text:
    Leonard Berlingo v. Sterling Ocean House, Inc.
    (3411)
    Dupont, C. J., Borden and Spallone, Js.
    Argued May 17
    decision released September 17, 1985
    upon reconsideration, reversed January 28, 1986

      William H. Narwold, for the appellant (defendant).

      D. Seeley Hubbard, for the appellee (plaintiff).

       At the time this opinion was originally released, this court found error. After reargument and further consideration, we find no error.

   Spallone, J.

The defendant is appealing from the judgment for the plaintiff rendered in an action for forcible entry and detainer brought pursuant to General Statutes § 47a-43.

The facts found may be summarized as follows: In January, 1980, the defendant entered into a long term lease with the Stamford Golf Authority (SGA) for certain premises located at the Sterling Farms Golf Course and Recreational Complex. The leased premises consisted of a portion of the main clubhouse, where the defendant operated a restaurant, and a separate snack bar known as Halfway House. On August 13,1981, the plaintiff entered into a management agreement with the defendant under the terms of which the plaintiff would manage the snack bar located in the Halfway House. In accordance with the management agreement, the plaintiff operated the snack bar for the balance of the golfing season which ended on November 15,1981, the entire golfing season of 1982, that is from March 15, 1982, to November 15, 1982, and for part of the season of 1983.

On April 24, 1983, a fire occurred in the main clubhouse resulting in the closing of the restaurant operated by the defendant. On May 25, 1983, SGA held a special meeting and voted to terminate its lease with the defendant pursuant to a provision of the lease which provided for such action. After SGA terminated its lease with the defendant, SGA entered into a month-to-month lease with the plaintiff for the Halfway House premises. Thus, beginning in July and continuing through November 15,1983, the plaintiff operated the snack bar as a lessee of SGA, rather than as an employee of the defendant under the management agreement.

Shortly after the 1983 golfing season ended, the defendant and SGA entered into a new lease for the formerly leased premises including the Halfway House. By letter dated February 13,1984, the defendant purported to terminate its management agreement with the plaintiff. At that time, however, the plaintiff was still leasing the premises on a month-to-month basis from SGA. By letter dated March 22,1984, SGA notified the plaintiff that it was terminating its month-to-month lease with him and that he would “be afforded thirty (30) days from the receipt of [the] letter to relinquish possession of the [Halfway House] and remove any property stored thereon.” On April 20, 1984, the plaintiff, without interference, entered the premises and removed his personal property. Three days after the plaintiff removed his personalty, SGA turned over possession of the Halfway House to the defendant.

On April 27, 1984, the plaintiff commenced this action of forcible entry and detainer against the defendant. After a trial to the court, judgment was rendered for the plaintiff and, upon the court’s denial of the defendant’s motion to reconsider and for a new trial, the court issued a writ of restitution restoring the plaintiff to possession of the subject premises.The defendant has appealed the action of the trial court, claiming, inter alia, that the court erred in not dismissing the action for lack of subject matter jurisdiction and in concluding that the evidence supported the plaintiff’s claim of forcible entry and detainer.

The defendant’s jurisdictional assertion that forcible entry and detainer does not lie where the property involved is a commercial establishment is without merit. We believe the defendant’s narrow view of the word “tenement” as used in General Statutes § 47a-43 is misplaced. “In its most extensive signification, the word comprehends everything which may be holden, provided it be of a permanent nature. In a more restricted sense, it is a house or building.” Ballentine’s Law Dictionary (3d Ed.). The historical purpose of entry and detainer statutes belies any such limitation on its availability with regard to commercial property.

“Under the ancient common law an owner dispossessed of his land had the right ... to retake it [by force and force of arms if necessary], but after a time the consequent evils seemed too serious to be endured. In the year 1381, a statute (5 Rich. II, Ch. 7) was passed which provided that ‘None from henceforth may make any entry into any lands and tenements, but in ease where entry is given by law; and in such case not with strong hand, nor with multitude of people, but only in a peaceable and easy manner.’ Similar provisions were expressly adopted in the Colony of Connecticut in 1689 and in 1722, and in 1821 were in substance enacted by the legislature of the State in the statute now in force.” Orentlicherman v. Matarese, 99 Conn. 122, 125-26, 121 A. 275 (1923). General Statutes § 47a-43, our present statute, embodies these principles, making it unlawful for a dispossessed party to retake possession by force. An actual peaceable possession, however obtained, could not be put to an end without some process of law. Larkin v. Avery, 23 Conn. 304, 310 (1854). A dispossessed party may not take the law into his own hands and by force eject even a trespasser who is in actual peaceable possession. McAllin v. McAllin, 77 Conn. 398, 402, 59 A. 413 (1904). “ ‘There are several reasons why the law cannot suffer a forcible entry upon a peaceable possession . . . : First; Whoever assumes to make such an entry makes himself judge in his own cause, and enforces his own judgment. Second; He does this by the employment of force against a peaceable party. Third; As the other party must have an equal right to judge his own cause, and to employ force in giving effect to his judgment, a breach of the public peace would be invited, and any wrong, if redressed at all, would be redressed at the cost of a public disturbance, and perhaps of serious bodily injury to the parties.’ 2 Cooley on Torts (3d Ed.) 663.” Orentlicherman v. Matarese, supra, 126-27. Certainly, these principles are just as applicable to commercial as they are to noncommercial properties. It would be illogical to assume that a society would eschew violence where private dwellings are involved but would tolerate violence with respect to the re-entry into commercial property. We hold that a broad, extensive definition of “tenement,” particularly as used in our statute, that is “any land, tenement or dwelling unit,” is a rational interpretation of the statute and gives efficacy to the public purpose expressed by the statute, which is the outlawing of the use of force in the assertion of a person’s right in real property, regardless of the use to which the property is put. The court did not err in concluding that it had jurisdiction to hear the matter.

We agree with the trial court’s conclusion that the plaintiff’s claim of forcible entry and detainer was proven. The fundamental and controlling factor is whether the plaintiff was in actual possession at the time of the entry by the defendant. Communiter Break Co. v. Seinto, 196 Conn. 390, 393, 493 A.2d 182 (1985).

The plaintiffs possession is predicated on his relationship with SGA. Their relationship was that of landlord-tenant and arose out of an admitted month-to-month rental. The crux of the matter lies in the fact that a lease is a contract. In the case of a rental on a month-to-month basis, the tenancy is not regarded as a continuous one. The tenancy for each month is one separate from that of every other month. Corrigan v. Antupit, 131 Conn. 71, 76, 37 A.2d 697 (1944); Chipman v. National Savings Bank, 128 Conn. 493, 497, 23 A.2d 922 (1942); Williams v. Apothecaries Hall Co., 80 Conn. 503, 506, 69 A. 12 (1908). For each month, there must be a new contract for leasing. Welk v. Bidwell, 136 Conn. 603, 607, 73 A.2d 295 (1950). The holding over by the tenant in and of itself is insufficient to raise a contract of lease by implication. A lease will not be presumed unless there is acquiescence on the part of the landlord. Id., 607; Byxbee v. Blake, 74 Conn. 607, 610, 51 A. 535 (1902). If a tenant remains in possession without the consent of the landlord, there is no contract for an extended term to be implied from the holding over. City Coal Co. v. Marcus, 95 Conn. 454, 465, 111 A. 857 (1920). In point of fact, General Statutes § 47a-3d expressly states: “Holding over by any lessee, after the expiration of the term of his lease, shall not be evidence of any agreement for a further lease. Parol leases of lands or tenements reserving a monthly rent and in which the time of their termination is not agreed upon shall be construed to be leases for one month only.” In this case, the landlord did not acquiesce in the tenant’s holding over and, in fact, it took affirmative action to terminate the tenancy by its letter of March 22,1984, wherein it notified the plaintiff of such termination and allowed him thirty days to remove his personalty. SGA’s action was an unequivocal act on its part to terminate the tenancy. Thereafter, the plaintiff was a tenant at sufferance and subject to eviction for having no right to be in possession. Obviously, SGA was not consenting to the plaintiff’s continued possession. “A tenancy at sufferance arises when a person who came into possession of land rightfully continues in possession wrongfully after his right thereto has terminated. Restatement, 1 Property § 22; 32 Am. Jur. 88.” Welk v. Bidwell, supra, 608-609. That is the situation in this case. The plaintiff, prior to April 1,1984, was rightfully entitled to possession. After that date, any claim he had to possession was extinguished by SGA’s notice of termination. Any possession by the plaintiff after April 1,1984, would be wrongful. Accordingly, after that date, he was a tenant at sufferance. Id., 609.

Although, as a tenant at sufferance the plaintiff was not entitled to possession, he nevertheless had standing to prevail in an action for forcible entry and detainer provided that he was in actual possession on the date of his ouster. Carrier v. Carrier, 85 Conn. 203, 207, 82 A. 187 (1912). The question we must resolve is whether the evidence presented in this case supports the finding of the trial court that actual possession was in the plaintiff. “The question of whether the plaintiff was in actual possession at the time of the defendant’s entry is one for the trier of fact. Gray v. Finch, 23 Conn. 495, 513-14 (1855). Generally, the inquiry is whether the individual has exercised the dominion and control that owners of like property usually exercise. 35 Am. Jur. 2d, Forcible Entry and Detainer, § 15; see Hancock v. Finch, 126 Conn. 121, 123, 9 A.2d 811 (1939). . . . [I]t is not necessary that there be a continuous personal presence on the land by the person maintaining the action. There, however, must be exercised at least some actual physical control, with the intent and apparent purpose of asserting dominion. 35 Am. Jur. 2d, Forcible Entry and Detainer, § 14.” Communiter Break Co. v. Scinto, supra, 394.

