author: Stoughton, J.

text:
    Michael Katz et al. v. Clement Passariello et al.
    (4972)
    Spallone, Bieluch and Stoughton, Js.
    Argued October 13
    decision released November 24, 1987

      John A. Keyes, for the appellants (plaintiffs). Patrick M. Noonan, with whom, on the brief, was Thomas J. Flanagan, for the appellees (defendants).
   Stoughton, J.

The plaintiffs appeal from a judgment of the trial court in favor of the defendants. The plaintiffs claim that the court erred (1) in excluding the testimony of direct and rebuttal witnesses, (2) in finding there was insufficient evidence that the named defendant breached a noncompetition agreement, and (3) in finding there was insufficient evidence that the defendants tortiously interfered with the contractual rights of the plaintiffs. We find error.

The underlying facts are not in dispute. The plaintiffs, Michael Katz and Gerald Mastrangelo, entered into a contract on July 30,1982, with the named defendant, Clement Passariello, for the purchase of his one-third stock interest in World Gym East, Inc. (WGE). The contract required an initial payment of $35,000 on July 30, 1982, and $15,000 in installments to be paid over the following year. The named defendant agreed that upon final payment he would resign as president of WGE and would not engage in the gym business within a fifteen mile radius of WGE’s location for a five year period. The plaintiffs accelerated the installment payments, making final payment on November 5,1983, at which time Clement Passariello resigned as president. Subsequently, a gymnasium, Passariello-Quest Athletic Facility, Inc. (Quest), was opened in the name of the defendant Georgianna Passariello, Clement Passariello’s wife, within fifteen miles of WGE. Georgianna did not sign the contract containing the noncompetition covenant.

The principal factual question in dispute at trial was whether Georgianna or her husband managed Quest. After hearing the testimony, the court found that the defendant Clement Passariello was not the manager of Quest and that he was not engaging in the gym business in violation of his noncompetition agreement. Judgment was rendered for the defendants on all counts.

The plaintiffs’ principal claim of error is that the trial court erred in excluding the testimony of two of their witnesses whose names were not disclosed prior to trial. The record indicates that the defendants attempted to obtain the names of the plaintiffs’ witnesses through interrogatories pursuant to Practice Book § 222. The plaintiffs agreed, without a court order, to provide the names of their witnesses in lieu of complying with discovery. A list of eighteen witnesses was provided, the majority of whom the defendants deposed.

The plaintiffs’ first claim is that the trial court erred in excluding the direct testimony of detective Ted Forbes. We agree with this claim.

Six months after the trial began, the plaintiffs called Forbes to give direct testimony. After an offer of proof, the court sustained the defendants’ objection to Forbes’ testimony because the plaintiffs had failed to comply with the pretrial agreement for disclosure of witnesses.

The parties reached an informal oral agreement which required that the plaintiffs provide the defendants with the names of their witnesses ahead of time. Both parties concede that the agreement was ambiguous. The defendants contend that the agreement required disclosure before trial. By contrast, the plaintiffs contend that as long as they disclosed the identity of a witness before the witness was called to testify, they would be in compliance with the agreement.

The purpose for requiring a written stipulation; Practice Book § 249; is to avoid the kind of uncertainty created by informal agreements. We find no authority for upholding the court’s enforcement of the parties’ informal agreement in this case. If the courts were required to interpret such agreements they would soon be engulfed in a quagmire of collateral issues, impeding rather than furthering the objectives of discovery.

The plaintiffs also claim that the court erred in excluding the rebuttal testimony of Jody Grigier. We agree with this claim.

Grigier was referred to by name several times during the testimony of the defendant Georgianna Passariello. Grigier was also mentioned in the testimony of several other witnesses. When the plaintiffs called Grigier to rebut the earlier testimony, the court refused to hear her testimony because her name did not appear on the witness list.

“Although a plaintiffs rebuttal testimony is ordinarily limited, within the discretion of the court, to such purposes as refuting the defendant’s evidence and impeaching or rehabilitating witnesses; State v. Peary, 176 Conn. 170, 174-75, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979); Reboni v. Case Bros., Inc., 137 Conn. 501, 508, 78 A.2d 887 (1951); DiMaio v. Panico, 115 Conn. 295, 298, 161 A. 238 (1932); Tait & LaPlante, Handbook of Conn. Evidence § 3.2; Holden & Daly, Connecticut Evidence § 11; we are unaware of any authority which permits the court to bar in advance the plaintiff from even bringing the rebuttal witness to the stand in order to offer the evidence. See Gervais v. Foehrenbach, 149 Conn. 461, 463, 181 A.2d 253 (1962).” DeMartin v. Yale-New Haven Hospital, 4 Conn. App. 387, 392-93, 494 A.2d 1222 (1985). As we concluded in DeMartin, the proper procedure is to rule on the admissibility of the rebuttal testimony, not on whether a rebuttal witness was disclosed in pretrial discovery.

To require that a party disclose rebuttal witnesses before trial would place efficiency before logic. It is simply not possible for a litigant to anticipate all of the opposing evidence that will be elicited at trial. Thus, no party could fully divine which testimony will require rebuttal and which will not. The court abused its discretion when it failed to consider the admissibility of the plaintiffs’ rebuttal testimony.

These errors are dispositive of the appeal. The plaintiffs’ other claims of error raise evidentiary questions which we cannot reach because further evidence must be heard by the court.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       After several days of testimony, there was a lapse in the proceedings for six months. On the Friday before resuming, the plaintiffs called the defendants to inform them that they intended to call Forbes as a witness on Monday. The court concluded that Forbes’ testimony was inadmissible because his name did not appear on the plaintiffs’ original witness list.

       “{Practice Book] Sec. 249. stipulations regarding discovery and DEPOSITION PROCEDURE
      “Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice, and in any manner, and when so taken may be used as other depositions, and (2) modify the procedures provided by this chapter for other methods of discovery.”


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    State of Connecticut v. Dexter Howard
    (5488)
    Borden, Spallone and O’Connell, Js.
    Argued October 13
    decision released November 24, 1987

      David F. Egan, for the appellant (defendant).

      Geoffrey Marion, deputy assistant state’s attorney, with whom, on the brief, were James G. Clark, assistant state’s attorney, and Michael Dearington, state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134, assault in the first degree in violation of General Statutes § 53a-61 (a) (1), and assault in the third degree in violation of General Statutes § 53a-59 (a) (1). The sole issue on appeal is whether the trial court erred in instructing the jury, under the authority of Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960), that it could draw an adverse inference from the defendant’s failure to call his sister as a witness on his behalf. We find no error.

The jury could reasonably have found the following facts: On January 12, 1986, John Caramavros, the owner of the Town Pizza restaurant in Ansonia, was present in his restaurant with his wife, Alexandria Caramavros. At approximately 10:30 p.m., the defendant entered the restaurant. He struck John Caramavros in the face and ribs. He also beat Alexandria Caramavros severely about the face. While this was occurring, an unidentified accomplice entered the restaurant and took $120 from the cash register.

The defendant testified on direct examination that he had been in a nightclub at the time of the robbery. He further testified that when he returned home at approximately 12:30 a.m., his sister, Tracey Howard, told him that the restaurant, which was located near their apartment, had. been robbed. According to the defendant’s testimony, he then asked Howard if the perpetrators had been caught and stated to her that the police would probably catch them soon. On cross-examination, the defendant testified that, at the time of this conversation with Howard he lived with her in her apartment in Ansonia, and that she still lived at that address. The defendant did not attempt to produce Howard as a witness on his behalf.

The court granted the state’s request that it give a Secondino charge to the jury regarding Howard. The defendant properly excepted to the instruction. The defendant claims that a Secondino charge was improper because the state had not shown that Howard was in fact available. We disagree.

“ ‘There are two requirements for the operation of the [Secondino] rule: The witness must be available, and he must be a witness whom the party would naturally produce.’ Secondino v. New Haven Gas Co., supra; see State v. Roma, 199 Conn. 110, 120, 505 A.2d 717 (1986); State v. Hart, 198 Conn. 424, 428, 503 A.2d 588 (1986).” State v. Shashaty, 205 Conn. 39, 43, 529 A.2d 1308 (1987). “In deciding whether the state satisfied the first requirement of the Secondino rule we must determine whether there was sufficient evidence to support a finding by the jury that the missing witness was available to the defendant.” State v. Daniels, 180 Conn. 101, 110, 429 A.2d 813 (1980). If the evidence was sufficient to support that finding, the court’s charge was properly given. Id.

