author: CRETELLA, J. SCHALLER, J.,

text:
    DIEGO MICELI ET AL. v. GARRY C. HELYER ET AL.
    (13455)
    Schaller, Spear and Cretella, Js.

      Argued September 25, 1995
    decision released February 13, 1996

      Henry C. Winiarski, Jr., for the appellants (plaintiffs).

      Sandra Rachel Baker, with whom were Vincent F. Sabatini and, on the brief, Paul M. Cramer, for the appellee (named defendant).
   CRETELLA, J.

The plaintiffs, Diego Miceli and Theresa Miceli, appeal from the judgment for the named defendant rendered by the trial court in the plaintiffs’ action for breach of contract involving the sale of certain residential real property. On appeal, the plaintiffs argue that the trial court improperly (1) concluded that the plaintiffs’ failure to provide a satisfactory water test report constituted the failure of a condition precedent to the contract, (2) admitted evidence regarding agency when agency was not pleaded by the defendant, and, even if properly considered, found that the plaintiffs’ broker was acting as the agent of the plaintiffs, and (3) concluded that there was a delay on the part of the plaintiffs in addressing the water problem and that extensions of the closing date were granted so that the plaintiffs could close on their new residence. We affirm the judgment of the trial court.

The trial court found the following facts. The plaintiffs and the defendant executed a contract for the sale of the plaintiffs’ house to the defendant for $456,200. The contract specified that the closing take place on or before October 1, 1988, and contained a mortgage contingency clause in the amount of $365,000. The contract also contained various addenda making the contract contingent on satisfactory water, structural, termite, septic system and radon inspections. The contract also contained a liquidated damage clause that provided for the plaintiffs to retain the $15,000 deposit of the defendant if the defendant breached the contract.

On August 12, 1988, the defendant obtained a mortgage commitment from First Federal Savings in the amount of $365,000, requiring that the closing take place on or before forty-five days from that date, or September 26, 1988. The mortgage commitment was “subject to a satisfactory well water analysis as to potability and E.D.B.” The agent with whom the plaintiffs had listed the property, Merrill Lynch Realty Company (Merrill Lynch), undertook to have the well water tested at the expense of the defendant. The test was unsatisfactory and the defendant paid the test fee in accordance with the contract.

Although the defendant could have then rescinded the contract and had his deposit returned to him, he agreed to extend the closing to allow the plaintiffs time to correct the water problem. The bank agreed to extend the mortgage commitment date, and, notwithstanding the fact that the delay in closing would require the defendant to pay a higher interest rate on that mortgage commitment, the defendant agreed to absorb such cost. The parties agreed to extend the closing date to the end of November, 1988, so that the plaintiffs could close on the house that they were purchasing.

The parties did not reach an agreement as to who would pay the cost of any additional water tests. Merrill Lynch arranged to have successive tests performed and the reports were sent directly to the plaintiffs. The defendant never received a copy of the reports and was never asked to pay for any subsequent reports.

After several delays, the closing was scheduled for December 9, 1988, at the closing office of the bank in Glastonbury. The defendant and his wife were present on that date, as well as the defendant’s attorney and the attorney for the bank. The plaintiffs were not present but their attorney was there with appropriate pre-signed documents. As the closing commenced, the attorney for the bank requested the water report. The plaintiffs’ attorney called his office in Hartford and was told that the water test report was satisfactory and would be brought right over. The parties waited for one and one-half hours for the report to arrive. Eventually, the attorney for the bank stated that the closing could not take place that day and he left. The defendant, his wife and his lawyer also left. The plaintiffs’ attorney continued to wait and eventually the report arrived. The report, which was dated December 9, 1988, the date of the closing, was addressed to the plaintiff Diego Miceli. December 9 was the last date that the closing could take place at the specified mortgage rate, which had already been increased due to the November postponement.

The plaintiffs then brought this action against the defendant alleging that they were ready, willing and able to perform the contract on December 9, 1988, and that they incurred financial losses due to the defendant’s failure to pay the purchase price and take title on that date. The trial court held that it was the responsibility of the plaintiffs to pay for the second water test and that the December 9 closing did not take place because the water test report was not provided. The court therefore ordered that the defendant’s $15,000 deposit held by Merrill Lynch be returned to the defendant. The plaintiffs then took this appeal.

I

The plaintiffs first argue that the trial court improperly found that their failure to supply a satisfactory water test at the closing constituted the failure of a condition precedent to the contract. The plaintiffs contend that they had no contractual obligation to produce an analysis for either the defendant or his mortgagee. They argue that although the contract provisions in question were intended to be conditions precedent to the defendant’s obligation to perform his agreement to purchase, they could not be invoked to excuse the defendant’s performance on December 9, 1988. We disagree.

We note initially that “[t]he factual findings of a trial court on any issue are reversible only if they are clearly erroneous. . . . This court cannot retry the facts or pass upon the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ...” (Citation omitted; internal quotation marks omitted.) Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 40-41, 632 A.2d 1134 (1993).

“A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. ... If the condition precedent is not fulfilled the contract is not enforceable.” (Citations omitted; internal quotation marks omitted.) Luttinger v. Rosen, 164 Conn. 45, 47-48, 316 A.2d 757 (1972); see Feinberg v. Berglewicz, 32 Conn. App. 857, 860, 632 A.2d 709 (1993). It is clear that unless a satisfactory water test report was produced, the defendant had no obligation to purchase the property. The trial court found that the plaintiffs were obligated to produce the report as a condition precedent to the contract and that, without the report, there was no right to performance. When the condition precedent failed, the contract terminated.

According to the plaintiffs, however, the water test addendum did not require the plaintiffs to supply any documentation to the defendant. The plaintiffs argue that part b of paragraph eleven of the contract simply obligated the plaintiffs to allow the defendant access to their property for the purpose of conducting whatever inspections he desired, all of which were to be paid for by him. The plaintiffs argue that this provision negates any inference that they were obligated to demonstrate that the matters subject to inspection were satisfactory. The plaintiffs also rely on paragraph thirteen of the contract, which indicates that the property would be delivered to the defendant in the condition it was in at the time of the contract, except for normal use and wear, and paragraph nineteen of the contract, which provides that the defendant had the opportunity to inspect the property and that the defendant entered into the agreement without relying on any representations, information or promises by the plaintiffs.

In this regard, we note that the water test addendum to the real estate contract provided that the contract was contingent on a water test to be performed at the defendant’s expense. When the first test was performed and the results were unsatisfactory, the defendant paid the cost in accordance with the contract. We agree with the trial court, however, in rejecting the plaintiffs’ claim that the defendant was required to secure and furnish the satisfactory report. As the trial court correctly stated: “The contract does not contemplate that when the property fails the test the buyer shall be required to remedy the situation. Nor does it contemplate that the buyer shall be required time and again to pay for successive tests until the premises passes the test.”

The plaintiffs further argue that the mortgage contingency and water test addendum provisions of the contract also specify what the defendant was to have done in the event that he could not obtain the mortgage financing or if he found some characteristic of the property objectionable within the terms of the addenda. The plaintiffs argue that, in such event, the defendant was to notify the plaintiffs and their broker, in writing, of his intent to terminate the contract. Since the defendant did not do this, the plaintiffs argue that the defendant waived his right to terminate the contract.

We note, however, that “[a]n existing contract may be modified or abrogated by a new contract arising by implication from the conduct of the parties.” Malone v. Santora, 135 Conn. 286, 292, 64 A.2d 51 (1949). The trial court found, and we agree, on the basis of the record before us, that the parties’ modified these contract provisions by their actions. We agree with the court’s conclusion that “after the failure of the first test, the parties both understood that if there was to be a closing it would be the obligation of the seller, not the buyer, to correct the problem, and pay for the test, and that if the test result was not produced at the closing, there would be no mortgage, no closing, and no sale.”

On the basis of the subsidiary facts found by the court, we conclude that the ultimate finding of the trial court that the plaintiffs’ failure to produce the water test constituted the failure of a condition precedent to the contract was not clearly erroneous.

II

The plaintiffs next argue that the trial court improperly permitted the introduction of evidence concerning agency when agency was not pleaded by the defendant. The plaintiffs further argue that, even if properly considered, the court improperly concluded that Merrill Lynch was acting as their agent for the purpose of procuring and delivering a water analysis to the defendant’s mortgagee. In this regard, we first note that the plaintiffs sued Merrill Lynch claiming that it was their agent and, as such, had breached its fiduciary duty. That is an evidential admission. Dreier v. Upjohn Co., 196 Conn. 242, 244, 492 A.2d 164 (1985).

We further note, however, that, although the trial court on numerous occasions in the memorandum of decision referred to Merrill Lynch as the plaintiffs’ agent, the court concluded by questioning whether Merrill Lynch was the agent for either the plaintiffs or the defendant. In any event, regardless of whether Merrill Lynch was the plaintiffs’ agent for the puipose of procuring the report, the trial court correctly found that the production of the report was a condition precedent to the contract; see part I of this opinion; and found that the plaintiffs’ attorney had indicated at the closing that a satisfactory water test report had been obtained and would be delivered, but that the failure to produce the report at the closing was the cause for the closing’s not going forward.

