author: Norcott, J.

text:
    Newtown Associates v. Northeast Structures, Inc.
    (5227)
    Daly, Norcott and Foti, Js.
    Argued December 9, 1987—
    decision released August 23, 1988

      Donald A. Mitchell, for the appellant (defendant). Robert H. Hall, for the appellee (plaintiff).
   Norcott, J.

The defendant appeals from the judgment of the trial court discharging the mechanic’s lien filed against certain property owned by the plaintiff and leased by third parties. The defendant claims that the trial court erred in finding that there was no probable cause to support the mechanic’s lien. We find no error.

For some twelve years prior to 1984, Edward P. Hayes, Jr., and Barbara S. Hayes operated a horse farm in Rocky Hill. By 1984, however, the Hayeses had come to the conclusion that the farm in Rocky Hill was too small for their purposes and that they would need a larger farm. In the course of their search for a larger farm, the Hayeses contacted the plaintiff, a limited partnership which owned certain property on Poverty Hollow Road in Newtown. On June 6,1984, the Hayeses entered into an agreement with the plaintiff to lease a portion of the plaintiffs property. The agreement provided that the Hayeses would pay an annual rental of $72,000 for the use of the plaintiffs property as an Arabian horse farm and as a residence. In order to facilitate the conversion of the property, which had heretofore been used as a dairy farm, into a quality Arabian horse farm, the Hayeses agreed to make certain enumerated investments and improvements. Work to be done by the Hayeses was to be done at their own expense, and the lease specifically provided that the Hayeses were to do no act which would subject the plaintiffs property to an encumbrance or a mechanic’s lien. The plaintiff agreed to make other enumerated improvements and reserved the right to complete anything that the tenants failed to do in converting the premises. The plaintiff considered the essence of the agreement to be the conversion of the property into a quality Arabian horse farm so that the value of surrounding property owned by the plaintiff would be enhanced.

After an oral agreement was struck between the plaintiff and the Hayeses, but before the written lease was signed, the Hayeses engaged the services of the defendant to effect the improvements they were required to make under the agreement. The defendant entered into a series of contracts both oral and written with the Hayeses, each contract calling for the defendant to complete one aspect of the conversion project. The contracts called for, among other things, the construetion of a horse barn and an arena and the installation of stalls in a mare barn. Subsequently, the plaintiff also engaged the services of the defendant to do some work on the property.

The defendant commenced work on the property in May of 1984. On hand to supervise the defendant’s work were Edward Hayes and Stephen Hicks, an agent for the plaintiff whose primary purpose was to fulfill the plaintiff’s obligations under the lease. In the ensuing months, the defendant provided labor and materials pursuant to contracts with both the plaintiff and the Hayeses. From time to time, the defendant suggested additional work that could be done on the property. The defendant presented suggestions to Edward Hayes and to Hicks who either approved or rejected them. With respect to certain suggestions, Hicks informed the defendant that the plaintiff would pay for them. With respect to the other suggestions, Hicks made no such representation.

When the defendant completed a particular aspect of the conversion project he submitted a bill for the work done. Some of the bills were submitted to the plaintiff and some were submitted to the Hayeses. All of the bills submitted to the plaintiff were paid.

The defendant’s work on the property was fairly constant until April of 1985 when it slowed due to a number of factors, including the Hayeses’ delay in paying the defendant for the work completed. The record indicates that the defendant submitted only one invoice after April of 1985, for work allegedly done on November 29, 1985.

On December 3,1985, the Hayeses were evicted from the premises. The defendant filed a mechanic’s lien on the plaintiff’s property on February 27,1986. After a hearing, the trial court granted the plaintiff’s motion to discharge the lien finding that it was not supported by probable cause in that (1) the plaintiff never consented to the filing of such a lien, and (2) the lien was untimely filed.

The defendant asserts that there was probable cause to support its lien. It contends (1) that the Hayeses and Hicks were agents of the plaintiff whose action bound the plaintiff for the improvements made on the property, (2) that the plaintiff had consented to the filing of such a lien, and (3) that the lien was timely. We disagree.

“A mechanic’s lien is a creature of statute. Camputaro v. Stuart Hardwood Corporation, 180 Conn. 545, 550, 429 A.2d 796 (1980); Swift & Upson Lumber Co. v. Hatch Co., 115 Conn. 494, 498, 162 A. 19 (1932). Its remedial purpose is to furnish security for a contractor’s labor and materials. Camputaro v. Stuart Hardwood Corporation, supra; Stone v. Rosenfield, 141 Conn. 188, 191, 104 A.2d 545 (1954).” St. Catherine’s Church Corporation v. Technical Planning Associates, Inc., 9 Conn. App. 682, 683-84, 520 A.2d 1298 (1987).

General Statutes § 49-35b (a) provides that before a lien can be upheld the lienor must establish probable cause to sustain the validity of the lien. Proof of probable cause is not as demanding as proof by a fair preponderance of the evidence. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60 (1977). “ ‘The legal idea of probable cause is a bona fide belief in the existence of facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.’ Wall v. Toomey, 52 Conn. 35, 36 [1884] . . . .” Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, supra.

In order to demonstrate probable cause to support a lien upon land that he has improved, a person must first show that he is one of those persons entitled to claim a lien. “ ‘Those who provide services or materials in connection with the construction of a building are entitled to claim a lien on the land that they have improved if they fall into one of two categories. Lienors are protected if they have a claim either (1) by virtue of an agreement with or the consent of the owner of the land, or (2) by the consent of some person having authority from or rightfully acting for such owner in procuring labor or materials.’ ” Hall v. Peacock Fixture & Electric Co., 193 Conn. 290, 293, 475 A.2d 1100 (1984), quoting Seaman v. Climate Control Corporation, 181 Conn. 592, 595, 436 A.2d 271 (1980).

In this case, it is clear that the defendant entered into an agreement with the plaintiff through its agent, Hicks, to provide certain of the improvements the plaintiff was required to make under its lease with the Hayeses. Further, the record indicates that Hicks specifically authorized certain changes in the project which were not called for in the lease and committed the plaintiff to pay for those changes. The record reflects, that when these charges were billed to the plaintiff, they were paid. It is the defendant’s contention, however, that Hicks, acting as the plaintiff’s agent, took further steps which committed the plaintiff to pay for all of the work done on the property.

It is a general rule of law that the principal in a principal/agent relationship is only “ ‘bound by, and liable for, the acts which his agent does with or within the actual or apparent authority from the principal, and within the scope of the agent’s employment . . . .’ 3 Am. Jur. 2d, Agency § 261.” Bank of Montreal v. Gallo, 3 Conn. App. 268, 273, 487 A.2d 1101 (1985). “The nature and extent of an agent’s authority is a question of fact for the trier. E. Paul Kovacs & Co. v. Alpert, 180 Conn. 120, 126, 429 A.2d 829 (1980); 3 Am. Jur. 2d, Agency § 360.” Bank of Montreal v. Gallo, supra. In this case, the trial court could reasonably have found that Hicks’ actual authority as agent for the plaintiff was limited to carrying out the owner’s obligation under the lease. Such a limited role would not have allowed Hicks to commit the plaintiff to anything which was not specifically enumerated as one of the plaintiff’s obligations in the lease.

The defendant next contends, however, that Hicks exercised an apparent authority over the conversion project which far exceeded the authority he was authorized to exercise by the plaintiff. “ ‘ “Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses.” Lewis v. Michigan Millers Mutual Ins. Co., 154 Conn. 660, 665, 228 A.2d 803 (1967); see Restatement (Second), 1 Agency § 8 (1958). Apparent authority thus must be determined by the acts of the principal rather than by the acts of the agent. Nowak v. Capitol Motors, Inc., 158 Conn. 65, 69, 255 A.2d 845 (1969).’ Botticello v. Stefanovicz, [177 Conn. 22, 25-26 n.2, 411 A.2d 16 (1979)]; see also Cohen v. Holloways’, Inc., 158 Conn. 395, 407, 260 A.2d 573 (1969). Furthermore, the party seeking to impose liability upon the principal must demonstrate that it acted in good faith based upon the actions or inadvertences of the principal. Cohen v. Holloways’, Inc., supra, 407; Lewis v. Michigan Millers Mutual Ins. Co., supra, 665-66.” Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 140-41, 464 A.2d 6 (1983).