The facts available to the court regarding Howard’s availability were sufficient to warrant the Secondino charge to the jury.. The defendant had testified that Howard was still living at the same apartment in Ansonia. Furthermore, the defendant’s counsel acknowledged in argument to the trial court that “we can have a subpoena served on her . . . served on her residence . . . probably within an hour.”

The defendant’s argument that Howard was not available is based on the difficulty which the state had in trying to produce her as a witness. The record discloses that Howard had given the police a sworn statement implicating the defendant based on inculpatory remarks he had made to her. The record further discloses that the state had served her with a subpoena two weeks earlier, that she had been seen in the area since then, that she had not responded to the subpoena, and that she seemed to be avoiding the police so she would not have have to testify. Despite determined efforts, the state was unable to produce her as a witness.

The unavailability of a witness to the state does not, however, preclude a finding that the witness was available to the defendant, and does not preclude a Second,ino charge adverse to the defendant. State v. Vilalastra, 9 Conn. App. 667, 676, 521 A.2d 170 (1987) (where witness unavailable to state, but available to defendant, Secondino charge against defendant authorized). Under the facts of this case, the defendant cannot ride the coattails of the state’s lack of success in securing Howard’s testimony against him. There is no reason to think that Howard’s unavailability to the state carried over to the defendant. The fact that she might not want to testify for the state against her brother does not require a conclusion that she would not respond to her brother’s request to give evidence favorable to him.

There is no error.

In this opinion the other judges concurred.

       The challenged instruction was as follows: “Now it’s necessary that I comment about a concept in our law dealing with a party's failure to call a witness, who is within his power to produce, and would naturally have been produced by him, permits the inference that the [testimony] of the witness would have been unfavorable to the party’s case. In this ease, it’s my recollection the accused testified that he arrived home at 51 Fourth Street around 12:30 a.m. on the morning after the occurrence of this robbery, and was told by his sister of the robbery. He asked her if the person was caught. He testified that his sister still lives at that address. She was not called as a witness by the accused. For this rule to apply, the witness must be available, and be a person the party would naturally produce. If you find that both these requirements have been met, then you are permitted to draw the inference that the testimony of Tracey Howard would be unfavorable to the accused.”

       The defendant does not argue that the state failed to meet the second prerequisite of a valid Secondino charge, namely, that Howard was a witness whom the defendant would naturally have produced to testify.


author: Dupont, C. J.

text:
    John Taddei, Sr., et al. v. Kenneth Schwarz et al.
    (5141)
    Dupont, C. J., Stoughton and Foti, Js.
    Submitted on briefs November 6
    decision released December 1, 1987

      Donn A. Swift filed a brief for the appellant-appellee (named plaintiff).

      James J. Szerejko and John W. Lemega filed a brief for the appellees-appellants (defendants).
   Dupont, C. J.

The plaintiffs brought an action against the defendants, claiming that the negligent operation of a motor vehicle driven by one of them had caused a rear end collision with the named plaintiff's automobile while it was stopped at an intersection. The trial court granted the plaintiffs’ motion for summary judgment on liability, and the case was tried to a jury solely on the issue of damages.

The jury awarded the plaintiff $583 in damages, although he claimed $2083 in medical expenses alone. The plaintiff also claimed damages for lost wages, future earning capacity, and pain and suffering. The plaintiff’s motion to set aside the verdict was denied, and the plaintiff appeals from the judgment rendered on the jury’s verdict.

On review, our task is confined to determining whether the trial court abused its discretion in refusing to set aside the verdict. Our review involves an examination of the record in a light most favorable to sustaining the verdict. Herb v. Kerr, 190 Conn. 136, 140, 459 A.2d 521 (1983). The standard by which our examination is measured is “ ‘whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption. ’ ” Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 327, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986), quoting Briggs v. Becker, 101 Conn. 62, 66-67, 124 A. 826 (1924). “ ‘The trial court’s refusal to set aside [a] jury verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness.’ Kalleher v. Orr, 183 Conn. 125, 127, 438 A.2d 843 (1981); Waldron v. Raccio, 166 Conn. 608, 618, 353 A.2d 770 (1974). This is so because ‘[fjrom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than [an appellate court] can, on the printed record, what factors, if any, could have improperly influenced the jury.’ Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972).” Zarrelli v. Barnum Festival Society, Inc., supra.

The facts in this case relating to the damages suffered by the plaintiff were hotly disputed. His testimony, beginning with his description of the impact of the cars and continuing through his recitation of medical expenses and employment related damages, was contradicted by a coplaintiff, by records of medical expenses claimed in an unrelated incident, and by his employment records. The testimony of his medical experts was undermined at trial by the revelation that he had failed to tell them about related injuries. One injury was incurred two weeks prior to the alleged injury which is the subject of this appeal and another was incurred subsequently. That the jury chose to disbelieve the testimony of the plaintiff, and of his experts, as to his medical damages is not evidence of prejudice, partiality, mistake or corruption.

The trial court did not abuse its discretion by denying the motion to set aside the verdict, as the evidence presented at trial reasonably supported the verdict. See Zimny v. Cooper-Jarrett, Inc., 8 Conn. App. 407, 437, 513 A.2d 1235 (1986). “The concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony, is a powerful argument for sustaining the action of the trial court.” Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 (1965).

There is no error.

In this opinion the other judges concurred.

       The other plaintiffs, John Taddei, Jr., and Frances Taddei, have not appealed and the judgments for them, rendered on the jury’s verdict, are not involved in this appeal. In this opinion, we will refer to John Taddei, Sr., as the plaintiff.

       The defendants’ cross appeal, claiming error in the granting of summary judgment, was filed contingent upon a reversal of the judgment from which the plaintiff appeals, and therefore, need not be addressed, in view of this court's decision on. the appeal.


text:
    State of Connecticut v. Carl Hendrickson
    (5558)
    Spallone, Stoughton and Norcott, Js.
    Argued October 14
    decision released December 1, 1987

      LoriR. Wilson, special public defender, for the appellant (defendant).

      James A. Killen, deputy assistant state’s attorney, with whom, on the brief, were James G. Clark and Roland Fasano, assistant state’s attorneys, for the appellee (state).
   Stoughton, J.

The defendant was convicted, after a trial to a jury, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), robbery in the first degree in violation of General Statutes §53a-134 (a) (4), and carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims that the trial court erred (1) in denying his motion to suppress, (2) in overruling his objection to the admission into evidence of the guilty plea of an alleged accomplice, (3) in denying his motion for a new trial, (4) in overruling his objection to the admission into evidence of guns and a wallet, and (5) in denying his motion for judgment of acquittal.

The jury could reasonably have found the following facts. On January 29,1986, the defendant drove from Brooklyn, New York, to New Haven with Eric Clarke, Tony Foster and a third man known as Country to commit a robbery. At about 1 a.m., they went to an apartment on Howard Avenue where they expected to find money and drugs. The defendant and Country were armed with automatic weapons. Foster remained in the car while the defendant, Clarke and Country entered the back entrance of the apartment building and went to the third floor. When they reached the third floor, they saw a man enter the apartment to buy something. As the man left, Country held his gun to the man’s head and told him to go back to the apartment door and knock. When the knock was answered, Country and the defendant, who had his gun out, forced the man inside. Clarke stood just inside the doorway while the defendant and Country went inside and asked where the money was. Country hit one of the men in the apartment with his gun and the defendant took a wallet from Keith Gayle. The defendant fled from the apartment, followed by Clarke and Country, who took a bag containing some marihuana, a shirt, two hats and a radio.

Officer Carlos Stewart arrived at the building in response to a report of the burglary. He saw two or three people come down the rear stairway into the back yard and start running down the street. He drove after them and was joined by Officer Paul Healey. In a schoolyard, the defendant flattened himself on the ground, while Country and Clarke continued to run down an adjoining street named Portsea Street. When Stewart approached, the defendant jumped up and started to run. The canine unit arrived on the scene and began to chase the defendant, while Stewart continued after the other two. Officer John Tompkins of the canine unit saw the defendant point what appeared to be a gun at the dog, but no shots were fired. After the dog eventually stopped him, the defendant was ordered by Tompkins, to drop the gun. Instead, the defendant threw it into a fenced-in area. The defendant was handcuffed and taken by Healey in his police car to a police wagon, in which the defendant was taken to the police station. Tompkins later recovered the gun which was found loaded and cocked. Clarke was apprehended by another policeman. Stewart saw the other two men running down Portsea Street carrying a bag. He saw them climb a fence to the rear of the schoolyard, and he lost sight of them. Country was not caught, but the bag he took from the apartment was recovered. A resident of Portsea Street later found a gun there and turned it over to the police. Healey left his police car at the police station at about 4:30 a.m. On that same day at about 11:30 a.m., Officer Shelby Jones was putting some equipment in the back seat of the car which had been used by Healey, and he found Keith Gayle’s wallet beneath the seat.