Ill

Finally, the plaintiffs argue that the trial court improperly found that there was a delay on their part in addressing the water problem and that extensions of the closing date were granted so that the plaintiffs could close on their new residence. Specifically, the plaintiffs argue that the water was retested on or before September 23, 1988, the date set by the parties’ extension addendum. The plaintiffs argue therefore that they did not delay in addressing the water problem. The plaintiffs additionally argue that there were no formal extensions of the closing date, and that, after they closed on their new residence on October 18, 1988, they tried to close the transaction on October 25, November 8, December 2 and December 9, 1988.

We again note that the factual findings of the trial court will not be reversed on appeal unless they are clearly erroneous. See Rosick v. Equipment Maintenance & Service, Inc., supra, 33 Conn. App. 40-41. We agree with the defendant, however, that the resolution of these issues is not relevant to the outcome of this case, which was based solely on the failure of the December 9, 1988 closing to take place. As stated previously, the trial court found that the plaintiffs’ failure to produce the satisfactory water test report at the December 9,1988 closing was the cause for the closing’s not going forward.

The judgment is affirmed.

In this opinion, SPEAR, J., concurred.

SCHALLER, J.,

dissenting. The majority concludes that the trial court did not improperly find that the plaintiffs’ failure to comply with a condition precedent to the contract caused the closing not to go forward. Because my review of the evidence leads me to conclude otherwise, I respectfully dissent. The evidence plainly demonstrates that the plaintiffs met all of their obligations under the contract, even as those obligations were extended beyond the terms of the written contract by virtue of the implied condition precedent that the plaintiffs produce a satisfactory water test at the closing, which the trial court found to exist on the basis of what “the parties both understood.”

Close scrutiny of the evidence reveals several additional facts, unlikely to be disputed, that cast a somewhat different light on the situation. After the parties mutually extended the date for completing the water test to September 23, 1988, the plaintiffs took remedial action, and by September 13,1988, the water had tested satisfactorily for purposes of the contract. A report was produced reflecting this testing. The defendant apparently did not see that report and was not given a copy. The defendant, however, did not terminate the contract on September 23, 1988, because of a failure to comply with the water contingency clause. Instead, he agreed to further extensions of the closing date, including an extension until the final date of December 9, 1988.

Shortly after the parties assembled for the December 9,10 a.m. closing, Attorney Clement Pontillo, representing the bank, inquired whether the plaintiffs’ attorney had the latest water report. Attorney Edward Gasser, representing the plaintiffs, then spoke, not only with someone in his own office, but with a representative of the water testing company, to verify that a subsequent test had been performed and that the results were satisfactory. Moreover, Gasser handed the telephone to Pon-tillo so he could ascertain for himself from the water testing company that the tests were satisfactory. Indeed, the water situation was fully remedied prior to September 23, 1988, a fact that apparently was well understood prior to the parties’ assembling on December 9 for the closing.

Despite the general knowledge and specific assurances that the test results were satisfactory, and the tender of an executed deed by the plaintiffs’ attorney, the closing attorney and the buyer’s attorney declined to begin the process of closing on the transaction, preferring instead to await the arrival of the report, which was sure to reflect the successful water test. When asked why the defendant did not begin signing the mortgage documents, the defendant’s wife replied: “I don’t know. I don’t think that is something that we would be in charge of; we were not asked to start doing anything.”

In the meantime, while the parties waited, various issues pertaining to complaints about the square footage of the house as well as the appraised value were raised on behalf of the defendant. The defendant’s attorney indicated that his client was looking for a reduction in the purchase price because the square footage was not as represented. The defendant’s wife testified further that at 11:30 a.m., after one and one-half hours of waiting, rather than proceeding with the mechanics of closing, Pontillo stated that “he had other obligations; the bank could not do the closing at that time and nothing could go forward from that day, so everyone left.” Everyone left, except Gasser, who remained to receive the water test report, delivered ten minutes later. The test report, of course, reflected the complete correction of the water problem. Before leaving the bank building, in which Pontillo maintained his office, Gasser left a copy of the report with Pontillo’s secretary.

The trial court found “that after the failure of the first test, the parties both understood that if there was to be a closing it would be the obligation of the seller, not the buyer, to correct the problem, and pay for the test, and that if the test result was not produced at the closing, there would be no mortgage, no closing, and no sale.” The trial court later referred to the substance of that finding as a “condition” and found that because of the plaintiffs’ failure (actually, according to the trial court, it was the real estate broker’s failure) to produce an acceptable water report, “the mortgage contingency failed and the contract contingency failed.” Although the majority correctly points out that we are concerned only with the water contingency provision, not the mortgage contingency, the two are linked incorrectly in the trial court decision and, in my view, the plaintiffs are charged improperly with the defendant’s obligation to furnish a test report to qualify for financing.

“A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ...” (Internal quotation marks omitted.) Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 41, 632 A.2d 1134 (1993). Of course, we should not hesitate to act when a clearly erroneous finding is discovered. See, e.g., Barbara Weisman, Trustee v. Kaspar, 233 Conn. 531, 541, 661 A.2d 530 (1995); Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 638, 646 A.2d 772 (1994); Connecticut State Medical Society v. Commission on Hospitals & Health Care, 223 Conn. 450, 458, 612 A.2d 1217 (1992); Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 545, 651 A.2d 1302 (1995); Oakland Heights Mobile Park, Inc. v. Simon, 36 Conn. App. 432, 440, 651 A.2d 281 (1994). I am convinced that clear error has occurred here that has resulted in a substantial injustice to the plaintiffs. See Jackson v. Jackson, 2 Conn. App. 179, 196, 478 A.2d 1026, cert. denied, 194 Conn. 805, 482 A.2d 710 (1984).

As the majority stated, “ ‘[a] condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. . . . If the condition precedent is not fulfilled the contract is not enforceable.’ (Citations omitted; internal quotation marks omitted.) Luttinger v. Rosen, 164 Conn. 45, 47-48, 316 A.2d 757 (1972) . . . .” That statement of law does not, however, go quite far enough in this situation. Our Supreme Court has held, significantly, that “[i]n the absence of a specified time limit to comply with a condition precedent, the law implies a reasonable time. . . . What is a reasonable length of time is ordinarily a question of fact for the trier.” (Citations omitted; internal quotation marks omitted.) Christopher v. Blount, 216 Conn. 509, 513, 582 A.2d 460 (1990). Christopher is particularly applicable to this case.

I assume, arguendo, that the trial court’s finding of the implied contract modification was not clearly erroneous, even though to do so requires overlooking several inherent inconsistencies. I cannot agree, however, with the court’s finding that the plaintiffs’ failure to satisfy that condition caused the closing to fail. A review of the entire evidence leads me to a definite and firm conviction that a mistake has been committed. See Ros-ick v. Equipment Maintenance & Service, Inc., supra, 33 Conn. App. 41. Soon after the parties had assembled for the closing, if not well before, it was apparent that the plaintiffs had long since satisfied the water condition, that a report to that effect had been prepared and that the report would be delivered to the closing. In the face of that information, the bank’s attorney, for some unexplained reason, still refused to process the closing documents and, instead, elected to wait for the report. Then, at 11:30 a.m., he summarily decided that, given his schedule for the day, there would be insufficient time for the closing when the report arrived. Within ten minutes after he, the defendant and his attorney departed, the report arrived, as expected, indicating full compliance by the plaintiffs.

The plaintiffs’ tender of the executed deed was rejected despite the fact that they had satisfied, under any reasonable interpretation, the vital part of the contractual water contingency, even under the “modified” contract. The plaintiffs not only had satisfied the water condition well before the closing, but also produced a report evidencing compliance within a reasonable time—in ample time for the closing to be held that day. While it is unfortunate that the report was not brought to the closing earlier, under the applicable law, the plaintiffs were entitled to have the closing proceed or to be compensated for their damage. Although the trial court, ultimately, did not conclude that the real reason for the failure of the closing was the defendant’s dissatisfaction with the square footage and appraised value of the premises, despite the substantial evidence to that effect, that evidence may help to explain why the closing ended so abruptly.

Because the entire evidence indicates unmistakably that the plaintiffs satisfied their obligations under the contract, I would reverse and remand with direction to render judgment in favor of the plaintiffs.

For the foregoing reasons, I respectfully dissent.

       The plaintiffs initially sued the named defendant, Garry O. Helyer, and Merrill Lynch Realty Company. The plaintiffs settled their claims against Merrill Lynch Realty and the counts of the complaint directed against it were withdrawn. The matter was tried against Helyer only. For purposes of this opinion, we will refer to Helyer as the defendant.

