author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. DEREK SMITH
    (AC 15728)
    Lavery, Sullivan and Daly, Js.
    Argued February 19
    officially released June 30, 1998

      Neal Cone, assistant public defender, for the appellant (defendant).

      Michele C. Lukban, with whom, on the brief, were James E. Thomas, state’s attorney, Mary IT. Lesser, assistant state’s attorney, and Warren Maxwell, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Derek Smith, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes §§ 53a-59 (a) (4) and 53a-8, and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59 (a) (l). On appeal, the defendant claims that the trial court improperly (1) excluded evidence that would have shown that the defendant was not present at a drug sale after the victim testified that the defendant was present and (2) permitted the state to vouch for the credibility of the victim. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 9, 1994, at approximately 3 p.m., the victim, a confidential informant for the Bristol police department, was on assignment attempting to purchase narcotics in the Union Street area of Bristol. The victim was outfitted with a body microphone, searched for any narcotics, given marked “buy” money and then delivered by police officers in an unmarked cruiser to a drop-off site. Officers of the Bristol police department were monitoring the victim’s actions in this operation. Approaching a housing project at 159 Union Street, the victim saw Antonio Grayer. The victim asked Grayer if he had anything, and Grayer whispered that there was nothing around. The victim was then approached by Jose Lopez, whom he recognized from having seen Lopez make a drug sale in the past. The victim asked Lopez if he could get something. Lopez did not respond. The victim then saw the defendant. When the victim asked the defendant if he knew where he could get cocaine, the defendant replied, “Hell, no.” He then asked the defendant if the defendant remembered him. The defendant looked at Grayer and asked, “Who is this guy?”

As the victim turned to leave, a fourth man, named Santiago, waved him over. Before the victim reached Santiago, the defendant called Santiago over to him. The defendant, Santiago, Grayer and Lopez gathered together talking and looking at the victim. Santiago then motioned for the victim to come with him. They walked to the building at 159F Union Street and entered a hallway. Santiago closed the door. The victim asked if he could get some drugs and if Santiago had change for a $20 bill. Santiago said they were waiting for someone who would bring the “stuff.” Santiago looked out of the door and said the person was on his way.

Next, the door burst open and the defendant entered with a towel over his head, along with Lopez and Grayer. As they entered the hallway, all three men began swinging their fists. Santiago, who was behind the victim, began hitting him in the back, and the other three joined in beating and kicking the victim. Santiago handed the defendant a bicycle tire rim with an attached axle. The defendant placed the tire on the victim’s back and legs and then kicked it. This beating lasted for about thirty seconds during which the defendant yelled, “Let’s kill [him].” At some point during the beating, the victim removed the towel from the man kicking him and saw that he was the defendant. The beating ended when a boy opened the door and said something that caused the four attackers to flee the area. Detectives from the Bristol police department then entered the hall and rescued the victim.

Upon being taken outside, the victim immediately identified Santiago and Grayer, whom the police had detained. The victim was then taken to a hospital for treatment of his injuries. Among the victim’s injuries were a broken finger, two broken ribs, a cut on his head that left a scar and the aggravation of a back problem.

I

The defendant claims that the trial court improperly prevented him from presenting evidence that would have shown that he was not present when the victim bought drugs from his friend after the victim had testified that the defendant was present. Specifically, the defendant claims that the trial court’s ruling violated his state and federal constitutional rights to a meaningful opportunity to present defense evidence and to a fair trial, and constituted evidentiary error. We disagree.

The following additional facts are relevant to a resolution of this issue. Over the defendant’s objection, the victim testified that he knew the defendant prior to the day of the assault through a buy he had made from a friend of the defendant. He further testified that the defendant knew that he was an informant because of this purchase from the defendant’s friend, in the defendant’s presence. On cross-examination, the defense counsel refreshed the victim’s recollection with a police report, and the victim testified that the date of the buy from the defendant’s friend was June 24, 1993. The victim also testified on cross-examination that the buy took place in the parking lot of the Burger King restaurant in Bristol at about 6:05 p.m.

Outside the presence of the jury, the defendant attempted to present testimony that on June 24, 1993, the defendant was at the Bristol Alternatives to Incarceration Center (center), attending a Narcotics Anonymous meeting from about 5:45 p.m. until about 8 p.m. In addition, the defendant had marked for identification the sign-in logs used at the center. The state objected. The defendant argued that this testimony and evidence was relevant to refute the state’s motive theory and that it undermined the reliability of the victim’s identification of the defendant. The trial court sustained the state’s objection on the ground that the proffered evidence was collateral. In the state’s closing argument, the prosecutor repeated to the jury the victim’s testimony that the defendant knew that he was an informer and argued that although motive is not an element of the crime, this showed that there was a motive in this case.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997). Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990) . . . State v. Beliveau, 237 Conn. 576, 592, 678 A.2d 924 (1996); State v. Colton, 227 Conn. 231, 260, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996).” (Internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998).

“On cross-examination, every permissible type of impeachment that may be employed during cross-examination has as one of its purposes the testing of the credibility of the witness. The use of extrinsic evidence to contradict is more restricted due to considerations of confusion of the issues, misleading the jury, undue consumption of time, and unfair prejudice raised by the introduction of so-called collateral matters. If a matter is considered collateral. . . extrinsic evidence, i.e., evidence offered other than through the witness himself, in contradiction is not permitted.” 1 C. McCormick, Evidence (4th Ed. 1992) § 49, pp. 182-83. “A witness may not be impeached by contradicting his or her testimony as to collateral matters, that is, matters that are not directly relevant and material to the merits of the case. State v. Burns, 173 Conn. 317, 327, 377 A.2d 1082 (1977); State v. Carbone, 172 Conn. 242, 262, 374 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977); State v. Wilson, 158 Conn. 321, 324, 260 A.2d 571 (1969).” State v. Negron, 221 Conn. 315, 327-28, 603 A.2d 1138 (1992).

“The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination, generally rests within the sound discretion of the trial court. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987); State v. Ontra, 178 Conn. 480, 488, 423 A.2d 134 (1979); Todd v. Bradley, 99 Conn. 307, 323-24, 122 A. 68 (1923).” State v. Colton, supra, 227 Conn. 248. A matter is not collateral if it is “relevant for a purpose other than mere contradiction of the in-court testimony of the witness.” 1 C. McCormick, supra, p. 183. “A witness may be impeached by the introduction of contradictory evidence of other witnesses as long as the evidence is in fact contradictory; State v. Artieri, 206 Conn. 81, 83, 536 A.2d 567 (1988); and that evidence does not relate to a collateral matter. State v. McCarthy, 197 Conn. 166, 176, 496 A.2d 190 (1985); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. [1988]) § 7.24.1 [pp. 206-207], A contradiction is not collateral if it is relevant to a material issue in the case apart from its tendency to contradict a witness. . . . Whether extrinsic evidence contradicts testimony of a witness so as to require its introduction into evidence for impeachment purposes is within the trial court’s discretion, subject to review only for abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Viet X. Nguyen, 17 Conn. App. 234, 239-40, 552 A.2d 823 (1989).