I

The defendant filed a motion to suppress evidence of statements which he made to the police. The court held a hearing prior to trial, after which it denied the motion to suppress. The defendant claims that the ruling was erroneous because (1) the state failed to prove that he understood his Miranda rights, and (2) the state failed to prove that his course of conduct waived those rights.

Before any statement made by a suspect while he is in custody may be used against him in a criminal prosecution, it must be shown that he was informed that he had certain rights which are secured by the United States constitution. These rights are set out in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and are too well known to require repeating here. The suspect may, however, knowingly and intelligently waive these rights and agree to answer questions or make a statement. Miranda v. Arizona, supra.

At about 4 a.m. on January 29, 1986, while the defendant was in custody, he was questioned by Detective Leonard Pastore of the New Haven police department. Pastore was the only witness who testified at the suppression hearing. Pastore said that he identified himself and that he then read the Miranda rights to the defendant from a standard waiver form used by the police department. Pastore asked the defendant if he understood, and the defendant indicated that he did understand and that he was willing to talk to Pastore. He did not ask for an attorney. The defendant was coherent, did not appear to be under the influence of drugs or alcohol and was able to articulate so that Pastore understood what he was saying. Pastore had no question in his mind that the defendant understood his rights. Pastore then proceeded to interview the defendant. The defendant, who had given a name other than his own to the police, first said that he was from Stratford and had gone to 588 Howard Avenue to buy drugs. He said that when he got there, he saw some commotion and fled. He first denied being chased and caught by the canine unit, but admitted it after Pastore found a tear in the defendant’s jacket. Pastore started to ask about the weapon which was found, and the defendant denied having possession of any weapon and terminated the interview. Pastore asked the defendant to initial and sign the form to indicate that he had been advised of his rights, but the defendant refused to do so. The defendant was willing to answer questions until that point. He was not willing to initial or to. sign anything or to give a taped interview.

The defendant does not claim that he did not understand his rights, but that the state did not prove that he understood his rights. This may well be because no evidence was offered to the trial court that the defendant did not understand his rights. The only evidence on the subject was the testimony from Pastore that the defendant indicated that he understood, and that there was no question in Pastore’s mind that the defendant understood. The state argues that this claim should not be reviewed because it was not raised before the trial court. State v. Vasquez, 9 Conn. App. 648, 653, 520 A.2d 1294 (1987). It is undoubtedly true, as asserted by the defendant, that to waive his rights knowingly and voluntarily the defendant must have understood them. State v. Wilson, 183 Conn. 280, 285, 439 A.2d 330 (1981). Whether he did so is a question of fact, but requires a scrupulous examination of the record in order to ascertain whether such a finding is supported by substantial evidence. State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982). The only evidence on this question was the testimony by Pastore. This testimony clearly supports a finding by substantial evidence that the defendant understood his rights. The record also shows that the defendant indicated to Pastore that he was willing to talk to him and, therefore, expressly waived his right to remain silent. The state has the burden of proving by a fair preponderance of the evidence that the defendant knowingly and voluntarily waived his rights. State v. Pecoraro, 198 Conn. 203, 208, 502 A.2d 396 (1985). Proof of waiver may be inferred from the defendant’s course of conduct. State v. Wilson, supra. The defendant’s willingness to speak, coupled with his termination of the conversation, revealed that he clearly understood his rights. It also permits an inference that when he responded to the initial questions he knowingly and voluntarily waived those rights. State v. Pecoraro, supra, 208-209. While his refusal to initial or to sign anything or to give a taped interview are relevant factors on the question of waiver, they may be outweighed by other factors. State v. Shifflett, 199 Conn. 718, 733, 508 A.2d 748 (1986). On these facts, they clearly were.

II

During the trial of this case to the jury, the state called Eric Clarke as one of its witnesses. Clarke testified concerning the events of January 29,1986, and the defendant’s participation in those events. This was the only testimony concerning what had occurred at the Howard Street apartment. In the course of his direct testimony, Clarke said that he had pleaded guilty but that he did not know what his sentence was to be. On cross-examination, Clarke testified that he knew that he would be expected to testify and that his testimony would be brought to the attention of the sentencing judge. He was asked if he expected to be rewarded for testifying and said that he did not understand. He was asked if he expected “to get a lesser sentence” and said that he did not know the law and did not know what time he would get. Defense counsel also brought out through cross-examination of Clarke that a burglary in the first degree charge, which carried a mandatory minimum sentence, had been changed to burglary in the third degree. Thereafter, the state was allowed, over objection, to introduce a transcript of a part of the proceedings in court at the time Clarke’s guilty plea was taken. This transcript was ruled admissible because of the cross-examination, with respect to any hopes or expectations Clarke might have had for consideration at the time of his sentencing. The transcript contained statements by the assistant state’s attorney and by Clarke’s counsel. The assistant state’s attorney stated that Clarke might be called as a witness, and that the only agreement was that his testimony would be a factor for the state to consider in recommending a sentence. The defendant cross-examined Clarke fully, and the claim he has briefed with respeet to the admissibility of the transcript is that he was never given an opportunity to cross-examine the assistant state’s attorney or Clarke’s defense counsel.

“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). The defendant attacks the credibility of Clarke and suggests that the change to a charge containing no mandatory minimum sentence suggests the possibility of an unstated agreement. He does not claim that he did not have the opportunity fully to cross-examine Clarke. He made no effort to call either the assistant state’s attorney or Clarke’s attorney, and he did not suggest to the trial court or to this court that either would have said anything which was different from what each had said at the time the guilty plea was taken. The assistant state’s attorney said that the only agreement was that Clarke’s testimony would be a factor to consider in recommending sentence, and Clarke’s attorney pointed out that there was no mandatory minimum sentence required. Even if there had been some unstated agreement, and there is nothing in the record even to suggest such a possibility, such an unstated agreement would first have to be stated to Clarke before it could influence him in any way. The defendant was not denied the opportunity to cross-examine any of the witnesses, and we find no error as to this claim.

III

The defendant also claims error in admitting into evidence the two guns and the wallet. He contends that none of these items was sufficiently linked to the defendant and, thus, their relevance was not established. We disagree.

The trial court is vested with broad discretion in rulings on relevancy; State v. Rogers, 10 Conn. App. 258, 260, 522 A.2d 839, cert. denied, 203 Conn. 809, 525 A.2d 522 (1987); and every reasonable presumption must be given in favor of the court’s rulings. State v. Brown, 9 Conn. App. 313, 317, 518 A.2d 670 (1986). These items constituted proof of elements of the crimes charged, and they corroborated testimony of Clarke. Whether they were sufficiently linked to the defendant goes to the weight to be accorded them as evidence and was for the jury to determine. There was no error as to this claim.

IV

The defendant finally claims that the court erred in denying his motion for acquittal because the state failed to prove an unlawful entry by the defendant, failed to prove a wrongful taking by the defendant, and failed to prove possession of a gun by the defendant. In reviewing allegations of insufficient evidence, we will not evaluate the evidence nor will we resolve questions of the credibility of witnesses. State v. McCarthy, 197 Conn. 166, 179, 496 A.2d 190 (1985). We review the evidence in the light most favorable to sustaining the jury’s verdict. State v. Dickson, 10 Conn. App. 462, 464, 523 A.2d 935 (1987). The evidence was sufficient, if believed by the jury, to establish an unlawful entry by the defendant, a wrongful taking of Gayle’s wallet by the defendant and the defendant’s possession of a gun.

There is no error.

In this opinion the other judges concurred.

       This claim was raised in the defendant’s preliminary statement of issues. Since this issue was neither briefed nor argued, however, it is deemed abandoned. State v. Mack, 197 Conn. 629, 632, 500 A.2d 1303 (1985).


text:
    Stone and Stone Pension Plan v. Melvin Alston, Jr., et al.
    (4638)
    Spallone, Stoughton and Norcott, Js.

      Argued October 14
    decision released December 1, 1987

      Gerald H. Kahn, for the appellants (named defendant et al.).

      Jonathon J. Einhorn, for the appellee (plaintiff).
   Stoughton, J.