Although the court did not expressly find that the plaintiff was in actual possession, we conclude that it did so by implication when it referred to the plaintiff as the “actual possessor.”

The question we are confronted with is whether the trial court, on the basis of the evidence presented, could reasonably and logically conclude that the plaintiff was in actual possession of the premises at the time of the defendant’s entry.

There was evidence presented by the plaintiff that, in each of the golfing seasons from 1981 to 1983, the snack bar opened in March and closed in November. The plaintiff operated the snack bar continuously from August, 1981, until February 13, 1984. Although the snack bar was not open from November until March, the plaintiff stored his possessions in the snack bar and at all times retained a key to the premises. He paid rent to the defendant from August, 1981, to May, 1983 and then to SGA, thereafter. During this period, the plaintiff paid for all utilities, maintenance and repair expenses for the premises, and at no time did he experience any interference with or restriction of his use and possession of the premises.

On February 13, 1984, the defendant wrote to the plaintiff indicating that it was terminating the management agreement which previously existed between them. At about the same time, the defendant placed a padlock on the premises. On March 8, 1984, the defendant again wrote to the plaintiff and informed him of its intention to operate the snack bar itself and requested that the plaintiff remove his possessions from the premises and that if he did not do so the defendant would move them to a storage area.

On March 22, 1984, SGA, by letter, terminated the leasehold interest of the plaintiff and gave him 30 days to relinquish possession of the premises and to remove from it any property belonging to him. The plaintiff removed his property from the premises on or about April 20,1984. After the plaintiff had removed his property, he received another letter from the defendant in which the defendant wrote, “we will take all steps necessary to prohibit Mr. Berlingo from attempting to enter the Halfway House (snack bar) premises.”

The trial court, despite the contention of the defendant that the plaintiff voluntarily surrendered the premises, expressly found that the letters, and in particular the last letter, plus the padlocking of the premises by the defendant amounted to a repossession of the premises by the defendant. The trial court concluded that the defendant’s actions constituted a holding and a detaining of the premises with force and strong hand and were in violation of the statute.

Although we might disagree with the trial court’s findings and might have found differently had we been sitting as the fact finder, we are precluded from rejecting such a finding where there is evidence to support it. Lupien v. Lupien, 192 Conn. 443, 446, 472 A.2d 18 (1984). We cannot say that the trial court’s finding, that the defendant violated the forcible entry and detainer statute, was clearly erroneous. There was sufficient evidence to sustain the trial court’s conclusions.

The additional claims of error raised by the defendant are without merit.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 47a-43. complaint AND PROCEDURE: FORCIBLE ENTRY AND DETAINER; ENTRY AND detainer, (a) When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same 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.
      “(b) Such judge shall forthwith issue a summons to the party complained of, directed to some proper officer, to notify him to appear at a specified time and place, within eight days from the exhibition of such complaint, in the superior court for the judicial district wherein the injury complained of was done, to answer to the matters contained in the complaint.
      “(c) Such summons shall be served upon the party complained of six days inclusive before the day appointed for trial.
      “(d) If, after service of such summons, the party complained of does not appear and defend, the judge shall proceed in the same manner as if he were present.”


source: Caselaw Access Project

author: McKeever, J.

license: Public Domain

text:
    Percy E. Todd v. Administrator, Unemployment Compensation Act, et al.
    (2821)
    Spallone, Daly and McKeever, Js.
    Argued May 24
    decision released September 17, 1985

      John L. Ponzini, for the appellant (plaintiff).

      Donald E. Wasik, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, and Robert E. Walsh, assistant attorney general, for the appellee (named defendant).

      Gregory B. Nokes, for the appellee (defendant Hall-Brooke Foundation, Inc.).
   McKeever, J.

This appeal arises from a judgment of the Superior Court dismissing the plaintiff’s appeal from the employment security board of review’s decision affirming the appeals referee’s denial of unemployment compensation benefits to the plaintiff.

The plaintiff was employed by the defendant hospital, Hall-Brooke Foundation, Inc. (Hall-Brooke), from September, 1968, until February 18,1982, as a clerk-messenger. He was hired by Elizabeth Solomon, the former executive director of Hall-Brooke. Throughout his employment at Hall-Brooke, the plaintiff maintained a personal friendship with Solomon and worked for her on a part time basis after she was removed as an official of Hall-Brooke. On February 17, 1982, Solomon attempted a takeover of the hospital, but her plans were thwarted by a court injunction. The plaintiff was discharged by his employer when it learned that he was present during the attempted takeover. Following his discharge, the plaintiff successfully filed for unemployment compensation benefits.

The appeals referee decided that the plaintiffs passive involvement in the attempted takeover of his employer’s facility did not constitute acts of felonious or repeated wilful misconduct in the course of his employment. The employer appealed to the employment security board of review (board), which remanded the matter to the appeals referee for further proceedings for the purpose of re-examining, by means of additional evidence and testimony, the plaintiff’s actions in light of the employer’s allegations which caused his discharge on February 18, 1982. On remand, the appeals referee sustained the employer’s appeal and denied benefits to the plaintiff on the ground that his actions throughout the day of February 17, 1982, on behalf of Solomon, without actual or implied authorization of the plaintiff’s employer, constituted repeated wilful misconduct.

The appeals referee at that second hearing found the following facts. The plaintiff met Solomon, as arranged in a phone conversation with her the night before, on the grounds of Hall-Brooke prior to his scheduled working hours. After arriving, the plaintiff was aware that conditions were other than normal as hospital officials, including those he reported to, had not reported to work. At Solomon’s direction, the plaintiff made his post office run. Later, at Solomon’s direction, he went to the employer’s bank and thereafter continued to perform tasks at her direction. The plaintiff made no attempt to determine the legitimacy of Solomon’s authority, despite prior notification to him by his employer that he was to report Solomon’s presence on the premises since she no longer had any legitimate authority at Hall-Brooke. Testimony also revealed that when Solomon met the plaintiff she was accompanied by a private security force and that the plaintiff observed a locksmith on the premises who had been hired by Solomon to change the locks.

The plaintiff appealed the appeals referee’s decision, rendered after the remand, to the board, which adopted the referee’s findings and affirmed the decision. Pursuant to General Statutes § 31-249b, the plaintiff appealed to the Superior Court, where the trial court rendered a judgment dismissing his appeal. From that judgment, he appeals to this court.

Our review of this matter is limited “since the referee determined that the plaintiff had not satisfied the statutory eligibility requirements for unemployment benefits, we have to determine whether the action taken by the referee and affirmed by the board and the Superior Court was reasonable and supported by the evidence.” Lazarcheck v. Administrator, 1 Conn. App. 591, 594, 474 A.2d 465 (1984). The plaintiff argues, on appeal, that the trial court erred in not finding that the referee’s conclusion that he was guilty of repeated wilful misconduct within the meaning of General Statutes § 31-236 (2) (B) was illegal, arbitrary or unreasonable in light of the evidence.

An employee discharged for repeated wilful misconduct is ineligible for unemployment benefits pursuant to General Statutes § 31-236 (2) (B). The claim that the plaintiff’s actions did not constitute wilful misconduct is without merit. “In this context, ‘wilful misconduct’ refers to conduct evincing a wilful disregard of an employer’s interest such as deliberate violations of the employer’s procedures or a disregard of expected standards of behavior. Hannon v. Administrator, 29 Conn. Sup. 14, 17, 269 A.2d 80 (1970); see also DeMilo v. West Haven, 189 Conn. 671, 678, 458 A.2d 362 (1983). Wilful misconduct includes deliberate disobedience or the intentional violation of a known rule. A. C. Gilbert Co. v. Kordorsky, 134 Conn. 209, 211-12, 56 A.2d 169 (1947); Bigelow Co. v. Waselik, 133 Conn. 304, 308, 50 A.2d 769 (1946).” Bailey v. Administrator, 3 Conn. App. 494, 495, 490 A.2d 92 (1985). The plaintiff assisted in an attempted takeover of the employer’s facility. Surely, this is a deliberate disregard of expected standards of behavior. Further, the plaintiff was instructed to report the presence of Solomon on the premises, which he did not do, despite having advance warning of her intention to set foot on the premises. The subordinate facts found by the appeals referee support the conclusion that the plaintiff’s conduct constituted wilful misconduct.

Whether the appeals referee could reasonably conclude that the plaintiff’s action on February 17, 1982, constituted repeated wilful misconduct, however, is not so easily disposed of. In the context of this statute, repeated has been “defined as ‘again and again.’ ” Lazarcheck v. Administrator, supra, 595. The plaintiff argues that his actions could not be construed as repeated wilful misconduct because they all occurred in the span of one day, and he was not warned between the acts that future such action would result in his discharge. Prior to 1979, the repetitiveness of certain conduct was an evidentiary inference as to whether the conduct was wilful misconduct or a thoughtless act on the spur of the moment. Bigelow Co. v. Waselik, supra, 308; Sturges v. Administrator, 27 Conn. Sup. 215, 218-19, 234 A.2d 372 (1966); Martino v. Administrator, 20 Conn. Sup. 394, 398, 136 A.2d 810 (1957). The absence of repetition, however, did not prevent a discharge for wilful misconduct. Bigelow Co. v. Waselik, supra. In 1979, the statute was amended by inserting “repeated” before wilful misconduct. Public Acts 1977, No. 77-319.