“The role motive plays in any particular case necessarily varies with the strength of the other evidence in the case. The other evidence may be such as to justify a conviction without any motive being shown. It may be so weak that without a disclosed motive the guilt of the accused would be clouded by a reasonable doubt.” (Internal quotation marks omitted.) State v. Harris, 182 Conn. 220, 224, 438 A.2d 38 (1980).

On appeal, the defendant argues that the proposed testimony and evidence was not collateral because it was necessary to rebut the state’s motive and prior identification evidence. The defendant argues that motive was an important issue in this case. Specifically, the defendant argues that because the state attempted to show that he knew that the victim was an informant and that this gave him a motive to assault the victim, he should have been allowed to present his evidence. Further, he argues that because the victim testified that the defendant had observed the victim and the defendant’s friend engage in a drug transaction at a certain time on a certain date, had he been allowed to present evidence that he was not present at the time and date in question, this would have refuted the state’s evidence of motive and questioned the victim’s identification testimony.

The state argues that motive was not an important issue in this case. In addition, the state argues that the introduction of the extrinsic evidence would have refuted only the defendant’s presence on the date and time of the transaction at Burger King and not the defendant’s knowledge that the victim was an informant. The state also argues that the introduction of the extrinsic evidence would have led to a mini-trial on the events surrounding the drug transaction between the victim and the defendant’s friend, as well as to whether the victim had the right date or the right occasion.

As to the defendant’s claim that evidence that he was not present during the drug sale by his friend would have called into question the victim’s identification of the defendant as his attacker, there was ample evidence aside from the testimony sought to be rebutted to support the victim’s ability to identify the defendant. The evidence presented to the jury showed that the victim and the defendant had observed each other on a number of occasions prior to the assault of the victim on July 9, 1994. It is undisputed that the defendant and the victim encountered each other minutes before the assault occurred. Nor is it disputed that the attack occurred. Further, the victim testified that during the attack he removed the towel from the head of one of his attackers and saw that he was the defendant. Also, upon being rescued by the police, the victim immediately identified the defendant as his attacker.

On the basis of our review of the record, transcripts and briefs, we cannot say that the trial court abused its discretion in determining that the extrinsic evidence presented by the defendant was collateral and not relevant to a material issue in the case. We conclude that the trial court’s decision to exclude the extrinsic evidence offered by the defendant was well within its discretion, and did not result in an injustice to the defendant and did not deprive the defendant of a fair trial or violate his right to present defense evidence.

II

The defendant next claims that the trial court improperly permitted the prosecutor to elicit from a witness testimony that the victim was a reliable informant and to vouch for the victim’s credibility during closing arguments. The defendant also claims that the trial court improperly denied his motion for a new trial. We disagree.

A

Following the victim’s testimony, the state called Detective David Carello of the Bristol police department as a witness. He testified that he had been assigned to the narcotics enforcement team for eight years and had known the victim in a professional capacity as a police informant. The state then asked: “And how would you classify him as an informant?” Carello replied, “Reliable.” The defendant objected on the grounds that Carello’s classification was an opinion, a conclusion and irrelevant. The trial court overruled the objection. The state then again asked: “How would you classify him, sir?” Carello responded, “[The victim] was reliable.” Carello then testified that the victim had been working for the Bristol police department as an informant for two years. He then testified about the procedures used in training an informant.

The defendant argues that because Carello testified as to the victim’s being reliable, the jury was permitted to infer that the victim had made reliable identifications of other people involved in criminal activity. Further, the defendant argues that the victim’s reliable identifications made in other, unrelated cases were irrelevant and improperly enhanced the credibility of the victim’s identification of the defendant in this case. We disagree.

Our review of the record, transcripts and briefs reveals that Carello simply stated that the victim was a reliable informant. Carello did not testify that the victim had previously identified criminal defendants in other unrelated matters or that the victim had provided trustworthy information resulting in other identifications in the past. Without more, we cannot conclude that Carello’s testimony that the victim was a rehable informant rises to the level of impermissible vouching for the credibility of a government witness sufficient to warrant reversal. We conclude that the trial court did not abuse its discretion in admitting this testimony and that the defendant’s right to a fair trial was not violated.

B

The defendant also argues that certain statements made by the prosecutor during his rebuttal argument to the jury improperly vouched for the victim’s credibility. Specifically, the defendant argues that prosecutorial misconduct occurred when the prosecutor stated that the victim was “doing difficult, difficult, undercover police work. And when he comes into court, you can be dam sure he is sure. And not making up fantasies, as would be suggested by [the defendant’s counsel]. . . . That man is a genuine citizen, not like [the defendant’s counsel] wants to call him, ‘baggage.’ That guy’s a saint.”

“Prosecutorial misconduct may . . . occur in the course of closing argument. . . . Such argument may be, in light of all of the facts and circumstances, so egregious that no curative instruction could reasonably be expected to remove [its] prejudicial impact. . . .

“The defendant claims that the prosecutorial misconduct in this case was so egregious that it deprived him of his constitutional right to a fair trial under the due process clause of both the state and federal constitutions. In analyzing the defendant’s claim, we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. State v. Palmer, 196 Conn. 157, 163, 491 A.2d 1075 (1985), quoting State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); see also Darden v. Wainwright, [477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986)]; State v. Doehrer, 200 Conn. 642, 654, 513 A.2d 58 (1986).

“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense counsel or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Williams, 204 Conn. 523, 538-40, 529 A.2d 653 (1987).

In this case, during the closing arguments made by the defense counsel for each of the three defendants, the victim was characterized as a puppet of the Bristol police department and, further, that the victim “wasn’t just a puppet. He was like a little puppy. He wanted to be petted, caressed by the police. He wanted to do good for them.” The victim was also characterized as distorting the facts to strengthen the state’s case.

The prosecutor responded to these statements by the defense counsel in his rebuttal argument. He argued that the jury should remember the victim’s demeanor while testifying and that the victim had no motive to he. The prosecutor then made the comments now in question. The defendant objected, and the jury was excused. The trial court did not agree with the defendant that the prosecutor’s comments improperly vouched for the victim’s credibility and determined that they were merely argument.