This is an appeal from a judgment of strict foreclosure and from a judgment in favor of the plaintiff on the defendants’ counterclaim. The plaintiff held, by virtue of an assignment from the mortgagee, a first mortgage on certain real property owned by the defendants. The defendants defaulted on their payments, and the plaintiff instituted a foreclosure action. The defendants admitted execution of the mortgage deed and note, but they denied their indebtedness. They also counterclaimed, alleging that the plaintiff did not prove the information required to be disclosed by 15 U.S.C. §§ 1601 et seq. and by General Statutes (Rev. to 1981) §§ 36-393 through 36-417 and the regulations promulgated thereunder. They sought, in their counterclaim, damages and a declaration that the mortgage transaction was null and void. From the judgment for the plaintiff, the defendants appeal. They claim that the court erred in finding (1) that a bond for deed transaction did not constitute an initial purchase, (2) that the mortgage being foreclosed was not a refinancing, (3) that the mortgage being foreclosed was not subject to federal or state truth-in-lending provisions, and (4) that the defendants did not have a right to rescind the mortgage under federal or state truth-in-lending laws.

The facts in this case are not in dispute. In March of 1976, the defendants and Leo Hirschhom signed a bond for deed under the terms of which the defendants agreed to purchase certain real property from Hirschhorn for the sum of $20,900. The defendants made a down payment of $900, moved into the house and began making monthly payments in accordance with a twenty year payment schedule. At that time, the defendants were not able to qualify for a mortgage. They expected, however, that at some time they would get a mortgage from a bank or other lending institution. By the terms of the bond for deed, the defendants agreed to pay Hirschhorn, in addition to the stipulated monthly payments against the purchase price, monthly payments which would cover the annual taxes, assessments, water charges and fire and liability insurance premiums. The defendants agreed to execute a quitclaim deed to Hirschhom to be held in escrow by his attorney which would release any lien created by the bond for deed in the event of a default by the defendants. The defendants were given the right to take possession of the premises, and Hirschhom agreed to convey the premises to them by warranty deed upon payment of the full purchase price. The bond for deed was never recorded.

In 1981, because Hirschhorn desired to have the remaining amount due paid off, the defendants contacted First Mortgage Trust and arranged for a mortgage loan. On August 11, 1981, Hirschhorn executed a warranty deed in favor of the defendants, and the defendants executed a note for $25,000 secured by a mortgage on the premises. The mortgage was then assigned by First Mortgage Trust to the plaintiff. The defendants defaulted in their mortgage payments, and a foreclosure action was begun by complaint dated February 1,1983, and filed on February 15,1983. On February 24, 1983, the defendants executed a notice of rescission.

The federal and the Connecticut truth-in-lending laws are identical insofar as disclosure requirements are concerned. Under federal truth-in-lending laws, Connecticut enjoys a partial exemption from federal jurisdiction as long as Connecticut’s disclosure requirements are the same as the federal requirements. 15 U.S.C. § 1633. Section 1635 of Title 15 provides the borrower with a right to rescind any consumer credit transaction in which the lender takes a security interest in real property which serves as the borrower’s residence. The creditor must disclose to an obligor his rights under this section. The section exempts, however, the creation or retention of a first lien against a dwelling to finance the acquisition of that dwelling. On August 11, 1981, the provisions regarding rescission were found in General Statutes (Rev. to 1981) § 36-402. The defendants were not provided with disclosure of the right of rescission, although other required disclosures were made. They claim that disclosure was required and the plaintiff claims that the transaction was exempt.

The claim of the defendants is that they acquired an interest in the property under the bond for deed and that the 1981 mortgage loan was a refinancing and therefore not exempt. There is no doubt that the defendants did acquire an interest in the property under the bond for deed. They obtained equitable title under the doctrine of equitable conversion. Further, a valid bond for deed binds the parties. Francis T. Zappone Co. v. Mark, 197 Conn. 264, 268, 497 A.2d 32 (1985). They did not, however, acquire the property. The agreement was a long term sales contract in which the buyers went into possession and the seller retained full right, title and interest in the property. Country Lumber, Inc. v. Newington Builders Finish Co., 4 Conn. App. 589, 591, 495 A.2d 1121 (1985); Eugene Steinberg Co. v. Zalcmanis, 38 Conn. Sup. 452, 454, 450 A.2d 1170 (1982). The defendants did not acquire the property from Hirschhom in 1976. They did not borrow anything from Hirschhorn at that time. The mortgage loan in 1981 was for the purpose of acquiring the property and was not a refinancing. Therefore, the transaction was exempt from the disclosure requirements of General Statutes (Rev. to 1981) § 36-402.

There is no error.

In this opinion the other judges concurred.

       Leo Hirschhorn, the predecessor in interest to the defendants Melvin and Hilda Alston, was named as a defendant because of a mortgage deed and a notice of lis pendens which were recorded on the land records. Those claimed interests were subsequent to the plaintiffs mortgage. As used in this opinion, the term defendants refers to the Alstons only.

       General Statutes (Rev. to 1981) § 36-402 provided in pertinent part: “(a) Except as otherwise provided in this section, in the case of any consumer credit transaction in which a security interest, including any such interest arising by operation of law, is or will be retained or acquired in any real property which is used or is expected to be used as the residence of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required under this section and all other material disclosures required under this chapter and sections 36-97a, 42-84 and 42-87, whichever is later, by notifying the creditor, in accordance with regulations of the commissioner, of his intention to do so. The creditor shall clearly and conspicuously disclose, in accordanee with regulations of the commissioner, to any obligor in a transaction subject to this section the rights of the obligor under this section. The creditor shall also provide, in accordance with regulations of the commissioner, an adequate opportunity to the obligor to exercise his right to rescind any transaction subject to this section. . . . (e) This section does not apply to the creation or retention of a first lien against a dwelling to finance the acquisition of-that dwelling or to a consumer credit transaction in which an agency of a state is the creditor.”


author: O’Connell, J.

text:
    Suppa Brothers, Inc. v. Structures, Inc.
    (4994)
    Borden, Daly and O’Connell, Js.
    Argued September 30
    decision released December 1, 1987

      William F. Gallagher, with whom, on the brief, were LeRoy Jones and Robert P. Borquez, for the appellant (plaintiff).

      Alvin M. Murray, for the appellee (defendant).
   O’Connell, J.

The plaintiff appeals from the judgment rendered, in a contract dispute, for the defendant on the defendant’s counterclaim. We find no error.

The plaintiff brought this action alleging breach of contract, monies owed under the doctrine of quantum meruit and wrongful waiver of a mechanics’ lien. The contract in question concerned excavation work to be performed by the plaintiff at the defendant developer’s residential project in Cheshire (the Cheshire contract). The Cheshire contract was signed by the parties on or about August 3, 1983.

The defendant counterclaimed, alleging, inter alia, that the plaintiff breached a February 4,1984 contract for road and drainage work on a separate project in East Haven (the East Haven contract), and that it was owed damages resulting from that breach.

The attorney trial referee who heard the matter awarded the plaintiff $10,101.09 damages on the complaint, and awarded the defendant $71,998.50 in damages on its counterclaim. The trial court rendered judgment in accordance with the referee’s findings. On appeal, the plaintiff alleges that the trial court erred (1) in finding that the “monetary disagreements” of the parties were insufficient justification for the plaintiff’s breach of the East Haven contract, and (2) in basing its assessment of the defendant’s damages upon estimated costs rather than actual expenses. Additionally, the plaintiff contended at oral argument that the issue of justification for repudiation of the East Haven contract was an issue of law, not fact, and accordingly was not subject to the rules of practice concerning attorney trial referee reports. We disagree and find no error on any of the three claims.

I

Addressing first the plaintiff’s claim made at oral argument, we note that the referee found that the plaintiff’s “monetary disagreements [with the defendant] on the Cheshire project . . . [do] not appear to be sufficient grounds for repudiating the [East Haven] contract.” Accordingly, the referee then found that the East Haven contract “was breached by the plaintiff without cause.” It is a well settled principle of law that a renunciation or repudiation of a contract prior to performance allows the adverse party to treat the contract as breached and gives that party the right to institute an action for damages. 17 Am. Jur. 2d, Contracts § 449 (and cases cited therein). In such situations, “[t]he decisive question [is] whether the [plaintiff] had abandoned, and consequently breached, the contract. This [is] a question of fact.” M. Shapiro & Son Construction Co. v. Battaglia, 138 Conn. 238, 244, 83 A.2d 204 (1951). It is also beyond dispute that the role of the attorney trial referee is that of factfinder. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 507-508, 508 A.2d 415 (1986). The above-quoted portions of the referee’s report set forth the referee’s conclusions regarding a question of fact, not law. By accepting the referee’s report and rendering judgment in accordance with his recommendation, the trial court accepted the referee’s conclusions of fact. Because the defendant “ ‘filed no [timely] exceptions to the acceptance of the report by the court in accordance with Practice Book [§ 440] . . . the conclusions must stand.’ ” Seal Audio, Inc. v. Bozak, Inc., supra, 518, quoting Jensen’s, Inc. v. Killingworth, 152 Conn. 237, 243, 206 A.2d 114 (1964). The plaintiff cannot circumvent procedural time prerequisites merely by framing a factual dispute as an issue of law.