       The record reveals that the closing was scheduled for 10 a.m. on December 9 and concluded at approximately 11:30 a.m.

       In this action, the plaintiffs seek to retain the defendant’s deposit pursuant to the liquidated damages clause in the contract.

       The trial court referred both 1 o the parties’ contract and to the mortgage commitment from the bank to the defendant in support of its conclusion that the plaintiffs' failure 1o provide the water test constituted the failure of a condition precedent. We limit our discussion, however, to the parties’ contract and the addenda to it.

       Paragraph eleven of the contract provides: “11. Inspections: a. The Seller promises to pay for any termite, well, or other inspections required by CHFA, VA, or FHA. b. The Seller promises 1o allow access to the premises for the purpose of any inspections requested by tho Buyer. Such inspections other than those required in subsection a, shall be paid for by the Buyer and govemed by the terms of the Addenda attached to and made a part of this Contract.”

       The addendum stated in part: “This contract is contingent upon a water test and report to be completed by a recognized water testing company at buyer’s expense on or before 8/15/88.” The parties subsequently entered into an addendum extending the date for the water test to September 23,1988.

       The mortgage contingency clause provided: “If Buyer cannot obtain a written commitment for the Mortgage . . . Buyér may terminate this Contract by providing Seller and Broker, not later than the Mortgage Commitment Date, with written notice of buyer’s inability to obtain such commitment. If Buyer does not choose to terminate the Contract, this Contract will remain in full force and effect unless Seller, within seven (7) days from the Mortgage Commitment Date, gives written notice to Buyer and Broker that Seller has chosen to terminate this Contract as a result of Buyer’s inability to obtain such commitment..”
      The water test addendum stated in part, that “[i]f the applicable initialed provisions do not comply with minimum state standards, then Buyer shall have the option to terminate the Contract by giving Seller and Broker written notice within five (5) days of the above date in which case all sums paid on account of the purchase price shall be returned to Buyer. Failure of Buyer to give Seller and Broker this written notice shall be a waiver of this right to terminate and this Contract shall continue in full force and effect free from any such condition.”

       The trial court found that “[a,]fter the first test failed, Merrill Lynch arranged to have the successive test or tests performed and the report sent to the plaintiff. The defendant never received a copy of the report and was never aslced by the seller to pay for the subsequent report. The defendant was informed by Elaine Driscoll, another staff member of the seller’s agent, Merrill Lynch, that the defendant had no say in the subsequent test or tests and that the sellers would determine what method they chose to cure the problem, that their (seller’s) obligation was to provide a water test that was satisfactory, and that they would do that.

        “The buyer was told, upon inquiry, that the subsequent test results showed compliance, that the water passed the test. The buyer asked for a copy of the test report a number of times. It was never produced, but they said they would have it or that they had it. Everyone knew that the water test report was necessary for the closing and for the mortgage loan. All that the buyer had to give to the bank was the water report which showed an unacceptably high manganese content.
      “The water test report which was produced, after the closing had been terminated by the bank for failure of the production of the report, bears the date December 9, 1988, the day of the closing, and is addressed to the plaintiff, Mr. Miceli.”

       The plaintiffs did file a motion for articulation requesting that the trial court articulate the factual basis for its conclusions concerning the existence of an agency relationship between the plaintiffs and Merrill Lynch. The motion for articulation was denied by the trial court. The plaintiffs then filed a motion for review with this court. By order dated November 9, 1994, we granted the motion but denied the requested relief.

       Specifically, Ihe court, stated that “[Merrill Lynch] appears to be more that of an independent contractor, each of the parties looking to Merrill Lynch to produce the test report. ... It appears clear from the start both parties relied upon Merrill Lynch Realty to arrange for the tests and to produce the test report. Merrill Lynch Realty assumed the precarious role of being the agent for both parties, in the matter of the testing and report and this calls into question whether it was the agent for either party. That duplicate role is tot ally antagonistic to the concept of agency and the singular role which accompanies the obligators of agency. It is not the parties who failed each other, but the third party, Merrill Lynch, who failed them both. The claims against Merrill Lynch have been settled.”

       As part of this argument, the plaintiffs claim, citing Kakalik v. Bernardo, 184 Conn. 386, 392, 439 A.2d 1016 (1981), that since the parties’ agreement did not specify that time was of the essence as to the date of conveyance, failure to convey at the precise time could not relieve the defendant of his contractual obligation to purchase. This theory was not pleaded in the complaint or argued to the trial court, nor was any evidence produced relating to it. Furthermore, this issue was not briefed. “Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Fromer v. Freedom of Information Commission, 36 Conn. App. 155, 156, 649 A.2d 540 (1994).

       It is clear that because the defendant failed to exercise any right to terminate based on the financing contingency, no claim can be asserted in that regard.

       The evidence is plain that, by this time, everyone concerned with the matter was well aware that the plaintiffs had long since corrected the water situation.


source: Caselaw Access Project

author: DUPONT, C. J.

license: Public Domain

text:
    AVON PLUMBING AND HEATING COMPANY, INC. v. MARK B. FEY ET AL.
    (13648)
    Dupont, C. J., and Landau and Schaller, Js.

      Argued September 27, 1995
    decision released February 13, 1996

      David R. Clemens, for the appellant (plaintiff).

      John A. Spector, for the appellees (defendants).
   DUPONT, C. J.

The primary issue in this appeal is whether the Home Improvement Act (act); General Statutes §§ 20-418 through 20-432; precludes recovery in quantum meruit or for unjust enrichment by a plumbing coiporation for work done by its licensed plumber employees on premises covered by the act if there is no written contract between the home owner and the corporation. The defendants claim that the lack of a written contract as required by General Statutes § 20-429 (a) (l) of the act prevents recovery, whereas the plaintiff claims that it is entitled to an exemption from the provisions of § 20-429 because of General Statutes § 20-428 (4). The issue has not yet been decided by an appellate court of this state.

The plaintiffs complaint alleges that, from February through April, 1991, the plaintiff provided plumbing supplies, goods and services to the defendants’ real property at a cost of $8626.95, and that the defendants failed to pay when the bill was presented. The defendants assert, as a special defense, that the plaintiff cannot recover because the parties had no written contract as required by § 20-429 (a) (1).

A fact finder recommended judgment for the plaintiff in the amount of $6713.51 on the counts of its complaint seeking recovery in quantum meruit and unjust enrichment. The fact finder concluded that the defendants had not met their burden of proof as to their special defense that the written contract requirement of the act; General Statutes § 20-429; barred recovery. The fact finder also found that the bill of $7898.24 should be discounted by $1184.73, and that the plaintiff was not entitled to statutory interest pursuant to General Statutes § 37-3. Both parties objected to the fact finder’s report, the defendants on the ground that the plaintiff corporation could not be a licensed plumber for the purposes of the exemption of § 20-428 (4), and the plaintiff on the grounds that the cost of its services and goods should not have been discounted and that it was entitled to statutory interest. The trial court rendered judgment for the defendants, holding that “a corporation engaged in plumbing work on a home improvement project is not exempt from the Home Improvement Act even if all the work is performed by individuals holding current Chapter 393 occupational licenses for plumbers.”

The defendants’ basic argument is that a corporation cannot hold a plumber’s license, and, therefore, the plaintiffs allegations that it is a corporation, as well as a licensed plumber, are fatal to its cause of action because the latter allegation is incapable of proof. The defendants further claim that even if the plaintiff corporation could be considered a licensed plumber because it hired licensed plumber employees who performed the work, the plaintiff here could not prevail because it did not prove that the licenses of the employees involved in performing the work for the defendants were valid during the period of time the work was done.

The resolution of this case depends on our analysis of §§ 20-429 (a) (1), 20-428 (4), 20-419 (7) and 20-337, the evidence introduced and the findings made by the fact finder.

The plaintiffs complaint, dated March 9,1992, alleged in its first count that it was a licensed plumber under the provisions of § 20-330 et seq., that it had performed plumbing work for the plaintiffs from February, 1991, to April, 1991, in exchange for a promise to pay, that the work cost $8626.95, that one of the defendants, Mark Fey, had initiated the work, that Mark Fey had repeatedly acknowledged the debt, that the parties had had previous business dealings, that the services were provided without a written contract because of the personal and prior business relationships between Mark Fey and the vice president of the plaintiff, and that throughout 1991 Mark Fey raised no substantive defense to payment but stated only that he did not have the funds to pay the plaintiff. The second count alleged estoppel, the third count, an implied promise to pay, the fourth count, unjust enrichment, and the fifth count, quantum meruit.

After the fact finder’s report was filed, the plaintiff attempted to amend its complaint to allege that its employees were licensed plumbers, and to delete the allegation that it was a licensed plumber under the provisions of § 20-330 et seq. The trial court denied the motion to amend on the ground that it was untimely because it was filed five months after the fact finder’s report was filed, and because it would not have made any difference in determining whether the plaintiffs cause of action was barred by § 20-429 (a) (1).

