investigation of the robbery. He went to the defendant's home for the explicit purpose of finding the defendant and recovering a firearm or other evidence related to the robbery. When DePietro arrived at the defendant's residence, the door was answered by Michelle Rosado, the defendant's girlfriend. She told DePietro that she lived in the apartment and was the renter of the apartment. DePietro also observed several children, whom Rosado identified as hers, running out of one of the bedrooms. DePietro asked who else was in the home at the time, and Rosado stated that she was with her children and that no other adults were present in the home. DePietro then explained to Rosado that he had reason to believe that a firearm was in the home and requested that she give her consent to look for the firearm. She agreed and signed a handwritten consent form that DePietro prepared. Several minutes into the search, DePietro discovered the defendant partially hidden under a bed in one of the bedrooms. DePietro and the other officers patted down the defendant for weapons, and the defendant was identified. When the police first saw the defendant halfway underneath the bed, he had in his reach some folded bills. One of the officers seized that money as evidence of the proceeds of the crime. At the time the defendant and the money were seized, Rosado withdrew her consent and stated that she was not, in fact, the renter of the apartment and did not reside there. The police immediately ceased their search of the inside of the defendant's home. Prior to trial, the defendant filed a motion to suppress evidence of the money that the police recovered from his home. The defendant claims that the consent the police obtained from Rosado was insufficient because the state failed to prove that she had common authority or apparent authority to consent to the search of an apartment the police should have known was rented by the defendant. The defendant argues that because the telephone number from which the police identified him was registered to his home address and under his name, the police were required to obtain his consent before searching the premises without a warrant. We disagree with the defendant that it was unreasonable for the officers to believe that Rosado had the authority to consent to the search of the apartment. We reiterate our standard of review of a court's findings and conclusions in connection with a motion to suppress. "A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . On a motion to suppress, [i]t is the function of the trier to determine the credibility of witnesses and the weight to be given their testimony. . . . "It is axiomatic that searches and seizures inside a home without a warrant are presumptively unreason- able. Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Guertin, 190 Conn. 440, 446, 461 A.2d 963 (1983). . A warrantless search or entry into a house is not unreasonable, however . . . when a person with authority to do so has freely consented. State v. Reagan, 209 Conn. 1, 7, 546 A.2d 839 (1988). It is the state's burden to prove that the consent was freely and voluntarily given, and that the person who purported to consent had the authority to do so. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968) [on appeal after remand, 5 N.C. App. 528, 169 S.E.2d 65, aff'd, 275 N.C. 670, 170 S.E.2d 457 (1969)]; State v. Reagan, supra [7]. Such consent may not be established by mere acquiescence to police authority. . . . Whether there was valid consent to sear ch is a factual question that will not be lightly overturned on appeal. . . . "[W]hen the prosecution seeks to justify a war-rantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). Common authority is . . . not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property . . . but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. . . . "In addition, a warrantless search is valid when it is based on the consent of a third party who the police, at the time of the search, reasonably believe possesses common authority over the premises but who in fact does not have such authority. Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990). As with other factual determinations bearing upon search and seizure, determination of consent to enter must be judged against an objective standard: would the facts available to the officer at the moment . . . warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?" (Citations omitted; internal quotation marks omitted.) State v. Yusuf, 70 Conn. App. 594, 603-605, 800 A.2d 590, cert, denied, 261 Conn. 921, 806 A.2d 1064 (2002). Here, DePietro and the other officers arrived at the defendant's apartment and were greeted by the defendant's girlfriend, who told them that she lived in the home with her children and that no other adults were in the apartment at that time. While the officers had reason to believe that the defendant resided in the apartment, in addition to Rosado, they had no reason to believe that Rosado was lying to them about residing there with her two children, especially because her children were in the apartment with her during the night. Under those circumstances, it was reasonable for DePietro and the other officers to believe that Rosado lived in the apartment and had equal access to and common authority over all the rooms in the apartment, including the one in which the police subsequently found the defendant. The court, therefore, properly denied the defendant's motion to suppress. IV The defendant's final claim is that the court improperly failed to conduct an inquiry into a possible jury taint, thereby violating his constitutional right to an impartial jury. The defendant did not preserve his claim at trial and seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40. We will review the defendant's claim because the record is adequate for review and his claim is of constitutional magnitude. See State v. Mukhtaar, 253 Conn. 280, 295, 750 A.2d 1059 (2000). We conclude, however, that the defendant has failed to satisfy the third prong of Golding. The following facts are relevant to our resolution of the defendant's claim. On January 23, 2003, prior to the panel of jurors being chosen, the defendant told the court that one of the marshals had commented to him something approximating, "If you hadn't done it, you wouldn't have been incarcerated." The defendant indicated to the court that the comment was made only to the defendant and, when the comment was made, the venirepersons were secreted away in the jury room. The defendant indicated that he did not know if anyone else had heard the comment, and his main concern was that it not happen again because he did not want the jurors to know that he was incarcerated. The court inquired of the defendant twice of the exact location of the venirepersons and then concluded that it was satisfied that the venirepersons could not have heard the comment. The court also commented that it did not want to taint the jury pool by inquiring into the problem with the venirepersons if no problem in fact existed. Our review of the defendant's claim is guided by our Supreme Court's recent decision in State v. Ross, 269 Conn. 