II

Concerning the two claims addressed in the plaintiffs brief, we once again note that our review of a matter heard by an attorney trial referee is strictly limited when, as here, the plaintiff failed to file timely exceptions, objections or motions to correct the referee’s report. Such failure precludes an attack upon the subordinate factual findings contained in the report or the conclusions based thereon. See generally Seal Audio, Inc. v. Bozak, Inc., supra, 518; J. M. Rosa Construction Co. v. New Haven Redevelopment Agency, 9 Conn. App. 481, 485, 519 A.2d 1227 (1987); Kowalsky Properties, Inc. v. Sherwin-Williams Co., 7 Conn. App. 136, 140, 508 A.2d 43 (1986). In this case, the referee filed his report on January 21, 1986. On January 31, 1986, the plaintiff filed a motion for extension of time to file an objection to the referee’s report. This motion was denied by the trial court on February 4, 1986. On February 7, 1986, the plaintiff filed a motion to correct the report, which filing was three days beyond the two week period mandated by Practice Book § 438. On February 19, 1986, the plaintiff filed an objection to the acceptance of the referee’s report, which likewise was untimely.

Because we conclude that all claims of error address matters of fact, and because the plaintiff did not timely file proper motions attacking the referee’s findings, we will not review further the acceptance of the report by the trial court. “ ‘A litigant cannot wholly ignore established procedures for the protection of its rights, as this [plaintiff] has done, and hope to receive on appeal the same treatment accorded to those who follow the rules of practice.’ ” Ross v. Renzulli, 9 Conn. App. 87, 90, 516 A.2d 149 (1986), quoting Seal Audio, Inc. v. Bozak, Inc., supra. We therefore decline to review further the judgment of the trial court.

There is no error.

In this opinion the ther judges concurred.

       “[Practice Book § 440.] objections to acceptance of report. A party may file objections to the acceptance of a report on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the committee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted.
      “If an objection raises an issue of fact the determination of which may require the consideration of matters not appearing in the report or stenographic notes of proceedings before the committee, the adverse party shall, within two weeks after the filing of the objection, plead to it by a motion to strike, answer or other proper pleading.”

       A review of the plaintiff’s untimely objection does not disclose that the plaintiff objected, at that point in the proceedings, to the trial referee’s failure to characterize the sufficiency of the grounds for repudiation as a legal rather than factual issue.

       Practice Book § 438 provides in pertinent part that “[i]f either party desires to have the report or the finding corrected ... he shall within two weeks after the filing of the report or finding file with the court a motion to correct setting forth the changes and additions desired by him.”


author: Dupont C. J.

text:
    State of Connecticut v. George Navikaukas
    (5731)
    Dupont, C. J., Spallone and Stoughton, Js.
    Argued October 15
    decision released December 8, 1987

      John Watson, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Marcia B. Smith, assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and Maureen B. Keegan, legal intern, for the appellee (state).
   Dupont C. J.

The trial court, after a hearing pursuant to General Statutes § 53a-32, found the defendant in violation of three conditions of his probation, opened and vacated the original judgment of conviction, and rendered judgment imposing a sentence of two years. The defendant claims on appeal that the trial court erred (1) in revoking his probation without considering whether the violation constituted a substantial violation of probation, and (2) in failing to find the purposes of probation could no longer be served. We find no error.

The defendant pleaded guilty, on February 14,1984, to a substituted information charging him with the crime of assault in the second degree in violation of General Statutes § 53a-60. The defendant was placed on probation, the conditions of which required that he (1) report to his probation officer as circumstances dictated, (2) keep the probation officer informed of his whereabouts and give immediate notice of any change in address or employment, (3) remain in the state of Connecticut, and (4) refrain from violating any criminal law of the United States or any state.

The record reflects that from February, 1985, until August, 1986, the defendant failed to attend twelve scheduled meetings with his probation officer. On nine separate occasions the defendant’s probation officer sent letters giving the defendant a new date to report. Three of these letters warned the defendant that unless he appeared on the date given, a probation warrant would be issued. A letter of September 10, 1986, informed the defendant that he must report on September 18,1986. On September 15, 1986, the defendant’s sister called his probation officer to inform him that the defendant had been arrested in Saratoga, New York. On September 16,1986, the defendant telephoned his probation officer from Somers prison to inform him that he was being held pending a parole violation hearing in Massachusetts because of his New York arrest.

Pursuant to the conditions of probation, the defendant’s probation officer gave him permission to leave Connecticut for short periods of time related to employment. At the time of his arrest in New York, however, the defendant was not employed at the job for which he had been given permission to leave Connecticut nor did he have specific permission to leave the state. In addition, the defendant had taken a job in the state of New York without informing his probation officer of a change in his employment, and had failed to inform the probation officer that he was living with a relative in New York.

On August 25,1986, the defendant was arrested for a probation violation, and on November 25, 1986, the trial court conducted a hearing. The court found that the defendant had violated the conditions of his probation (1) by failing to report for his scheduled meeting with his probation officer, (2) by failing to keep his probation officer apprised of his whereabouts, and (3) by leaving the state without permission.

The defendant claims that the trial court failed to consider factors beyond mere technical violations of probation when it revoked his probation.

“The standard of appellate review in a probation revocation hearing distills to a review of the reasonableness of two findings.” State v. Cooley, 3 Conn. App. 410, 413, 488 A.2d 1283, cert. denied, 196 Conn. 805, 492 A.2d 1240 (1985). Those findings are whether the defendant violated the conditions of probation, and whether the defendant should be incarcerated because the rehabilitative purpose of probation cannot continue to be served. Gagnon v. Scarpelli, 411 U.S. 778, 784, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).

In this case, the defendant conceded that he had violated the first two conditions of his probation. There was, however, conflicting testimony regarding whether the defendant had received blanket permission to leave this state in order to work in another state. The court found that the defendant’s testimony was not credible on this issue, and determined that he had violated the third condition of probation by failing to obtain express permission to leave this state.

We will not substitute our judgment for that of the trial court on issues of credibility. “ 'It is peculiarly within the province of the trier of fact to judge the credibility of a witness. DeLuca v. C. W. Blakeslee & Sons, Inc., 174 Conn. 535, 547, 391 A.2d 170 (1978). “It is the trial court which had an opportunity to observe the demeanor of the witnesses and parties; thus, it is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom.” Kukanskis v. Jasut, 169 Conn. 29, 32-33, 362 A.2d 898 (1975).’ ” Edens v. Kole Construction Co., 188 Conn. 489, 494-95, 450 A.2d 1161 (1982). Thus, the threshold question, whether the defendant had committed an historical violation of his probation conditions, is not in issue here. See State v. Johnson, 11 Conn. App. 251, 527 A.2d 250 (1987).

The defendant’s claim that his violations of probation were not substantial lacks merit. A critical element of probation is the supervisory role of the state. See Gagnon v. Scarpelli, supra, 784-85. That role cannot be diluted by a claim that one or more of the conditions were not substantial. All of the conditions at issue related to the state’s interest in supervising the defendant, and were not, therefore, mere technical violations.

The defendant also claims that the court failed to give adequate consideration to the beneficial purposes of probation and whether those purposes could no longer be served. See State v. Roberson, 165 Conn. 73, 80, 327 A.2d 556 (1973). In this case, when the court found that the defendant had violated three conditions of probation, it impliedly found that the beneficial purposes of probation were not being served. “The defendant has not demonstrated that the court could not reasonably have concluded that the beneficial purposes of his probation, that is, his rehabilitation and the protection of society, were no longer being served.” State v. Johnson, supra, 259, citing Payne v. Robinson, 10 Conn. App. 395, 401, 523 A.2d 917 (1987).

Finally, the defendant contends that the court should have determined whether the state’s interest in punishment and deterrence could not be accomplished by a means other than imprisonment. See Bearden v. Georgia, 461 U.S. 660, 672, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).