The legislative history answers the plaintiff’s argument that acts within the period of one day, where no warning is given between those acts, cannot constitute repeated wilful misconduct and indicates the contrary. Senator Lewis B. Rome speaking on behalf of the passage of this amendment commented: “I rise with serious reservations to support the amendment. I think it somewhat improves the present legislation, but only time will tell if, in fact, in reality, it does. I specifically refer to line 56. In line 56, No. 1, we’re going to add language ‘felonious conduct or,’ and I hope that the clarification offered by Senator [James J.] Murphy [Jr.] will be significant, but the next word remains in the statute and that next word is repeated. The word is ‘repeated.’ I give you an example, in Texas, as a matter of fact, a ball player assaulted his manager. He did quite a job on him, and under our old law, I believe that is called wilful misconduct, and under our old law, that second baseman would not be able to collect unemployment compensation for a period of five weeks. Now, he gets a second punch or punches because we now say, it must be ‘repeated wilful misconduct.’ I would caution you that that creates a problem for me. I have tried to utilize the time on both these amendments so as to expedite the process of improvement. I find this less than perfect. As a matter of fact, I find it [gives] me considerable difficulty. As I have suggested ... I intend to vote for it with that reluctance as I have suggested that on Senator [Joseph J.] Fauliso’s amendment on the first piece of legislation, that I hope that we could address the problems that I’ve just suggested and I could give you many more of one instance of wilful misconduct including throwing a hammer into a hundred thousand dollar machine and fouling it up and still having the second bite. I think if we seriously address the problem at another time on another labor bill to suggest that people who commit a physical assault on a fellow employee without justification, the people who do extensive damage not even damage, but extensive damage to the property of another employee or the employer, that they ought to be permanently disqualified on the basis that that is by definition that we should establish. Wilful misconduct of a separate variety and an important degree. I, in the spirit of ending the debate and exercising the judgment that this bill makes some slight improvement, I will support the amendment and hope we all will support the bill.” 20 S. Proc., Pt. 4, 1977 Sess. pp. 1553-54.

Senator Joseph J. Fauliso responded to that statement by inquiring, “[i]n that episode pertaining to the ball player, did he punch him twice or did he punch him once, because then the question of repeated might be invoked.” Id., pp. 1554-55. The comments on the legislation on the floor of the house likewise do not buttress the plaintiffs argument. The opposition to the passage of the amendment in the house interpret the amendment not to require a warning before discharge. 20 H.R. Proc. Pt. 10,1977 Sess., pp. 4164-76. The legislative history, particularly the comments on the floor of the senate, support the appeals referee’s decision. In light of that, we cannot say the appeals referee’s conclusion that the plaintiff’s conduct constituted repeated wilful misconduct is unreasonable nor can we say that the subsidiary facts do not support that conclusion. Bailey v. Administrator, supra.

There is no error.

In this opinion the other judges concurred.

       The first name of Ms. Solomon is spelled as Elizabeth in the record but in the briefs is spelled as Elisabeth. In this opinion we use the spelling adopted in the record.

       Whether the example of an act of misconduct used by Senator Rome is accurate is immaterial; Guest v. Administrator, 22 Conn. Sup. 458, 174 A.2d 545 (1961); as his comments and Senator Fauliso’s comments throw light on the legislative intent in using “repeated” in so far as the necessary time span between acts and the necessity of a warning.


author: Spallone, J.

text:
    D.F.P. Enterprises v. City of Waterbury
    (2615)
    Dupont, C. J., Hull and Spallone, Js.
    Argued May 8
    decision released September 24, 1985
   Spallone, J.

During the early morning hours of July 5,1982, an apartment building owned by the plaintiff and located in the city of Waterbury was destroyed by a fire in which fourteen people died. At the request of the mayor of Waterbury, the defendant city arranged for the demolition of what remained of the building and the clearing of the site. This involved the retrieval of bodies and the sifting of the rubble for remains.

When the task was completed, the defendant, pursuant to General Statutes § 49-73b, filed a lien in the amount of $35,421.54 on real estate owned by the plaintiff. The plaintiff applied to the Superior Court to discharge or reduce the lien. After a hearing, the trial court found that all of the expenses were properly lienable except for $3732.40 in overtime pay for police department personnel engaged in investigating whether the fire started as a result of criminal activity. The court denied the application to discharge, but ordered that the amount of the lien be reduced to $31,689.14.

The plaintiff has appealed from the trial court’s action upon its application to discharge or reduce the lien. It claims that the court erred (1) in finding that the expenses were lienable under General Statutes § 49-73b, (2) in finding that the mayor of the city of Waterbury acted lawfully when he authorized the demolition of the property, and (3) by permitting an arson investigator to testify as an expert regarding whether the building was unsafe and should be demolished. We can find no error as to the plaintiff’s second and third claims of error. As to its first claim of error, we disagree, in part, with the trial court’s conclusion.

The facts as found by the trial court are substantially as follows. Detective Martin Eagan, of the office of the fire marshall of the city of Waterbury, was called to the scene of the fire at 2:30 a.m. on July 5, 1982. He found that the roof of the plaintiff’s building had collapsed and that much of its interior had caved into the ceiling of the first floor apartments. The building was composed mainly of apartment units. Early reports indicated that at least a dozen persons were missing. It was ultimately determined that fourteen persons lost their lives as a consequence of the fire.

Eagan, who in the course of his career had investigated approximately 500 fires, determined about dawn that what remained of the building was a hazard and unsafe to rescue workers and the public. He recommended to the mayor of the city, who had also arrived on the scene, that demolition be commenced at once. The mayor, by authority vested in him under the defendant’s charter, invoked emergency powers and engaged a private construction company, O & G Construction Company (O & G), to demolish the structure and clear the site of debris in order to facilitate the rescue of possible survivors or the retrieval of bodies. Police department personnel were called to secure the property and to control nearby traffic.

0 & G was required to remain on the scene for two weeks. The retrieval of bodies from the ruins was a time consuming operation which required sifting each bucket of rubble before it could be hauled from the site. Absent the need to recover the bodies, the demolition and clearing of the property would have taken three or four days at the most. 0 & G submitted a bill for $19,690.60; the rental of city equipment, which was also utilized in the operation, came to $5778.85; and charges for police and detective services amounted to $6219.69. As noted, the trial court excluded from the lien the amount of $3732.40 which was expended for detective services used in investigating the possibility of criminal activity as the cause of the fire.

I

Considering the plaintiff’s claims of error in reverse order, we hold that as to its third claim of error, the court was correct in admitting the challenged testimony. The testimony in question was that of Eagan, who was called by the plaintiff to testify regarding the condition of the building.

The plaintiff contends that Eagan had no particular knowledge or experience which caused his opinion as to whether it was necessary to demolish the building to be of any aid to the court. It thus argues that the trial court abused its discretion in admitting Eagan’s testimony because he was not qualified as an expert witness. We disagree.

The trial court has broad discretion to determine the qualifications of expert witnesses. Its decision in this regard “will not be disturbed on appeal unless there has been an abuse of discretion or there was a clear error involving a misconception of the law.” McKiernan v. Caldor, Inc., 183 Conn. 164, 168, 438 A.2d 865 (1981); Spoto v. Hayward Mfg. Co., 2 Conn. App. 663, 670, 482 A.2d 91 (1984). After it has been determined by the trial court that the witness is reasonably qualified to testify as an expert, the objection goes only to the weight accorded such testimony, not to its admissibility. McKiernan v. Caldor, Inc., supra; Loewenberg v. Tiger Lee Construction Co., 1 Conn. App. 303, 307, 471 A.2d 665 (1984). “The question of whether a sufficient foundation was laid is a factual question for the court. ‘[WJhere the admissibility of evidence depends upon a preliminary question of fact, to be determined by the court, its decision is not to be reversed unless there is clear and manifest error.’ Engelke v. Wheatley, 148 Conn. 398, 411, 171 A.2d 402 (1961).” Spoto v. Hayward Mfg. Co., supra, 670. Guided by those standards, we cannot conclude that the trial court abused its broad discretion, or committed clear error misconceiving the law, in admitting Eagan’s testimony.

II

The plaintiff’s second claim of error is that the court erred in finding that the mayor was acting lawfully when he authorized the demolition of the plaintiff’s property. The plaintiff argues that the expenses incurred thereby were not properly lienable.

There is no merit to this claim. Section 2102 (a), Division 2 of the Waterbury city charter provides: “The Mayor shall have power: (a) To assume the entire control and direction of the police and fire forces of the city, or either of them, for a period not exceeding fifteen (15) days, at his discretion, in case of emergency, and to exercise all of the powers conferred upon the police and fire departments in relation thereto.” Additionally, Section 2-37.2 of the city code, entitled “Powers and duties of Mayor,” provides: “In the event of a disaster emergency the Mayor shall assume full command of all local government functions and facilities and personnel. All available local resources shall be brought to bear on the emergency existing in an effort to protect and preserve human life and property of the community to the greatest extent possible.

“The Mayor shall be limited only by the Governor of the State of Connecticut in state declared emergencies or the President of the United States of America in a declared national emergency.”

By virtue of both of those sections, the mayor was authorized to assume full command of the situation that developed at the scene of the fire and to take all action necessary to protect and preserve human life and property.