A trial court has wide discretion in granting or denying amendments and such a ruling can be reversed only on a clear showing of abuse of discretion. Saphir v. Neustadt, 177 Conn. 191, 206, 413 A.2d 843 (1979). Under the circumstances of this case, where the amendment was sought long after any need for it should have been known, we cannot conclude that there was an abuse of discretion.

Because we conclude that the court did not abuse its discretion by denying the motion to amend the complaint, we must evaluate the claims of the parties on the basis of the original complaint, which alleged that “Avon Plumbing is a licensed plumber, pursuant to Chapter 393 of the Connecticut General Statutes (C.G.S. § 20-330 et seq.).” Based on that allegation, the question is whether the court was correct, as a matter of law, when it held that a corporation hiring licensed plumbers cannot be a licensed plumber for purposes of the exemption provided in the act. If the corporation could be a licensed plumber for purposes of the exemption of § 20-428 (4), the remaining question would be whether a fact finder could find on the evidence before it that the employees of the corporation were licensed plumbers on the date the work was performed. The trial court did not address this issue because it determined as a matter of law that the plaintiff, as a corporation, could not recover regardless of whether its employees were licensed plumbers.

The plaintiff argues that the trial court could not have rendered judgment for the defendants without rejecting the facts found by the fact finder because the fact finder had recommended judgment for the plaintiff. The trial court, however, did not upset any facts found, but concluded, as a matter of law, that the exemption of § 20-428 (4) cannot apply to a corporation because only a person can be licensed as a plumber. We do not, therefore, reach the questions raised by the plaintiff relating to the trial court’s alleged lack of power to reject the facts found in the report of the fact finder.

The definition of “person” in the act; General Statutes § 20-419 (7); which includes corporations, is dispositive of the meaning of the word “person” as used in § 20-428 (4). Because § 20-428 (4) exempts from the written contract requirement of § 20-429 (a) (1) “persons” with current occupational licenses and “persons” is defined as including corporations, we conclude that if work is done by a licensed plumber who works for a corporation, the lack of a written contract between the corporation and a home owner does not bar recovery by the corporation for the work performed.

Furthermore, General Statutes § 20-337, which is also a component of title 20 dealing with the licensing of plumbers, makes it clear that the ownership of a business that provides the services of licensed persons need not be in the control of a licensed person. The plaintiffs allegation that it was a licensed plumber is, therefore, capable of proof. If Avon’s employees are licensed plumbers, Avon is considered licensed also for purposes of § 20-428 (4).

The purpose of the act is to ensure that home improvements are performed by qualified people. That purpose will not be subverted by allowing businesses with a corporate structure that hire licensed plumbers for the performance of their plumbing work to be exempt from the necessity of a written contract.

The defendants argue that even if a written contract was not required, it could not be concluded from the evidence that the employees who performed the work on the defendants’ premises were licensed plumbers at the time the work was performed. The vice president of the plaintiff who entered into the oral contract with the defendants testified that he had been a licensed plumber for fifteen years as of December 11,1992, that he had an unlimited master’s license, and that he supervised the work done by the plaintiff for the defendants. If his testimony was credible, he was, therefore, a licensed plumber when the work was performed on the defendants’ premises in 1991. The plaintiffs vice president also testified that all the plumbers working on the defendants’ property were licensed plumbers. Although an objection to that testimony was later sustained by the fact finder, the evidence was before the fact finder because the vice president had previously testified to that fact and because his affidavit stated that. The plaintiff introduced copies of plumbing and heating licenses issued by the state for the employees who worked on the defendants’ project. The licenses covered from October, 1991, to October, 1993, which is after the work was performed. These licenses, however, coupled with the testimony of the plaintiffs vice president, were evidence from which the fact finder could have inferred that the employees were licensed at the time of the work. Although the fact finder made no explicit finding as to the licenses of the plaintiffs employees at the time the work was performed, his decision implies that they were so licensed because he otherwise could not logically recommend judgment for the plaintiff.

The judgment is reversed and the case is remanded for further action pursuant to Practice Book § 546J.

In this opinion the other judges concurred.

       The defendants in this appeal, Mark B. Fey, Jill H. Fey and Laurel B. Fey, are the joint owners of the real property where the work was performed.

       General Statutes § 20-429 (a) provides in relevant part: “No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing . . . .”

       General Statutes § 20-428 provides in relevant part: “This chapter [General St at utes § § 20-418 through 20-432] shall not apply to any of the following persons or organizations ... (4) any person holding a current professional or occupational license issued pursuant to the general statutes, provided such person engages only in that work for which he is licensed.”

       The court in its memorandum of decision stated that had it concluded that the exemption of § 20-428 (4) applied to the plaintiff, the court had “tentatively” concluded that it would not have discounted the plaintiffs bill and would have awarded statutory interest “from the Spring of 1990 to the date of judgment.” The court also stated in its memorandum of decision that “[t]he result required here is far from justice”; that the “defendants have obtained a substantial windfall”; but that “this result is mandated by law.”

       General Statutes § 20-419, which governs definitions for the Home Improvement Act, provides in relevant part: “(7) ‘Person’ means an individual, partnership or corporation.”

       General Statutes § 20-337, which is in chapter 393, dealing with the licensing of plumbers and others, provides: “Nothing in this chapter shall require that the ownership or control of a business engaged in providing the work or services licensed under the provisions of this chapter be vested in a licensed person, but all the work and services covered by the definitions set forth in section 20-330 shall be performed by persons licensed for such work or occupation under this chapter.”

       The plaintiffs vice president testified that he had known Mark Fey for four or five years and that the corporation had performed work in the past without written contracts for the architectural firm for which Fey worked.

       The plaintiff made no argument of bad faith before the fact finder nor did it specifically allege bad faith on the part of the defendant in its complaint. In dicta contained in Barrett Builders v. Miller, 215 Conn. 316, 576 A.2d 455 (1990), it is stated that if a home owner has engaged in bad faith, he or she may not assert the protection of the act to avoid what otherwise would be a valid and enforceable contract. Bad faith is defined in another case as “neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested . . . motive.” (Internal quotation marks omitted.) Wadia

        Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 248, 618 A.2d 506 (1992); see also Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992).

       “[Practice Book] Sec. 546J.-Action by Court
      “After review of the finding of facts and hearing on any objections thereto, the court may take the following action: (1) render judgment in accordance with the finding of facts; (2) reject the finding of facts and remand the case to the fact-finder who originally heard the matter for a rehearing on all or part of the finding of facts; (3) reject the finding of facts and remand the matter to another fact-finder for rehearing; (4) reject the finding of facts and revoke the reference; (5) remand the case to the fact-finder who originally heard the matter for a finding on an issue raised in an objection which was not addressed in the original finding of facts; or (6) take any other action the court may deem appropriate.
      “The court may correct a finding of facts at any time before accepting it, upon the written stipulation of the parties.
      “The fact-finder shall not be called as a witness, nor shall the decision of the fact-finder be admitted into evidence at another proceeding ordered by the court.”

       If work performed on premises is done pursuant to an oral contract by an unlicensed worker, there may be no violation of the act if a licensed contractor is responsible for any poor performance done by an unlicensed worker. O’Donnell v. Rindfleisch, 13 Conn. App. 194, 535 A.2d 824, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988).


author: O’CONNELL, J.

text:
    STATE OF CONNECTICUT v. PAULA CORRIGAN
    (13332)
    O’Connell, Landau and Hennessy, Js.

      Argued October 24, 1996—reargued May 14, 1996
    decided after reargument July 9, 1996

      Michael A. Blanchard, with whom were Michael E. Kennedy and, on the brief, Michael P. Carey, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Peter McShane, assistant state’s attorney, for the appellee (state).
   O’CONNELL, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b, assault in the second degree with a motor vehicle in violation of General Statutes § 53a-60d, and operating a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a (a) (l).

The defendant raises the following claims in her brief. First, she claims that the trial court improperly admitted blood alcohol content (BAC) evidence because the blood sample was not drawn at a hospital as required by General Statutes (Rev. to 1991) § 14-227a (J). Second, the defendant claims that the BAC evidence was improperly admitted because there was insufficient evidence to establish that the blood was drawn by a person authorized by statute to draw blood. The defendant also claims that the trial court abused its discretion when it admitted BAC evidence without expert testimony extrapolating the BAC to the time of the offense. The defendant’s final claim is that the trial court improperly permitted the state’s toxicologist to testify despite the state’s failure to comply with the disclosure provisions of Practice Book § 743.

The jury could reasonably have found the following facts. On May 21, 1992, the defendant consumed at least five alcoholic beverages at a restaurant in Stonington and left the restaurant operating her own car. While driving toward Mystic, the defendant was involved in a head-on collision with a car occupied by Charles Rice and Mara-beth Rice. As a result of the accident, Charles Rice was seriously injured and hospitalized for twelve days. Mara-beth Rice died from the injuries she received in the crash.