In its instructions, the trial court instructed the jurors that they were the ones who were to determine the facts on the basis of the evidence in this case. The trial court stated: “Keep in mind that arguments and statements by the attorneys in final argument or during the course of the case are not evidence. You should not consider as evidence their recollections of the evidence, nor their personal beliefs as to any facts or as to the credibility of any witness. No attorney should argue to you that someone is or is not a saint. And you will not, of course, consider that.” On the issue of credibility, the court instructed: “[L]et me talk to you about that area of the law—believability, credibility. You observed the witnesses. Their credibility, the believability of the witnesses and the weight to be given to the witnesses’ testimony are matters entirely within your hands. It is for you alone to determine the witnesses’ credibility. . . . The credibility of the witness and the truth of the fact is for you to determine.” With regard to the testimony of police officers, the trial court instructed: “And the testimony of a police officer is entitled to no special or exclusive sanctity, merely because it comes from a police officer. ... A police officer who takes the witness stand subjects his or her testimony to the same examination and the same tests that any other witness does.” Finally, in instructing on credibility, the trial court stated: “In short, size up the witnesses. Make your own judgment as to their credibility and decide what portion—all, some, or none—of any particular witness’ testimony that you’ll believe, based on these principles. . . . The credibility you will give to the testimony offered is, as I have told you, something which you alone must determine.”

Under the circumstances of this case, the prosecutor’s comments were not so egregious as to deprive the defendant of his constitutional right to a fair trial. The prosecutor’s comments were invited by the attacks on the victim made by the defense counsel during closing arguments. The comments themselves were limited to the rebuttal argument and did not specifically state that the prosecutor believed that the victim was telling the truth. Furthermore, the trial court’s instructions to the jurors were more than sufficient to eliminate any confusion on the part of the jurors concerning their role in finding the facts and in determining the credibility of individual witnesses in this case. We cannot say that the prosecutor’s comments infected the trial with unfairness.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant, Derek Smith, was tried with codefendants Antonio Grayer and Jose Lopez. This appeal concerns only Smith.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (4) with intent to cause serious physical injury to another person and while aided by two or more other persons actually present, he causes such injury to such person or to a third person . . . .”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       The defendant’s friend was arrested on drug charges later in the evening following the controlled buy by the victim. While that fact was never expressly elicited in front of the jury, the prosecutor argued to the jury that the victim “was instrumental in the arrest of [the defendant’s] best friend . . . Moreover, on cross-examination, the defendant’s attorney sought to refresh the victim’s recollection as to the time of day of the sale by the defendant’s friend by presenting him with a copy of the police report generated after that controlled buy. The jury could therefore have reasonably inferred that the defendant’s friend was arrested following the buy.

       We also conclude that the trial court properly denied the defendant’s motion for a new trial.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    DARWIN C. GEBBIE v. CADLE COMPANY ET AL.
    (AC 16583)
    Schaller, Spear and Hennessy, Js.

      Argued January 21
    officially released June 30, 1998

      Steven M. Basche, for the appellant (named defendant).

      Lloyd L. Langhammer, with whom were Mark E. Block and, on the brief, Richard J. Pascal, for the appellee (plaintiff).
   Opinion

HENNESSY, J.

The named defendant, Cadle Company (Cadle), appeals from the judgment rendered by the trial court in favor of the plaintiff, Darwin C. Gebbie. On appeal, the defendant claims that the trial court improperly (1) concluded that there was a binding and enforceable agreement between the parties, (2) limited the scope of its direct examination of the plaintiffs attorney regarding his impressions of his client’s understanding of the terms of the agreement, (3) failed to order that payments on said agreement should have commenced in April, 1995, having found that a binding agreement existed, and (4) found that Cadle had violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this appeal and were submitted to the trial court by the parties as stipulated facts. On December 15, 1988, the plaintiff was granted a loan by New England Savings Bank in the amount of $280,000 and secured by a mortgage on property owned by the plaintiff located on Fitchville Road in Bozrah. On December 30, 1992, the plaintiff was granted a loan by New England Savings Bank in the amount of $320,000 and secured by property owned by the plaintiff located on Stockhouse Road in Bozrah.

On May 21, 1993, New England Savings Bank was declared insolvent and the Federal Deposit Insurance Corporation (FDIC) was appointed its receiver. Subsequently, the plaintiffs two notes and the mortgages securing them were sold to ALI, Inc. (ALI). In July, 1994, ALI commenced two separate foreclosure actions against the plaintiff, claiming that he had defaulted on the notes. Thereafter, counsel for both parties entered into negotiations, and on March 14, 1995, counsel for ALI, Paul Geraghty, sent a letter agreement to the plaintiffs counsel, Mark E. Block. The terms of the letter agreement were the subject of the underlying civil action. On August 29, 1996, the trial court issued its memorandum of decision in which it made the following findings. The March 14, 1995 letter contained the terms of the agreement between the parties. This letter agreement called for acceptance of the payment from Gebbie by ALI of a nonrefundable deposit in the amount of $4000 within two days. This payment was not mailed until March 28, 1995; however, it was accepted by Geraghty. On March 29, 1995, Geraghty, on behalf of ALI, notified ALI’s agent, Fleet Management and Recovery Corporation, that the settlement was “on track and should be consummated soon.” On April 20,1995, Block contacted Geraghty by letter, confirming his client’s desire to close the settlement.

While ALI and Gebbie were negotiating, the plaintiffs notes and mortgages were placed on sale at public auction by ALI through its agents, Fleet Associates and Fleet Management and Recovery Corporation. The information provided to prospective bidders included very specific information regarding the restructuring of the loans. This information mirrored the March 14,1995 letter. Further, Cadle, the defendant, and other potential bidders were put on notice that the $4000 deposit had been paid and accepted. Cadle made a successful bid in the amount of $151,410 on the plaintiff’s loans, which had a total balance of over $600,000.

The plaintiff filed a complaint as a means of forcing performance by either ALI, with whom Gebbie had an agreement, or Cadle, the successor owner of the two Gebbie loans formerly held by ALI. The issues before the trial court were twofold: first, whether ALI and Gebbie had a binding agreement by virtue of the March 15 letter agreement, and second, if so, whether Cadle is bound by the agreement as ALI’s successor in interest.

The terms of the letter agreement were as follows: (1) a reduced balance of over $600,000 to $160,000 payable over a ten year term with a thirty year amortization at a stated rate of interest; (2) the total obligations were to be canceled if Gebbie fully complied with the repayment terms; and (3) in the event of default, the full balance would be reinstated. The effect of this agreement was to consolidate the two notes and mortgage obligations and, in consideration of a payment of $40,000, to restructure the agreement. The letter agreement called for acceptance in the form of a $4000 deposit. This deposit was tendered by Gebbie and accepted by ALI. After hearing from the parties, the trial court determined that Cadle had notice that Gebbie and ALI had reached a binding agreement regarding the restructuring of the loans before they closed with ALI.

The trial court found that Gebbie was entitled to specific performance because Cadle was bound by the agreement between ALI and Gebbie. Cadle was ordered to execute a mortgage modification agreement consistent with the March 14, 1995 letter within thirty days of the judgment. The court further found that Cadle violated CUTPA and awarded attorney’s fees in the amount of $11,281.25. No portion of the attorney’s fees was charged against ALL Cadle appeals from that judgment.