Given this broad grant of power, there is nothing in the record that would justify an intrusion by this court, with the benefit of hindsight, into the factual findings made by the trial court with regard to the exercise of these emergency powers. The defendant’s charter mandates that, in the event of a “disaster emergency,” the mayor shall take command of the situation. Whether the appropriate conditions for the exercise of this power existed at the time was a question of fact, as is the question of whether the mayor properly executed those emergency powers under the circumstances. The findings of the trial court are amply supported by the evidence, and we are precluded from questioning them. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982); Connecticut National Bank v. Nagy, 2 Conn. App. 448, 449, 479 A.2d 1224 (1984).

Ill

The plaintiffs claim that the trial court erred in failing to discharge the lien is also without merit. General Statutes § 49-73b (a) provides that “[a]ny municipality which has incurred expenses for the inspection, repair, demolition, removal or other disposition of any real estate damaged by fire in order to secure such real estate or to make it safe shall have the right to recover such expenses from the owner of the real estate for which such expenses were incurred.” The trial court found that the language used in that statute is unambiguous and concluded that under the plain meaning of the words used therein, the defendant was entitled to reimbursement of all expenses except those incurred by detectives in investigating the cause of the fire.

While we find no error in the court’s refusal to discharge the lien, we do find error in its conclusion as to the extent of the plaintiff’s liability. In brief, we do not believe that the lien permitted by General Statutes § 49-73b encompasses the recovery of expenses incurred through the retrieval of dead bodies from the rubble.

The lien which the statute imposes requires a landowner to shoulder the cost of actions taken to secure real estate which a municipality, in the first instance, performs. The lienable expenses are, in logic, those which are necessary to render safe fire-damaged real estate which poses a threat to public safety. That these expenses should be recoverable from the owner flows naturally from the duty which every property owner bears to maintain his property in such a way as will not occasion unnecessary damage or annoyance to others. Maykut v. Plasko, 170 Conn. 310, 314, 365 A.2d 1114 (1976). If a municipality were not reimbursed for these expenses, the owner would be unjustly enriched.

The distinction between those expenses for which a municipality is entitled to restitution under General Statutes § 49-73b and those which the municipality must bear was recognized by the trial court when it excluded the cost of the criminal investigation from the total amount of the lien. The court, however, did not pursue this distinction to its logical conclusion. The sifting of rubble to retrieve the dead bodies bore a close relation to the investigation. That this activity exceeded the scope of a private property owner’s duty is evident from our statutes which pertain to the investigation of deaths which occur under suspicious circumstances. General Statutes (Rev. to 1981) §§ 19-530 and 19-531 set forth an array of governmental functions which are not capable of being performed by private citizens. Dead bodies and related evidence must be made available to the office of the chief medical examiner for investigation and post mortem examination where the deaths occur under suspicious circumstances. General Statutes (Rev. to 1981) §§ 19-530, 19-531. In cases of accidental death, the cause of which is obscure, “the scene of the event shall not be disturbed until authorized by the chief medical examiner, the deputy chief medical examiner, an associate medical examiner or an authorized assistant medical examiner.” Such authorized examiners “shall view and take charge of the body without delay.” General Statutes (Rev. to 1981) § 19-531 (b). General Statutes (Rev. to 1981) § 19-531 (d), in fact, provides for the imposition of criminal sanctions for the failure to comply with the provisions of that section.

We hold that only the expenses incurred by the defendant in rendering the property safe and secure were properly reimbursable under General Statutes § 49-73b. Our interpretation is consistent with the plain words of the statute. The expenses to be reimbursed relate to the “inspection, repair, demolition, removal or other disposition of any real estate” and no words in the statute refer to expenses unrelated to the securing or safety of the real estate. The trial court should have limited its application of § 49-73b to the functions necessary to render the premises safe so that the retrieval of the bodies could begin.

There is error in part, the judgment is affirmed except with regard to the amount of the lien, and the case is remanded for further proceedings limited to that issue.

In this opinion the other judges concurred.

       General Statutes § 49-73b provides: “(a) Any municipality which has incurred expenses for the inspection, repair, demolition, removal or other disposition of any real estate damaged by fire in order to secure such real estate or make it safe shall have the right to recover such expenses from the owner of the real estate for which such expenses were incurred.
      “(b) The interest of each person in such real estate shall be subject to a lien for the payment of such expenses, which lien shall take precedence over any other incumbrance except municipal tax assessments on such real estate. No such lien shall be valid, unless the municipality, within thirty days after such work has ceased, files a certificate of such lien and gives notice to the owner of the real estate in the same manner as provided in section 49-34.
      “(c) The interest of each person in the proceeds of any policy providing fire insurance coverage issued by an insurance company, including any policy written pursuant to the provisions of section 38-201h, shall be subject to a lien on such proceeds for the expenses incurred by a municipality pursuant to the provisions of subsection (a) of this section, provided such municipality, within thirty days after such work has ceased, files a certificate of such lien and gives notice to such interested person in the same manner as provided in section 49-34.
      “(d) Any municipal lien filed pursuant to the provisions of this section may be foreclosed in the same manner as a mortgage.
      “(e) Any certificate of lien filed pursuant to this section shall exist from the fifteenth day succeeding the date of entry of such certificate in the land records.
      “(f) Any municipal lien filed pursuant to this section may be discharged or dissolved in the manner provided in sections 49-35a to 49-37, inclusive.
      “(g) Nothing in this section shall prevent an insured owner, mortgagee, assignee or other interested party from negotiating a dissolution of any such lien on the fire insurance proceeds, enabling the insurance company to disburse said proceeds.
      “(h) The provisions of this section shall not apply to policies on single-family or two-family dwellings.”

       The expenses found by the court to be reimbursable were as follows:
      Demolition and search for bodies by O & G $19,690.60
      Overtime police services 6,219.69
      Public works services rendered by the city of Waterbury 5,778.85
      Total $31,689.14

       General Statutes (Rev. to 1981) § 19-530 provides: “(a) The chief medical examiner shall investigate all human deaths in the following categories: (1) Violent deaths, whether apparently homicidal, suicidal or accidental, including but not limited to deaths due to thermal, chemical, electrical or radiation injury and deaths due to criminal abortion, whether apparently self-induced or not; (2) sudden or unexpected deaths not caused by readily recognizable disease; (3) deaths under suspicious circumstances; (4) deaths of persons whose bodies are to be cremated, buried at sea or otherwise disposed of so as to be thereafter unavailable for examination; (5) deaths related to disease resulting from employment or to accident while employed; (6) deaths related to disease which might constitute a threat to public health.
      “(b) The chief medical examiner shall designate pathologists who are certified by the department of health services to perform autopsies in connection with the investigation of any deaths in the categories listed in subsection (a) of this section. Any state’s attorney or assistant state’s attorney, the chief medical examiner or an authorized assistant medical examiner shall have the right to require an autopsy by a pathologist so designated in any case in which there is a suspicion that death resulted from a criminal act. The official requiring said autopsy shall make a reasonable effort to notify whichever one of the following persons, eighteen years of age or older, assumes custody of the body for purposes of burial; Father, mother, husband, wife, child, guardian, next of kin, friend or any person charged by law with the responsibility for burial, that said autopsy has been required, however performance of said autopsy need not be delayed pending such notice.
      “(c) If the investigation of the circumstances and examination of the body enable the chief medical examiner, the deputy medical examiner, associate medical examiner or an authorized assistant medical examiner to conclude with reasonable certainty that death occurred from natural causes or obvious traumatic injury, and there are no other circumstances which would appear to require an autopsy, the medical examiner in charge shall certify the cause of death and file a report of his findings in the office of the chief medical examiner. If, in the opinion of such medical examiner, an autopsy is necessary, the same shall be performed at the office of the chief medical examiner or by a designated pathologist at a community hospital. Where indicated, the autopsy shall include toxicologic, histologic, microbiologic and serologic examinations. If a medical examiner has reason to suspect that a homicide has been committed, the autopsy shall be performed by the chief medical examiner or by a designated pathologist in the presence of at least one other designated pathologist if such other pathologist is immediately available. A detailed description of the findings of all autopsies shall be written or dictated during their progress. The findings of the investigation at the scene of death, the autopsy and any toxicologic, histologic, serologic and microbiologic examinations and the conclusions drawn therefrom shall be filed in the office of the chief medical examiner.”
      General Statutes (Rev. to 1981) § 19-531 provides: “(a) All law enforcement officers, state’s attorneys, prosecuting attorneys, other officials, physicians, funeral directors, embalmers and other persons shall promptly notify the office of the chief medical examiner of any death coming to their attention which is subject to investigation by the chief medical examiner under this chapter, and shall assist in making dead bodies and related evidence available to that office for investigations and postmortem examinations, including autopsies, and shall cooperate fully with said office in making the investigations and examinations herein provided for. In conducting such investigations or examinations, the chief medical examiner may issue subpoenas requiring the production of medical reports, records or other documents concerning the death under investigation and compelling the attendance and testimony of any person having pertinent knowledge of such death.
      “(b) In cases of apparent homicide or suicide, or of accidental death, the cause of which is obscure, the scene of the event shall not be disturbed until authorized by the chief medical examiner, the deputy chief medical examiner. Upon receipt of notification of a death as provided herein, the chief medical examiner, the deputy chief medical examiner, an associate medical examiner, or an authorized assistant medical examiner shall view and take charge of the body without delay.
      “(c) In conducting his investigation, except as may be otherwise directed by the state’s attorney or an assistant state’s attorney, the chief medical examiner or his authorized representative shall take possession of any objects, writings or other articles of property which in his opinion may be useful in establishing the cause or manner of death and hold, analyze or deliver them to the appropriate law enforcement officials. When such articles are no longer required to be kept for the purposes of justice, they shall be delivered to the person or persons entitled to their custody or, if they are not claimed by such person or persons entitled thereto within one year after the date of death, such articles may be disposed of by the law enforcement official as provided in section 54-36.
      “(d) Any person who wilfully fails to comply with any provision of this section shall be fined not more than five hundred dollars or imprisoned not more than one year, or both.”


text:
    On Site Energy Corporation v. Sperry Rand Corporation
    (2520)
    (2597)
    Dupont, C. J., Hull and Spallone, Js.
    Argued May 8
    decision released September 24, 1985

      Francis J. McNamara, Jr., with whom were Eric W. Wiechmann and, on the brief, JohnF. Spindler, for the appellant (defendant).