The defendant also sustained injuries and was transported to a hospital by ambulance. En route to the hospital, an emergency medical technician drew blood from the defendant. He gave the vials containing the blood to a laboratory technician at the hospital. The blood was tested and revealed a BAC of 0.26 percent. The BAC evidence was admitted at trial over the defendant’s objection.

I

The defendant first claims that the BAC evidence was inadmissible under General Statutes (Rev. to 1991) § 14-227a (l) because the blood sample was not drawn at a hospital. We agree.

At the time of the offense § 14-227a (l), which governs the admissibility of hospital tests for the amount of drugs or alcohol in the blood of an injured operator of a motor vehicle in a criminal prosecution, provided that “evidence respecting the amount of alcohol or drug in the blood of an operator of a motor vehicle involved in an accident who has suffered or allegedly suffered physical injury in such accident, which evidence is derived from a chemical analysis of a blood sample taken from such person at a hospital after such accident, shall be competent evidence to establish probable cause . . . .” (Emphasis added.)

The state argues that we should, as the trial court did, construe the phrase “at a hospital” to include those tests taken while en route to a hospital. When construing a statute, we seek to ascertain and give effect to the apparent intent of the legislature. Dos Santos v. F. D. Rich Construction Co., 233 Conn. 14, 20, 58 A.2d 83 (1995). If the words of a statute are clear and unambiguous, we must assume that those words express this intention and we need inquire no further to construe the statute. State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989). When evaluating whether the words of the statute are plain and unambiguous, we give them their commonly approved meaning unless a contrary intent is clearly expressed. General Statutes § 1-1; State v. Kish, 186 Conn. 757, 764, 443 A.2d 1274 (1982).

Applying these principles to this case, we conclude that the phrase “at a hospital” is clear and unambiguous and refers exclusively to the physical confines of the building’s structure. The trial court therefore improperly construed the term “at a hospital” to include the blood sample drawn by emergency medical personnel en route to the hospital. The blood sample was not taken in accordance with the statute as it existed at the time of the accident. Accordingly, the BAC results were not admissible under § 14-227a ([).

This interpretation is supported by the posttrial 1994 amendment to this section, which now includes the admission of blood tests taken “while en route to a hospital.” Public Acts 1994, No. 94-60 (P.A. 94-60). Unless a contrary legislative intent appears, we assume that the legislature intends to change existing law when it enacts new statutory language. Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 278, 610 A.2d 584 (1992). Here, we conclude that the amendment intended to permit BAG results from the tests taken en route to a hospital into evidence where such results were previously inadmissible.

The state argues that we cannot afford the defendant the relief she seeks because § 14-227a as amended by P.A. 94-60 will be applied retroactively to the defendant on retrial. In support of this argument, the state relies on State v. Almeda, 211 Conn. 441, 560 A.2d 389 (1989), in which a rule of evidence was applied retroactively in a criminal trial. We are not persuaded.

The state’s argument fails to recognize the distinction between civil and criminal cases in determining whether statutes will be applied retroactively. “The rationale for this distinction is grounded in the principle that criminal statutes must be strictly construed . . . and hence, must be liberally construed in favor of the accused.” (Citations omitted.) State v. Paradise, 189 Conn. 346, 352, 456 A.2d 305 (1983). An amendment to a criminal statute will not be retroactively applied unless the language of the statute makes such a construction necessary. Id., 353. The language of the amendment at issue here does not evince a legislative intent that the statute be given retroactive application. There is no language that mandates a retrospective construction. State v. Jones, 132 Conn. 682, 47 A.2d 185 (1946). Because P.A. 94-60 contains no language mandating retroactive application, it is unnecessary to determine whether the amendment is substantive or procedural. State v. Paradise, supra, 353.

The civil-criminal distinction enunciated in State v. Jones, supra, 132 Conn. 684, and affirmed in State v. Paradise, supra, 189 Conn. 353, is not necessarily applicable to other areas of the criminal process. The Supreme Court expressly limited the civil-criminal distinction to matters involving statutory construction of criminal statutes. State v. Paradise, supra, 353 n.5. Thus, the state’s reliance on Almeda is misplaced because Almeda’s holding does not involve the construction of a criminal statute.

We need not reach the defendant’s claim that the blood sample was improperly admitted into evidence because it was not taken by a person authorized by statute because we have already determined that the evidence is inadmissible under § 14-227a (l) as it provided at the time of the offense.

n

We next consider whether the BAC evidence was admissible to show that the defendant was under the influence of liquor to prove the manslaughter and assault charges. Our case law is clear that the limitations on the admissibility of blood evidence under § 14-227a apply only to prosecutions under that section and do not apply to vehicular offenses that are defined under the penal code. State v. Singleton, 174 Conn. 112, 115-16, 384 A.2d 334 (1977), cert. denied, 440 U.S. 947, 99 S. Ct. 1425, 59 L. Ed. 2d 635 (1979); State v. LeRoy, 16 Conn. App. 472, 477, 547 A.2d 940 (1988); State v. Shaw, 12 Conn. App. 294, 301-303, 530 A.2d 653 (1987). We therefore conclude that the failure to satisfy § 14-227a (d) did not render the evidence inadmissible to prove that the defendant was under the influence of intoxicating liquor for the other offenses.

Ill

Having concluded that the BAC evidence is admissible for prosecutions for the vehicular offenses defined by the penal code, we must now address the defendant’s claim that the BAC must be related to the time of the offense in order to be admitted into evidence.

This court has previously held that extrapolation evidence is not required to prove vehicular assault because that crime is not committed, per se, by having a certain BAC. Section 53a-60d does not contain language requiring the analysis of blood to demonstrate that those results accurately reflect the BAC at the time of the offense. State v. Geisler, 22 Conn. App. 142, 166, 576 A.2d 1283, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990), vacated on other grounds, 498 U.S. 1019, 111 S. Ct. 663, 112 L. Ed. 2d 657, on remand, 25 Conn. App. 282, 594 A.2d 985 (1991), aff'd, 222 Conn. 672, 610 A.2d 1225 (1992). We have also determined that the Geisler rationale applies to vehicular manslaughter, which is analogous to assault with a motor vehicle under § 53a-60d, because both crimes require proof of harm occurring as a consequence of the effect of alcohol. State v. Dawson, 23 Conn. App. 720, 721-22, 583 A.2d 1326 (1991).

The defendant concedes that Connecticut case law does not support her position, but urges us to reconsider our previous holdings. We are not persuaded that our case law should be changed.

IV

Finally, we turn to the defendant’s claim that the trial court improperly allowed the state’s toxicologist to testify despite the state’s failure to include his name on a witness list.

Pursuant to Practice Book § 743, the trial court ordered the state to disclose the names and addresses of the witnesses it intended to call at trial. It is undisputed that the name of the state’s toxicologist was not on either of two lists that the state furnished in response to the court order.

“The purpose of criminal discoveiy is to prevent surprise and to afford the parties a reasonable opportunity to prepare for trial. To achieve these goals and to assure compliance with the rules, the trial court must impose an appropriate sanction for failure to comply. In determining what sanction is appropriate, the trial court should consider the reason why disclosure was not made, the extent of prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances.” State v. Festo, 181 Conn. 254, 265, 435 A.2d 38 (1980).

The trial court has discretion in determining what sanctions, if any, are appropriate for failure to comply with court ordered discovery. State v. Perez, 181 Conn. 299, 310, 435 A.2d 334 (1980). At the time of trial, Practice Book § 747 suggested four possible sanctions in the event that the state failed to comply with a discovery order. In the present case, the court offered the defendant a continuance in lieu of excluding the testimony of the toxicologist. The defendant did not accept the continuance. We are not persuaded that a greater sanction was required. We conclude, therefore, that the trial court did not abuse its discretion.

The judgment is reversed only as to the conviction of operating a motor vehicle while under the influence of intoxicating liquor and the case is remanded for a new trial on that charge.

In this opinion the other judges concurred.

       General Statutes § 1 l-227a (a) provides inpertinentpart: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. Apeison commits the offense ol'operating amolor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle ... (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       Practice Book § 743 provides in pertinent part: “Upon motion made by the defendant, upon a showing ol' materiality to the preparation of the defense and a showing that the request is reasonable, the judicial authority may order the prosecuting authority at the commencement of trial to disclose to the defendant the names and addresses of all witnesses whom the prosecuting authority intends to call at trial

       Practice Book § 747 provides in pertinent part: “[The court may] . . . grant appropriate relief, which may include one or more of the following:
      “(1) Requiring the prosecuting authority to comply;
      “(2) Granting the defendant additional time or a continuance;
      “(3) Relieving the defendant from making a disclosure required by Sec. 756, prohibiting the prosecuting authority from introducing specified evidence, or dismissing the charges; or
      “(4) Entering such other order as he deems proper.”


author: SPEAR, J.

text:
    IN RE COREY E. ET AL.