The defendant’s reliance on Bearden v. Georgia, supra, is misplaced. In Bearden, the defendant’s probation was revoked because he failed to pay a fine which was a condition of probation. The court held: “If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment.” Id. Even under the unique factual circumstances presented by Bearden, the court found that the dispositive question was whether the probationer’s failure to conform to the conditions of probation was willful or beyond the probationer’s control.

In this case, there was more than ample, uncontradicted evidence upon which the court could reasonably find that the defendant wilfully violated the conditions of his probation. After finding that the defendant wilfully failed to comply with the conditions of probation, the court “then had the discretion to order a revocation of the probation.” State v. Johnson, supra, 258.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-32 provides in pertinent part: “violation of PROBATION OR CONDITIONAL DISCHARGE: ARREST; PROCEDURE, (a) At any time during the period of probation . . . the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation .... Any probation officer may arrest any defendant on probation without a warrant or may deputize any other officer with power to arrest to do so by giving him a written statement set-' ting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. . . . (b) If such violation is established, the court may . . . revoke the sentence of probation . . . and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence.”

       The defendant was originally sentenced to a term of three years, execution suspended after time served, with three years probation.

       The probation officer established a schedule which required the defendant to meet with him on a monthly basis.

       The defendant received permission to leave Connecticut for short periods in connection with a job as a truck driver. He was also given permission on several occasions to leave the state for specific purposes.

       The number of probation violations is not dispositive of whether the court has properly revoked probation. See State v. Cooley, 3 Conn. App. 410, 488 A.2d 1283, cert. denied, 196 Conn. 805, 492 A.2d 1240 (1985). The central issue for the court is whether, after finding an historical violation, due consideration is given to the rehabilitative purpose of probation.


text:
    State of Connecticut v. Chester High
    (5051)
    Borden, Daly and O’Connell, Js.
    Argued September 30
    decision released December 8, 1987

      Leopold P. DeFusco, special public defender, for the appellant (defendant).

      Robert J. O’Brien, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   O’Connell, J.

This is an appeal by the defendant from a judgment of conviction of the crime of attempt to commit larceny in the second degree in violation of General Statutes §§ 53a-123 (a) (3) and 53a-49. The issues presented on appeal are whether the trial court erred (1) in failing to inquire into the defendant’s and defense counsel's claims of breakdown of the attorney-client relationship, and (2) in denying defense counsel’s request that new counsel be appointed in her place. We find no error.

The facts are not in dispute. The defendant was charged with attempt to commit larceny in the second degree and was represented by an assistant public defender. At the commencement of trial the defendant orally complained that he had not had sufficient contact with his attorney during the pendency of the case. He also complained of being brought to the courthouse on numerous occasions without being brought before the judge. The defendant did not, however, ask that alternate counsel be appointed. The court addressed the defendant’s concerns and explained the limitations placed upon public defenders by their heavy caseloads. The defendant was instructed to discuss his concerns further with his attorney and was advised that he could get a new lawyer only if he retained private counsel. Following a recess, the trial resumed, at which time the assistant public defender orally moved that alternate counsel be appointed to represent the defendant, on the basis of the defendant’s earlier complaint and on counsel’s own representation of a breakdown in the attorney-client relationship. After a brief colloquy, the court denied the motion. The trial continued, and the defendant was found guilty.

I

The defendant first claims error in the trial court’s failure to inquire into the substance of the complaint that the attorney-client relationship had broken down.

The controlling precedent in this state regarding sixth amendment violations based upon a trial court’s refusal to grant a defendant’s request for substitute counsel is State v. Drakeford, 202 Conn. 75, 519 A.2d 1194 (1987). In that case, the defendant asked the court to appoint a public defender after a disagreement arose between the defendant and his privately retained counsel. Despite the vehement protests of the defendant, his request was denied. The defendant in Drakeford made claims, inter alia, identical to those put forth by this defendant; namely, that the trial court erred in failing to inquire into the defendant’s request for new counsel and in failing to appoint alternate counsel. Id., 82. The Drakeford court found no error, holding that the trial court did not, under the circumstances, abuse its discretion in denying the defendant’s motion. Id., 84.

With regard to the failure of the trial court to inquire into the underlying reasons behind a request for alternate counsel, the court stated in Drakeford that “a trial judge’s failure to inquire into the defendant’s request for new counsel where the defendant has already made known the reasons for his request is not error. McKee v. Harris, [649 F.2d 927, 933 (2d Cir. 1981), cert. denied, 456 U.S. 917, 102 S. Ct. 1773, 72 L. Ed. 2d 177 (1982)] . . . .” Id., 82. “ ‘[W]hen, for the first time, an accused makes known to the court in some way that he has a complaint about his counsel, the court must rule on the matter. If the reasons are made known to the court, the court may rule without more. If no reasons are stated, the court then has a duty to inquire into the basis for the client’s objection to counsel and should withhold a ruling until reasons are made known.’ ” McKee v. Harris, supra, 934, quoting Brown v. United States, 264 F.2d 363, 369 (D.C. Cir.) (Burger, J., concurring), cert. denied, 360 U.S. 911, 79 S. Ct. 1299, 3 L. Ed. 2d 1262 (1959).

In the present case, the reasons for the defendant’s dissatisfaction were known to the court. The transcript discloses that the defendant was given not only an opportunity to place the reasons for his complaint before the court, but also an opportunity to articulate the facts underlying his dissatisfaction. In addition, because the public defender cited no additional rationale as a basis for her motion for alternate counsel, but merely stated that her motion was “based upon” the defendant’s earlier request, it is difficult to imagine that additional grounds for dissatisfaction would have been gleaned by the court through a more probing inquiry. In this case the reasons for the defendant’s complaint were sufficiently stated on the record. No further inquiry by the trial court was necessary.

II

The defendant’s second claim of error concerns the trial court’s failure to appoint alternate counsel. Given the circumstances of this case we find no fault with the trial court’s action.

There can be no dispute that a criminal defendant has a constitutional right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985); that right, however, is not without limitation. For example, the right to counsel does not include the “ ‘unbridled right to discharge counsel on the eve of trial. . . . ’ ” (Emphasis in original.) State v. Drakeford, supra, 83, quoting United States v. Grow, 394 F.2d 182, 209 (4th Cir.), cert. denied, 393 U.S. 840, 89 S. Ct. 118, 21 L. Ed. 2d 111 (1968). This limitation applies to both private counsel retained by an individual defendant as well as court appointed counsel. See State v. Gathers, 193 Conn. 526, 543, 480 A.2d 435 (1984) and cases cited therein. Furthermore, it is clear that the right to effective assistance of counsel does not include an “unlimited opportunity to obtain alternate counsel.” State v. Watson, 198 Conn. 598, 610, 504 A.2d 497 (1986). Inherent in these limitations is a concern for unwarranted interruptions in the administration of justice. “While courts must be assiduous in their defense of an accused’s right to counsel, that right may not be ‘manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.’ ” United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972), quoting United States v. Bentvena, 319 F.2d 916, 936 (2d Cir.), cert. denied sub nom. Ormento v. United States, 375 U.S. 940, 84 S. Ct. 345, 11 L. Ed. 2d 271 (1963); see also United States v. DiTommaso, 817 F.2d 201, 219 (2d Cir. 1987). With these competing interests in mind, we review the actions of the trial court in the case at bar.

The standard of review to be applied when reviewing a denial of a request for alternate counsel is whether the trial court abused its discretion in determining that a factual basis did not exist for granting the request. State v. Drakeford, supra, 88. In the present case, we find no abuse of that discretion. The trial court had before it the defendant’s complaint concerning his representation. It is clear that the trial judge understood the defendant’s concerns and was able to respond directly to them. In addition, the trial court reviewed with defendant’s counsel, clearly and precisely, the factual record at issue in its denial of her motion for alternate counsel.

“It is the province of the trial court to determine whether there is a factual basis for disqualification of counsel. . . . In the absence of a factual record showing an abuse of discretion, the trial court’s failure to permit the withdrawal of counsel is not reversible error.” State v. Watson, supra, 610. Having reviewed the entire record in the present case, we find no abuse of discretion.

There is no error.

In this opinion the other judges concurred.