      Richard L. Albrecht, with whom, on the brief, was Jorem Hirsch, for the appellee (plaintiff).
   Spallone, J.

The defendant is appealing from a judgment rendered for the plaintiff after a trial to the court.

The facts as found by the trial court are essentially as follows: The plaintiff, On Site Energy Corporation (On Site) is a Connecticut corporation which was formed in 1967 by Arthur Pivirotto. The purpose of the corporation was to design and lease on site electric generating stations. An on site generating plant consists of gas or diesel engines and the electric generators required to provide all the necessary electric, heating and cooling energy systems for a factory location.

On November 29,1966, the defendant Sperry Rand Corporation (Sperry), through its then Remington Electric Shaver Division, entered into an agreement with the A. G. & T. Realty & Construction Company (A. G. 6 T.) to lease a plant owned by A. G. & T. located in Milford.

On August 18,1967, On Site and Sperry entered into an equipment lease agreement. This equipment lease agreement was extended on December 30, 1971, to May 31, 1975. The equipment lease ran concurrently with the term of the A. G. & T. and Sperry property lease. Under separate operating agreements, also dated August 18, 1967, On Site undertook to operate and maintain the leased equipment for Sperry.

The equipment lease, in paragraph ten, provides: “10. Upon the termination of this lease, Lessor, at its expense, shall remove the equipment from Lessee’s premises and Lessor agrees to reimburse Lessee for the actual cost of repairing any damage to said premises caused by such removal and restoring said premises to a condition reasonably satisfactory to Lessee. Such reimbursement shall be made by Lessor promptly upon Lessee’s demand therefor.”

The operating agreement essentially provided that On Site was to provide the labor and expertise to operate, maintain and repair and make necessary replacements to the equipment installed so as to keep the equipment running at a certain level of efficiency.

The equipment was installed and was operated by On Site without incident until 1975. Shortly after March 6, 1975, On Site received a letter from Sperry. The letter informed On Site that Sperry did not intend to renew the lease, and that it would not require On Site’s services after May 31, 1975. In early May, Sperry informed On Site that it would not require service from the leased equipment during the month of May, 1975, and that On Site could adjust the scope of operations, maintenance, repair and replacements of the leased equipment.

On or about April, 1975, Pivirotto learned that A. G. & T. had placed the building on the market for sale. He saw a flier that was distributed by DeScala Associates, a real estate brokerage firm. This flier included a photograph of the energy plant.

During the period from June to July and possibly as late as August, negotiations were taking place between On Site (represented by Pivirotto) and A. G. & T. (represented by Thomas Minogue, Sr.) whereby Pivirotto endeavored either to sell his equipment as a package deal along with the Milford plant or, alternatively, to purchase the Milford plant himself. Both deals fell through.

By the fall of 1975, Pivirotto’s relationship with Minogue deteriorated and Minogue instructed Pivirotto to remove his equipment from the building. Minogue insisted that Pivirotto post a $50,000 bond or a personal guaranty prior to the removal of On Site’s equipment from the building. Pivirotto testified that he could not get the required bond after consulting one agency about the bond.

The building in Milford was padlocked, sometime between June and late August, and representatives of On Site lost access to their equipment. The building was apparently padlocked by the owner of the building. Pivirotto then contacted Walter DeGiovanni, who was the superintendent in charge of the operation of the Milford plant for Sperry. He explained to DeGiovanni that he was locked out of the building by the owner of the building; and that the owner required that he post a $50,000 bond for repair to the building, if he was to be permitted to remove the equipment; and that he was unable to get the bond. He asked DeGiovanni what Sperry could do to remove the equipment. DeGiovanni replied that Sperry could not do anything because the contracts had expired.

As to the time required for the removal of the equipment, there was conflicting testimony ranging from three to four days with two months advance planning and coordination, to sixty to ninety days, including planning time.

On January 7, 1976, On Site instituted an action in replevin against A. G. & T. On Site also sought a prejudgment remedy to attach the Milford plant for the sum of $200,000. The prejudgment remedy was denied and summary judgment was granted in favor of A. G. & T. On Site did not appeal from that judgment and never regained possession of the equipment.

In September, 1976, On Site brought the present action seeking damages for breach of contract and for negligence. After a full trial, the court rendered judgment for the plaintiff in the amount of $287,100, plus costs.

The defendant has appealed claiming, essentially, that the court erred in applying the general principles of law regarding bailments instead of basing its conclusions on the express contract between the parties. We agree.

Both parties agree that their contract relationship was a bailment. They disagree, however, as to whether general principles of bailment or the contract should govern. Where rights, duties and obligations are fully stated in a written contract between the parties, the court is obligated to determine the intention of the parties “ ‘from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used.’ ” (Citations omitted.) Leonard Concrete Pipe Co. v. C. W. Blakeslee & Sons, Inc., 178 Conn. 594, 598, 424 A.2d 277 (1979). It is not within the power of the court to make a new and different agreement. Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 55, 453 A.2d 771 (1983). Contracts voluntarily and fairly made should be held valid and enforced by the courts. Collins v. Sears, Roebuck & Co., 164 Conn. 369, 377, 321 A.2d 444 (1973). “It is axiomatic that a party is entitled to rely upon its written contract as the final integration of its rights and duties. Farmers & Mechanics Savings Bank v. First Federal Savings & Loan Assn., 167 Conn. 294, 302, 355 A.2d 260 [1974].” Zullo v. Smith, 179 Conn. 596, 601, 427 A.2d 409 (1980).

Here, the contract between the parties expressed the agreement between them, and in clear, unequivocal and unambiguous language detailed their obligations to each other. The defendant fully performed its contractual obligations to the plaintiff. The court found no breach of contract, and then found the defendant liable in tort based on negligence.

The central and dispositive issue is whether the trial court erred in ignoring the contract between the parties and basing its conclusions on the general principles of bailment law. The essence of bailment is the transfer of possession by one person to another in trust for a specific purpose, “under a contract to return it to the owner according to the terms of the agreement.” Murray v. Paramount Petroleum & Products Co., 101 Conn. 238, 242, 125 A. 617 (1924). The trial court’s lengthy analysis of bailment law is not relevant to the circumstance in this case because it ignores the contractual relationship between the parties. In doing so, the court erred.

A bailment for hire arises out of the contract. The parties are free to regulate the terms and conditions of the relationship in their agreement. While the law of bailment attaches certain implied obligations, these are only implied “in the absence of express provision in the contract to the contrary . . . .” Douglass v. Hart, 103 Conn. 685, 688, 131 A. 401 (1925).

“ ‘The rights, duties, and liabilities of the bailor and the bailee must be determined from the terms of the contract between the parties, whether express or implied. Where there is an express contract, the terms thereof control, since both the bailor and the bailee are entitled to impose on each other any terms they respectively may choose, increasing or diminishing their rights, and their express agreement will prevail against general principles of law applicable in the absence of such an agreement. ’ ” (Emphasis added.) 9 Williston, Contracts, (3d Ed. 1967) § 1030, pp. 879-80.

Accordingly, while the law of bailments implies a general obligation to redeliver or account for the property, the parties are free to stipulate the time, place and manner in which redelivery is to be made. “The general principle that the manner of a bailee’s redelivery should be in accordance with the contract stipulations is too well settled to belabor.” In re International Marine Development Corporation, 451 F.2d 763, 766 (5th Cir. 1971); 8 C.J.S., Bailments § 37 (b).

The contract between the parties clearly indicated the time, place and manner that redelivery would be effected and when the obligations between the parties would cease. The time was obviously May 31,1975; the place was the site of the equipment on that date; and the manner was clearly spelled out in paragraph 10 of the lease between the parties. On Site had the obligation to remove the equipment. Sperry fulfilled its obligations under the contract when it vacated the premises and left the equipment in place and in good condition, because that was what it was authorized and required to do under its agreement with On Site.

Whatever mischief may have flowed from the events subsequent to May 31, 1975, were of On Site’s own doing. It chose to allow the equipment to remain in place while it negotiated various alternatives with A. G. & T. Whatever demands A. G. & T. made of On Site were between them and had nothing to do with Sperry. On Site’s loss of the equipment by the failure of its replevin suit against A. G. & T. was outside the duty, control or interest of Sperry.

We conclude that the relationship between On Site and Sperry ended on May 31, 1975, and that the trial court’s conclusion that Sperry owed a duty to On Site enforceable in an action sounding in negligence was clearly erroneous, as was the court’s application of the general principles of bailment in disregard of the express terms of the contract between the parties.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.


text:
    KND Corporation v. Hartcom, Inc.
    (3270)
    Dupont, C. J., Borden and Spallone, Js.
    Argued May 17
    decision released September 24, 1985

      Alan Neigher, with whom, on the brief, was Judith Trutt, for the appellant (defendant).

      Glenn T. Terk, for the appellee (plaintiff).
   Spallone, J.