I

The first issue is whether a binding agreement existed between Gebbie and ALI regarding the restructuring of the loan in order to avoid foreclosure of the property. Cadle admits that as a successor to ALI, it is bound by any agreement made between ALI and Gebbie during the time the loans were owned by ALI.

There is no dispute among the parties that while the loans were owned by ALI, ALI was free to modify the existing loan agreements between itself and Gebbie. The dispute arises because Cadle argues that the parties never reached a binding agreement because there was no meeting of the minds or, in the alternative, that the agreement expired by its own terms because there was no closing within thirty days of the March 14 letter. We conclude that the trial court properly rejected both arguments.

The following additional facts are necessary to the resolution of this claim. Cadle bid on the loan sale agreement with ALI on April 28, 1995. This agreement specifically stated that the buyer, Cadle, did not rely on any separate oral or written representations regarding the loan. On May 5, 1995, the bill of sale between Cadle and ALI was executed, and ownership of the loan transferred from ALI to Cadle.

There is no dispute that the terms of the present agreement were in writing. The trial court determined that the exchange of letters between ALI and Gebbie evidenced their intent to be bound. The trial court concluded that there was mutual consent and a clear intention to be bound by the terms of the modification present in the letter agreement. The trial court found that Cadle was bound by the agreement even though it did not have access to the March 14, 1995 letter because the terms of the agreement between Gebbie and ALI were incorporated in the information available at the time of the sale of the loans. On the basis of those facts, the trial court found that there was mutual consent and a clear intention to be bound by the terms of the modification enunciated in the letter agreement. This conclusion is supported by our case law. See Giorgio v. Nukem, Inc., 31 Conn. App. 169, 173-74, 624 A.2d 896 (1993). We conclude that the trial court was correct when it found that ALI and Gebbie had entered into a binding agreement. Accordingly, Cadle is bound by that agreement as ALI’s successor in interest.

Turning to the defendant’s argument regarding the formation of an agreement, it argues that the agreement is void because it expired on its own terms. Specifically, the defendant asserts that the agreement required the offer to be closed within thirty days. We do not agree. The letter agreement stated “this offer must be closed within thirty days hereof unless upon request ALI should agree to an extension thereof.” ALI chose not to enforce this term, however, and therefore waived any right to enforcement of the thirty day closing requirement. “Evidence concerning the intention of the parties may be found in the conduct and language of the parties and the surrounding circumstances.” Giorgio v. Nukem, Inc., supra, 31 Conn. App. 175. “[T]he extent of the rights so acquired were limited by and no greater than the terms of the contract . . . .” Heublein, Inc. v. Second National Bank, 115 Conn. 168, 174, 160 A. 898 (1932). Therefore, as ALI’s successor in interest, Cadle is not entitled to greater rights than ALI.

Here, ALI chose to enter into an agreement despite the lapse of more than thirty days. Therefore, ALI evidenced a clear intent to be bound by the agreement despite the lapse in time.

II

The defendant next argues that the trial court improperly sustained an objection to questions posed to the plaintiffs attorney, Block, on the ground that the answer would violate the attorney-client privilege. The essence of the defendant’s position is that because Block answered the same question, without objection, during his pretrial deposition, the attorney-client privilege had been waived and, therefore, he could not invoke the privilege as a shield to the questioning during trial. In response, the plaintiff argues that the liberal nature of the deposition process prevented him from asserting the privilege. We agree with the defendant that the trial court improperly sustained the objection; however, we hold that the error was harmless.

The following additional facts are necessary to the resolution of this issue. On February 12, 1996, Richard J. Pascal, trial attorney for the plaintiff, moved to quash the deposition subpoena of Block to the extent that it had called for notes, memos of correspondence and other documents that are subject to the attorney-client privilege. This motion was not ruled on by the court nor was it pressed by Block. Notwithstanding, Block was deposed by the defendant’s attorney. During the deposition, Block made the following statement: “I can tell you this. His understanding was from the course of discussions that had been going on between myself, attorney Geraghty, back and forth, that the $40,000 was going to get him released from that land because it essentially paid off the value of the land and that the sole remaining mortgage would have been on Perkins Corner.”

The trial transcript reveals the following. During the deposition of Block, Gebbie’s interests were represented by his attorney, Pascal. Pascal and Block work for the same firm. Block, however, was not represented by Pascal during the deposition. At trial, the defendant called Block to testify as to Gebbie’s understanding of the contract. Extensive argument was held before the trial court, Austin, J., regarding the admissibility of Block’s testimony.

The plaintiff objected to Block’s testimony in any form, asserting that he would not waive his attorney-client privilege and, further, that any relevant testimony would be cumulative because he had already testified as to his understanding of the agreement. In response, the defendant argued that the privilege had already been waived by the client’s failure to assert it during the deposition and may not be resurrected. The trial court ultimately ruled that it would allow Block to testily but that it would rule on specific objections as they arose. The defendant then asked the following question: “Attorney Block, as of the date of the March 14 letter, did you have an understanding as to whether Mr. Gebbie knew that the agreement contained a clawback provision?” The plaintiff objected on the ground of attorney-client privilege. This objection was sustained by the trial court, which concluded that pursuant to rule 1.6 of the Rules of Professional Conduct, the attorney-client privilege was in effect because the question posed went to the heart of the communication between the client and the attorney. While this characterization of the information is correct, we conclude that the privilege was previously waived and, therefore, that the privilege was no longer in effect.

The power to waive the attorney-client privilege rests with the client or with his attorney acting with his authority. 1 C. McCormick, Evidence (4th Ed. 1992) § 93, p. 341; see also Doyle v. Reeves, 112 Conn. 521, 523, 152 A. 882 (1931) (communications relevant to legal advice privileged until client waives protection). “ [I]f the holder of the privilege fails to claim his privilege by objecting to disclosure by himself or another witness when he has an opportunity to do so, he waives his privilege as to the communications so disclosed.” 1 C. McCormick, supra, § 93, p. 343. This result is reached because once the confidence protected has been breached, the privilege has no valid “continuing office to perform.” Id.

Here, the client’s attorney, Pascal, attended the deposition of Block on behalf of the plaintiff to protect the plaintiffs interests. As the plaintiffs agent, it was the responsibility of Pascal to assert the attorney-client privilege. It is clear that no objection was made during the discovery phase when Block was asked about privileged communications he had with his client. Therefore, on behalf of Gebbie, Pascal waived the privilege as to that information for all time.