In this case, the plaintiff took no action which would allow the defendant to conclude that Hicks was authorized to undertake financial liability for the entire project. In fact, when the defendant commenced work on the conversion project, it was made aware of the fact that the Hayeses were responsible for some of the changes while the plaintiff was responsible for others. With respect to the changes in the conversion project which were not covered by contract, Hicks was very specific about those for which the plaintiff would be responsible. The plaintiff paid for those changes and gave no indication that it would pay for any others. The trial court could reasonably have found that the defendant did not establish probable cause that the plaintiff did anything which would commit it to pay for any of the unpaid bills.

The defendant next contends that there was probable cause to believe that it had done the work with the consent of the owner. “Under General Statutes § 49-33 (a), the consent required from the owner or one acting under the owner’s authority is more than the ‘mere granting of permission for work to be conducted on one’s property’; Hall v. Peacock Fixture & Electric Co., supra, 295; or the mere knowledge that work was being performed on one’s land. Avery v. Smith, 96 Conn. 223, 227, 113 A. 313 (1921); Lyon v. Champion, 62 Conn. 75, 77, 25 A. 392 (1892); Huntley v. Holt, 58 Conn. 445, 449, 20 A. 469 (1890); Wilbur Smith & Associates, Inc. v. F & J, Inc., 34 Conn. Sup. 638, 640, 382 A.2d 541 (1977). ‘The consent meant by the statute must be a consent that indicates an agreement that the owner of at least the land shall be, or may be, liable for the materials or labor. As stated in Peck v. Brush, 90 Conn. 651, 98 Atl. 561 [1916]: “It is not necessary that the materials shall be furnished under an express contract, but it is enough if they are furnished with the consent of the owner of the land, so that there is an implied contract by him to pay for them.” ’ Avery v. Smith, supra, 228. ” St. Catherine’s Church Corporation v. Technical Planning Associates, Inc., supra, 684-85.

Whether the plaintiff consented to the performance of the defendant’s work for the Hayeses or whether it consented to the performance of the additional work for which the plaintiff did not pay is a question of fact. Our review of the trial court’s factual findings is limited to the question of whether the findings are clearly erroneous. Practice Book § 4185; Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982); Abacus Mortgage Ins. Co. v. Whitewood Hills Development Corporation, 2 Conn. App. 460, 463, 479 A.2d 1231 (1984).

In this case, it is clear that the plaintiff did not consent to the performance of the defendant’s work for the Hayeses. The agreement between the plaintiff and the Hayeses clearly specified that the Hayeses were liable for those duties which they had contracted to perform. Further, another portion of the agreement specifically prohibited the Hayeses from doing any act which would encumber the plaintiffs property with a lien. With respect to the changes which were not provided for in the contract, the plaintiff specifically noted those for which it would pay and gave no indication that it would pay for the others. Accordingly, we find that the trial court did not err in ruling that there was not probable cause to support the lien.

Because we find that the defendant’s claims did not arise pursuant to an agreement with the plaintiff or with the consent of the plaintiff, we need not address the question of whether the lien was timely filed.

There is no error.

In this opinion the other judges concurred.

       With respect to the Hayeses, the defendant does no more than make a mere assertion that they were the agents of the plaintiff. The defendant cites no case law in support of that proposition nor does it discuss what the scope of that agency was. Accordingly, we will not consider that claim on appeal. In re Shavoughn K., 13 Conn. App. 91, 99-100 n.2, 534 A.2d 1243 (1987).

       General Statutes § 49-35b (a) provides in pertinent part: “Upon the hearing held on the application or motion set forth in section 49-35a, the lienor shall first be required to establish that there is probable cause to sustain the validity of his lien. . . .”

       With respect to this issue, we note that the trial court made no specific finding as to the scope of Hicks' agency. The defendant, however, has made no motion for articulation. In the absence of a motion for articulation, we will uphold the trial court’s judgment on the agency issue unless it was clearly erroneous. Pointina Beach Assn., Inc. v. Stella, 1 Conn. App. 341, 343, 471 A.2d 970 (1984).

       General Statutes § 49-33 (a) provides: “If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim.”


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    In re Rafael A.

    (6290)
    Daly, O’Connell and Foti, Js.

      Argued April 14—
    decision released August 23, 1988

      Joan C. Goldenthal, special public defender, with whom, on the brief, was Sally A. King, for the appellant (respondent).

      Bruce A. Tonkonow, state advocate, for the appellee (petitioner).

      In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, 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.

   Daly, J.

The respondent was adjudicated a delinquent child following the trial court’s finding that he had committed the crimes of larceny in the fourth degree in violation of General Statutes § 53a-125 and breach of the peace in violation of General Statutes § 53a-181 while he was on probation. The respondent appeals claiming that the trial court erred (1) in concluding that he had committed larceny by receiving stolen property when he was charged in the petition with unlawfully taking property, (2) in improperly restricting cross-examination of the complainant on the breach of the peace charge, and (3) in concluding that there was sufficient evidence that he had violated the conditions of his probation. We find no error.

The trial court could reasonably have found the following facts. On October 1,1986, the respondent, who was then fifteen years old, was ordered to live at the Altobello Children and Youth Center in Meriden, a state owned psychiatric hospital for adolescents, pursuant to a prior delinquency finding and as a condition of probation issued by the Superior Court for Juvenile Matters. The probation period was to last until April 30, 1987. The breach of the peace charge arose on December 4,1986, when Keith McCarthy, a staff member at Altobello, reported that the respondent struck him three to four times when the respondent was told to return to his room. McCarthy testified that, although he made a statement to the police, he could not recall whether he had ever filed a staff member incident report. Subsequent to this incident, the respondent was released from Altobello into the custody of his parents.

On March 11, 1987, at approximately 3 p.m., a West Hartford detective stopped a moped on New Park Avenue in the vicinity of Merrill Street. The respondent was a passenger on the moped. On the seat between the operator of the moped and the respondent, the detective found a video cassette recorder and a cable converter box which had been covered by a jacket or a shirt. A radio, tapes and other items were discovered in a white plastic bag hanging from the handle bars. It was later determined that these items had been taken that same day from a residence on Almeda Avenue in West Hartford.

I

The respondent’s first claim is that he was adjudicated a delinquent for possession of stolen property and not for the unlawful taking of property as set forth in the petition dated March 12,1987. The petition filed by the state alleged “Violation of C.G.S. Section 53a-125 (Larceny 4th) in that on 3-11-87 he unlawfully took the property of another in "West Hartford, value in excess of $500, with the intent to deprive the owner of the use thereof.” The respondent claims that his defense was prejudiced, as he had no notice that he could be subjected to adjudication for the receipt or possession of stolen property. We find no error.

The provisions of both the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature of the charge against him “ ‘ “with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise . . . ” State v. Scognamiglio, 202 Conn. 18, 22, 519 A.2d 607 (1987), quoting State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986); see also State v. Trujillo, 12 Conn. App. 320, 326, 531 A.2d 142 (1987). In order “ ‘for the defendant to establish an infringement of these constitutional rights, he must demonstrate that the court’s charge caused him unfair surprise or prejudiced the preparation of his defense. State v. Roque, [190 Conn. 143, 156, 460 A.2d 26 (1983)].’ ” State v. Scognamiglio, supra.

The respondent was charged with violating General Statutes § 53a-125 in that he unlawfully took the property of another. Under § 53a-125, a person is guilty of larceny in the fourth degree when he commits larceny as defined in General Statutes § 53a-119 and the value of the property or service exceeds $500. Section 53a-119 defines larceny; see footnote 1, supra; and delineates thirteen methods by which larceny can be committed. In listing the thirteen methods of committing larceny, the statute specifically does not distinguish whether they fall under the ambit of “wrongfully taking,” “obtaining” or “withholding.” One of the thirteen cited methods of committing larceny is by receiving stolen property. General Statutes § 53a-119 (8). Accordingly, proof of receipt of stolen property is sufficient proof of larceny in the fourth degree, regardless of whether the defendant is charged with wrongfully taking, or obtaining or withholding the property from the owner. Under the former statutory scheme, larceny and receipt of stolen property were treated in separate criminal statutes. An information which charged a defendant with larceny was held to be insufficient to apprise a person of the possibility of a conviction for receiving stolen property. State v. Carbone, 172 Conn. 242, 258, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977). As our Supreme Court noted in Carbone, that defect is cured by § 53a-119, which specifically includes receiving stolen property as a type of larceny. Id., 258 n.8.