213, 247, 849 A.2d 648 (2004) (en banc), in which it held that the traditional juror misconduct inquiry set forth in State v. Brown, 235 Conn. 502, 668 A.2d 1288 (1995) (en banc), is inapplicable to situations in which the allegations are that a venire panel has been tainted prior to voir dire. In Ross, our Supreme Court stated: "When an allegation is made . . . that a venire panel has been tainted, voir dire itself provides a means to uncover bias. Therefore, such an allegation does not necessarily require an independent inquiry by the court. Although we recognize that, as in the present case, there may be circumstances in which the trial court perceives a need for an inquiry exceeding the scope of voir dire, we conclude that, as in Brown, the form and scope of the court's inquiry, if any, into possible taint of a venire panel before voir dire depends on the circumstances of the case and is to be determined by the trial court within the exercise of its discretion." State v. Ross, supra, 248. Here, the court conducted a preliminary inquiry of counsel and the defendant and was satisfied that there was no taint. Furthermore, the court was concerned that a more in-depth inquiry that extended to the venire-persons would create a taint in the venire pool. It is clear that the court considered the facts before it and determined that the most appropriate response was not to question the venirepersons directly on the issue. The court did not limit counsel, however, from asking questions of the venirepersons that touched on the issue either directly or indirectly. Accordingly, we conclude that the court did not abuse its discretion in inquiring only of counsel and the defendant about the possible taint and that the court's actions adequately protected the defendant's right to an impartial jury. The judgment is affirmed. In this opinion the other judges concurred. Apparently, the number the defendant gave as his actually belonged to another restaurant in the city. The defendant resided at 775 Grand Street, which shared the alley with 761 Grand Street. Robbery is defined in our Penal Code as larceny with the use or the threatened immediate use of physical force. General Statutes § 53a-133. "In Golding, our Supreme Court held that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt, hi the absence of any one of these conditions, the defendant's claim will fail. The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances." (Emphasis in original; internal quotation marks omitted.) State v. Jordan, 64 Conn. App. 143, 150, 781 A.2d 310 (2001). The court instructed the jury: "For you to find the defendant guilty of [robbery in the first degree], the state must prove beyond a reasonable doubt that the defendant committed a robbery as defined by statute. [General Statutes §] 53a-133 of the Penal Code defines robbery as follows: A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids — which aids in the commission of the larceny. A person commits larceny with intent — when, with intent to deprive another person — another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." During oral argument, the state claimed that the victim's one-on-one identification of the defendant served only to bolster his previous identification of the photograph of the defendant and, therefore, was not the proper focus for our inquiry. While we agree with the state, in this instance, that any suggestibility in the one-on-one identification was insufficient to negate the victim's previous identification of the defendant, we stress that the inherent level of suggestiveness and susceptibility to misidentification that a one-on-one show-up places on the identification process cautions that its use should be limited to those situations in which the procedure is necessary. Here, the defendant was being taken into custody, and a subsequent identification could have been made in a lineup or other less suggestive circumstances than one in which the defendant is being escorted out of his home surrounded by police with a spotlight shone on him. We note this despite the fact that the victim in this case had been presented previously with a potential suspect whom he was able to say was not the perpetrator.

Opinion DiPENTIMA, J. The defendant Arthur O. Klein appeals from the judgments of the trial court rendered in a fraudulent conveyance action and an interpleader action. In the fraudulent conveyance action, the court rendered judgment in favor of the plaintiff, Collard & Roe, P.C. (Collard & Roe), a New York law firm, on both the complaint and the counterclaim. In the interpleader action, the court ordered the disbursement of escrowed funds and discharged the plaintiff escrow agents, Charles D. Rockwell and Michael A. Laux, from liability. Arthur Klein raises a number of issues on appeal attacking these judgments. For the reasons set forth, the judgments of the trial court are affirmed. These cases have a tortuous procedural and factual history that began with the short-lived merger of Collard & Roe and Klein & Vibber, P.C. (Klein & Vibber), a Connecticut law firm in which Arthur Klein was a partner. Following a dispute over the division of fees and profits, the merger dissolved, and Collard & Roe filed an action against Arthur Klein and Klein & Vibber in a New York court, claiming that they had misappropriated approximately $70,000. On February 28, 1997, after Arthur Klein and Klein & Vibber failed to appear for trial, Collard & Roe obtained a judgment against them in the amount of $97,921. On June 2, 1997, Collard & Roe domesticated the judgment in Connecticut pursuant to the Uniform Enforcement of Foreign Judgments Act, General Statutes § 52-604 et seq. On July 25, 1997, Arthur Klein transferred by quitclaim deed to his wife, Diane L. Klein, his interest in property located at 7 Half Mile Common in Westport. On February 12, 1998, he quitclaimed to his wife his one-half interest in property located at 391 North Main Street, Westport. Following these transfers, Arthur Klein was left with no other assets and was insolvent. Subsequently, Diane Klein sought to sell 391 North Main Street to Kirk Straight and Nicole J. Straight, third party buyers, but due to a judgment hen placed on the property by Collard & Roe, Diane Klein could not provide marketable title for the property. The Straights' title company, First American Title Insurance Company (First American), agreed to issue the title policy despite the lien, provided the Kleins indemnified First American against loss, damages and attorney's fees, and placed $150,000 of the proceeds of the sale in escrow to secure the indemnification agreement. The Kleins also agreed to take immediate steps to remove the lien with the understanding that if they failed to do so, First American could demand that the escrow funds be paid to any claimant in order to release or to discharge the lien. In accordance with the indemnification and escrow agreement of November 16, 1998, $150,000 was placed in escrow with the Straights' attorney, Laux, and Diane Klein's attorney, Rockwell. By complaint dated April 14, 1998, Collard & Roe commenced the action to set aside as fraudulent Arthur Klein's