The dispositive issue in this appeal is whether, pursuant to General Statutes § 52-409, the defendant was entitled to a stay of this proceeding pending arbitration. We find that it was.

The plaintiff entered into an agreement to sell WKND-AM, a radio station located in Windsor, to Citcom Corporation, which assigned its rights to the defendant. About a month before the closing, the parties modified the agreement to provide that the defendant would be responsible for attorney’s fees and costs of collection if the defendant did not abide by the provisions of the contract. The agreement, as originally entered into by the parties, otherwise remained in full force and effect.

On the date of the closing, the plaintiff stated that accounts receivable in the amount of $74,779.52 were outstanding. Pursuant to the contract, the defendant was to collect those accounts during the ninety day period after the date of closing and pay the proceeds, less any commissions due to WKND-AM sales personnel, to the plaintiff as promptly as possible and at least every thirty days. The contract also contained a provision whereby the parties agreed that all disputes arising out of the contract would be settled by arbitration. The plaintiff commenced this action to collect accounts receivable which the defendant had not remitted to it as provided by the contract. The defendant moved, pursuant to General Statutes § 52-409, to stay the proceedings pending arbitration, and to dismiss the proceedings on the ground that the plaintiff was contractually obligated to submit this dispute to arbitration. The trial court, Brennan, J., denied both motions, and the defendant filed an answer and special defenses. As its second special defense, the defendant contended that under the contract, all disputes were to be resolved by arbitration.

Prior to trial, the defendant filed a “renewed” motion to dismiss or stay the proceedings pending arbitration. The court, N. O’Neill, J., denied that motion. Upon completion of the trial, the court found all of the facts in favor of the plaintiff, but rendered a judgment of dismissal in favor of the defendant. The court found that the arbitration clause in the agreement was not a condition precedent to an action in court. It also found that the defendant had done nothing to implement arbitration and had unjustifiably delayed seeking arbitration. It thus concluded that the defendant had waived its rights under the arbitration clause. Nonetheless, because the plaintiff had not specially pleaded waiver in reply to the defendant’s second special defense; see Jones v. Civil Service Commission, 175 Conn. 504, 511, 400 A.2d 721 (1978); the court dismissed the action “solely on defendant’s defense that the arbitration provision in the contract prevails.”

The plaintiff moved to open the judgment and for leave to file a reply to the defendant’s second special defense. The trial court granted the motion. The plaintiff filed a reply in which it pleaded waiver and the court rendered judgment for the plaintiff in the amount of $36,127.90. The defendant has appealed from that judgment, claiming (1) that the trial court erred in refusing to stay or dismiss the proceedings, (2) that arbitration was a condition precedent to litigation under the terms of the contract, (3) that it never waived its right to enforce the arbitration clause, and (4) that the trial court’s findings as to its first and third special defenses and its counterclaim were not supported by the evidence.

General Statutes § 52-409 provides that where an action is brought by any party to a written agreement to arbitrate, the court shall stay the action upon motion by any party to the agreement, provided that the issue involved is referable to arbitration and that the person seeking the stay is ready and willing to proceed with arbitration. Arbitration need not be a condition precedent to the action in court for the granting of a stay under General Statutes § 52-409. See Kantrowitz v. Perlman, 156 Conn. 224, 229, 240 A.2d 891 (1968). Even where an arbitration clause is determined on appeal not to be a condition precedent to litigation, a party being sued may avail itself of the provisions of that section. Id.

In its motion to stay, the defendant alleged that it was ready and willing to arbitrate and that it sought arbitration pursuant to the contract. It filed that motion at the beginning of the case and renewed the motion on the eve of the trial. The plaintiff takes the position that this was not enough and that the defendant should have sought an order to compel arbitration under General Statutes § 52-410. We do not agree. The procedure authorized by General Statutes § 52-410 is an adversary process commenced by writ of summons and complaint. Covenant Ins. Co. v. Banks, 177 Conn. 273, 278-79, 413 A.2d 862 (1979). It would make little sense to require a party being sued to initiate such an action. To do so “would merely plunge the defendant deeper into the sea of litigation, thus causing it the very inconvenience it sought to avoid by arbitration.” Conte v. Weston, 26 Conn. Sup. 41, 44, 211 A.2d 706 (1965).

General Statutes § 52-409 has been recognized as a means by which a party to a pending suit may “compel arbitration by gaining a ‘judicial reconciliation’ of the threshold issue of arbitrability” when the other party has refused to arbitrate voluntarily. Schwarzschild v. Martin, 191 Conn. 316, 323, 464 A.2d 774 (1983) . An order under General Statutes § 52-409, of course, does not terminate the action but merely postpones its disposition. An order staying proceedings “may be modified or vacated by the court whenever, in the exercise of a sound discretion, it is considered necessary or proper to do so. 1 C.J.S. 1417 [Actions § 134].” Gores v. Rosenthal, 148 Conn. 218, 221, 169 A.2d 639 (1961).

We can find no support in the record for the trial court’s finding that the defendant unjustifiably delayed seeking arbitration and therefore waived its right to arbitrate. Cf. Waterbury Teachers Assn. v. Waterbary, 164 Conn. 426, 436, 324 A.2d 267 (1973) (failure to move for stay until trial nearly completed); Flynn v. Newington, 2 Conn. App. 230, 236, 477 A.2d 1028 (1984) (failure to move for stay until eighteen months after commencement of action). We conclude that the defendant was entitled to the stay contemplated by General Statutes § 52-409. Having so concluded, we need not address the defendant’s claims of error which concern the trial court’s findings as to its special defenses and counterclaim.

There is error, the judgment is set aside and the case is remanded with direction to grant the defendant’s motion to stay proceedings pending arbitration.

In this opinion the other judges concurred.

       Paragraph twenty-one of the contract provided: “Any controversy arising under this agreement shall be settled by arbitration conducted in Hartford, Connecticut under the prevailing rules of the American Arbitration Association, and judgment upon any award shall be entered in any court of competent jurisdiction.”

       General Statutes § 52-409 provides: “If any action for legal or equitable relief or other proceeding is brought by any party to a written agreement to arbitrate, the court in which the action or proceeding is pending, upon being satisfied that any issue involved in the action or proceeding is referable to arbitration under the agreement, shall, on motion of any party to the arbitration agreement, stay the action or proceeding until an arbitration has been had in compliance with the agreement, provided the person making application for the stay shall be ready and willing to proceed with the arbitration.”


author: Borden, J.

text:
    State of Connecticut v. Jesse Fullard
    (3478)
    Borden, Spallone and Daly, Js.
    Argued June 7
    decision released September 24, 1985

      David M. Abbamonte, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Borden, J.

After a jury trial, the defendant was found guilty of manslaughter in the second degree, in violation of General Statutes § 53a-56 (a) (1). He appeals from the judgment of conviction following the verdict, claiming that the court erred in denying his motion for judgment of acquittal made at the close of all the evidence.

The sole issue on appeal is whether there was sufficient evidence upon which the jury could have found the defendant’s claim of self-defense, raised pursuant to General Statutes § 53a-19 (a), disproved beyond a reasonable doubt. General Statutes § 53a-12 (a). We hold that there was sufficient evidence, and find no error.

The defendant did not testify or present any evidence. There was evidence produced by the state from which the jury could reasonably have found that the cause of the death of the victim, James Heggs, was infection resulting from a stab wound to his abdomen, stomach, colon and liver, inflicted nearly three months prior to the date of death. The morning after the stabbing, the defendant telephoned his cousin, Myra Davis, and told her he had stabbed someone. After the death, the police investigation focused on the defendant, who gave a written statement to the police which was introduced in evidence.

The statement indicated that the defendant paid Heggs $10 for Heggs to buy him a bag of heroin. When the defendant discovered the bag to be empty, he complained to Heggs.

The statement continued: “While we were going back down the drive and I asked James to give me my money back and then he started to call me a punk and started to beat me up. He knocked me down on the ground and got on top of me. He started to beat me up and because he was heavier than me I couldn’t get him off. I was really scared because I knew that I couldn’t beat him and that he had a reputation of being a bad dude. I was trying to get him off me and my arm hit my pocket and that’s when I realized that I had a knife so I got my knife out and managed to open it up. I stabbed him one time and that’s how I got him off me. I had no other choice, I couldn’t get away from him. When he got off me and that’s when he told me Tf I ever see you again I am going to kill you.’

“Q. Where did you go at that time?

“A. I was still scared so I threw the knife somewheres around there and I went home. I never went back around there again.

“Q. Do you know James’ last name?

“A. No, I didn’t know it until my cousin Myra told me a few weeks later.

“Q. I am showing you a police photo #12053, is that the man that you stabbed? (Photo #12053 is of James Heggs)

“A. Yes, that’s the one that also beat me up.

“Q. Is there anything else you would like to say concerning this incident.

“A. I really didn’t want to kill the man, I just wanted to get him off me, I was scared.”

The defendant argues in effect that, because the state relied on his statement to establish that he stabbed the victim, and because the same statement also raised the defense of the justified use of deadly physical force, there was insufficient evidence as a matter of law to disprove the defendant’s defense and to permit the case to go to the jury. We disagree.

We agree that “[w]hen a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt.” General Statutes § 53a-12 (a). The use of deadly force in self-defense is a defense pursuant to General Statutes § 53a-19 (a), which provides in pertinent part: “[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.”