In addition, the trial court could reasonably have inferred a criminal connection with the property from the respondent’s possession of it shortly after it was stolen. “ ‘[T]he possession of property recently stolen, if unexplained and standing alone or without other facts pointing to a contrary conclusion, will justify the trier in drawing an inference that the possessor stole the property . . . .’ State v. Palkimas, 153 Conn. 555, 558-59, 219 A.2d 220 (1966). ‘In other words, the circumstantial evidence of possession of recently stolen property raises a permissible inference of criminal connection with the property . . . .’ Id., 559.” State v. Liscio, 9 Conn. App. 121, 127, 516 A.2d 1366 (1986), cert. denied, 202 Conn. 803, 519 A.2d 1208 (1987); see also State v. Anonymous (83-FG), 190 Conn. 715, 720, 463 A.2d 533 (1983); State v. Huot, 170 Conn. 463, 465, 365 A.2d 1144 (1976); B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 39, p. 178. Accordingly, contrary to the respondent’s argument, the factual situation, together with this inference, supports the adjudication of larceny in the fourth degree based on an unlawful taking.

II

In his second claim, the respondent maintains that the trial court unconstitutionally restricted his right to cross-examine the complainant in the breach of the peace charge. Specifically, the respondent asserts that testimony as to the circumstances under which staff member incident reports are filed would have been probative in determining the credibility of the witness and in shedding light on what occurred between the witness and the respondent. Additionally, he asserts that testimony as to prior similar altercations between the witness and other patients would have been probative of the witness’ credibility and whether the incident in question rose to the level of a breach of peace violation. We hold that there is no merit to this claim.

“The general rule is that if the defendant is permitted cross-examination sufficient to satisfy the sixth amendment, restrictions on the scope of the cross-examination are within the sound discretion of the trial court.” State v. Jackson, 198 Conn. 314, 319, 502 A.2d 865 (1986); State v. Vitale, 197 Conn. 396, 402, 497 A.2d 956 (1985). We recognize that cross-examination for bias, interest or motive is a constitutionally protected right; nevertheless, cross-examination for other purposes or based on less vital forms of attack on credibility are deserving of less protection. State v. Cosby, 6 Conn. App. 164, 168, 504 A.2d 1071 (1986). “Every evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error.” State v. Vitale, supra, 403.

The issue before the court on the breach of the peace charge was whether the respondent, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, assaulted or struck another person. The line of questioning excluded by the trial court was, under the circumstances evident from the record, irrelevant to any aspect of the case or the complainant’s credibility. “Although cross-examination should be liberally allowed, the trial court may restrict it to evidence which is competent, material and relevant.” State v. Jackson, supra. The trial court did not abuse its discretion in restricting the respondent’s cross-examination.

Ill

The respondent’s final claim of error concerns the court’s conclusion that the respondent had violated the conditions of his probation. He claims that the court erred in finding the probation violation because the state failed to meet its burden of proof.

It is well established that “[ujnder Connecticut law a child may be found ‘delinquent’ if he or she has (1) violated any federal or state law or municipal or local ordinance, or (2) violated any order of the Superior Court. General Statutes § 46b-120.” In re Christopher V., 207 Conn. 270, 273, 540 A.2d 700 (1988).

In adjudicating the respondent delinquent for violating his probation by engaging in unlawful activities, the trial court took judicial notice of this standard probation condition, as well as the entire juvenile file relating to the respondent, including the probation contract which the court had personally signed in October, 1986. The respondent asserts that because the court took judicial notice of these facts, rather than requiring evidence from the state, the state failed to satisfy its burden of proof on this issue. We disagree.

The parole officer testified, without objection, that the respondent was placed on probation by the same trial court on October 31, 1986, to last until April 30, 1987. He further testified that a copy of the conditions of probation was furnished to the respondent at that time. Moreover, the trial court was entitled to take judicial notice of the files in juvenile proceedings. “The true concept of what is judicially known is that it is something which is already in the court’s possession or, at any rate, is so accessible that it is unnecessary and therefore time wasting to require evidence of it. State v. Main, 69 Conn. 123, 136, 37 A. 80 [1897]. Judicial notice, therefore, in its appropriate field, meets the objective of establishing facts to which the offer of evidence would normally be directed. DeLuca v. Park Commissioners, 94 Conn. 7, 10, 107 A. 611 [1919].” State v. Tomanelli, 153 Conn. 365, 368, 216 A.2d 625 (1966); see also In re Juvenile Appeal (81-7), 3 Conn. App. 30, 32, 484 A.2d 472 (1984) (where there was evidence before the trial court about child abuse, there was no error in taking judicial notice of the same type of material in another commitment file); B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 26, p. 122.

Since there was sufficient evidence to support an adjudication for larceny in the fourth degree and breach of the peace, the trial court did not err in determining that the respondent had violated the conditions of his probation or in adjudicating him a delinquent.

There is no error.

In this opinion the other judges concurred.

       Section 53a-119 provides: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.”
      Section 53a-119 (8) provides in part: “A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen . . . .”

       The respondent subpoenaed the personnel file of the complainant and found no staff member incident report pertaining to this incident.

       The crime of larceny is not limited to commission as set forth in any of these stated methods. See General Statutes § 53a-119.

       Even were we to assume that the court did enlarge the petition, “ ‘[w]here the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.’ Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978).” State v. Geyer, 194 Conn. 1, 17, 480 A.2d 489 (1984).

       The probation contract, dated October 31,1986, contained the following conditions: “(1) To obey any federal or state law or local ordinance.
      “(2) To attend school regularly and faithfully and to obey the rules and regulations established by said school.
      “(3) To remain in the residence ordered by this court and to be directed and guided by the parents or other adult(s) charged with your care and supervision.
      “(4) To keep all appointments scheduled with the probation officer.
      “(5) Remain at Altobello and/or cooperate with further treatment plans.”
      The contract indicated that the respondent was furnished with a copy.


text:
    Elaine S. Horelik et al. v. Barbara P. Roth, Executrix (Estate of Robert E. Roth)
    (5896)
    Spallone, Daly and Norcott, Js.
    Argued March 8—
    decision released August 23, 1988

      James M. Nugent, with whom, on the brief, was Ira B. Charmoy, for the appellant (defendant).

      Jay M. Dulberg, for the appellees (plaintiffs).
   Daly, J.

The plaintiffs instituted an action for conversion against the solvent estate of the defendant’s decedent. From the judgment rendered in accordance with a report by an attorney trial referee in favor of the plaintiffs, the defendant has appealed claiming that the trial court erred (1) in concluding that the action was properly commenced, (2) in improperly admitting into evidence a letter written by the defendant’s former counsel, and (3) in finding a conversion by the estate.

The facts are undisputed. The plaintiff Horley’s, Inc., is a corporation owned by Daniel Horelik and Kevin Brawley. Elaine Horelik, the mother of Daniel Horelik, was employed as the bookkeeper for the company. Robert Roth, an accountant of the company and an officer and financial advisor of the Baudex Corporation, suggested to the plaintiffs that they invest in Baudex. In June and July, 1982, Horelik gave Roth checks totaling $10,000 and Horley’s, Inc., gave him checks totaling $6500 in order to purchase shares of stock that Roth had supposedly owned. Unknown to the plaintiffs, Roth had executed a restricted stock purchase agreement with Baudex that prevented him from selling any shares until Baudex exercised its right of first refusal. Roth died testate on October 29,1982, without having delivered any Baudex stock and without having returned any money.