We do not take issue with the calling of Block to be deposed per se because it is the duty of a lawyer “to testify as to other matters when called on to do so. We are in accord with the majority rule that the privilege does not extend beyond communications. [State v. Manning, 162 Conn. 112, 120, 291 A.2d 750 (1971)] . . . See C. Tait & J. LaPlante, [Connecticut Evidence (2d Ed. 1988)] § 12.5.2 [pp. 442-44].” (Internal quotation marks omitted.) Ullmann v. State, 230 Conn. 698, 712-13, 647 A.2d 324 (1994). Once at the deposition, however, it was Pascal’s duty to invoke the privilege or, in the absence of that, waive it. Miller v. Anderson, 30 Conn. Sup. 501, 504, 294 A.2d 344 (1972) (to be privileged, information must not have been divulged to third party). The trial court correctly determined that the information sought was within the scope of privileged communications; however, it was incorrect when it determined that the privilege remained intact. The remaining question to be answered, therefore, is whether the error was harmful.

The plaintiff argues that the trial court’s exclusion of this evidence was harmless because the parol evidence rule would have barred this testimony. That is incorrect. “ ‘The parol evidence rule prohibits the use of extrinsic evidence to vary or contradict the terms of an integrated written contract. Giorgio v. Nukem, Inc., [supra, 31 Conn. App. 173-74]); see also 2 Restatement (Second), Contracts § 213 [pp. 129-32] (1981). The rule does not forbid the presentation of parol evidence, but prohibits the use of such evidence to vary or contradict the terms of the contract. TIE Communications, Inc. v. Kopp, 218 Conn. 281, 288, 589 A.2d 329 (1991).’ ” Foley v. Huntington Co., 42 Conn. App. 712, 733, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). The information sought to show that there was no meeting of the minds and, therefore, that no contract in fact existed; it was not intended to contradict the terms of the agreement. See Foley v. Huntington Co., supra, 42 Conn. App. 734. Therefore, the parol evidence argument is inapplicable to this case.

We nevertheless conclude that the exclusion of this evidence was harmless error because even if the plaintiff was mistaken as to a term of the contract, this amounts to unilateral mistake insufficient to void the contract under these circumstances. The defendant posits that if the plaintiff failed to understand an essential term of the contract there was no meeting of the minds and, accordingly, no contract. The comments to § 153 of the Restatement (Second), Contracts, state that the party seeking to avoid a contract on the basis of a unilateral mistake must be the party that was mistaken. “In order for a party to have the power to avoid a contract for a mistake that he alone made, he must at least meet the same requirements that he would have had to meet had both parties been mistaken (§ 152). . . . [T]he mistaken party must in addition show that enforcement of the contract would be unconscionable.” 1 Restatement (Second), supra, § 153, comments (b) and (c), pp. 394-95. The defendant in this case is not the mistaken party, yet it seeks to assert mistake as a defense to the contract. That it may not do.

In addition, the trial court specifically found that the defendant failed to allege fraud. “[According to general principles of contract law, rescission based on a mistaken understanding of the terms of an agreement is available only where the mistake is mutual, or where one party’s mistake has been caused by the other party’s fraud. See Restatement (2d) of Contracts §§ 152, 153 (1981).” Hartford v. Chase, 942 F.2d 130, 135 (2d Cir. 1991).

The defendant cites no authority for the proposition that it should be relieved of its contractual obligations because of a claimed unilateral mistake by another party to the contract who does not claim the benefit of such mistake. We find the error to be harmless.

III

In its September 20, 1996 motion to reargue, the defendant requested that the trial court address “the issue of whether interest is owed on the restructured amount from April, 1995.” In response, the court concluded that “payments of principal and interest could not be commenced or made with certainty and safety until the time of the court’s decision and, therefore, interest shall commence on August 30, 1996, the date the court’s decision was filed.” The defendant argues that the trial court improperly declined to order that interest commence on payments due from March 14, 1995, the date of the agreement. We disagree.

It is well established that we will not overrule a trial court’s determination regarding an award of interest absent a clear abuse of discretion. See Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 676, 591 A.2d 101 (1991). Here, the defendant requested that the court award interest on payments due. He asks the court to ignore, however, the pivotal fact that the defendant refused to accept these payments. We conclude that under the facts of this case, there was no abuse of discretion.

IV

The defendant next claims that the trial court improperly determined that it violated CUTPA. It also claims that the award of attorney’s fees was therefore improper. The plaintiffs complaint alleged that Cadle violated § 42-110a et seq. by “(1) failing and refusing to effectuate the settlement agreement and (2) attempting to take the rents in contravention of the agreement.” We affirm the trial court’s finding that the defendant’s actions constituted a violation of CUTPA.

“[I]n determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the [FJederal [T]rade [C]ommission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise— whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen] . . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy. . . . Furthermore, a party need not prove an intent to deceive to prevail under CUTPA.” (Citations omitted; internal quotation marks omitted.) Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 105-106, 612 A.2d 1130 (1992).

In this case, the trial court concluded that “Cadle’s refusal to honor and effectuate the loan restructure agreement and its related conduct, including failing to release the foreclosure attachments and lis pendens, constituted a violation of [CUTPA].” The court took particular note of the “clear acknowledgment that [Cadle] stepped into the shoes of [ALI] with full knowledge of the agreement by Cadle.” The record clearly supports this conclusion.

Cadle openly acknowledges the existence of an agreement by which it is bound yet refuses to honor. Its actions forced the plaintiff to seek redress in the courts to have the agreement enforced. This is the type of behavior that CUTPA seeks to discourage. See Murphy v. McNamara, 36 Conn. Sup. 183, 416 A.2d 170 (1979); see also Bailey Employment System, Inc. v. Hahn, 545 F. Sup. 62 (D. Conn. 1982), aff'd, 723 F.2d 895 (2d Cir. 1983). We affirm the trial court’s finding that a CUTPA violation occurred.

As to the issue of attorney’s fees, “[t]he public policy underlying CUTPA is to encourage litigants to act as private attorneys general and to engage in bringing actions that have as their basis unfair or deceptive trade practices. ... In order to encourage attorneys to accept and litigate CUTPA cases, the legislature has provided for the award of attorney’s fees and costs. . . . Once liability has been established under CUTPA, attorney’s fees and costs may be awarded at the discretion of the court.....We will not interfere with the trial court’s exercise of this discretion unless there is manifest abuse or injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) Jacques All Trades Corp. v. Brown, 42 Conn. App. 124, 130-31, 679 A.2d 27 (1996), aff'd, 240 Conn. 654, 692 A.2d 809 (1997). Under facts of this case, we find that the award of attorney’s fees was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       We refer in this opinion to the named defendant, Cadle Company, as the defendant.

       The foreclosure action against the Stockhouse Road property was withdrawn by ALI in October, 1995, and the foreclosure action against the Fitchville Road property was dismissed for dormancy by the court in June, 1995.