Whether the defense of the justified use of force, properly raised at trial, has been disproved by the state is a question of fact for the jury, to be determined from all the evidence in the case and the reasonable inferences drawn from that evidence. State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427 (1982). “The statute focuses on the . . . defendant . . . claiming self-defense. It focuses on what he reasonably believes under the circumstances . . . .” (Emphasis in original.) Id.

The defendant, by his claim of self-defense in his statement, raised the defense provided by General Statutes § 53a-19 (a). Thus, the state had the burden of disproving that defense beyond a reasonable doubt. General Statutes § 53a-12 (a).

This does not mean, however, as the defendant urges, that the state had any further burden of production of evidence after it had introduced the defendant’s statement. Although it retained the burden of proof, or burden of persuasion, on each element of the crime beyond a reasonable doubt, and although that burden of persuasion included disproving the defendant’s claim of self-defense, the state was not precluded from relying on the evidence which it had produced to persuade the jury of the defendant’s guilt. As long as that evidence was sufficient for a jury reasonably to find that the state had met its burden of persuasion, the verdict must stand.

In deciding whether the evidence was sufficient to justify the verdict, we construe the evidence in the light most favorable to sustaining the verdict, and we determine whether, on the basis of the cumulative effect of that evidence, the jury could reasonably have concluded that the defendant was guilty. State v. Dumlao, 3 Conn. App. 607, 613, 491 A.2d 404 (1985). The critical questions for the jury, in evaluating the defendant’s claim of self-defense, were (1) whether he reasonably believed that Heggs was using or about to use deadly physical force, or was inflicting or about to inflict great bodily harm, and (2) whether, acting with that reasonable belief, he used the deadly force of the knife stab on Heggs. General Statutes § 53a-19 (a); State v. Corchado, supra. There was sufficient evidence in this case to sustain the verdict.

First, the jury could have believed that part of the defendant’s statement admitting that he stabbed Heggs, but disbelieved that part in which he claimed that it was done in self-defense. It is axiomatic that a jury can accept all, part or none of the testimony of a witness. Barrila v. Blake, 190 Conn. 631, 639, 461 A.2d 1375 (1983); Birgel v. Heintz, 163 Conn. 23, 29, 301 A.2d 249 (1972). We know of no authority for the proposition that, faced with a defendant’s written statement, part inculpatory and part exculpatory, the jury must accept the exculpatory with the inculpatory.

This is particularly true here, because there was also evidence that the defendant lied to the police before giving his written statement. When he was first apprehended by the police he claimed that his name was Ron, not Jesse, he denied knowing his cousin, Myra Davis, and when shown a photograph of the victim, he denied knowing him, stabbing him or ever carrying a knife. The jury “could consider the defendant’s own misstatements and changes in his statements to the police, as consciousness of guilt.” State v. Carter, 196 Conn. 36, 48, 490 A.2d 1000 (1985).

Second, even if the jury believed the exculpatory part of his statement, they could have reasonably concluded from it that the degree of force he used in response to Heggs was not reasonable, and that his belief that he was threatened with deadly force or great bodily harm was not reasonable. General Statutes j 53a-19 (a); State v. Corchado, supra. The facts that Heggs was on top of the defendant and beating him up without a weapon, and that Heggs had a “reputation of being a bad dude,” did not compel the jury to conclude that either the defendant’s response or belief were reasonable. Thus, the jury could reasonably have concluded that the defense provided pursuant to General Statutes § 53a-19 (a) was disproved beyond a reasonable doubt.

There is no error.

In this opinion the other judges concurred.


text:
    John Hampton v. John R. Manson, Commissioner of Correction
    (2888)
    Hull, Spallone and Daly, Js.
    Argued June 4
    decision released September 24, 1985

      Richard T. Biggar, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Vito Mazza, law student intern, for the appellant (respondent).

      Michael McKenna, for the appellee (petitioner).
   Spallone, J.

This is an appeal from the judgment of the Superior Court granting a writ of habeas corpus.

The sole issue to be determined is whether the trial court erred in concluding that our criminal erasure statute, General Statutes § 54-142a, prevents police officers from testifying at a hearing before the Connecticut board of parole concerning their personal observations of the conduct of a parolee if the parolee is later charged with a crime relating to some of that conduct and those charges are subsequently dismissed.

In 1978, the petitioner pleaded guilty to several counts of larceny and robbery and was sentenced to serve from seven to fourteen years in prison. In July, 1982, he was released on parole subject to certain conditions, including his agreement not to possess any firearms or other weapons.

On December 16, 1982, the petitioner was arrested in New Haven in connection with an attempted robbery and weapons were found in a car identified as belonging to him. The charges against the petitioner, which were lodged as a result of his alleged participation in the attempted robbery, were subsequently dismissed because of an illegal search and seizure. In July, 1983, the petitioner’s parole was revoked after a hearing in which two police officers testified from their own personal knowledge and memory concerning the weapons found in the car.

The petitioner petitioned for a writ of habeas corpus which was granted by the trial court on the ground that under the erasure statutes, the police officers’ testimony was inadmissible. Upon the granting of certification by the trial court, the state has appealed.

In order to sustain the action of the trial court, we must either agree with the conclusion of the trial court that the term “record” as used in the erasure statutes encompasses the personal knowledge of police officers as to the supressed evidence or we must apply the exclusionary rule to parole revocation proceedings. We decline to do either.

The federal courts have given us guidance as to the inapplicability of the exclusionary rule to parole revocation proceedings. In United States ex rel. Carrasquillo v. Thomas, 677 F.2d 225 (2d Cir. 1982), the second circuit stated in a per curiam opinion that “criminal charges contained in an indictment dismissed with prejudice can form the basis for a subsequent revocation of parole.” In United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161, 1163 (2d Cir. 1970), the second circuit dealt with a factual situation very similar to that before us and sustained the use of evidence concerning an illegally seized gun in parole revocation proceedings. “A parole revocation proceeding is concerned not only with protecting society, but also, and most importantly, with rehabilitating, and restoring to useful lives those placed in the custody of the Parole Board. To apply the exclusionary rule to parole revocation proceedings would tend to obstruct the parole system in accomplishing its remedial purposes.” United States ex rel. Sperling v. Fitzpatrick, supra, 1163-64. We are firmly in accord with the position expressed by the second circuit and we hold that the exclusionary rule regarding the inadmissibility of illegally seized evidence has no application to parole revocation hearings.

We also hold that the word “record” as used in the criminal erasure statutes does not include the personal and independent observations of the police officers. We distinguish between police officers, whose information was derived from having been on the scene of the occurrence and whose testimony is based on their own personal knowledge of the actual events, and those members of a law enforcement agency, whether police officers or others, whose only knowledge of the events was totally obtained because of their access to the records subject to erasure. Where the testimony of a witness at a parole revocation hearing is based solely on information the witness has gleaned from the erased record, such information is clearly within the nondisclosure mandate of the statute.

To hold inadmissible information based on knowledge not gained from the record, would obstruct, thwart and inhibit the parole board in the proper exercise of its function in holding a parole revocation hearing, that is, to ascertain whether the parolee violated the conditions of his parole. One of the specific conditions of the petitioner’s parole was that he not possess, at any time, firearms, ammunition or any other weapon. The petitioner here is a convicted felon, still under sentence, but allowed at large on parole, provided the board is satisfied that there is a reasonable probability that the prisoner “will live and remain at liberty without violating the law and such release is not incompatible with the welfare of society.” Parham v. Warden, 172 Conn. 126, 131, 374 A.2d 137 (1976). Once released from prison, however, a parolee does not enjoy “the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.” Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). The petitioner in effect has entered into a compact with the board that he will meet the conditions of his parole. The board is entitled to hear all available, relevant and probative evidence necessary for it to make an informed and intelligent decision as to whether the parolee is abiding by the conditions of his release.

No useful public purpose would be served by expanding and interpreting the term “record” as used in our erasure statutes to include the personal knowledge and memory of actual events by police officers, particularly where the resultant effect would be to impede the board in its function of determining whether the parolee should remain at large or should be required to finish his term in prison.

There is error, the judgment is set aside and the case is remanded with instruction to render judgment denying the writ of habeas corpus.

In this opinion the other judges concurred.

       At the time of the petitioner’s parole revocation hearing, General Statutes § 54-142a provided, in relevant part: “(a) Whenever in any criminal case, on or after October 1,1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state’s attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken . . . . (e) The clerk of the court or any person charged with retention and control of such records center of the judicial department or any law enforcement agency having information contained in such erased records shall not disclose to anyone information pertaining to any charge erased under any provision of this section.” (Emphasis added.)


author: Hull, J.

text:
    State of Connecticut v. Louis J. Maiocco State of Connecticut v. Almerindo Alves State of Connecticut v. John L. Borges
    (3431)
    (3432)
    (3433)
    Dupont, C. J., Hull and Daly, Js.

      Argued June 12
    decision released September 24, 1985

      Donald A. Browne, state’s attorney, for the appellant (state).

      Richard T. Meehan, Jr., with whom were John D. Guman, Jr., and James P. McLoughlin, for the appellees (defendant in each case).
   Hull, J.

This appeal arises out of the dismissal of three informations charging each of the defendants with larceny in the first degree, a violation of General Statutes § 53a-122, and with conspiracy to commit larceny in the first degree in violation of General Statutes § 53a-48. This appeal, essentially, raises the question of whether the trial court erred in dismissing these three informations as a result of the state’s failure to be prepared for trial, despite having received one prior extension of time. We find error.