The plaintiffs commenced a two count action on June 23,1983. The defendant filed an amended answer dated October 25, 1983, alleging as special defenses that the claims were barred by General Statutes §§ 45-213 and 45-205 (b) since they had not been presented to the estate within the time prescribed. On February 10,1984, the plaintiffs filed an amended complaint adding third and fourth counts alleging that on or about November 17, 1983, the plaintiffs had presented their claims, which were, subsequently, disallowed. The defendant filed an answer to the amended complaint on April 19, 1984, alleging by way of special defense that the plaintiffs had prematurely instituted this action before they filed their claims as required by General Statutes § 45-205 (a).

At the hearing, the defendant moved to dismiss the action maintaining that in contravention of General Statutes § 45-210 (a) the suit was commenced prior to the presentation of the claims and that they had not been disallowed. The attorney trial referee submitted his report dated September 30,1986, and found, inter alia, that the claim was grounded in tort and disallowance was not required. In his report, the attorney referee concluded that the plaintiffs had complied with General Statutes § 45-210 (d), that Roth had wrongfully converted the money and, hence, that the plaintiffs were entitled to the return of the money plus interest. Judgment was rendered in accordance with the recommendation.

In the first claim of error, the defendant argues that the attorney trial referee erred in concluding that the action was commenced properly. Specifically, the defendant alleges that under General Statutes § 45-210 (b), an action can be brought against a fiduciary only upon dis-allowance of a written claim. We find that this claim of error is frivolous. This case is illustrative of the defendant’s transformation of the statutes into an obstacle course to avoid payment of the claim. The purpose of the nonclaim statute is to provide for expeditious administration of estates by requiring claims to be made timely, not for avoiding claims. First, the claim is clearly brought in tort. Conversion lies where one in originally rightful possession subsequently refuses to return the property to the true owner. Coleman v. Francis, 102 Conn. 612, 616, 129 A. 718 (1925); Luciani v. Stop & Shop Cos., 15 Conn. App. 407, 410, 544 A.2d 1238 (1988). Moreover, General Statutes § 45-210 (d) is applicable to claims sounding in conversion. Spencer v. Marshall, 3 Conn. Cir. Ct. 516, 518, 218 A.2d 387 (1965). Second, there was evidence produced that the claim was disallowed. A letter from the defendant’s former counsel clearly establishes that the notice was given. Although the defendant, at trial, argued that this letter constituted an “allowance” of the plaintiffs claims, the facts and circumstances of the case demonstrate that it was a disallowance.

The defendant’s second claim of error is that the attorney trial referee improperly admitted into evidence a letter written by the defendant’s former counsel. The defendant argues that the letter was clearly hearsay and should not have been admitted. We disagree.

The letter written by the attorney for the defendant was properly admitted for two reasons. First, the letter did not constitute hearsay because it was not offered to prove the truth of the matter asserted. See B. Holden & J. Daly, Connecticut Evidence § 93a. The significance of the letter was not to prove the promise that payment would be forthcoming, but to prove that the plaintiffs had given written notice of their claims to the defendant in accordance with General Statutes § 45-210 (d). Second, even if one were to find that the letter constituted hearsay, it fell within the exception of an admission of a party opponent. “The general rule is that admissions, if relevant and material, made by an attorney incidental to the general authority of the attorney to represent his client in connection with and for the purpose of controlling the matter committed to him, are admissible against the client.” Collens v. New Canaan Water Co., 155 Conn. 477, 496, 234 A.2d 825 (1967).

In the final issue, the defendant claims that the trial court incorrectly concluded that the decedent converted the plaintiffs’ funds. “An examination of the sufficiency of the evidence requires this court to make a bifurcated analysis. State v. Baskins, 12 Conn. App. 313, 316, 530 A.2d 633 (1987). First, we review the record and construe it in a light most favorable to sustaining the verdict. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Waterman, 7 Conn. App. 326, 338, 509 A.2d 518 (1986).” Second, we determine whether the trial court could reasonably have concluded as it did. Kaspar Associates, Inc. v. Esposito, 13 Conn. App. 508, 511, 537 A.2d 536 (1988). “There are two general classes into which conversions are grouped: (1) those where the possession is originally wrongful, and (2) those where it is rightful. . . . The second class comprises those where the possession, originally rightful, becomes wrongful by a wrongful detention.” Coleman v. Francis, 102 Conn. 612, 615, 129 A. 718 (1925); see also Luciani v. Stop & Shop Cos., supra. The record adequately supports the attorney trial referee’s conclusion that the defendant’s decedent had converted the plaintiffs’ funds where possession was originally rightful.

There is no error.

In this opinion the other judges concurred.

       The Probate Court for the district of Westport extended the time to present claims to December 12, 1983.

       General Statutes § 45-205 (a) provides: “The court of probate may order the citation of the creditors of the deceased whose estate is in settlement before it to bring in their claims against such estate within such time„not more than twelve months nor less than three months, from the date of such order, as it limits, by publishing a notice to that effect in a newspaper having a circulation in the probate district in which such estate is in settlement and by such further notice as the court deems necessary.”

       General Statutes § 45-210 (a) provides: “A creditor of any deceased person whose estate is in process of settlement as a solvent estate shall not commence a suit against a fiduciary of the estate within the period allowed by the court for the presentation of claims against the estate, unless written notice of a total or partial disallowance of his claim has been given by the fiduciary of the estate.”

       The attorney trial referee also concluded that a letter from the former attorney of the defendant established a disallowance.

       “December 22, 1982
      Ms. Elaine S. Horelik
      6 Hen Hawk Lane
      Westport, CT 06880
      Dear Ms. Horelik:
      We are in receipt of your letter dated December 15, 1982, and the enclosures therein. Please be advised that after we receive the cancelled check from you, we will be able to arrange for repayment as soon as the life insurance proceeds are paid to Mrs. Roth. Such repayment will obviate any obligation by the Roths to provide Baudex stock to you.
      Thank you for your patience concerning this matter and if you have any questions, please contact either myself or Mr. Neufeld at these offices.
      Sincerely,
      Jan A. Marcus”

       See footnote 5 supra.


author: Bieluch, J.

text:
    Ralph H. Esposito, Sr., et al. v. Daniel Presnick
    (5849)
    Daly, Bieluch and Foti, Js.

      Argued February18—
    decision released August 23, 1988

      John R. Williams, for the appellants (plaintiffs).

      Daniel V. Presnick, pro se, the appellee (defendant).
   Bieluch, J.

This appeal concerns events subsequent to this court’s remand in Presnick v. Esposito, 8 Conn. App. 364, 513 A.2d 165 (1986). At the close of the plaintiffs’ case on retrial before a jury, the court granted the defendant’s motion for a directed verdict. The plaintiffs have appealed from the judgment on that verdict. The plaintiffs claim that the trial court erred in (1) denying their request for leave to amend the complaint prior to trial, (2) disallowing evidence of tape recordings containing admissions by the defendant, and (3) directing a verdict for the defendant at the close of their case. We find error.

The following facts are relevant to an understanding of Presnick v. Esposito, supra, and this appeal from the retrial of that case. In January, 1982, the plaintiffs, Ralph H. Esposito, Sr., and Rita Esposito, husband and wife, retained the defendant, an attorney, to represent them as intervening parties in a marriage dissolution action pending between their son and his wife for the purpose of obtaining visitation rights or custody of their two minor grandchildren. Pursuant to this retainer, the defendant appeared for the plaintiffs throughout the dissolution action, but to their ultimate dissatisfaction with his advocacy of their interests.

On November 9, 1982, the plaintiffs, acting pro se, brought an action against the defendant alleging breach of contract, gross negligence, malpractice, excessive fees and harassment. On March 18, 1983, counsel appeared in their behalf. By stipulation of the parties . on April 18,1983, the plaintiffs were allowed to amend their complaint, alleging negligence, dishonesty and untruthfulness, for which they sought the return of their retainer in the first count, and damages for extreme mental and emotional distress in the second and third counts.

The defendant served a request for disclosure and production on the plaintiffs’ counsel on August 10, 1983. The plaintiffs objected to two interrogatories and to the production request for “[cjopies of any and all documents which the plaintiffs intend to introduce into evidence.” Although the defendant responded to these objections, the trial court failed to rule on them. The plaintiffs, however, on October 14,1983, filed a notice of compliance with the request for interrogatories and production. Their answer to the defendant expressed continued objection to the interrogatories, and did not respond to the production request for documents.