       The letter, addressed to attorney Mark E. Block, stated the following: “This letter shall serve to confirm our conversation of March 13, 1995. ALI will agree to settle its claims with Mr. Gebbie as follows: 1. Payment of $40,000 upon closing with a nonrefundable deposit of $4,000 to be paid within two days hereof. 2. The execution of a promissory note and mortgage modification agreement which will modify the note to $160,000 at 9.5 percent fixed rate on a thirty (30) year amortization payable over a ten (10) year term. The offer must be closed within thirty days hereof unless upon request ALI should agree to an extension thereof. If the note is successfully repaid then said obligations shall be deemed fully satisfied otherwise to remain in full force and effect. Sincerely, //s Paul M. Geraghty.”

       Fleet was hired by ALI to market the mortgages in its portfolio.

       Block testified that a clawback or callback provision is one where the borrower pays the note in accordance with the revised terms until such time as the adjusted principal has been satisfied. In the event of a default in the payment of the revised terms, the original balance is reinstated.

       Rule 1.6 (a) of the Rules of Professional Conduct provides: “A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation . . . .”

       The defendant’s argument that the liberal rules of discovery during a deposition require him to answer improper questions and later assert the privilege at trial is unavailing. While it is true that “the allowable scope of inquiry at a discovery deposition clearly exceeds the boundaries of admissible evidence”; Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 139, 491 A.2d 389 (1985); this does not reheve the attorney of the duty to uphold the attorney-client privilege.

       “One of the essential elements of the claim of privilege between attorney and client is that the communication be confidential. Rienzo v. Santangelo, [160 Conn. 391, 395, 279 A.2d 565 (1971)]; State v. Hanna, 150 Conn. 457, 466, 191 A.2d 124 (1963). The purpose and effect of the line of questioning by the defendants’ counsel during the recross-examination was to have a direct communication between the plaintiff and her counsel revealed. The resort to these questions went beyond the scope of proper recross and was an invasion of the attorney client privilege.” LaFaive v. DiLoreto, 2 Conn. App. 58, 65-66, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984).

       Our courts frequently look to the Restatement (Second), Contracts for guidance on the law of mistake. “ ‘[I]n private disputes, a court must enforce the contract as drafted by the parties and may not relieve a contracting party . . . unless the contract is voidable on grounds such as mistake, fraud or unconscionability. See 1 Restatement (Second), Contracts §§ 154, 159, and vol. 2, § 208 (1981); cf. Warner v. Pandolfo, 143 Conn. 728, 122 A.2d 738 (1956).’ Holly Hill Holdings v. Lowman, 226 Conn. 748, [756], 628 A.2d 1298 (1993).” Gibson v. Capano, 241 Conn. 725, 730-31, 699 A.2d 68 (1997). Section 153 states that “[w]here a mistake of one party at the time a contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performances that is adverse to him, the contract is voidable by him if he does not bear the risk of the mistake under the rule stated in § 154, and (a) the effect of the mistake is such that enforcement of the contract would be unconscionable, or (b) the other party had reason to know of the mistake or his fault caused the mistake.” 1 Restatement (Second), supra, § 153, p. 394.

       CUTPA provides in relevant part that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” General Statutes § 42-110b (a).


author: SPEAR, J.

text:
    JAMES KEENAN v. UNION CAMP CORPORATION ET AL.
    (AC 17197)
    O’Connell, C. J., and Spear and Hennessy, Js.
    Submitted on briefs March 5
    officially released June 30, 1998

      Guy L. DePaul, for the appellant (plaintiff).

      Scott Wilson Williams, for the appellees (defendants).
   Opinion

SPEAR, J.

The plaintiff, James Keenan, appeals from the decision of the workers’ compensation review board (board) reversing a finding and award that was rendered in his favor by the workers’ compensation commissioner. On appeal, Keenan claims that the board improperly concluded that the commissioner’s decision was not premised on competent evidence. We agree and reverse the board’s decision.

The record reveals the following relevant facts and procedural history. On September 30,1993, Keenan sustained a compensable injury to his back and groin while at his workplace. As a result of this undisputed injury, he came under the care of Michael Craig, an orthopedist. Subsequently, on December 20, 1993, Keenan, while standing at the top of a staircase at his residence, experienced a weakness in and “giving out” of his leg, and he fell down the stairs, hitting his head. Because it was Craig’s opinion that Keenan had suffered a traumatic brain injury as a result of the fall on December 20,1993, Craig referred him to Neil Culligan, a neurologist. In a letter to Craig dated January 20,1994, and in subsequent letters to Liberty Mutual Insurance Company dated January 27 and September 9, 1994, Culligan stated that Keenan had suffered a traumatic brain injury as a result of his fall on December 20, 1993, and that this fall had been caused by leg weakness that resulted from the workplace injury of September, 1993. The defendant Union Camp Corporation (Union), Keenan’s employer, denied responsibility for Keenan’s traumatic brain injury, arguing that Keenan’s fall down the stairs on December 20,1993, was not causally related to his compensable back injury of September 30,1993. On October 25, 1995, the commissioner rendered a finding and award in favor of Keenan. Union then appealed to the board, which reversed the commissioner’s decision, concluding that the decision was not premised on competent evidence. This appeal followed.

It is well settled in workers’ compensation cases that the injured employee bears the burden of proof, not only with respect to whether an injury was causally connected to the workplace, but that such proof must be established by competent evidence. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151, 291 A.2d 743 (1972). Further, “[t]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citation omitted; internal quotation marks omitted.) Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988); Rogers v. Laidlaw Transit, Inc., 45 Conn. App. 204, 206, 695 A.2d 1071 (1997).

“[I]n determining whether a particular injury arose out of and in the course of employment, the [commissioner] must necessarily draw an inference from what [she] has found to be the basic facts. The propriety of that inference, of course, is vital to the validity of the order subsequently entered. But the scope of judicial review of that inference is sharply limited by [§ 31-301-8 of the Regulations of Connecticut State Agencies]. If supported by evidence and not inconsistent with the law, the [commissioner’s] inference that an injury did or did not arise out of and in the course of employment is conclusive. No reviewing court can then set aside that inference because the opposite one is thought to be more reasonable; nor can the opposite inference be substituted by the court because of a belief that the one chosen by the [commissioner] is factually questionable.” (Internal quotation marks omitted.) Fair v. People’s Savings Bank, supra, 207 Conn. 539-40; see also Epps v. Beiersdorf, Inc., 41 Conn. App. 430, 434, 675 A.2d 1377 (1996).