    (14557)
    Heiman, Schaller and Spear, Js.

      Argued September 21, 1995
    decision released February 20, 1996

      Patrice A. Cohan, with whom was David Brian Carr, for the appellants (respondents).

      Michael J. Besso, assistant attorney general, with whom, on the brief, were Richard Blumenihal, attorney general, and Susan T. Pea,riman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.
      Reporter of Judicial Decisions

   SPEAR, J.

The respondents appeal from the trial court’s judgment extending a previously ordered commitment of their two minor children to the department of children and families (DCF). They assert that General Statutes § 46b-129 (e) precludes an extension of commitment where, as here, DCF has filed a petition to terminate parental rights. We affirm the judgment of the trial court.

The trial court found the following facts. The two minor children were adjudicated neglected on March 20, 1992, and committed to the custody of DCF for a period of eighteen months. On August 10, 1993, DCF successfully petitioned the court to extend the commitment for an additional eighteen months through November 3, 1993. On October 27, 1993, the commitment was again extended to March 20, 1995.

On November 30, 1994, DCF petitioned to terminate the respondents’ parental rights to the two minor children pursuant to General Statutes § 17a-112 (a). These petitions have not been heard. On December 22, 1994, DCF filed petitions to extend the commitment for an additional eighteen months through September 20, 1996.

The respondents moved to strike the petition claiming that § 46b-129 (e) precludes DCF from moving to extend a commitment after filing a petition to terminate parental rights during the same commitment period. The court denied the motion to strike and granted the extension. This appeal followed.

I

We first address the question of mootness that arose at oral argument. Mootness deprives this court of subject matter jurisdiction. Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995); First Trust National Assn. v. Hitt, 36 Conn. App. 171, 174, 649 A.2d 798 (1994). The test for determining mootness is not “[wjhether the [respondents] would ultimately be granted relief .... The test, instead, is whether there is any practical relief this court can grant the appellant.” (Emphasis added.) Citicorp Mortgage, Inc. v. Hairiston, 34 Conn. App. 138, 138-39, 640 A.2d 146 (1994). If the minor children must remain in the custody of DCF pending the outcome of the petition to terminate parental rights, a decision by this court that the extension of the commitment was improper would afford no practical relief to the respondents. “ [I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) Gagnon v. Planning Commission, 24 Conn. App. 413, 415, 588 A.2d 1385 (1991), aff'd, 222 Conn. 294, 608 A.2d 1181 (1992).

Section 46b-129 (d) provides for a maximum period of commitment of eighteen months. Because the previous commitment has expired, the minor children will have to be returned to the respondents if we determine that the extension was improper. The return of the respondents’ children pending the resolution of the termination petition, even if it is only for a short period of time, is sufficient practical relief to accord this court subject matter jurisdiction.

II

The respondents contend that once a child is committed to DCF pursuant to § 46b-129, DCF can elect only one of three statutory options ninety days prior to the end of the maximum period of commitment. DCF can petition the court (1) to revoke the commitment, (2) to terminate parental rights, or (3) to extend the commitment period, but DCF, they assert, cannot seek both an extension of commitment and a termination of parental rights. The respondents proffer two arguments in support of their claim. First, they assert that because the statute uses the disjunctive “or,” DCF is limited to one alternative by the statute’s plain language. Second, the respondents assert that the legislature intended that, within the eighteen months following commitment, or within any extension of the commitment, DCF should develop a plan either to reunite the family or to terminate parental rights. If DCF cannot make that determination within eighteen months, it may seek an extension of the commitment. During such an extended commitment period, DCF would again have an opportunity to decide whether to seek reunion of the family or termination of parental rights. Because both arguments turn on the intent of the legislature, they will be discussed together.

“[I]t is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994).

The respondents correctly assert that “[wjhen the words of a statute are plain and unambiguous, we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature.” Norwich v. Housing Authority, 216 Conn. 112, 117-18, 579 A.2d 50 (1990); Sagamore Group, Inc. v. Commissioner of Transportation, 29 Conn. App. 292, 300, 614 A.2d 1255 (1992). The respondents reason that because the alternatives in § 46b-129 (e) are stated in the disjunctive, the plain language of the statute limits DCF to petitioning for only one of the three statutory alternatives.

Our Supreme Court has held, however, that use of the disjunctive “or” in a statute is not controlling where such use clashes with clear legislative intent. “The disjunctive ‘or’ can be construed as ‘and’ where such construction clearly appears to have been the legislative intent.” D’Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 170, 455 A.2d 833 (1983); Dana-Robin Corp. v. Common Council, 166 Conn. 207, 221, 348 A.2d 560 (1974). Before determining whether the word “or” makes the statutoiy alternatives mutually exclusive, we must search for the intent of the legislature and then determine whether the disjunctive use of “or” clashes with that intent.

Our Supreme Court has also addressed the question of what the legislature intended to accomplish by enacting § 46b-129 (d) and (e). “The legislative intent underlying the maximum period of commitment is twofold: First, the General Assembly recognized a concern for those children, committed by the court to the [DCF] commissioner, and who then were placed in foster care for indeterminate and often lengthy periods of time without any further judicial review. . . . The legislative limitation on the period of commitment to [DCF] clearly promoted periodic judicial review of actions taken, including placements of children in foster homes by that agency. Second, the General Assembly intended to conform the Connecticut State Plan for Foster Care and Adoption Assistance to the requirements of federal law.” (Citations omitted.) In re Juvenile Appeal (85-BC), 195 Conn. 344, 358-60, 488 A.2d 790 (1985).

The legislature clearly intended to prevent children from falling into a situation where they would be committed to DCF without periodic reviews of the commitments. Those reviews would enable the court to determine, within a reasonable time, whether the children could be returned to their parents, or whether parental rights should be terminated so that the children would become available for adoption or permanent foster care.

The statutory scheme that requires judicial review at least once in every eighteen month period prevents any child from spending years in foster care with no plan for permanent placement. By filing a petition to terminate parental rights after obtaining an extension of a commitment, DCF is taking a necessary step toward permanent placement of the child in an adoptive or foster home. This is consistent with the policy underlying the statute.

Our search for legislative intent is further guided by two well known principles of statutory construction. First, we presume that when the legislature enacts a law, it “did so in view of existing relevant statutes and intended it to be read with them so as to make one consistent body of law.” (Internal quotation marks omitted.) Lundgren v. Stratford, 12 Conn. App. 138, 148, 530 A.2d 183, cert. denied, 205 Conn. 808, 532 A.2d 767 (1987). Second, “[t]he law favors rational and sensible statutory construction. . . . The unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of an act is a reason for rejecting that interpretation in favor of another which would provide a result that is reasonable. . . . When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results.” (Citations omitted; internal quotation marks omitted.) Maciejewski v. West Hartford, 194 Conn. 139, 151-52, 480 A.2d 519 (1984).

A related statute expressly authorizes the simultaneous or sequential filing of custody and termination petitions. General Statutes § 17a-112 (e) provides in part that “[a]ny petition brought by the commissioner of children and families to the superior court, pursuant to subsection (a) of section 46b-129, may be accompanied by or, upon motion by the petitioner, consolidated with a petition for termination of parental rights filed in accordance with this section with respect to such child, notwithstanding that such child has not been committed to the commissioner of children and families. ...” (Emphasis added.) Even though this statute applies to children who are not committed, this express authorization of simultaneous or coterminous petitions undercuts the respondents’ claim that allowing two such petitions to pend at the same time is antithetical to the intent of the legislature.

The respondents’ interpretation of § 46b-129 (e) is ineffective and unworkable because it would require not only that DCF file a petition to terminate parental rights ninety days prior to the expiration of a commitment, but also that the petition be heard and decided within that time period. If those two events did not occur within that period, the children would have to be returned to the parents. While it is possible for this to occur within ninety days, it is unlikely that the legislature intended the custody of committed children to turn on such an unpredictable sequence of events, particularly in view of General Statutes § 51-183b, which allows a trial court up to 120 days to decide the case after the trial is concluded. In addition, the respondents’ interpretation of the statute could lead to the bizarre result of forcing DCF to return the children to the parent whose neglect caused the commitment. This return would not be the result of a court decision, but would occur simply because the termination petition had not been decided within the ninety day period.

For the foregoing reasons, we conclude that the legislature clearly intended to allow DCF to petition for an extension of commitment pursuant to § 46b-129 (e) even where a petition to terminate parental rights has been filed and is pending. This interpretation avoids bizarre and unworkable results and advances the policies that underpin the statute.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-129 (d) provides in pertinent part: “Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit him to the commissioner of children and families for a maximum period of eighteen months, unless such period is extended in accordance with provisions of subsection (e) of this section . . . .”