The second and third counts of the plaintiffs’ amended complaint were stricken by the court on May 11,1984, on motion of the defendant. In its memorandum of decision, the court ruled that “[w]hile the court is satisfied that the substantive law of this jurisdiction supports a claim for emotional distress in the premises, the allegations of the second and third counts do not definitively set forth the basis for same and should be amended.” Pursuant to the court’s suggestion, the plaintiffs filed a further amended complaint. The defendant again moved to strike the second and third counts. This motion was also granted, the court repeating in its memorandum that the plaintiffs “must allege the factual basis upon which the claim for emotional distress is predicated.” The plaintiffs thereafter filed a third amended complaint on August 31, 1984, alleging only the outstanding first count seeking the return of their retainer fee. The defendant’s answer on September 5,1984, admitted that the plaintiffs had paid the retainer fee, for which he had represented them in the dissolution action, but denied all other allegations. Upon closing of the pleadings, the plaintiffs on September 14, 1984, claimed the case for trial by jury.

On July 18, 1985, the court rendered judgment for the plaintiffs on default of the defendant for failure to obtain independent counsel as ordered by the court, subject to the defendant’s right of appeal. On appeal to this court; Presnick v. Esposito, supra; the judgment was set aside and the case remanded for further proceedings. Before retrial, counsel for the plaintiffs was allowed to withdraw, and the plaintiffs again appeared pro se. On December 31,1986, the plaintiffs moved for leave to amend their complaint by adding two additional counts alleging intentional and negligent conduct and wrongdoing, resulting in emotional, mental and physical harm. The parties appeared in court for jury selection on January 2,1987. Prior to the proceedings, the court refused to act on the pending motion for amendment, stating: “I am not going to act on it. Let the judge who will try this case decide whether or not he will allow it.” On the first day of trial, January 5,1987, the request to amend the complaint was denied for this reason: “Now, if that were allowed, we would have to start the pleadings all over again, we wouldn’t have a jury trial today.” The plaintiffs duly excepted to the court’s ruling.

The plaintiffs thereafter proceeded with the trial of their case, with all parties representing themselves. After the plaintiffs finished presenting their evidence, they did not formally “rest” their case. When the court made inquiry about further evidence, Esposito replied: “No, not at this time, your Honor, but I said we’ll wait and see before the end of the trial, we have other evidence to present.” The court then directed: “You’ve got to go forward now, sir, you got to put on some evidence now.” When it was disclosed that the further evidence consisted of tape recordings of conversations between the plaintiffs and the defendant, the defendant objected to their introduction because of the plaintiffs’ failure to produce them pursuant to his production request for “[cjopies of any and all documents which the plaintiffs intend to introduce into evidence.” The court denied the admission of the tape recordings into evidence for two reasons. First, for the plaintiffs’ failure to “state in your response for production that you were going to introduce any documents.” Second, a ground raised by the court and not by the defendant, that the plaintiffs’ “testimony is the best evidence.” The plaintiffs excepted to this evidentiary ruling, but they and the court failed to have the tapes marked for identification. They did, however, make an offer of proof on the record. Thereafter, on further inquiry of the court, the plaintiffs rested.

Before presenting his case, the defendant moved, in the alternative, for a directed verdict or dismissal for the plaintiffs’ failure to make out a prima facie case. Considering the plaintiffs’ claim to be one of malpractice, the court granted the motion for a directed verdict for their failure to present expert testimony as to the standard of care required of others engaged in the same profession in the area. After the jury returned a verdict for the defendant as directed, the plaintiffs moved to set aside the verdict and for a new trial, both of which motions were denied. The plaintiffs have appealed from the judgment rendered on the jury’s verdict.

The plaintiffs claim first that the trial court abused its discretion in denying the request for leave to amend their complaint prior to trial. On December 31, 1986, the plaintiffs filed a request for leave to amend their complaint by adding counts two and three, both of which initially incorporated the first ten paragraphs of the first count. Count two was predicated on the substantive allegation that the extreme and outrageous conduct and the intentional wrongdoing of the defendant intentionally subjected the plaintiffs to severe emotional distress which resulted in bodily harm and illness to them. Count three alleged that such results were also due to the negligent conduct of the defendant. Before jury selection began on January 2, 1987, the court refused to rule on the request to amend the complaint, but postponed its consideration to a later hearing before the trial judge. The defendant did not object orally or in writing to the plaintiffs’ motion on either January 2, 1987, or January 5, 1987, at the hearing on the plaintiffs’ proposed amendment. Practice Book § 176. After this hearing, the trial court denied the plaintiffs’ request. The reason given by the court for its disallowance of the plaintiffs’ request to amend their complaint was not one of substance, merit or prejudice to the defendant, but one of convenience to the court and its calendar: “Now, if that were allowed, we would have to start the pleadings all over again, we wouldn’t have a jury trial today.” We find that under the circumstances of this case the trial court abused its discretion in this ruling.

“ ‘The grant or denial of a motion to amend the pleadings is a matter within the discretion of the trial court.’ Tedesco v. Julius C. Pagano, Inc., 182 Conn. 339, 341, 438 A.2d 95 (1980); Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983). In the interest of justice courts are liberal in permitting amendments; unless there is a sound reason, refusal to allow an amendment is an abuse of discretion.’ Tedesco v. Julius C. Pagano, Inc., supra. ‘The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case. “The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial.” ’ (Citations omitted.) Wallingford v. Glen Valley Associates, Inc., supra, 161-62, quoting Tedesco v. Julius C. Pagano, Inc., supra, 341-42.” Wassell v. Hamblin, 196 Conn. 463, 466-67, 493 A.2d 870 (1985).

Wassell v. Hamblin, supra, presented a similar scenario. There, as here, the request to amend was made immediately prior to jury selection. The trial court there permitted the defendant to amend his answer by adding two special defenses over the objection of the plaintiffs. Applying its stated rule pertaining to the amendment of pleadings, the Supreme Court affirmed the action of the trial court in these words: “At the time the amendments were granted, although the plaintiffs did argue untimeliness, they did not request any continuance nor did they make any claim of prejudice. Under the circumstances, we cannot find an abuse of discretion in granting the amendments.” Id., 467.

We also note that the defendant, although pro se, is a practicing attorney. The plaintiffs, on the other hand, began and ended their long and tortuous journey through the courts pro se. They were assisted by counsel in between, but not at the critical time of retrial. “Although we will not entirely disregard our rules of practice, we do give great latitude to pro se litigants in order that justice may both be done and be seen to be done. Cersosimo v. Cersosimo, 188 Conn. 385, 393, 449 A.2d 1026 (1982); LaBow v. LaBow, 13 Conn. App. 330, 336, 537 A.2d 157 (1988). We have thoroughly and carefully reviewed the entire record and the [plaintiffs’] brief with this end in view.” Cugini v. Cugini, 13 Conn. App. 632, 634, 538 A.2d 1060 (1988).

Finally, the record discloses that on January 2 and 5, the court, from the time of the request by the plaintiffs, suo motu, challenged the lateness of the motion to amend, in the first instance before deferring the decision to the trial judge, and in the second instance before denying the motion. In effect, the court’s postponement of a ruling before the selection of a jury began on January 2, to the time before evidence was offered on January 5, only served to support its own stated reason for denying the request on the latter date. Any proper objection to the proposed amendment belonged to the defendant on each date, and not to the court. Under all the circumstances of this prolonged case, we find that the court abused its discretion in denying the plaintiffs’ request for leave to amend their complaint.

While our holding on the first issue is dispositive of this appeal, since a retrial is necessary we will review the evidentiary question raised by the plaintiffs in their claim that the trial court erred by denying the admission into evidence of tape recordings containing admissions by the defendant. Initially, we note that the admissibility of the tape recordings into evidence arose prematurely, and at the prompting and direction of the court. When the plaintiffs, at the court’s behest, disclosed the nature of the evidence, namely, tape recordings of the defendant’s conversation with them, the defendant objected to their introduction because of the plaintiffs’ failure to produce the tapes pursuant to his request for production. The court not only sustained the objection on that ground, but also for its own reason that the plaintiffs’ “testimony is the best evidence.” The plaintiffs excepted to this ruling. The tape recordings, however, were not marked in evidence by either the plaintiffs or the court. We find that the court abused its discretion in ruling on this evidence prematurely and in excluding its admission.