transfer of 7 Half Mile Common to his wife. By amended complaint dated February 4, 1999, Collard & Roe added a count claiming that Arthur Klein's transfer of his partial interest in 391 North Main Street was also fraudulent. On March 27, 1999, the Kleins, appearing pro se, filed an amended answer, asserting as a special defense that the underlying claim had been rendered invalid as a result of a proceeding against Arthur Klein before the statewide grievance committee, and filed a six count counterclaim alleging intentional infliction of emotional distress and seeking restitution for sums already collected by Collard & Roe. On December 6, 1999, the Kleins filed a request for a juiy trial. Over the objections of the Kleins, the case was tried to an attorney trial referee who recommended that judgment be rendered in favor of Collard & Roe on the complaint and against the Kleins on the counterclaims. The court accepted the recommendations of the referee and judgment was rendered. The Kleins appealed from that judgment. Meanwhile, by complaint dated February 8,1999, Collard & Roe brought an action to foreclose its judgment lien on 391 North Main Street, which was then owned by the Straights. A judgment of strict foreclosure was rendered on May 24, 1999. Laux and Rockwell were requested to pay over the escrow funds to satisfy the lien. They did not do so and, in June, 1999, initiated an interpleader action and deposited the $150,000 escrow account with the clerk of the court. In that action, First American and the Straights sought indemnification, costs and attorney's fees. Collard & Roe claimed that it was entitled to the funds to satisfy its judgment lien. The Kleins claimed that the funds rightly belonged to them for a variety of reasons. The court found against the Kleins and directed payment from the escrow funds to satisfy Collard & Roe's New York judgment. The Kleins appealed from that judgment. The fraudulent conveyance and the interpleader actions were consolidated for the purpose of appeal. Although the Kleins raised a number of issues on appeal, this court addressed only one in Collard & Roe, P.C. v. Klein, 72 Conn. App. 683, 806 A.2d 580 (2002). We held that the Kleins had not consented to have the fraudulent transfer case heard by an attorney trial referee pursuant to Practice Book § 19-2A and remanded the cases for new trials. Collard & Roe, P.C. v. Klein, supra, 692. On remand, notwithstanding the Kleins' renewed request for a jury trial, the consolidated cases were tried to the court. In a memorandum dated August 20, 2003, the court found in favor of Collard & Roe on all counts and directed that "the remaining balance of the $150,000 shall be paid over and used first to satisfy the Collard & Roe judgment, including interest on said sum and for any attorney's fees hereinafter approved by the court, and any remaining sums from the escrowed funds [are] to be used in satisfaction of fees and costs of First American Title Insurance Company." On September 17, 2003, the court issued a supplemental memorandum of decision in which it reiterated its finding in favor of Collard & Roe, discharged the escrow agents from any liabilities arising out of the interpleader action and directed payment from the escrow account in accordance with the judgment of August 20, 2003. This appeal followed. On appeal, Arthur Klein claims that the court improperly (1) denied him and Diane Klein a jury trial, (2) gave full faith and credit to the New York judgment, (3) failed to consider the proceedings before the United States District Court for the District of Columbia, the statewide grievance committee and the United States Patent and Trademark Office, (4) denied the Kleins access to the Klein & Vibber bank account maintained by Collard & Roe, (5) determined that the quitclaim deed conveying 391 North Main Street was invalid, (6) determined that the escrow agreement between the Kleins and First American was valid and enforceable, (7) ignored what Arthur Klein deems to be the "controlling dicta" in Collard & Roe, P.C. v. Klein, supra, 72 Conn. App. 683, (8) denied the Kleins' request to amend their counterclaims in both the fraudulent transfer and interpleader actions, and (9) determined that First American and attorney Laux had not violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and the Connecticut Unfair Insurance Practices Act, General Statutes § 38a-815 et seq. I As a threshold matter, we address this court's jurisdiction over this appeal. Prior to oral argument, the parties were directed to address why this court should not dismiss for a lack of a final judgment that portion of the appeal challenging the trial court's judgments on the fraudulent conveyance and interpleader actions on the ground that the court did not specify the rate at which prejudgment interest should be calculated. See Gianetti v. Meszoros, 268 Conn. 424, 426, 844 A. 2d 851 (2004) (when discretionary prejudgment interest awarded, but applicable rate of interest not established, there is no final judgment). "The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding . . . subject matter jurisdiction is a question of law . . . [and, therefore] our review is plenary." (Internal quotation marks omitted.) Sweeney v. Sweeney, 271 Conn. 193, 207, 856 A.2d 997 (2004). In its memorandum of decision, the trial court ordered that "the remaining balance of the $150,000 shall be paid over and used first to satisfy the Collard & Roe judgment, including interest on said sum," but failed to clarify whether the interest ordered was prejudgment or postjudgment and, if prejudgment, what rate of interest was to be applied. If the interest ordered was prejudgment, there is no final judgment under Gia-netti v. Meszoros, supra, 268 Conn. 424; however, if it was postjudgment interest, there is a final judgment, and this court has jurisdiction to hear the appeal. See Bower v. D'Onfro, 45 Conn. App. 543, 696 A.2d 1285 (1997). Because we determine that the interest awarded was postjudgment, we conclude that there is a final judgment. Pursuant to General Statutes § 52-605 (b), a foreign judgment is to be "treated in the same manner as a judgment of a court of this state. ." Therefore, any proceeding before our courts related to a properly domesticated final foreign judgment is treated as post-judgment in nature. Harris v. Harris, 14 Conn. App. 384, 386 n.2, 540 A.2d 1079 (1988). Accordingly, any interest ordered on a domesticated foreign judgment is postjudgment interest. Because the trial court ordered that interest be paid on Collard & Roe's domesticated New York judgment, the interest ordered was postjudgment. We now turn to the merits of Arthur Klein's appeal. II Arthur Klein claims that he was improperly denied a jury trial. The right to a jury trial arises pursuant to General Statutes § 52-215, which provides that in civil actions presenting issues of fact other than those properly cognizable in equity, when the amount in contro versy exceeds $250, a request for a jury trial may be made by any party within ten days after an issue of fact is joined. A plaintiffs challenge to the conclusion of the trial court with regard to the interpretation