       General Statutes § 46b-129 (e) provides in pertinent part: “Ninety days before the expiration of each eighteen-month commitment made in accordance with the provisions of subsection (d) of this section and each extension made pursuant to the provisions of this subsection, the commissioner of children and families shall petition the court either to (1) revoke such commitment, in accordance with the provisions of subsection (g) of this section, or (2) terminate parental rights in accordance with the provisions of section 17a-112, or (3) extend the commitment beyond such eighteen-month period . . . .”

       General Statutes § 17a-112 (a) provides in pertinent part: “In respect to any child committed to [DCF] . . . the commissioner . . . may petition the court for the termination of parental rights with reference to such child

       See footnote 2.

       See footnote 1.

       The respondents assert that the children would not be returned to the parents if the commitment expires before the termination petition is heard. They argue that DOF could keep custody of the children pursuant to General Statutes § 17a-10 (a). That statute provides that “[a]ny child committed to [DCF] by the superior court shall be deemed to be within the custody of the commissioner until such commitment has been terminated.” They offer no authority or analysis in support of this claim that is contrary to the plain language of the statute.

       We are not called upon to decide whether a petition may be filed prior to ninety days before the commitment expires. The respondents’ claim is that, while a child is committed, DCF can never pursue both an extension of commitment and a termination of parental rights.


author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. JOSE ORTIZ
    (13786)
    Foti, Laveiy and Landau, Js.

      Argued September 21, 1995
    decision released February 20, 1996

      Christopher L. Ulrich, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, assistant state’s attorney, for the appellee (state).
   LANDAU, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53SL-55. On appeal, the defendant claims that the trial court improperly (1) determined that it had jurisdiction over him so as to allow it to convict him of the lesser included offense of manslaughter in the first degree, (2) admitted evidence of prior uncharged crimes and misconduct, (3) failed to rectify its acknowledged error of admitting evidence that the defendant threatened a witness, (4) admitted evidence of a threat made against the defendant and (5) denied the defendant’s written motion for appointment of new counsel. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On January 19, 1993, the victim, Teranon Watts, was walking near the intersection of Fairfield Avenue and Poplar Street in Bridgeport with James Hawkins, Ronald Miley and James Diggs. At the same time, the defendant and a second individual identified by two witnesses as “Black Mike” were standing on the front porch of a rooming house located at 1523 Fairfield Avenue, a short distance away. The defendant observed Watts and the others walking nearby and stated “there goes the smart mouth niggers that is down with the Foundation.”

Armed with handguns, the defendant and Black Mike then approached the group. The defendant stated, “I heai’d you all wanted to kill us,” and then he and Black Mike began shooting at the group, firing approximately eleven or twelve rounds. As Hawkins, Miley and Diggs fled the area, Watts was struck by a bullet and fell to the ground. Watts died as a result of injuries he received from a gunshot wound to his back.

I

The defendant first claims that the trial court improperly determined, at a probable cause hearing on June 18, 1993, that there was probable cause to proceed on the murder charge. Absent probable cause, he argues, the trial court lacked jurisdiction to convict him of the lesser included offense of manslaughter in the first degree.

The resolution of this claim is controlled by this court’s decision in State v. Timmons, 7 Conn. App. 457, 462, 509 A.2d 64 (1986), appeal dismissed, 204 Conn. 120, 526 A.2d 1340 (1987) (certification improvidently granted). In Timmons, we held that when a defendant is charged with the crime of murder by information, the information gives notice to him of all lesser included offenses. Id., 463. In both Timmons and the present case, “[jjurisdiction of the defendant’s person was properly obtained, and retained [by the trial court] for [the defendant’s] trial and conviction on the charge of manslaughter in the first degree.” Id.

In this case, because the state properly charged the defendant with murder by information, we conclude that, in accordance with Timmons, the state was not precluded “from proceeding to trial against the defendant on the lesser included offense of manslaughter in the first degree . . . .” Id., 462. Because no probable cause hearing is required prior to a prosecution on a manslaughter charge; id.; we need not consider the defendant’s claim that the trial court improperly determined that it had probable cause to proceed on the murder charge.

II

The defendant next claims that he was deprived of a fair trial and due process of law because the trial court improperly allowed a witness to testify (1) that the witness had worked as a drug runner for the defendant and knew that the defendant was a drug dealer, and (2) that the victim was selling drugs for a group of rival drug dealers. The defendant asserts that because of the highly inflammatory nature of this evidence, even if it was admissible, his conviction must be reversed because the trial court failed to provide a limiting instruction to the jury that evidence of uncharged criminal conduct is inadmissible to show the bad character of the defendant or his tendency to commit such bad acts. Without the limiting instruction, he argues, the jury was permitted to infer that the defendant was prone to commit the crime in this case.

Additional facts are necessary to create a context for our discussion. James Garner had formerly worked for the defendant for several months taking money from drug customers and returning to them with vials of crack cocaine they had purchased from the defendant. On numerous occasions, Garner had also purchased crack cocaine from the defendant for his own use. At the time of the shooting, the victim was selling drugs for a group of rival drug dealers known as the “Foundation,” which had formerly sold drugs for the defendant. Although the defendant objected to the admissibility of this testimony, he did not request a limiting instruction.

“As a general rule, evidence of a defendant’s prior crimes or misconduct is not admissible. . . . We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. . . . [Prior misconduct] evidence may also be used to corroborate crucial prosecution testimony. . . . Moreover, we have held that such evidence may be used to complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings. . . .

“To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis. . . . First, the evidence must be relevant ... to at least one of the . . . exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the . . . evidence.” (Citations omitted; internal quotation marks omitted.) State v. Cooper, 227 Conn. 417, 424-25, 630 A.2d 1043 (1993). “[E]vidence is relevant if it has a tendency to establish the existence of a material fact. ...” (Citation omitted; internal quotation marks omitted.) State v. Wieler, 35 Conn. App. 566, 576, 645 A.2d 1032 (1994), aff'd, 233 Conn. 552, 660 A.2d 740 (1995).

Our examination of the proffered evidence reveals that the trial court properly ruled that Gamer’s testimony was relevant and material to more than one of the exceptions that allow evidence of uncharged misconduct. First, the court found that Gamer’s testimony that he had previously sold drugs for the defendant and that the defendant was a drug dealer was relevant to prove the identity of the defendant. Second, the court found that the testimony that the victim was selling drugs for another group of drug dealers was relevant to corroborate other evidence adduced prior to Garner’s testimony that the victim had several vials of crack cocaine on him when he was killed.

Upon finding the challenged evidence to be relevant, the court then carefully balanced the probative value of the challenged evidence against its prejudicial effect. Relevant evidence of prior uncharged misconduct that is prejudicial in nature “is admissible if the trial court, in the exercise of its sound discretion, determines that its probative value, for one or more of the purposes for which it is admissible, outweighs its prejudicial impact on the accused.” State v. Ramsundar, 204 Conn. 4, 15, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987). Because the entire case involved drugs and drug dealing, the court admitted the challenged testimony after finding that the evidence, although prejudicial to the defendant, was necessary to allow the jury to get the “whole flavor of this case” and to avoid having it look at the circumstances surrounding the death of the victim “in a semivacuum.”

This court will uphold the trial court’s ruling on the admission of uncharged misconduct evidence unless there is a manifest abuse of discretion. See State v. Kulmac, 230 Conn. 43, 61, 644 A.2d 887 (1994). It is unlikely that the evidence of the defendant’s prior involvement with drugs could have shocked or influenced the jury to the extent that the defendant was deprived of a fair trial. See State v. Artieri, 206 Conn. 81, 88-89, 536 A.2d 567 (1988). Accordingly, we reject the defendant’s claim that the trial court abused its discretion in admitting the challenged evidence.

The defendant further argues, however, that, even if the challenged evidence was admissible, the court committed reversible error by failing to instruct the jury that it could not use the evidence to infer that the defendant had bad character or that he had a tendency to commit the crime charged. Because the defendant failed to preserve this claim by requesting a limiting instruction at trial, he now seeks appellate review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “We have previously held that the failure of the trial court to give a limiting instruction concerning the use of evidence of prior misconduct is not a matter of constitutional magnitude. State v. Servello, 14 Conn. App. 88, 94-95, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988).” State v. Ulen, 31 Conn. App. 20, 37, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). Absent a claim of constitutional magnitude, the defendant’s unpreserved claim fails to satisfy the second prong of Golding and is, therefore, not reviewable.

The defendant also challenges, pursuant to Golding, the admission of certain other prior uncharged misconduct evidence adduced from Gamer to which the defendant failed to object at trial. It is clear from the record, however, that the state was not asking questions about any specific prior acts of misconduct or crimes. Rather, the state was attempting to elicit from Gamer a description of the weapon that the defendant used in this case. The validity of that conclusion is buttressed by the fact that the defendant did not object to its admission. We conclude, therefore, that the evidence was not misconduct evidence and the ruling of the court allowing its admission was proper.