Practice Book § 231 provides that upon the failure of a party to answer interrogatories or to respond to requests for production, “the court may, on motion, make such order as the ends of justice require. Such orders may include the following . . . (d) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence.” The trial court erred in imposing this sanction upon the plaintiffs because it failed to consider and apply an exclusion from sanctions contained in § 231: “The failure to comply as described in this section may not be excused on the ground that the discovery is objectionable unless written objection as authorized by Secs. 222, 226, and 229 has been filed.”

On August 10,1983, the defendant served a request for disclosure and production on the plaintiffs’ counsel pursuant to Practice Book § 227. This was filed in court on August 12,1983. The plaintiffs had thirty days thereafter to comply under Practice Book § 228, but by motion thereunder this was extended for an additional like period. In the interval, the plaintiffs filed an objection to two interrogatories and to the production request for “[cjopies of any and all documents which the plaintiffs intend to introduce into evidence.” Under § 227, “[rjequests for production . . . shall clearly designate the items to be inspected either individually or by category.” Because of this requirement, and for other reasons, the plaintiffs objected to the production request by stating: “The request fails to clearly designate the items to be inspected and further, the granting of this request at this time would unduly burden the plaintiffs as the trial strategy has not yet been developed. The request further seeks materials protected by Section 219 of the Practice Book.” The defendant responded to the objections, but they were never placed on the short calendar list for determination by the court as required by Practice Book § 228. Because objection by a party to certain parts of the request does not relieve that party of the obligation to respond to the unobjectionable remaining portions, the plaintiffs filed their timely compliance. Practice Book § 228. Their answers to two interrogatories were “[ojbjected to.” No response was given to the production request. At no time, either before or at trial, were the plaintiffs’ objections heard and decided by the court.

We measure the trial court’s action in imposing sanctions against the familiar standard that, in deciding whether to impose the sanction of exclusion of evidence under Practice Book § 231 (d), “the trial court has a wide discretion, to which great weight and every presumption of correctness should be afforded, and that the ultimate issue is whether the court could have reasonably reached its conclusion.” Kemp v. Ellington Purchasing Corporation, 9 Conn. App. 400, 404, 519 A.2d 95 (1986); Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 107-108, 476 A.2d 1074 (1984). We conclude that the trial court abused its discretion in sustaining the defendant’s objection to the use of the plaintiffs’ tape recordings.

The court prematurely ruled on the admissibility of the tape recordings before their introduction into evidence by the plaintiffs. Although acting pro se, the plaintiffs were entitled to present their case in their own order. The tape recordings were intended to be offered after the defendant’s testimony. The court’s inquiry about further evidence, while intended to be helpful, unwittingly misdirected them when the court advised: “You’ve got to go forward now, sir, you got to put on some evidence now.”

The court also erred in its ruling by failing to consider the plaintiffs’ objection to the production request then still pending for determination by the court. Our review of the record discloses that the defendant did not advise the court of the plaintiffs’ objection to his request, to which objection he had responded, but which he had not placed on the short calendar for hearing or sought to enforce by court order on motion under Practice Book § 231. The plaintiffs, acting pro se, did not inform the court of the objection filed by their counsel before his withdrawal. In its review of the pleadings, during consideration of the defendant’s objection, the court did not observe the plaintiffs’ longstanding objection or refer to it in its ruling. This is evident in its remarks: “Well, did you—I’m looking at the interrogatories filed by you folks, the answers to Mr. Presnick’s interrogatories, Mr. Presnick’s interrogatories, dated October 4th [1983], plaintiffs’ answer to defendant’s request for disclosure and production, Part B, produce copies of any and all documents which the plaintiffs intend to introduce as evidence, I don’t see any response after that.”

In view of our rulings on the two claims of error reviewed, we find it unnecessary to discuss the remaining issues raised by the plaintiffs.

A matter affecting the administration of justice by this court arose during the pendency of this appeal. Because the subject impairs the integrity of this court and its orders, we are compelled to discuss it, even though it exceeds the issues raised by the appeal. By order of this court pursuant to Practice Book §§ 4103 and 2000, the parties were ordered to appear before a state trial referee on May 19,1987, for preargument conference. According to the report of the state referee filed with this court, counsel for the plaintiffs appeared, “but Attorney Presnick who was pro se failed to appear or to explain his reason for not appearing.” On May 22,1987, the defendant was ordered to appear before this court on June 4,1987, and give reasons, if any, “why sanctions should not be imposed pursuant to [Practice Book] §§ 2036, 4103 and 4184.” Although counsel for the plaintiffs appeared at the sanctions hearing, the defendant did not. Instead, he wrote to the court: “Please be advised that this office will not attend your hearing on June 4,1987. This office will not offer any (sic) to settle this case. We could have settled this case by paying $700. This matter has been appealed before and a pre-trial conference was held concerning that appeal. The plaintiffs have no case whatsoever and there are no grounds for an appeal. The court should just take this case on the papers.”

On June 4,1987, this court issued the following order: “It appearing the Daniel V. Presnick, the defendant pro se party of record in the captioned case, failed to appear at a pre-argument conference scheduled for May 19, 1987, it is hereby ordered that sanctions are imposed on Daniel V. Presnick in the amount of $500, due on or before July 6, 1987. The payment of $500 shall be in the form of a check made payable to the Chief Clerk of the Appellate Court. Upon receipt of those funds, the Chief Clerk is directed to forward the check to the Clerk of the Superior Court, judicial district of Hartford. Upon receipt of the check, the Clerk of the Superior Court, judicial district of Hartford, is directed to issue a check for $500 payable to John R. Williams, Esq.” Attorney John R. Williams is counsel for the plaintiffs on this appeal.

The defendant has refused to make payment of the counsel fees ordered as sanctions under Practice Book § 2036. At argument before us on this appeal, the plaintiffs’ counsel requested summary reversal of the trial court’s judgment and remand with an order that judgment be rendered for the plaintiffs in the amount sought for failure of the defendant to pay the amount of the sanctions ordered by this court. That we cannot do.

The defendant asserted that he “will not pay one penny,” since he is appearing on this appeal not as an attorney, but pro se. That position is untenable. Practice Book § 2036 specifically provides that “[offenders subject to such discipline include both counsel and pro se parties.” This challenge to our order for sanctions cannot go unanswered. Although appearing pro se in this action and appeal, the defendant is still an attorney licensed by the Superior Court to practice before the courts of our state. As such, he is subject to the Rules of Professional Conduct adopted by the judges of the Superior Court in his relationship with the courts and public. The preamble to the Rules of Professional Conduct declaring the lawyer’s responsibilities provides: “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.”

We find that the defendant’s conduct as an attorney appearing pro se in this case in refusing to obey the order of this court imposed after a hearing on June 4, 1987, as a sanction for his deliberate refusal to attend the preargument conference scheduled for May 19, 1987, constitutes a violation of Rule 8.4 of the Rules of Professional Conduct. This rule provides: “It is professional misconduct for a lawyer to . . . (d) Engage in conduct that is prejudicial to the administration of justice.” For this reason, appropriate disciplinary action should be taken.

There is error, the judgment is set aside and the case is remanded for further proceedings not inconsistent with this opinion; in addition, the clerk of this court is directed to refer the matter of the defendant’s professional misconduct in refusing to obey the order of this court issued on June 4,1987, to the statewide bar counsel pursuant to Practice Book § 27F for appropriate grievance action, but this reference shall be stayed for twenty days from the date of this decision to permit the defendant to demonstrate finally a willingness to comply with this court’s order.

In this opinion the other judges concurred.