of § 52-215 raises a question of law, over which we exercise plenary review. See Fleet National Bank's Appeal from Probate, 267 Conn. 229, 237, 837 A.2d 785 (2004). In the fraudulent conveyance action, the Kleins requested a jury trial on December 6, 1999. The final pleading in that case was Collard & Roe's reply to the Kleins' special defense, filed June 23, 1999. Thus, the Kleins' request for a jury trial was made nearly six months after the last issue of fact in the action was joined, and well beyond the ten day statutory limit. Arthur Klein has not directed this court's attention to any new issue of fact joined subsequent to the remand and prior to the new trial. The court did not improperly deny Arthur Klein a jury trial as to the fraudulent conveyance action. In the interpleader action, the Kleins requested a jury trial in a request for leave to amend their counterclaims and cross claims on March 3, 2003. The request for leave to amend was not granted. Therefore, the final pleading in that action was filed on January 20, 2000. The Kleins' request for a jury trial was made nearly three years after the final issue of fact in the action was joined, also well beyond the ten day statutory limit. Although Arthur Klein has raised numerous issues he believes present new facts, he has not directed our attention to any new issue of fact actually joined subsequent to January 20, 2000. The court did not improperly deny Arthur Klein a jury trial as to the interpleader action. III Arthur Klein next claims that the court incorrectly gave full faith and credit to the New York judgment. He alleges in that regard that the judgment was rendered void by the Supreme Court of the state of New York, county of Nassau. He also argues that the trial court improperly failed to consider proceedings before the United States District Court for the District of Columbia, the statewide grievance committee and the United States Patent and Trademark Office. In addition, he asserts that Collard & Roe's refusal to release records pertaining to the Klein & Vibber bank account maintained by Collard & Roe demonstrates that the judgment is not valid. He further maintains that the court improperly denied him access to the records of the bank account. We disagree. A foreign judgment is a final judgment of any court "entitled to full faith and credit in this state, except one obtained by default in appearance or by confession of judgment." General Statutes § 52-604. A foreign judgment may be domesticated pursuant to § 52-605 (a) by filing "a certified copy of [the] foreign judgment . . . in the court in which enforcement of such judgment is sought, a certification that the judgment was not obtained by default in appearance or by confession of judgment, that it is unsatisfied in whole or in part . . . and that the enforcement of [the] judgment has not been stayed . . . ." Such a domesticated foreign judgment is not subject to collateral attack absent allegations implicating lack of personal or subject matter jurisdiction. See Nastro v. D'Onofrio, 76 Conn. App. 814, 823-24, 822 A.2d 286 (2003). Whether the court properly applied the Uniform Enforcement of Foreign Judgments Act to the facts of this case gives rise to an issue of statutory construction over which our review is plenary. Segal v. Segal, 264 Conn. 498, 506, 823 A.2d 1208 (2003). The New York judgment was a final judgment, not obtained by default of appearance or confession of judgment. Arthur Klein made an initial appearance in the case on behalf of himself and Klein & Vibber. Thereafter, he failed to appear for trial and a default judgment was entered against him. The judgment was therefore a default judgment, but not one of appearance. Collard & Roe properly certified a copy of the judgment with an affidavit to the Superior Court for the judicial district of Stamford-Norwalk, and the judgment accordingly was domesticated. Arthur Klein argues that the default judgment was voided by the New York Supreme Court in July, 1995. Judgment in the New York case, however, was rendered on February 28, 1997. Arthur Klein fails to explain how the 1995 determination could have voided the judgment rendered one and one-half years later. As it is, the record supports the contrary conclusion, which is that the judgment is a valid final judgment, the enforcement of which has not been barred and which implicates neither personal nor subject matter jurisdiction. Arthur Klein also argues that the court improperly disregarded the proceedings before the United States District Court for the District of Columbia, the statewide grievance committee and the United States Patent and Trademark Office. He fails to provide any reasoning as to how these cases implicate Connecticut jurisdiction over the New York judgment. The proceedings appear to relate to Arthur Klein's disbarment from the United States patent bar, the New York bar and the Connecticut bar and, thus, bear no direct relationship to the New York judgment, which originated out of a dispute between Collard & Roe and Klein & Vibber regarding fee and profit sharing. As such, they implicate neither personal nor subject matter jurisdiction with regard to the New York judgment. They were, therefore, irrelevant to these cases, and the court correctly disregarded them. See State v. Morgan, 70 Conn. App. 255, 264, 797 A.2d 616 (court's right, duty to exclude irrelevant evidence), cert, denied, 261 Conn. 919, 806 A.2d 1056 (2002). Arthur Klein also claims that the failure to produce the Klein & Vibber bank account records undermines the New York judgment, but he again fails to show how it implicates subject matter or personal jurisdiction. Because the bank records were irrelevant in determining the validity of the domesticated judgment and its enforcement, the court did not abuse its discretion in denying the Kleins' discovery request regarding the account. See Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 7, 826 A.2d 1088 (2003) (standard of review for grant or denial of discovery request is abuse of discretion); State v. Morgan, supra, 70 Conn. App. 264. The court correctly upheld the validity of the domesticated New York judgment and denied the Kleins' discovery request. IV Arthur Klein claims that the court improperly determined that the quitclaim deed conveying full ownership of 391 North Main Street to his wife was invalid. The court found that the deed was defective in that it lacked the signature of two witnesses as required by General Statutes § 47-5. It is Arthur Klein's contention that General Statutes § 47-36aa cures any defect in the deed. We agree that the deed was invalid. Section 47-36aa (a) provides in relevant part: "Any deed . . . conveying . . . any interest in real property in this state recorded after January 1,1997, which instrument contains any one or more of the following defects or omissions is as valid as if it had been executed without the defect or omission unless an action challenging the validity of that instrument is commenced and a notice of lis pendens is recorded in the land records of the town or towns where the instrument is recorded within two years after the instrument is recorded . (2) The instrument is attested by one witness only or by no witnesses . . . ." Issues of statutory construction raise questions of law, over which we exercise plenary review. Fleet National Bank's Appeal from Probate, supra, 267 Conn. 237. Arthur Klein attempted to quitclaim his share in 391 North Main Street on February 12, 1998, but failed to obtain the requisite signatures of two witnesses. Collard & Roe filed its judgment lien and lis pendens on March 12, 1998, and brought suit challenging the conveyance on April 14, 1998. Collard & Roe released its lis pendens on November 12, 1998, and filed a new lis pendens on January 20, 1999, naming the Straights as defendants. Collard & Roe filed a lis pendens and brought suit within the statutory period. That the lis pendens was removed before the resolution of the suit in no way changes this conclusion. "The sole purpose of the lis pendens . is to give constructive notice to persons who may subsequently acquire an interest in the property . . . ." (Internal quotation marks omitted.) Ghent v. Meadowhaven Condominium, Inc., 77 Conn. App. 276, 284-85, 823 A.2d 355 (2003). The record makes clear that the Straights were well aware of the judgment hen on 391 North Main Street prior to their purchase. The court correctly determined that the invalidity of the deed was not cured by § 47-36aa. V Arthur Klein claims that the court improperly determined that the escrow agreement between the Kleins and First American was valid and enforceable. We disagree. Arthur Klein argues that the controlling dicta of Galvanek v. Skibitcky, 55 Conn. App. 254, 738 A.2d 1150 (1999), governs the escrow agreement, not General Statutes § 51-81h. His claim raises an issue of law over which our review is plenary. See Corcoran v. Dept. of Social Services, 271 Conn. 679, 688, 859 A.2d 533 (2004). Arthur Klein appears to argue that the escrow agreement is invalid because Diane Klein's and the Straights' attorneys acted as the escrow agents. Even if Arthur Klein is correct, and § 51-81h has not preempted Galvanek for the purpose of this case, his claim must fail. In Galvanek, this court held that when escrow funds are retained by one party's attorney, no escrow agreement exists because the money remains, for all practical purposes, in the hands of one of the parties. Galvanek v. Skibitcky, supra, 257. Here, both attorneys acted as escrow agents and, therefore, the funds were not controlled by any one party. Arthur Klein seems to argue that Diane Klein's attorney effectively ceased working for her, but fails to explain how he comes to that conclusion. The court correctly found that the escrow agreement was valid. VI Arthur Klein claims that the court ignored the "controlling dicta" in Collard & Roe, P.C. v. Klein, supra, 72 Conn. App. 683. Aside from this assertion in his preliminary designation of issues for appeal, he provides no analysis regarding this issue in his brief. "[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) Gilbert v. Beaver Dam Assn. of Stratford, Inc., 85 Conn. App. 663, 676, 858 A.2d 860 (2004), cert, denied, 272 Conn. 912, 866 A.2d 1283 (2005). Accordingly, we decline to address this claim. VII Arthur Klein claims that the court improperly denied the Kleins' request for leave to amend their counterclaims and cross claims in both the fraudulent transfer and interpleader actions. The Kleins filed a request for leave to amend their counterclaims and cross claims in the interpleader action on March 3, 2003. Objections to the request were filed on March 10, and 12, 2003. The request was denied on April 23, 2003. We could not find in the record any request for leave to amend filed in the fraudulent conveyance action. In addition, Arthur Klein has provided no record of any action he took in the trial court to have the court articulate its reason for denying his request for leave to amend. It is the appellant's duty to provide an adequate record for review. Practice Book § 61-10. Because we have no record of any request for leave to amend in the fraudulent conveyance action and no way of knowing why the court did not grant the Kleins' request for leave to amend their counterclaims and cross claims in the interpleader action, we will not review the claim. See Vaillancourt v. Latifi, 81 Conn. App. 541, 551, 840 A.2d 1209 (2004). The judgments are affirmed and the cases are remanded for the purpose of setting a new law day. In this opinion the other judges concurred. The law days have been stayed. The Kleins asserted that (1) the New York judgment was a default judgment, (2) Arthur Klein was not the owner of 391 North Main Street when the judgment lien was recorded, and Diane Klein was not a parly to the judgment, (3) they were fraudulently induced to sign the escrow agreement, (4) the statewide grievance committee had absolved Arthur Klein of liability to Collard & Roe, and (5) the escrow agreement was void in light of Galvanek v. Skibitcky, 55 Conn. App. 254,738 A.2d 1150 (1999). The Kleins also claimed that the other claimants violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and the Connecticut Unfair Insurance Practices Act, General Statutes § 38a-815 et seq. Although this appeal was brought in the name of both Arthur Klein and Diane Klein, the appeal form is signed only by Arthur Klein as a pro se litigant, and therefore only he is a party to the appeal. Arthur Klein has been suspended from the practice of law in Connecticut. See Statewide Grievance Committee v. Klein, 86 Conn. App. 338, 862 A.2d 303 (2004). A pro se party may not appear on behalf of another pro se party. Lowe v. Shelton, 83 Conn. App. 750, 756, 851 A.2d 1183, cert, denied, 271 Conn. 915, 859 A.2d 568 (2004). To do so would be to engage in the unauthorized practice of law. See General Statutes § 51-88. A number of claims pertaining to Diane Klein are raised on appeal, namely, that the court improperly found that Collard & Roe had not intentionally inflicted emotional distress on her, that the escrow agents had not breached their duty to her, that she was not fraudulently induced to sign the escrow agreement, that First American and attorney Laux had not tortiously interfered with the contract between her and the Straights, and that First American and attorney Laux did not violate the unfair trade practices act and the Connecticut Unfair Insurance Practices Act, General Statutes § 38a-815 et seq. It is also claimed that the court improperly denied the motion to release to Diane Klein the $150,000 held by the clerk of the court in the interpleader action. Because Diane Klein is not properly a party to this appeal, we decline to review these claims. Arthur Klein asserts for the first time in his reply brief that certain actions taken by First American and attorney Laux constituted fraudulent inducement. Because this claim was not raised until the reply brief, we will not address it. See Feen v. New England Benefit Cos., 81 Conn. App. 772, 777, 841 A.2d 1193 (" '[i]t is a well established principle that arguments cannot be raised for the first time in a reply brief "), cert, denied, 269 Conn. 910, 852 A.2d 739 (2004). Our conclusion that Arthur Klein's requests for a jury trial