       “The Defendant: The complaint I have with the attorney is I feel that I haven’t been informed fully on my case on how we’re going to go about each day. Each week I’ve been brought back and forth to court and haven’t even been brought in front of the judge and I’ve been brought back and forth over a period of seven or more times. I have all the dates and I have written it out here as legible as possible on both complaints because I didn’t have no access to the typewriter and I’ve been incarcerated now over 90 days and I haven’t had one bond reduction. . . .
      ‘ ‘The .Court: Mr. High, Attorney Calderon was appointed to you as a public defender' and under the law, when you apply for a public defender, it’s because you’re claiming indigency, that you cannot afford your own lawyer.
      “The Defendant: Yes, I looked into the matter and I can’t.
      “The Court: Well, the law does not require that you have to like your lawyer or anything. You’re saying that this is a complaint against your lawyer and maybe what you need to do is — you’re a very articulate young manís articulate and speak with her to improve the communications, because everything you told me is something that normally happens when people are brought back and forth and are unable to post bond.
      “The Defendant: The only time I get to see her is when I’m brought to court. I called her office on numerous occasions and she came to visit me one time. , ' .
      “The Court: That’s probably because she had a very high case load which is unfortunately what happens in our system where you have only one case to worry about. And, obviously, if you haven’t made bond, you’re sitting there 24 hours a day worried about your case and your own personal situation. She has a great many other matters to do and they cannot include running back and forth to the Corrections Center to see you at will. So I can’t do anything about your complaints.'
      “If you want to fire your lawyer, the only way that I can allow that to happen is if you were replacing her with a lawyer of your own choosing. Since you’re not doing that, I’ve listened to your complaint and I’m just explaining to you there’s nothing I can do and, hopefully, things will improve.”

       We note that a defendant’s indigency would not preclude him from representation by an alternate public defender in all circumstances. A blanket refusal to appoint alternate public defenders under all circumstances would be inappropriate and potentially unconstitutional. We limit our application of the court’s denial of alternate counsel to the facts of the present case and do not approve of the court’s statements or reasoning beyond the circumstances presented here.

       “Ms. Calderon: Yes, your Honor. I have an oral motion based on the oral motion that was made by Chester High earlier today that he was dissatisfied with me as counsel.
      “I would ask that new counsel be appointed to him because of the breakdown in the attorney-client relationship in this case, and I cite [State v. Beckenbach, 198 Conn. 43, 501 A.2d 752 (1985)] for the further proposition that if new counsel should be appointed or retained, that there should be granted a reasonable continuance.
      “The Court: I don’t read Beckenbach to say what you said, counsel. Do you want to point that out to me?
      “Ms. Calderon: I’m relying on that case in the second part of my argument, that a reasonable continuance be granted should new counsel be appointed.
      “The Court: That’s not what I understand you to say, that it said that if there’s a request, whether appointed or on his own, that a continuance should be granted.
      “First of all, there is no request for a continuance. Mr. High, as I understood, said he had a complaint to make and Beckenbach does not overrule previous decisions that say just being unhappy with your lawyer does not mean that you’re entitled to appointment of a new public defender. This is a public defender case and, he’s going to bring in his own counsel, which he was not making a request to do — plus, there has to be a showing because Beckenbaeh did not overrule previous decisions if you read it as I just did. There has to be a showing of an inadequate misrepresentation and Mr. High is not saying he had a lawyer or that he wants who couldn’t be here for whatever reason.
      “There is no request. I don’t think that argument is appropriate and I’m going to deny your motion.
      “You may have an exception.
      “Ms. Calderon: Exception.”

       See footnotes 1 and S, supra.


text:
    Morris Epstein v. Genevieve Carrier et al.
    (5861)
    Spallone, Daly and Stoughton, Js.

      Argued October 15
    decision released December 8, 1987

      Charles L. Howard, with whom, on the brief, was Muslima Galeta, for the appellants (defendants).

      John C. Archambault, for the appellee (plaintiff).
   Stoughton, J.

The defendants appeal from a judgment ordering the defendant Barbara Carrier Block to pay attorney’s fees and'to convey certain premises to the plaintiff.

The plaintiff, Morris Epstein (Epstein), is a real estate broker in Colchester, and the defendant Genevieve C. Carrier (Carrier) was the owner of real property which had belonged to her husband’s family for several generations and which came to her under the will of her deceased husband by certificate of devise dated December 7,1964. The will contained the following paragraph: “First: After my lawful debts are paid, I give to my beloved wife, Genevieve C. Carrier, my house and property consisting of house, garage and about (45) acres of land, located in North Westchester, Connecticut. I will this property to her in the hope that in her will she will pass it on to our daughter, Barbara. Also to my beloved wife, Genevieve C. Carrier, all my personal property.” The defendant Barbara Carrier Block (Block) is the daughter of the defendant Carrier and is the Barbara referred to in paragraph First of the will.

In 1984, the defendant Carrier was a resident of a home for the elderly and desired to sell the property because of some concern over her ability to meet her expenses. At that time, and on the date of the certificate of devise, the property consisted of substantially fewer than 45 acres. On October 15,1984, Epstein and Carrier entered into an agreement under which Epstein was to purchase the property, consisting of 14 acres more or less, for $40,000, and Carrier was to convey by warranty deed on or before January 15, 1985.

After Block learned of the agreement, she spoke to her mother and asked to purchase the property herself. She instituted a legal action in which she sought to enjoin the sale, alleging that she had a vested remainder interest in the property, or, alternatively, that Carrier had received the property in trust. On July 15, 1985, Block purchased the property from Carrier.

Epstein instituted this action against Carrier and Block. In an amended complaint, he alleged in the first count that the conveyance from Carrier to Block caused him monetary damage. The second count alleged irreparable damage with no adequate remedy at law. The third count alleged that Block intentionally interfered with the performance of his contract with Carrier, that the defendants acted outrageously and maliciously with wilful disregard of his rights and intending to cause him financial loss, and that he has suffered damages. He requested a decree directing specific performance by Carrier, damages, an order compelling Block to convey the premises to him, and punitive damages. Each of the defendants filed an answer in which she admitted some of the allegations of the complaint and denied others. Carrier interposed five special defenses. She alleged that Epstein breached their agreement by failing to deliver the survey before January 15, that it had expired and time for performance was not extended, that it was null and void for mutual mistake, that it was unenforceable because it was impossible to convey by warranty deed, and that Epstein fraudulently induced her to enter into the agreement by misrepresenting the amount of land involved. Block interposed four special defenses. She alleged that she was justified by virtue of her relationship to Carrier and the special value of the land in pursuing any action necessary to secure her property interests, that she possessed an absolute privilege to accept the deed from Carrier to protect a bona fide property interest, that she did not act tortiously, and that the agreement had expired.

After a trial to the court, the trial judge issued a lengthy memorandum of decision in which he made a detailed finding of facts. These findings include those which are set forth hereinafter. Epstein and Carrier entered into a contract for the sale and purchase of 14 acres, more or less, in Colchester. The agreement provided for a closing on or before January 15,1985, but did not contain any language indicating that time was of the essence or that the time factor was of serious consequence to either party. The agreement, in fact, specifically provided for an automatic thirty days extension of the closing in the event the buyer was unable to obtain zoning approval for three building lots. In late. December, 1984, Epstein furnished a preliminary map to Carrier’s attorney. This preliminary survey indicated two or three acres of land in which there might have been some question as to the boundaries. It also indicated that there were approximately twenty-two acres in the parcel. Carrier’s attorney was dissatisfied with the preliminary survey and did not feel that he could prepare a proper legal description. On January 14, 1985, Carrier’s attorney wrote to Epstein’s attorney that he was ready to discuss scheduling the closing but still sought a survey accurate enough to prepare a legal description. Carrier sought a higher price to reflect the additional acreage, but Epstein refused to pay the additional price and Carrier agreed to sell the property for $40,000. Epstein’s attorney and Carrier’s attorney agreed on or about January 18, to modify the purchase agreement to provide for conveyance by quitclaim deed. On January 24, the attorneys for the parties agreed to convey the property according to the ancient description by quitclaim deed, and Epstein waived any and all contingencies regarding subdivision, zoning, etc. A tentative closing date of February 7 was agreed to, and Carrier’s attorney prepared a quitclaim deed and an adjustment sheet. On February 6, Block commenced a legal action against Epstein and Carrier, asserting that Carrier was only a life tenant and that Block had a vested remainderman interest. Also on February 6, Block had Epstein served with a notice of lis pendens. The lawsuit and the recorded lis pendens prevented Carrier from conveying a marketable title and put Carrier and Epstein on notice that Block claimed a remainderman interest. On July 15, Carrier executed a quitclaim deed to Block for $50,000 and a hold harmless and indemnification agreement by Block in favor of Carrier. On July 19, Block unilaterally withdrew her lawsuit against Carrier and Epstein. On February 6, Epstein’s attorney telephoned Carrier’s attorney that the lis pendens and lawsuit had been served and that a closing could not take place as scheduled on February 7. Block testified that she first learned of the contract between Carrier and Epstein on December 23, 1984. She testified that she initiated the lawsuit against her mother and Epstein to stop the sale and to help keep the property in the family by purchasing it from her mother. She said that on January 7, she called her mother to ask her mother to let her buy the land to keep it in the family, and that she approached her mother again on January 13.