       We will not review the trial court’s unrequested supplemental ruling that the tape recordings were inadmissible because the plaintiffs’ testimony was the best evidence. This court reviews rulings solely on the ground on which the party’s objection is based. Once the authority and the ground for an objection are stated, our review of the trial court’s ruling is limited to the ground asserted. State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983); State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982); State v. Manning, 162 Conn. 112, 118, 291 A.2d 750 (1971); see Practice Book § 4185.

       While ordinarily the failure to mark an exhibit for identification precludes appellate review of its exclusion; Carpenter v. Carpenter, 188 Conn. 736, 745, 453 A.2d 1151 (1982); an adequate substitute identification exists here in the offer of proof of the contents of the tape recordings made by the plaintiffs in the absence of the jury. Plawecki v. Angelo Tomasso, Inc., 1 Conn. App. 48, 49 n.3, 467 A.2d 944 (1983), cert. denied, 192 Conn. 801, 470 A.2d 1218 (1984); see B. Holden & J. Daly, Connecticut Evidence § 86a; C. Tait & J. LaPlante, Connecticut Evidence § 3.5.5 (d).

       Practice Book § 4103 provides in relevant part: “The chief justice or a designee may, in cases deemed appropriate, direct the chief clerk of the supreme court to schedule conferences of the parties in advance of oral argument. The chief justice may designate a state referee or senior judge to preside at a conference .... Failure of counsel to attend a preargument conference may result in the imposition of sanctions under Sec. 4184.”
      Practice Book § 2000 provides in relevant part: “The practice and procedure for appeals to the appellate court shall conform to the rules of practice governing appeals to the supreme court except where a particular practice or procedure is specified by the rules of the appellate court.”

       Practice Book § 2036 provides in relevant part: “The following will subject an offender, at the discretion of the court, to appropriate discipline including the imposition of a fine pursuant to General Statutes § 51-84, and costs and payment of expenses including attorney’s fees to the opposing party: (1) Failure to comply with rules and orders of the court. . . .
      “Offenders subject to such discipline include both counsel and pro se parties.
      “Actions which may result in the imposition of sanctions include, but are not limited to, failure to attend preargument conferences . . . . ”


author: Stoughton, J.

text:
    Phyllis McGloin et al. v. Town of Southington
    (5355)
    Daly, Stoughton and Foti, Js.

      Argued May 17—
    decision released August 23, 1988

      Herbert Watstein, with whom, on the brief was Julius Watstein, for the appellants (plaintiffs).

      John W. Lemega, with whom, on the brief, was Richard C. Tynan, for the appellee (defendant).
   Stoughton, J.

The plaintiffs brought this action against the town of Southington alleging a breach of its statutory duty under General Statutes § lSa-149 in failing to sand Canal Street, a town road, following a winter storm. The plaintiffs appeal from the judgment rendered by the trial court on the jury’s verdict for the defendant. The plaintiffs claim that the trial court erred in (1) refusing to charge the jury that it could draw an adverse inference from the failure of the defendant to produce certain witnesses, (2) failing to charge the jury that damage to the named plaintiff’s car could not be considered in deciding whether she exercised due care, and (3) refusing to charge the jury that skidding is not negligence per se, and that the named plaintiff was not under a duty to stay at home on the day of the accident. We find no error.

From the testimony and the evidence adduced at trial, the jury could reasonably have found the following facts. On the evening of December 27,1981, Southington experienced a snow and rain storm. The town responded to the storm by dispatching all of its sanding crews, but did not deem there to be sufficient snowfall to warrant plowing of roads. On December 28, the temperature was well above freezing and a light rain fell until 6 a.m. on December 29.

On December 29, 1981, at about 8 a.m., the named plaintiff, Phyllis McGloin, was driving her car in a northerly direction on Canal Street. Her husband was driving another vehicle approximately five car lengths ahead of her car. The husband testified that both cars were traveling at twenty miles per hour and that the roads were covered with ice. He lost sight of his wife’s car when it was about 100 yards from the route 84 overpass. Somewhere in the last 100 yards, the named plaintiff lost control of her car and struck one of the concrete bridge abutments of route 84. She suffered personal injuries, and the repair of the damage to her car cost $3500. The named plaintiff had no recollection of the accident, and there were no eyewitnesses.

The plaintiffs’ first claim is that the trial court erred in refusing to charge the jury that it could draw an adverse inference from the failure of the defendant to produce certain witnesses. See Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). The plaintiffs’ claim that Lawrence DellaVecchia, the defendant’s employee who sanded the road, was a witness the defendant would naturally have produced. They also contend that Marvin Zelman, a psychiatrist who examined the named plaintiff on behalf of the defendant, was a witness whom the defendant would naturally have produced. Testimony was elicited during trial that DellaVecchia was still employed by the defendant at the time of the trial, and that Zelman was practicing psychiatry in Hartford.

We note initially that the plaintiffs’ request to charge as to DellaVecchia was not made in compliance with Practice Book § 318. The request to charge did not state the proposition of law to be applied, nor did it state “the evidence to which the proposition would apply.” Practice Book § 318; see Battista v. United Illuminating Co., 10 Conn. App. 486, 498, 523 A.2d 1356, cert. denied, 204 Conn. 803, 525 A.2d 1352 (1987); see also State v. Robinson, 14 Conn. App. 40, 43-46, 539 A.2d 606 (1988). The record shows that DellaVecchia’s name was merely penciled into the request to charge concerning Zelman. Such noncompliance with our rules of practice alone permits the trial court to refuse to give the requested charge. Shelnitz v. Greenberg, 200 Conn. 58, 72, 509 A.2d 1023 (1986); Battista v. United Illuminating Co., supra, 499. Beyond that, however, the plaintiffs failed to show that they were entitled to a Secondino charge.

“ ‘ “If a party fails to call a witness, then the Secondino rule permits the jury to draw an inference that the witness’s testimony would have been unfavorable to the party’s cause if the jury first finds that: (1) the witness was available; and (2) the witness was one the party would naturally produce. Bell v. Bihary, 168 Conn. 269, 271, 362 A.2d 963 [1975]; Raia v. Topehius, 165 Conn. 231, 237, 332 A.2d 93 [1973]; Secondino v. New Haven Gas Co., [supra, 675]. To charge the jury on the rule, the party claiming the benefit of the riile must show that he is entitled to it. State v. Brown, 169 Conn. 692, 704, 364 A.2d 186 [1975]; Raia v. Topehius, supra; Queen v. Gagliola, 162 Conn. 164, 169, 292 A.2d 890 [1972].” Doran v. Wolk, 170 Conn. 226, 229, 365 A.2d 1190 (1976).’ Nichols v. Coppola Motors, Inc., 178 Conn. 335, 340-41, 422 A.2d 260 (1979).” Grabowski v. Fruehauf Trailer Corporation, 2 Conn. App. 167, 170, 477 A.2d 685 (1984).

The plaintiffs contend that under Nichols v. Coppola Motors, Inc., supra, 342, the availability requirement may be shown “from the relationship, usefulness, or nature of the expected testimony . . . .’’Our Supreme Court, however, has subsequently made it clear that proof of the existence of a relationship alone will not satisfy the plaintiff’s burden of showing availability. It must be shown that the party was able to procure the witness’ physical presence in court. Shelnitz v. Greenberg, supra, 74-75; Omar v. Mezvinsky, 13 Conn. App. 533, 537, 537 A.2d 1039 (1988).

The mere fact that DellaVecchia was in the defendant’s employ does not require a determination that he was available for trial. There must be more. In State v. Hudson, 14 Conn. App. 463, 541 A.2d 534 (1988), where we upheld the trial court’s delivery of a Secondino charge concerning an alibi witness, the state produced not only evidence that the missing witness was the defendant’s brother, but also that he currently lived in New Haven and had been seen there only three weeks before trial. Id., 469 n.2. We concluded that this was sufficient evidence to support a finding by the jury that the witness was available. Id., 469. In the present case, however, the plaintiffs did not produce any evidence concerning DellaVecchia’s whereabouts either before or during trial. We therefore uphold the trial court’s determination that the evidence produced was insufficient to justify giving the Secondino charge to the jury.