According to the specific provisions of § 31-301-8 of the Regulations of Connecticut State Agencies, the board “cannot review the conclusions of the commissioner when these depend upon the weight of the evidence and the credibility of witnesses.” Our review of the board’s May 2, 1997 decision reveals that despite the board’s assertion that the nature, or competency, of the evidence in this case is at issue, the board’s decision focuses on the issues of the weight of the evidence and the credibility of witnesses. Specifically, the board concedes in its decision of May 2, 1997, that both Craig and Culligan agreed that Keenan’s fall down the stairs resulted from his work injury in September, 1993, “which caused back pain, leg weakness and imbalance.” The board improperly concluded that because “the [commissioner] did not cite any of Dr. Culligan’s reports in her findings, [the board] cannot rely on those reports as a basis for her award.” Although the board maintains that the evidence that was considered by the commissioner in this case was incompetent, we are not persuaded.

A workers’ compensation award must be based on competent evidence. Cooke v. United Aircraft Corp., 152 Conn. 214, 216, 205 A.2d 484 (1964); Zawisza v. Quality Name Plate, Inc., 149 Conn. 115, 116, 176 A.2d 578 (1961). In determining whether evidence is competent in such a context, our Supreme Court has held that “the opinions of experts [are] to be received and considered as in other cases generally but that the opinion of a physician which is based wholly or partly on statements and symptoms related to the physician by the patient on a personal examination is inadmissible where the examination was made for the purpose of qualifying the physician to testify as a medical expert.” (Internal quotation marks omitted.) Cooke v. United Aircraft Corp., supra, 216, quoting Zawisza v. Quality Name Plate, Inc., supra, 119. In Zawisza, the testimony of a medical expert who had not been consulted by the plaintiff for treatment, but in fact examined the plaintiff only for purposes of testifying, was deemed incompetent evidence for purposes of the commissioner’s consideration. Zawisza v. Quality Name Plate, Inc., supra, 119-20. Conversely, the testimony from medical experts in Cooke was deemed competent where the experts based their testimony regarding the plaintiffs condition on medical reports that were made at the time of consultation as well as diagnoses for the plaintiffs treatment. Cooke v. United Aircraft Corp., supra, 216.

Here, Craig and Culligan both examined Keenan for the purposes of diagnosis and treatment. Significantly, our review of the record reveals letters and reports from both physicians, but those from Culligan specifically and extensively detail Keenan’s medical condition, symptoms, and course of treatment from January through September, 1994. We cannot, therefore, conclude that any or all of this evidence was incompetent.

It is of no moment that the commissioner’s finding and award did not patently state every piece of credible evidence or testimony that contributed to the rendering of her decision. No such requirement has ever been imposed on the commissioner. The commissioner had before her various medical reports and opinions, medical records and testimony from which she could properly determine whether Keenan’s fall of December 20, 1993, was causally related to his prior, compensable back and groin injury. Because the commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses in workers’ compensation cases, it was properly within the commissioner’s discretion to rely on all or part of Culligan’s medical evaluations as well as those of Craig. See Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981); Lamont v. New Hartford, 4 Conn. App. 303, 305, 493 A.2d 298 (1985).

Accordingly, we conclude that the commissioner’s finding and award in this case was reasonable, supported by the evidence and not contrary to law.

The decision of the workers’ compensation review board is reversed and the case is remanded with direction to affirm the commissioner’s decision.

In this opinion the other judges concurred.

         The following testimony is excerpted from Craig’s July 12, 1995 deposition:
      “Q. Doctor, just going back to your February 2, [1994] office note, do you stand by your statement in that office note, which we were talking about, indicating, ‘He’s got a normal neurologic examination in terms of his peripheral nerves; however, he has had the diagnosis of traumatic brain injury secondary to a fall,’ this [meaning that] the fall in December of 1993 was secondary to leg weakness from a fall at work in September of 1993?
      “A. Yes.
      “Q. Would that be your medical opinion based upon a reasonable degree of medical probability?
      “A. Yes.
      “Q. And as a result of that fall in December of 1993 did Mr. Keenan suffer a traumatic brain injury?

        “A. Yes.
      “Q. And as a result of that traumatic brain injury did you refer him to Dr. Neil Culligan?
      “A. Yes. I referred him to a neurologist. It’s my understanding he saw Dr. Culligan in the emergency room as a result of severe headaches in early January.”

       In his letter of January 20, 1994, Culligan outlined many of Keenan’s symptoms, including dizziness, memory loss, severe headaches and depression, all of which Culligan characterized as secondary to weakness in Keenan’s leg from the original workplace injury of September, 1993.

       Section 31-301-8 of the Regulations of Connecticut State Agencies provides in relevant part: “Ordinarily, appeals are heard by the compensation review [board] upon the certified copy of the record filed by the commissioner. In such cases the [board] will not retry the facts or hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusion reached. It cannot review the conclusions of the commissioner when these depend upon the weight of the evidence and the credibility of witnesses. . . (Emphasis added.)

       In its May 2, 1997 decision, the board stated that the commissioner reached her decision by relying solely on the testimony of Craig. The board made this statement because the October 25,1995 finding and award specifically refers only to the testimony of Craig, and makes no mention of whether the commissioner likewise credited Culligan’s reports, which were also admitted into evidence.

       Unlike the present case, the medical experts in Cooke v. United Aircraft Corp., supra, 152 Conn. 214, gave conflicting testimony regarding the plaintiffs condition. Id., 217. Their testimony was deemed competent evidence for the commissioner’s consideration by virtue of the fact that each expert described in great detail the plaintiffs condition, symptoms, and course of treatment over a period of eighteen months. Id., 216-17. In the present case, Culligan’s detailed medical reports concerning Keenan’s condition, prognosis and course of treatment should likewise be deemed competent evidence for the commissioner’s consideration.

       See Regs., Conn. State Agencies § 31-301-8; Fair v. People’s Savings Bank, supra, 207 Conn. 539-41.


author: FOTI, J.

text:
    MICHAEL MEADOWS v. HARRISON SCOTT HIGGINS ET AL.
    (AC 17533)
    Foti, SchaUer and Dupont, Js.

      Argued April 27
    officially released June 30, 1998

      Williams A. Phillips, for the appellants (named defendant et al.).

      Jerome A. Mayer, with whom, on the brief, was Peter S. Olson, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendants, Harrison Higgins and Linda Higgins, appeal from the judgment of the trial court rendered in favor of the plaintiff, Michael Meadows, doing business as Paper Pro, as to the complaint and as to the defendants’ counterclaim. On appeal, the defendants claim that the trial court improperly (1) determined that the Home Improvement Act, General Statutes § 20-418 et seq., does not apply to the transaction between the plaintiff and the defendants and (2) awarded attorney’s fees to the plaintiff pursuant to General Statutes § 52-249, which provides for such fees in foreclosure actions. We agree with the first of the defendants’ claims and, therefore, reverse the judgment of the trial court.