The trial court reached the following conclusions which it expressed in its memorandum of decision. The sole purpose for the legal action brought by Block was to prevent the sale from Carrier to Epstein. Block did not have a bona fide and sincere belief that she was in fact the vested remainderman. This conclusion was drawn from Block’s offer to purchase and subsequent purchase at a price in excess of that offered by strangers, the unilateral withdrawal of the Block action, and Block’s willingness to execute a hold harmless and indemnification agreement. From these findings, the court drew the ultimate conclusion that Block tortiously interfered with the contract between Carrier and Epstein. The court also concluded that each of the defendants had failed to prove any of their special defenses. The court found that because time was not of the essence in the contract between Epstein and Carrier, and because Epstein was a defendant in the Block action until July 15, 1985, the contract had not expired due to the passage of time. Because the value of the land had increased, the court found no basis for damages except as to attorney’s fees. It rendered judgment against Block in the amount of $7089.13, Epstein’s attorney’s fees, and ordered Block to convey the property to Epstein by quitclaim deed for the sum of $39,000 less damages of $7089.13, or $31,910.87, subject to normal tax adjustments.

The defendants claim that the court erred: (1) in concluding that Block tortiously interfered with the agreement to buy between Epstein and Carrier; (2) in concluding that the agreement to buy had not expired even though more than a reasonable amount of time had elapsed since the scheduled closing and Epstein had failed to request an extension of time; and (3) in ordering specific performance since such an order results in Epstein’s receiving a greater interest than he would have received under the agreement to buy and precludes Block from asserting her interest in the parcel.

I

In the defendants’ first claim of error, they raise four sub-issues. The first of these issues is whether the court erred in concluding that the filing of Block’s action and the recording of a lis pendens prevented the closing on the agreement to buy. The finding of the court was that the lawsuit, together with the recorded lis pen-dens, prevented Carrier from conveying a marketable title and put Carrier and Epstein on notice that Block claimed a remainder interest. The defendants correctly point out that an agreement was reached to modify the original agreement and provide for conveyance by quitclaim deed, and the court so found. The Block lawsuit, expressly sought, inter alia, an order restraining and enjoining Carrier from selling, tranferring or disposing of all or any part of the property pending disposition of the action. She could hardly have done more in her attempt to prevent the sale to Epstein. Even though Epstein had been willing to accept a quitclaim deed, there is no finding that Carrier was willing to convey the property to him by any form of deed in the face of the lawsuit by Block. Epstein was named as a defendant in the Block lawsuit, and it flies in the face of reason to suggest that the modified agreement should have been carried out on his payment of $39,000 for a quitclaim deed under the circumstances.

The second of the sub-issues raised by the first claim of error is that the court erred in finding that Block improperly interfered with the agreement to buy by bringing the action and by recording the lis pendens. Block contends that she had a sincere belief in the merits of her action because she believed that the property was to be her inheritance, and that this belief immunized her from any action based on a theory of intentional interference with a contractual relationship. The burden of showing that the interference was privileged or justified in this case was on the defendant Block. Cosgrove Development Co. v. Cafferty, 179 Conn. 670, 670 n.1, 427 A.2d 841 (1980); Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 415, 363 A.2d 86 (1975). Block pleaded justification in her first special defense and privilege in her second special defense. The court found that she had failed to prove either of these special defenses. We cannot retry the facts, which is essentially what this defendant asks us to do. The trial court was free to believe or disbelieve all or any part of the testimony of the witnesses. The trial court clearly could have disbelieved the assertions of the defendant Block that she thought she had acquired an interest in the property under her father’s will, while believing that she wanted to keep the property in the family. This is consistent with the conclusion that her sole purpose in bringing the action against Epstein and Carrier was to prevent the sale from Carrier to Epstein.

In the third sub-issue, Block claims that the court erred in finding that she acted in bad faith based on the terms of the settlement of her action against Epstein and Carrier. Block relies upon the holding in Blake v. Levy, 191 Conn. 257, 464 A.2d 52 (1983). In Blake, the Supreme Court held that the tort of intentional interference with business relations, like the tort of vexatious litigation, cannot be maintained when the underlying lawsuit the propriety of which is at issue terminated in a good faith negotiated settlement. Block asserts that the trial court could not, as a matter of law, draw any adverse inference from the withdrawal of the action, payment of a purchase price in excess of that offered by Epstein and execution of the indemnity agreement, because they were all part of a negotiated settlement. The trial court was not obligated to believe that the settlement was a good faith negotiated settlement, however, particularly in light of the relationship between Block and Carrier and the professed belief of Carrier that the modified agreement had expired by June, 1985. The trial court found that Block testified that she initiated the lawsuit against her mother and Epstein to stop the sale and to help keep the property in the family by purchasing it. The court also found that Block testified that twice in January, 1985, which was after she knew of the Epstein agreement, she asked her mother to let her buy the land. The test of whether interference with business relations is tortious is whether the actor’s behavior is improper. Blake v. Levy, supra, 261. The conclusions that Block did not have a bona fide and sincere belief that she was, in fact, the vested remainderman, and that she had tortiously interfered with the contract between Carrier and Epstein, must stand if they are legally and logically correct and if they find support in the facts set out in the memorandum of decision. Cookson v. Cookson, 201 Conn. 229, 243, 514 A.2d 323 (1986). Under this test, those conclusions must stand.

In their fourth sub-issue, the defendants claim that the purchase of the property by Block cannot constitute tortious interference with the modified agreement between Carrier and Epstein because that agreement had expired prior to the purchase. This argument depends upon the assertion that the agreement had expired, which is contrary to the conclusion reached by the trial court and is discussed below.

II

The second of the defendants’ three main claims is that the court erred in concluding that the agreement to buy had not expired. The defendants correctly observe that when time is not of the essence to a contract to convey land, the time for performance is a reasonable time following the time for performance set forth in the contract. Fullerton v. McGowan, 6 Conn. App. 624, 629, 507 A.2d 473 (1986). The defendants claim that more than a reasonable time for performance had elapsed by the time Carrier conveyed to Block in July, 1985, and that since Epstein had not requested an extension of time after the closing scheduled for February had been cancelled, the modified agreement had expired. There is no merit to the argument that Epstein could have accepted a quitclaim deed from Carrier at any time, and no evidence that a quitclaim deed was offered to him after February 7,1985. As the trial court observed, Block should not be able to bring an action for the purpose of preventing the sale and then claim that the agreement for the sale which she had prevented had expired due to lapse of time. The conclusion of the court that the contract had not expired due to passage of more than a reasonable amount of time is amply supported by the facts found.

III

The defendants’ final claim is that the court erred in ordering Block to convey the property to Epstein by quitclaim deed because the order results in the transfer of a greater interest than Carrier had. Block contends that this order is a final adjudication of her rights in the parcel without a full and fair opportunity to litigate those rights. Under the terms of the modified agreement, Epstein would have received all the right, title and interest which Carrier possessed in and to the premises. If Block had any interest, it would not have been extinguished by a quitclaim deed from Carrier. The court concluded that Block did not have a bona fide and sincere belief that she was, in fact, the vested remainderman of the property, and she withdrew an action in which the question of her rights, if any, might have been determined. Block alleged in one special defense that she was justified in pursuing any action necessary to secure her property interests, and in another that she possessed an absolute privilege in accepting delivery of a deed from Carrier to protect in good faith a bona fide property interest in the premises. The court found that she had failed to prove any of her special defenses, and this necessarily implies that Block had no bona fide property interest in the premises. Nevertheless, she should not now be required to convey more than she received by quitclaim deed from her mother. The judgment is modified to order the defendant, Barbara Carrier Block, to convey by quitclaim deed to the plaintiff, Morris Epstein, all of such right, title and interest in and to the real estate in Colchester, as she received from Genevieve C. Carrier by quitclaim deed dated July 15, 1985.

There is error in part, the judgment is set aside and the case is remanded with direction to render judgment as on file except as modified in accordance with this opinion.

In this opinion the other judges concurred.