Moreover, the only evidence DellaVecchia could offer concerned the condition of Canal Street two days before the accident. In the time between the storm and the accident, it rained and the temperature rose above freezing. Because it was not shown that DellaVecchia could testify as to the condition of Canal Street on December 29, he was not necessarily a witness the defendant would naturally have produced. The plaintiffs were not entitled to a Secondino charge regarding DellaVecchia.

The plaintiffs also failed to produce evidence to show that Zelman was available within the meaning of Secondino. Again, a mere statement by another witness that Zelman was practicing psychiatry in Hartford does not constitute a showing of present availability; see Shelnitz v. Greenberg, supra, 76; Omar v. Mezvinsky, supra.

The plaintiffs’ second claim is that the trial court erred in allowing the jury to consider the amount of the damage to the named plaintiffs automobile in deciding whether she had been in the exercise of due care at the time, of the accident. The trial court correctly charged that in order to recover under General Statutes § 13a-149, the named plaintiff was required to prove, among other things, that the defect in the highway was the sole proximate cause of her injuries. Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981); Janow v. Ansonia, 11 Conn. App. 1, 3, 525 A.2d 966 (1987). In other words, the named plaintiff had to prove she was not contributorily negligent. There is no presumption under General Statutes § 13a-149 that the named plaintiff was exercising due care at the time of the injury. Janow v. Ansonia, supra, 4, citing Jacen v. East Hartford, 133 Conn. 243, 246, 50 A.2d 61 (1946), and Porpora v. New Haven, 119 Conn. 476, 479, 177 A. 531 (1935).

Whether the plaintiff was in the exercise of due care may be shown by circumstantial evidence when there is no direct evidence of the incident in question. Burke v. West Hartford, 147 Conn. 149, 152, 157 A.2d 757 (1960). The amount or type of physical damage that a car sustains in an accident is one of the factors a jury may consider in deciding whether or not due care was being exercised at the time of the accident. Notarino v. Powers, 6 Conn. App. 300, 505 A.2d 17 (1986); Meyers v. Barnes, 2 Conn. App. 485, 488, 479 A.2d 1236 (1984). “ ‘When the circumstances point as strongly to the absence as to the existence of due care, or point in neither direction, there is no basis for a finding of due care.’ Burke v. West Hartford, [supra], 152.” Roy v. Michaud, 5 Conn. App. 695, 700, 501 A.2d 1231 (1985), cert. denied, 198 Conn. 806, 504 A.2d 1060 (1986).

Under the circumstances of this case, the jury could infer from the physical damage that the car sustained, that the named plaintiff was traveling at an unreasonable speed given the conditions, and thus, was not exercising due care. Meyers v. Barnes, supra; see also Terminal Taxi Co. v. Flynn, 156 Conn. 313, 318, 240 A.2d 881 (1968). We will not disturb a verdict if, from the evidence presented, the jury could reasonably have reached the conclusion it did. Patrick v. Burns, 5 Conn. App. 663, 666, 502 A.2d 432 (1985), cert. denied, 198 Conn. 805, 504 A.2d 1059 (1986).

The plaintiffs’ third claim is that the trial court erred in not instructing the jury in accordance with two requests to charge. The plaintiffs requested that the jury be instructed that (1) skidding is not negligence per se, and (2) that the named plaintiff was not under a duty to stay home on the day of the accident. We find no error in the trial court’s refusal to give these instructions because these issues were never raised by the evidence at trial. There was simply no evidence that the named plaintiff had skidded, and she acknowledged as much in her request to charge. Neither party made any claim during trial that the named plaintiff should not have ventured out onto the highway on the date of the accident. “ ‘It is established law that it is error for a court to submit to the jury an issue which is wholly unsupported by the evidence. State v. Rose, 169 Conn. 683, 687, 363 A.2d 1077 [1975].’ Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979).” Wassell v. Hamblin, 196 Conn. 463, 470-71, 493 A.2d 870 (1985).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 13a-149 provides: “damages FOR INJURIES BY MEANS OF defective roads and bridges. Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1,1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to the selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       Practice Book § 318 provides: “—form and contents of requests. When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. Requests to charge should not exceed fifteen in number unless, for good cause shown, the court permits the filing of an additional number. If the request is granted, the court shall apply the proposition of law to the facts of the case.
      “A principle of law should be stated in but one request and in but one way. Requests attempting to state in different forms the same principle of law as applied to a single issue are improper.”

       In response to the plaintiffs’ exception to the failure to give the two Secondino charges, the trial court stated: “I will note your exception on those. The Court did not charge on those because I felt you did not meet the two-pronged test of both availability and the fact that he is in practice. He could be in Europe now. I have no idea whether he is available. That applies to both frankly, both of them, and in addition they were not necessarily witnesses who would naturally be produced, in my opinion. Because in the opinion of the Court, Mr. DellaVecchia probably would have been just corroborative of Yurzcak. There was no written record of the sanding of the street and it would have been just from memory, from five and a half years ago and in my opinion, they would not be witnesses naturally produced by the party against whom you seek to impose the Secondino. For that reason, I did not charge them. So your exception is noted.”

       The relevant part of the trial court’s charge to the jury was as follows: “So, in effect, [the plaintiff’s husband] was stating that she was operating at that speed. He did not observe the collision. There was no eyewitness testimony to the actual impact with the abutment. He stated he went around the corner, he had some trouble operating the van with equipment in it.
      “You have heard testimony concerning the type of car she was driving, the equipment, that it was fairly new. You have heard testimony concerning her speed from the husband, not from her. And, there is no other witness. You have heard testimony concerning the glare ice and that was confirmed by the officer at the time when he arrived at the scene some five or ten minutes after the accident.
      “You may consider the damage to the vehicle as another element. I believe she said it was $3500 damage and I think it was a new car. She said something about $7000. You may consider the officer’s investigation which you will have in evidence. You will have that report to review. Again, the officer was not an eyewitness. He did not see it. But upon his arrival, he looked at things, saw the conditions and he came to certain conclusions as to contributing factors and I believe Mr. Watstein argued yesterday and he found no contributing factors on her part.
      “Again, this is his opinion. He did not see the accident. It is for you to review that opinion, but it is something you may consider. You must consider all these elements in determining, making the ultimate determination as to whether she has proven to you that she was in the exercise of due care and was free of contributory negligence. You should consider the plaintiffs speed at the time of the accident, even based on the speed testified to by Mr. McGloin, if you accept his testimony. He is the only one that saw her operation just prior to the accident. But you may consider the plaintiff’s speed as being approximately twenty miles per hour and you have to determine whether that speed was reasonable for the conditions then and there existing with the glare ice on Canal Street, with a hill, with a curve and with the bridge abutment and lack of guardrail and the like.
      “You should consider whether the operator was maintaining a proper lookout or keeping her car under proper control in light of the conditions that prevailed on that particular morning December 29, 1981. You have no evidence, no eyewitness to the actual accident itself. But in spite of that, the plaintiff has the burden of proving to you that she was free from contributory negligence.”

       Generally, there is a presumption of reasonable care in negligence cases. General Statutes § 52-114 provides: “pleading of contributory negligence. In any action to recover damages for negligently causing the death of a person, or for negligently causing personal injury or property damage it shall be presumed that such person whose death was caused or who was injured or who suffered property damage was, at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care. If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant or defendants, and the burden of proving such contributory negligence shall rest upon the defendant or defendants.”

       The plaintiffs’ requests to charge were as follows: “There is no evidence that plaintiff’s vehicle skidded, but I do charge you the skidding of a car is not negligence in itself but only when the skidding is due to the fault of the driver. I charge you that if the skidding was not due to any negligent act of plaintiff then the fact that her car skidded does not necessarily establish negligence. If plaintiff acted as a reasonably prudent person under the circumstances, she will not be held negligent merely because her car skidded and caused damages. Thus, if plaintiff was not negligent in the operation of her vehicle up to the moment that she skidded, then she was not negligent unless her conduct after the car skidded did not measure up to that of a reasonably prudent person under the circumstances.
      “The plaintiff was under no duty to stay at home or a take a different route, and not travel on Canal Street, a public highway. Her only duty was to use due care. You have the police report which found plaintiff did not contribute to this collision and you have heard testimony of Mr. McGloin as to what he observed about his wife’s operating of the automobile.” (Emphasis added.)