The facts are undisputed. The three defendants were charged, in August, 1983, with the theft of silver bullion from their employer, Handy and Harman Company of Fairfield. Their prosecutions were joined for trial which was to begin on July 3, 1984, but on that day the court granted a two week continuance to the state because a critical witness, Captain Edward Targowski of the Fairfield police department, was ill.

The case was reached for trial again on July 16,1984, and at that time the state requested a further three week continuance because the state’s key witness, Everald Rankin, a co-employee of the defendants, had left the state on vacation despite having been served with a subpoena on July 3,1984, and despite the efforts of Handy and Harman Company to guaranty his presence at trial. In response to this request by the state, counsel for the defendant Borges moved to dismiss the information against him. Counsel for the defendants Maiocco and Alves orally joined in this motion to dismiss, and subsequently filed written motions to dismiss the informations lodged against them as well.

In response to these motions, the state reiterated its request for a continuance and, at that point, the court, Melville, J., denied that request. The trial court ruled that the state “could go forward without the witness, that it could request a nolle, or that it would suffer a dismissal. Now, those are the options open to the State at this time.

“I strongly feel that the company had some serious responsibility to make their witnesses available since apparently this witness’ presence was peculiarly "within the control of the company. And they have failed to do that. And I don’t think that they have any complaints at this point if this case is dismissed.

“However, the State still may prosecute this case by having the individuals rearrested after a nolle has been entered "within thirteen months under the statute. Now the State can do that if they want to. Or they can suffer a dismissal if they want to. What is the State’s pleasure?”

The state persisted in its request for a continuance and the trial court, having denied that request, granted the defendants’ motions to dismiss with prejudice. The state has, with the permission of the trial court, filed the present appeals from those dismissals.

At the outset, the defendants point out that the state has briefed two issues while only one of them was raised in its preliminary statement of issues. The state had originally claimed only that the court erred in granting the defendants’ motions to dismiss. In its brief, however, the state also argued the issue of whether the delay in the defendants’ prosecution constituted a violation of their sixth amendment constitutional right to a speedy trial. These two issues are really one and the same. The trial court’s dismissal of the information was based, in part, on speedy trial concerns. Thus, the brief complies with Practice Book §§ 3012 (a) and 3060F (a). The state and the defendants only strike glancing blows at each other through their briefs. They seem to focus on different concerns than those upon which the court’s rulings were based. The state’s brief argues, primarily, that the trial court’s rulings were based upon its concerns for the defendants’ rights to speedy trials. The defendants respond that the court was merely exercising its control over the trial docket in dismissing the three informations. We conclude that the court’s rulings reflect both concerns and we thus consider the merits of both bases for those rulings.

The first concern expressed by the court in its rulings was the defendants’ rights to a speedy trial. The actual length of the delay, however, is not the only consideration involved in speedy trial claim. The court must also balance the reason for the delay, the defendants’ assertion of their right and the prejudice caused to the defendants by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Davis, 192 Conn. 739, 741, 474 A.2d 776 (1984); State v. Cleary, 3 Conn. App. 349, 350-51, 488 A.2d 831 (1985). An examination of these four factors does not support the dismissal of these three informations.

The delay between the defendants’ arrests in this case and the dismissal of the charges against them was only thirteen months. That must be compared with the twenty-six month delay in State v. Davis, supra, the three and one-half year delay in State v. Gasparro, 194 Conn. 96, 480 A.2d 509 (1984), or the five year delay in Barker v. Wingo, supra. In none of those cases was the delay considered sufficient, in and of itself, to constitute a denial of the right to a speedy trial. Nor, obviously, can that be said in this case.

The reason for the delay in this case clearly militates against the state. Although the first delay was beyond the state’s control, the state did have the ultimate responsibility to ensure the presence of Rankin on July 16. It did, however, make a good faith effort to obtain his presence both by the use of a subpoena and by requesting a representative of Handy and Harman to take steps to see that Rankin appeared. The defendants point out that there are statutory provisions whereby material witnesses in a criminal case may be arrested upon a complaint of any state’s attorney alleging that the witness is likely to disappear from the state. The defendants also argue that the court noted, in the colloquy leading to the dismissals, that the state could have issued a capias to assure the attendance of Rankin. We hold that such draconian remedies should not be required of the state in order to prove that it made a good faith effort to secure the attendance of a witness under circumstances such as these.

Third, the record before us does not reflect that the defendants raised the speedy trial issue at any time prior to July 16. As the court stated in State v. Gasparro, supra, 101, “ ‘[w]e emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.’ Barker v. Wingo, supra, 532. Our review of the record indicates a complete failure on the part of the defendant to assert his right of speedy trial until the eve of trial.”

Finally, the record reflects an absolute lack of prejudice caused by the delay in reaching trial here. Prejudice, within the meaning of Barker v. Wingo, supra, must be assessed by considering three interests of the defendants: (1) the prevention of oppressive pretrial incarceration; (2) the minimization of their anxiety and concern; and (3) reducing the possibility that their defense might be impaired. Id.; State v. Gasparro, supra; State v. Cleary, supra, 352. In the present case, the defendants were released from custody on bond on the day of their arrests and they were free thereafter; their anxiety and concern could not have been minimized any further, short of a final disposition; and finally, no claim was ever made that the defendants were hindered in any way from preparing their defense. Thus, we conclude that the court’s rulings cannot be supported by speedy trial considerations.

With regard to the second of the trial court’s bases for its ruling we note that there is some disagreement between the parties over precisely what ruling is at issue. The defendants assert that since only the granting of the motions to dismiss has been claimed by the state as error, the state must not dispute the denial of its request for a continuance. A review of the transcript, however, indicates that the motions to dismiss and the request for a continuance were treated by the court as alternatives. Upon denying the continuance request the court granted the motions to dismiss. The basis was the same for both rulings and the state’s claim of error regarding the trial court’s dismissal of the three informations necessarily entails consideration of the court’s ruling on the continuance request.

“The matter of a continuance is traditionally within the discretion of the trial judge, which will not be disturbed absent a clear abuse.” State v. Beckenbach, 1 Conn. App. 669, 674, 476 A.2d 591, cert. granted, 193 Conn. 806, 477 A.2d 659 (1984). We conclude that there was an abuse of discretion in this case.

The court’s denial of the state’s request for a continuance left the state with only two real alternatives: (1) to proceed without a key witness; or (2) to suffer dismissals. We conclude that the facts and circumstances of this case do not support denial of the state’s request for a continuance or the court’s subsequent dismissals of these informations. This case is unlike State v. Cleary, supra, in which the court concluded that the state’s failure to proceed with trial thirty-six months and five scheduled trial dates after the defendant’s arrest constituted failure to prepare diligently for trial. Rather, the same considerations which are relevant to the speedy trial claim in this case demonstrate the abuse of discretion with regard to this claim.

There is error, the judgments of the trial court are set aside and the cases are remanded to the trial court to be restored to the trial docket.

In this opinion the other judges concurred.

       Although three informations were involved, the charges against all of the defendants arose out of the same events. For that reason the three defendants were to be tried together and the state’s appeals have been combined here.

       The motion to dismiss filed by Borges and joined in by Maiocco and Alves was based upon Practice Book § 820 (referring to motions to suppress) and General Statutes § 54-56 (referring to dismissals of informations due to insufficient evidence or cause to justify continuation of the prosecution). The defendants concede that the reference to Practice Book § 820 was an error and that Practice Book § 815 is the appropriate reference. The defendants assert, however, that the portion of General Statutes § 54-56 referring to insufficient cause is appropriately cited. We conclude that General Statutes § 54-56 is sufficiently broad to apply to the case before us.

       The court commented, at one point, that “I am not going to let anyone go, but I have to honor the right of the speedy trial here. This case is a year old or approximately a year old and the court has made every effort to get this case on trial.”

       It should also be noted that the delay is still well within the bounds of the eighteen month maximum period for initiating trial mandated by General Statutes § 54-821 and Practice Book §§ 956B, 956C.

       General Statutes § 54-82j provides: “Upon the written complaint of any state’s attorney addressed to the clerk of the superior court for the judicial district wherein such state’s attorney resides, alleging (1) that a person named therein is or will be a material witness in a criminal proceeding then pending before or returnable to the superior court for such judicial district, and in which proceeding any person is or may be charged with an offense punishable by death or imprisonment for more than one year, and (2) that the state’s attorney believes that such witness is likely to disappear from the state, secrete himself or otherwise avoid the service of subpoena upon him, or refuse or fail to appear and attend in and before such superior court as a witness, when desired, the clerk or any assistant clerk of the court shall issue a warrant addressed to any proper officer or indifferent person, for the arrest of the person named as a witness, and directing that such person be forthwith brought before any judge of the superior court for such judicial district, for examination. The person serving the warrant shall bring the person so arrested before the judge for examination as soon as is reasonably possible and hold him subject to the further orders of the judge. The person serving the warrant shall also notify the state’s attorney of such arrest and of the time and place of such examination.”

       Practice Book § 792 provides: “If, after proper service within this state of a subpoena, the person subpoenaed fails to appear at the designated place and time, the judicial authority may issue a capias directed to a proper officer to arrest such person and bring him before the judicial authority.”

       Although the court also offered the state the option of entering nolle prosequis against the defendants, General Statutes § 54-56b provides that if the defendants had objected to the entry of nolle prosequis, the court would have been obligated to render a judgment of dismissal unless the state could show that its witness had died, disappeared or had become disabled. Since Rankin’s location was known and his return was expected within three weeks, it cannot be said that he had disappeared. Hence, the state’s option to enter a nolle was the functional equivalent of requesting dismissals.