Ill

The defendant next claims that he was deprived of a fair trial because the trial court failed to cure adequately its acknowledged error in admitting evidence that the defendant had threatened a witness, through a third party, to prevent the witness from testifying against the defendant.

On direct examination, Gamer testified that he was in court two weeks earlier in connection with his own case and met Black Mike, known to Gamer as “E.” E told Gamer that the defendant’s girlfriend informed E that Gamer had testified that E and the defendant were responsible for shooting the victim. E then told Gamer that they knew where he lived. After argument from counsel, the trial court permitted this testimony to be elicited before the jury.

Sometime later in the proceedings, the trial court indicated to counsel that it was reversing its ruling concerning this testimony and mled that because there was insufficient evidence to connect the defendant with the threat made by E, the testimony could not be used to connect the defendant to the threat. The trial court immediately gave a curative instruction to the jury, which was repeated in its final charge. The trial court also stated that “there is no evidence that the defendant was involved in the threat,” and that the jury “may not conclude that he was so involved, on this evidence.”

Although the defendant did not move to strike the challenged testimony from the record, he argues that despite the curative instruction the improperly admitted evidence was highly prejudicial and served no legitimate purpose. The only way to rectify the error, he asserts, was for the court, sua sponte, to strike completely the improperly admitted testimony from the record in conformity with the rule elucidated in State v. Ferraro, 160 Conn. 42, 45-46, 273 A.2d 694 (1970). We are unpersuaded.

Contrary to the defendant’s position, Ferraro is distinguishable from this case. In Ferraro, the trial court admitted testimony elicited from an alibi witness on cross-examination that pistols and a ski mask were found in a New York apartment that the defendant shared with the witness seven and one-half months after an elderly couple was assaulted and robbed in their Connecticut home by two assailants who wore ski masks and displayed handguns. After the state failed to connect the gun and ski mask to the defendant, the defendant moved to strike the testimony from the record. The trial court denied the motion and refused to instruct the jury to disregard the evidence. Id., 44-45. On appeal, our Supreme Court held that because the evidence could not be connected to the defendant and “its admission against these two defendants was not justified, on any other grounds suggested in the record for its admission, the court erred in denying the motion to strike . . . .” (Emphasis added.) Id., 45.

In this case, unlike in Ferraro, the trial court was justified in admitting the challenged testimony. The court instructed the jury that it could use the evidence of E’s alleged threat to consider “whether the threat was responsible for Mr. Gamer’s unavailability in court” and “the credibility of Mr. Garner and the weight you give his testimony.” Moreover, the trial court in this case twice gave curative instructions to the jury, the defendant did not object to either instruction, and the defendant did not move to strike the testimony from the record.

The rule is well settled that “ ‘[t]he jury are presumed to follow the court’s directions in the absence of a clear indication to the contrary.’ State v. Griffin, 175 Conn. 155, 160, 397 A.2d 89 (1978); State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984); State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980).” State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992). Because the record is devoid of any such indication, we conclude that the trial court properly admitted Garner’s testimony regarding the alleged threat.

IV

The defendant next claims that the trial court abused its discretion by allowing Miley to testify that several hours prior to the shooting Hawkins had threatened to shoot the defendant and Black Mike. The defendant argues that because the threat was not made directly to him and no proof was adduced that the threat was ever communicated to him, the evidence was irrelevant and, thus, inadmissible.

A trial court’s “[ejvidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Johnson, 29 Conn. App. 584, 588, 617 A.2d 174 (1992), appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1993) (certification improvidently granted). In this case, the trial court found that the evidence of Hawkins’ threat was relevant to allow the jury to infer the defendant’s motive and to corroborate the defendant’s statement made immediately prior to the shooting, “I heard you all wanted to kill us.” Because we agree with the well reasoned ruling of the trial court and no novel principles of law or appellate procedure are presented by this claim, we conclude that any further discussion would seive no useful purpose. Byrne v. Trice, 170 Conn. 442, 442-43, 365 A.2d 1063 (1976).

V

The defendant’s final claim is that the trial court abused its discretion in denying the defendant’s motion for a continuance to change counsel. He argues that the court’s refusal to grant the continuance deprived him of his right to counsel of his choice under the sixth amendment to the United States constitution and under the Connecticut constitution.

“Once a trial has begun, neither a defendant’s right to due process nor his right to be represented by counsel of his choice entitles him to a continuance upon demand.” State v. Hamilton, 228 Conn. 234, 239, 636 A.2d 760 (1994); State v. Mozell, 40 Conn. App. 47, 52-55, 668 A.2d 1340 (1996). Appellate review of a trial court’s denial of a motion for a continuance is “governed by an abuse of discretion standard that, although not unre-viewable, affords the trial court broad discretion in matters of continuances.” State v. Hamilton, supra, 250.

On January 26,1994, the defendant’s assigned counsel informed the trial court, S. Freedman, J., that three times in the previous two days he had heard either directly from the defendant, or through intermediaries, that the defendant wanted new counsel. William Holden, the public defender for the judicial district of Fairfield, then informed the court that the defendant wanted to obtain private counsel because there was a breakdown in the attorney-client relationship between the defendant and his assigned counsel.

The assistant state’s attorney apprised the court that a motion for speedy trial was filed by the defendant on December 22,1993, six jurors had already been chosen, and the state was ready to proceed to trial. The state further informed the court that its witnesses had been subpoenaed, and that it had had difficulty finding its witnesses in the past. The trial court then denied the motion and allowed the defendant to present his motion to the presiding judge, Damiani, J., the following morning. The motion was again denied.

In reviewing the denial of the defendant’s request for a continuance to change counsel, we cannot conclude that either of the denials was an abuse of the court’s discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       On May 11, 1993, the defendant was charged by information with the crimes of murder in violation of General Statutes § 53a-54a (a) and two counts of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a (a). In an amended information, filed on January 10, 1994, the defendant was charged with murder both as a principal and as an accessory, and three counts of attempted murder. The jury found the defendant not guilty of murder and, in accordance with the instructions of the trial court, did not consider the attempted murder counts.

       Black Mike was also identified by a third witness who knew him as “E.”

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

       “The first two conditions [of Golding] are determinations of whether a defendant’s claim will be reviewed . . . .” State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).

       On direct examination, the following testimony was adduced from Garner when the state asked him when he first saw the defendant’s weapon on the night of the shooting:
      "A. When they came down off the porch—well, I know they always have weapons.
      “Q. What kind of weapon did you see?
      “A. Nine.
      “Q. And would you describe what it looked like?
      “A. To my best recollection, it was—it had a black handle and silver barrel.
      “Q. Had you seen this gun before?
      “A. Yes, I seen it a lot of times before.
      “Q. How many times had you seen it before?
      “A. Once when he hit me in the head with it, and another time when they just pulled them out and had a couple shootouts over there, I saw it.”

       The trial court instructed the jury as follows: “If you find that the threat and these statements were made, you cannot, under our law, connect here the threat for the girl’s statement to the defendant. It’s not permissible in the absence of proof of a direct connection with the defendant under our law. The statement about what the girl said was not admitted, in any event, for the truth of the matter asserted. We are really not concerned with whether it was true or false, only that it was made, and that it led to certain conduct on the part of the person known as E. The testimony was admitted to explain E’s conduct. The state also claims that explains the threat to the witness, and that, in turn, the threat explains Mr. Gamer’s state of mind, and therefore why he was unavailable to testify on two previous days.”

       See footnote 6.

       Following an offer of proof, the trial court permitted Miley to testify that Hawkins, in the presence of Watts, Miley and an unidentified friend of the defendant, had stated that he was going to shoot the defendant and Black Mike. The conversation took place at the victim’s house, and, shortly after Hawkins’ statement, the unidentified person left, walking toward the defendant’s house.

       Because the defendant has failed to brief his claim separately under the Connecticut constitution, we refuse to review this claim under that constitution. State v. Francis, 228 Conn. 118, 122 n.3, 635 A.2d 762 (1993); State v. Walker, 33 Conn. App. 763, 766 n.1, 638 A.2d 1084, cert. denied, 229 Conn. 913, 614 A.2d 1209 (1994).

       After hearing from counsel, the trial court allowed the defendant to explain why he wanted to obtain new counsel, and the following colloquy took place:
      “The Defendant: Your Honor, I would like to dismiss him because a little while ago, before you went to lunch, he was just sleeping right there while you were talking. He was just sleeping, and you was talking all that time, and he was just sleeping right there. He didn’t come and talk to me, he don’t let me know what’s going on, nothing like that.
      “The Court: Is that it?
      “The Defendant: Yes, sir.
      “The Court: You can sit down.”

       The presiding judge found, inter alia, that (1) the defendant did not have the financial ability to hire private counsel, (2) the defendant’s appointed counsel was competent and able, (3) there was no basis in fact to discharge appointed counsel, and (4) the defendant did not have a right to pick and choose public defenders.