in both the fraudulent conveyance action and the interpleader action were untimely under General Statutes § 52-215 should not be interpreted to mean that fraudulent conveyance and interpleader actions are not equitable actions within the terms of General Statutes § 52-215. See Gaudio v. Gaudio, 23 Conn. App. 287, 301-302, 580 A.2d 1212 (whether fraudulent conveyance action is an equitable action depends to great extent on whether plaintiff is seeking damages or the setting aside of the conveyance), cert, denied, 217 Conn. 803, 584 A.2d 471 (1990); General Statutes § 52-484 ("[w]henever any person has, or is alleged to have, any money or other property in his possession which is claimed by two or more persons, either he, or any of the persons claiming the same, may bring a complaint in equity, in the nature of a bill of interpleader") (Emphasis added.) Dicta is generally understood to be those parts of a judicial opinion that are nonbinding in subsequent cases as legal precedent. Our search of Connecticut precedent reveals no mention of "controlling dicta." General Statutes § 51-81h superseded Galvanek and applies to all "escrow agreements in existence on or after May 16, 2000, the effective date of the act." Young v. Young, 64 Conn. App. 651, 657 n.6, 781 A.2d 342, cert, denied, 258 Conn. 908, 782 A.2d 1255 (2001).

Opinion McLACHLAN, J. The defendants, Craig Ogren and OVL Manufacturing, Inc. (OVL), appeal, and the plaintiffs, Gayl Czaplicki, Philip Czaplicki and Falcon Machine Products, Inc. (Falcon), cross appeal following a consolidated trial to the court of two actions arising out of a dispute over the parties' rights and obligations with respect to an industrial building in Berlin. The defendant claims that in Czaplicki v. Ogren (joint venture case), the trial court improperly rejected his counterclaim that alleged that Gayl Czaplicki breached the joint venture agreement and that in Falcon Machine Products, Inc. v. Ogren (lockout case), the court improperly found that the defendant violated General Statutes § 47a-43, the entry and detainer statute, and improperly awarded damages that were not supported by the evidence. The plaintiffs claim that, as to the joint venture case, the court awarded inadequate damages and, as to the lockout case, the court improperly refused to award attorney's fees pursuant to General Statutes § 47a-45a and 47a-46. We affirm the judgment in the lockout case and reverse in part the judgment in the joint venture case. I BACKGROUND The conflicts of interest inherent in the parties' business arrangements destined them for the litigation in which they are now embroiled. The background facts may be summarized as follows. Philip Czaplicki operated a manufacturing company, Falcon, which his wife, Gayl Czaplicki, owned and served as president. The defendant, along with Alfred Lassen, Jr., owned another manufacturing company, OVL. A building suitable to be shared by the two companies became available, which their owners agreed to purchase in 1993. Title to the building was conveyed to a joint venture, Cambridge Heights Realty Associates, created to hold the property for the benefit of the two companies. The joint venturers were Gayl Czaplicki, who owned a 50 percent share, the defendant, who owned a 25 percent share, and Susan V. Lassen, Alfred Lassen, Jr.'s wife, who also owned a 25 percent share. Thus, the interests of Falcon and OVL were equally represented, directly or indirectly, in the joint venture. The joint venture agreement called for the payment of the joint venture's debts and expenses to be made from Falcon's and OVL's rents, which the parties agreed would fluctuate to cover the joint venture's obligations. The defendant immediately became the de facto head of the joint venture, as Gayl Czaplicki and Susan Lassen did not participate to any significant extent in its day-to-day operations. Both Falcon and OVL had financial difficulty and failed at times to make payments to the joint venture, leading to frequent and acrimonious disputes among the parties. Specifically, disputes arose about the electric bill and the mortgage and real estate tax payments. The electric bill initially was to be divided equally between the two tenants. It was often paid late, which led the electric company to threaten termination and caused arguments between the defendant and Philip Czaplicki about the consumption of electricity attributable to each company. Real estate tax payments were similarly late, leading the town of Berlin to threaten foreclosure action. Alfred Lassen, Jr., eventually left OVL, and the Lassens declared bankruptcy. To bring the joint venture's financial situation under control, the defendant sought, on his own, to refinance the joint venture's debt and to commit it to a specific payment schedule. He could not do so, however, because the rental payments owed by Falcon and his own company, OVL, were in arrears. To solve that problem, the defendant began, both personally and through OVL, to make payments toward the joint venture's mortgage, tax and electric debts. The defendant then demanded, pursuant to § 3.3 and 9.1 of the joint venture agreement, that Gayl Czaplicki contribute additional capital to ensure that the refinancing could occur. Gayl Czaplicki refused, claiming that the defendant had no authority unilaterally to bind the joint venture to his refinancing scheme and that she was not obligated personally to make payments owed by the tenant corporations. The defendant attempted to terminate the joint venture and to wind up its affairs. He also subleased part of OVL's half of the building to another company without the consent or knowledge of the other joint venturers. In August, 1999, the disputes came to a head when the defendant locked out of the building Philip Czaplicki and, consequently, Falcon. Philip Czaplicki and Falcon initiated the lockout case in the housing session of the Superior Court on December 15,1999. After trial, the court found in favor of the plaintiffs in the lockout case and awarded $15,000 in damages along with costs. The court also issued an injunction restoring Falcon to its rented area and all common areas in the building, and ordered the defendant and OVL to remove all of their materials from Falcon's areas of the building. The specific facts of the lockout case will be addressed in part II B. Gayl Czaplicki initiated the joint venture case on June 11, 2002, alleging that the defendant had breached the joint venture agreement. The defendant filed a counterclaim, alleging that he had paid Gayl Czaplicki's share of the joint venture's expenses and seeking an order that she transfer her interest in the joint venture to him. The court found in favor of Gayl Czaplicki on both her claim and on the defendant's counterclaim. The court ordered the defendant to pay to the joint venture the rent and real estate tax payments that it would have received from the dispossessed Falcon between September 1, 1999, and December 31, 2002, and to cease and desist the liquidation of the joint venture until such time as the defendant provided the partners with a full accounting. Further facts will be provided as necessary to address the parties' specific claims on appeal. II THE DEFENDANT'S CLAIMS A The defendant first claims that the court improperly rejected his counterclaim in the joint venture case. Specifically, he claims that the court should have found that Gayl Czaplicki breached the joint venture agreement by failing to contribute capital to the joint venture. We disagree. We begin by setting forth our standard of review. "Whether there was a breach of contract is ordinarily a question of fact. . . . We review the court's findings of fact under the clearly erroneous standard. . . . The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. . A finding of fact is clearly erroneous when there is no evidence in the record to support it . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . ." (Citation omitted; internal quotation marks omitted.) Colliers, Dow & Condon, Inc. v. Schwartz, 77 Conn. App. 462, 471-72, 823 A.2d 438 (2003). The court found that Gayl Czaplicki was not obligated to contribute capital to the joint venture because the joint venture had not yet exhausted all remedies against the two tenants, Falcon and OVL, which were late in paying their rent. In its memorandum of decision, the court stated: "[T]here is no showing that [a capital contribution] is needed or required. [The defendant] contends that no cash flow is available to the [j oint venture]. There is evidence, however, that the two corporations are committed to pay rentals in the amount of the obligations of the joint venture. There is no evidence that any attempt has been made to collect on the past due debts owed to the joint venture, nor to enforce the rental payments by the [tenants]. These rentals were designed to fluctuate so as to consistently pay all of the joint venture's expenses and debts." There was an adequate factual basis for the court to conclude as it did. The court found that the defendant, in his capacity as a joint venturer, did not attempt to collect rent from the tenant corporations, one of which he is a one-half owner. There is no question that both Falcon and OVL owed the joint venture back rent. Instead of attempting to collect those debts, however, the defendant demanded payment from Gayl Czaplicki in her capacity as a j oint venturer and not in her capacity as president of Falcon. Until all efforts to collect rent from Falcon and OVL were exhausted, Gayl Czaplicki was not obligated to make a capital contribution. There was adequate evidence for the court to find that such efforts were not exhausted and, as such, the court's finding of fact was not clearly erroneous. Furthermore, because we conclude that the court properly found that Gayl Czaplicki did not breach the joint venture agreement, we must also conclude that the court properly found that the defendant could not dissolve the joint venture on that ground. B The defendant next claims that, in the lockout case, the court improperly concluded that he violated § 47a- 43 (a), the entry and detainer statute. The defendant argues that Philip Czaplicki had access to the building, but did not choose to enter or to make use of the premises because Falcon had failed as a business. Whether the defendant prevented the plaintiffs from entering the building is a question for the trier of fact. Therefore, we apply the same clearly erroneous standard of review. Colliers, Dow & Condon, Inc. v. Schwartz, supra, 77 Conn. App. 471. There was adequate evidence for the court to conclude that Philip Czaplicki and Falcon were locked out of the building in violation of § 47-43 (a) (2) through (4). Philip Czaplicki testified that, initially, in August, 1999, he was physically locked out of the building when the defendant changed the lock on the front door. Because of previous confrontations and threats by the defendant, the plaintiffs filed the lockout action and obtained a court order rather than discuss the lockout with the defendant. Even after the defendant received a court order, it took several months and intense negotiations before he gave Philip Czaplicki a key. During those negotiations, the defendant threatened both Philip Czaplicki and his attorney. Thereafter, Philip Czaplicki had physical access to the building, but not to the electrical control room, and the defendant used Falcon's side of the building for storage, leaving Falcon's machines inaccessible. The defendant controlled Falcon's access to electricity and would not allow Falcon to operate without first paying him. Without electricity, of course, Falcon could not operate its machines. On one occasion, Philip Czaplicki asked the defendant's subtenant for access to the electrical control room when the defendant was not present in the building. After only ten or fifteen minutes in the building, the subtenant told Philip Czaplicki to leave, indicating that the defendant had ordered the subtenant to keep him out of the building in the defendant's absence. On the basis of this evidence and our review of the entire record, we conclude that the court's finding that the defendant excluded the plaintiffs from the building was not clearly erroneous. In fact, although the court did not specify which subdivisions of § 47a-43 (a) the defendant violated and the defendant did not seek an articulation, there is an adequate evidentiary basis for the corut to have concluded that he violated subdivisions (2), (3) and (4), any one of which is adequate to support the court's judgment. The court reasonably could have found that the defendant used the threat of force in excluding the plaintiffs from the building and therefore violated subdivision (2). The court reasonably could have found that the defendant detained the plaintiffs' personal property in violation of subdivision (3). The court reasonably could have found that Philip Czaplicki would have had to commit a breach of the peace in order to enter the building or, later, the electric control room, in violation of subdivision (4). See footnote 7. C The defendant last claims that the court's award of damages in the lockout case is inadequately supported by the evidence. We disagree. "As a general rule, the determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous. . . . Thus, we give substantial deference to the trial judge on the issue of damages." (Citations omitted; internal quotation marks omitted.) Reader v. Cassar-ino, 51 Conn. App. 292, 297, 721 A.2d 911 (1998). The court awarded $15,000 as damages in the lockout case. The court did not give any explanation of its basis for the award, nor did the defendant seek an articulation. Gayl Czaplicki testified that Falcon was growing and had shown its first profit in 1998. She estimated that the lockout cost Falcon $30,000 in profits, offering as evidence work orders that were never completed and income tax returns. Philip Czaplicki also testified as to Falcon's growth prior to the lockout and indicated the loss in business it caused. That testimony forms an adequate basis for the court's award. Moreover, because the defendant chose not to file a motion for articulation to illuminate further the basis for the compensatory damages award, this court can only speculate as to how and why the trial court arrived at that sum. "We repeatedly have stated that it is the appellant's responsibility to provide an adequate record for review . Thus, in light of the discretion afforded the trial court in determining the amount of damages to be awarded and in crediting or discrediting the testimony of witnesses"; (citation omitted; internal quotation marks omitted) Smith v. Snyder, 267 Conn. 456, 467, 839 A.2d 589 (2004); we conclude that the court's award of damages was not clearly erroneous. Ill THE PLAINTIFFS' CLAIMS A The prevailing plaintiffs in the lockout case, Philip Czaplicki and Falcon, claim that the court improperly failed to award them attorney's fees as "recoverable costs" pursuant to § 47a-45a (a) and 47a-46. That claim is without merit. The two statutory provisions the plaintiffs cite do not allow for an award of attorney's fees. "[W]hen the General Assembly want[s] to authorize the award of attorney's fees it knfows] how to do it." Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 533, 839 A.2d 1250 (2004). Because § 47a-45a (a) and 47a-46 are devoid of any express language authorizing an award of attorney's fees, we will not presume that the legislature intended those provisions to operate in derogation of our long-standing common-law rule disfavoring the award of attorney's fees to the prevailing party. See id. B The plaintiff in the joint venture case, Gayl Czaplicki, claims that the court did not award adequate damages by failing to include rents and real estate taxes that became payable to the joint venture during the course of the litigation. Although the determination of damages is a finding of fact that will not be overturned absent clear error; Reader v. Cassarino, supra, 51 Conn. App. 297; we conclude that Gayl Czaplicki has satisfied that difficult burden. The court found that the defendant breached the joint venture by locking out Falcon, thus costing the joint venture Falcon's half of the mortgage and real estate tax payments. The court therefore awarded the joint venture "the lost rent which would have been received from Falcon . for the period September 1, 1999, through December 31, 2002, said rent being one-half of the monthly mortgage payments, or $477.77, in the total amount of $19,100.80, computed to December 31, 2002, as well as one-half of real estate taxes assessed on the grand lists of October 1, 1999, October 1, 2000, and October 1, 2001." The court, however, did not award damages for 2003, during which Falcon remained locked out and did not pay its half of the rent and real estate taxes. The court rendered judgment on January 5, 2004, at which time the court found that the lockout was ongoing, as evidenced by its order restoring Falcon to the building and directing the defendant to remove his materials from Falcon's area. The court's failure to compensate Gayl Czaplicki completely for the joint venture's harm is clear error. "It is axiomatic that the sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position as he would have been in had the contract been performed." (Internal quotation marks omitted.) Argentinis v. Gould, 219 Conn. 151, 157, 592 A.2d 378 (1991). Here, the joint venture suffered harm through the date of the court's decision, but the court did not award damages for the final year of the harm. In order to place the joint venture in the same position it would have been in absent the defendant's breach, the court must award damages the plaintiff suffered during the final year- of the breach during which the litigation was ongoing. On cross appeal, the judgment in the joint venture case is reversed only as to the failure to award damages for losses incurred during the period of litigation and the case is remanded with direction to award the plaintiff, Gayl Czaplicki, damages incurred during 2003 for unpaid rent in the amount of $5733.24 and real estate taxes in the amount of one-half of the taxes assessed on the grand list of October 1, 2002. The judgments are affirmed in all other respects. In this opinion the other judges concurred. Gayl Czaplicki is the plaintiff in what we refer to as the joint venture case, the first of the two cases at issue that were consolidated for trial. Philip Czaplicki and Falcon Machine Products, Inc., are the plaintiffs in what we refer to as the lockout case, the second of the two cases at issue. Craig Ogren is the only defendant in the joint venture case, and he and the corporation of which he is a one-half owner, OVL Manufacturing, Inc., are the defendants in the lockout case. For simplicity and because Ogren is the driving force behind OVL Manufacturing, Inc., we refer to Ogren as the defendant throughout this opinion. The electric bill was in Philip Czaplicld's name, and he took responsibility for collecting and paying OVL's share of the bill. The defendant collected Falcon's share and paid all other bills owed by the joint venture. The Lassens' share of the joint venture is currently held by the bankruptcy trustee. Section 3.3 of the joint venture agreement provides: "Additional Capital Contributions shall be made in the form of loans from Czaplicki, Ogren and Lassen to the Joint Venture in accordance with the terms and conditions in Section 3.5 below and paid to the Joint Venture as and when the Joint Venture requires." Section 3.5 provides in relevant part: "In the event that a Joint Venturer . . . shall fail to provide an Additional Capital Contribution within fifteen (15) days after the same is due and payable, then any contributing Joint Venturer shall have the right to contribute such sum as shall be due from credit to its . . . Capital Account . . . ." Section 9.1 of the joint venture agreement provides in relevant part: "If any of the Joint Venturers . . . fails to perform any of its respective obligations hereunder, then the other Joint Venturers . . . shall have the right to give the Defaulting Joint Venturer a notice of default . The Notice of Default shall set forth the nature of the obligation to which the Defaulting Joint Venturer has not performed. . . . "(b) If such default is a failure to pay money, and if such sums of money . are not so paid within [a] ten (10) day period, the Nondefaulting Joint Venturer shall have the rights set forth in Section 9.1 (c), below. "(c) If any default is not cured as set forth . . . above, the Nondefaulting Joint Venturers shall have the right to terminate this Agreement. . . whereupon such default may be treated by the Nondefaulting Joint Venturers as a dissolution of the Joint Venture . . . Gayl Czaplicki was originally a plaintiff in the lockout case as well, but later withdrew. The operative amended complaint in the lockout case was filed on April 22, 2003. General Statutes § 47a-43 (a) provides in relevant part: "When any person . (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains [any land] with force and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court." "The tenants' remedy for a lock-out, an illegal or self-help eviction by the landlord or others, is the remedy of entry and detainer." (Internal quotation marks omitted.) Karantonis v. East Hartford, 71 Conn. App. 859, 862, 804 A.2d 861, cert, denied, 261 Conn. 944, 808 A.2d 1137 (2002).