An attorney trial referee found the following facts. The defendants are the owners of a parcel of residential property located in the town of Greenwich. Sometime prior to November, 1992, the defendants entered into a written contract with BCS Construction, Inc. (BCS), pursuant to which BCS agreed to serve as a consultant to the defendants on a project to renovate the defendants’ single-family home. In accordance with that contract, Bruce Simon, a principal of BCS and a registered home improvement contractor, was designated the construction manager for the project. Simon subsequently arranged to have the plaintiff provide painting and wallpapering services to the defendants. There was no document or writing setting forth the terms of the agreement pursuant to which the plaintiff provided services and materials to the defendants. On January 15, 1993, the plaintiff had completed approximately 90 to 95 percent of the painting and wallpapering work when he was directed by the defendants to stop all work and leave the premises. The reasonable value of the services and materials provided by the plaintiff to the defendants is $29,255. The defendants have paid the plaintiff $12,840.

On April 6, 1993, the plaintiff filed a certificate of mechanic’s hen with the Greenwich town clerk, claiming a hen on the defendants’ property in the amount of $16,415. On January 3, 1994, the plaintiff filed a one count complaint seeking, inter aha, foreclosure of the mechanic’s hen, damages and attorney’s fees pursuant to § 52-249. On October 25, 1994, the defendants filed an answer, five special defenses and a two count counterclaim. The special defenses to the foreclosure action were that (1) the mechanic’s lien was invalid because it allegedly was not filed within ninety days of the last date of any work performed by the plaintiff, (2) the plaintiff is a contractor within the meaning of the Home Improvement Act, who performed work on the defendants’ home without having obtained a certificate of registration, (3) the plaintiff failed to advise the defendants of their cancellation rights, (4) any contract pursuant to which the plaintiff provided materials and services to the defendants was not entered into by a registered salesman or registered contractor and (5) there was no written contract signed by the plaintiff and the defendants. In the first count of their counterclaim, the defendants sought damages for the plaintiffs allegedly unsatisfactory, defective and negligent work. In the second count of their counterclaim, the defendants alleged that the plaintiff’s actions constitute an unfair or deceptive trade practice in violation of the Connecticut Unfair Trade Practices Act (CUTPA), and sought, inter alia, compensatory and punitive damages, attorney’s fees and interest.

The case was tried to an attorney trial referee, who concluded that the mechanic’s lien was timely filed and that the provisions of the Home Improvement Act do not apply to the transaction between the plaintiff and the defendants. He also concluded that the defendants failed to meet their burden of proof on the allegations of unsatisfactory work performance and that the CUTPA violations alleged in the defendants’ counterclaim were based on the Home Improvement Act, which does not apply to this case. The attorney trial referee recommended that the court render judgment in favor of the plaintiff as to the complaint, with reasonable attorney’s fees pursuant to § 52-249, and as to both counts of the defendants’ counterclaim.

On February 26, 1997, the trial court, Lewis, J., rendered judgment in accordance with the attorney trial referee’s report. The trial court found that the provisions of the Home Improvement Act do not apply to the transaction between the plaintiff and the defendants because the plaintiff was acting as a subcontractor to Simon, who was a general contractor and, therefore, there was no contract between the plaintiff and the defendants. The trial court concluded that “as to the plaintiffs complaint, judgment is entered in favor of the plaintiff to foreclose his mechanic’s lien and the amount of the debt due the plaintiff at this time is established at $16,415. As to the defendants’ counterclaim, judgment is entered in favor of the plaintiff. This case should now be claimed for the foreclosure motion or short calendar to rule on the specifics of such foreclosure, including the amount of the debt with interest, the type and date of foreclosure, the value of the premises, etc.”

On March 17,1997, the defendants appealed from the judgment of the trial court. On June 25, 1997, this court dismissed the defendants’ appeal for lack of a final judgment. On August 11, 1997, the trial court, Mintz, J., held a hearing on the plaintiffs motion for judgment of strict foreclosure. The trial court rendered judgment of strict foreclosure in favor of the plaintiff and set a law day of September 9, 1997. The trial court also determined the amount of the debt, $16,415, the appraisal fee, $450, and the title search fee, $150, and awarded the plaintiff attorney’s fees of $8295. On August 19, 1997, the defendants filed this appeal.

The defendants claim that the trial court improperly determined that the Home Improvement Act does not apply to the transaction between the plaintiff and the defendants. We agree.

“We begin by setting forth the applicable standards of review. Attorney trial referees are empowered to hear- and decide issues of fact. Spears v. Kerars Realty Co., 171 Conn. 699, 702-703, 372 A.2d 121 (1976). It is axiomatic that ‘a reviewing authority may not substitute its findings for those of the trier of the facts.’ Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990). The trial court, as the reviewing authority, may render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney trial referee. Dills v. Enfield, 210 Conn. 705, 713, 557 A.2d 517 (1989).” Romano v. Derby, 42 Conn. App. 624, 626, 681 A.2d 387 (1996). “Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the [attorney trial] referee. See Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 256, 524 A.2d 610 (1987).” (Internal quotation marks omitted.) Kallas v. Harnen, 48 Conn. App. 253, 257, 709 A.2d 586, cert. denied, 244 Conn. 935, 717 A.2d 232 (1998).

“The question of whether a particular statute . . . applies to a given state of facts is a question of statutory interpretation .... Plastic Distributors, Inc. v. Burns, 5 Conn. App. 219, 225, 497 A.2d 1005 (1985). Statutory interpretation presents a question of law for the court. Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980); Pascale v. Board of Zoning Appeals, 150 Conn. 113, 116, 186 A.2d 377 (1962).” (Internal quotation marks omitted.) Rivera v. Fox, 20 Conn. App. 619, 621, 569 A.2d 1137, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990).

General Statutes § 20-427 (b) provides that “[n]o person shall ... (5) offer to make or make any home improvement without having a current certificate of registration under this chapter . . . .” Persons found to be in violation of the foregoing provision are subject to both criminal and civil penalties. In addition, General Statutes § 20-429 (a) provides that “[n]o home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor, (6) contains a notice of the owner’s cancellation rights ... (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. . . .” “A violation of any of the provisions of [the Home Improvement Act] shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b.” General Statutes § 20-427 (c).

The trial court accepted the attorney trial referee’s finding that at the time the plaintiff provided services and materials to the defendants, he was not a registered home improvement contractor and did not have a written contract with the defendants that complied with the Home Improvement Act. Nevertheless, the trial court concluded, on the basis of the facts found by the referee, that the act did not apply to the transaction between the plaintiff and the defendants, as a matter of law, because the plaintiff was acting as a subcontractor to Simon, who was a general contractor and, therefore, there was no “home improvement contract” between the plaintiff and the defendants as that term is defined by the act.

In O’Donnell v. Rindfleisch, 13 Conn. App. 194, 195, 535 A.2d 824, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988), we considered whether the plaintiff, a registered contractor, had violated either the Home Improvement Act or CUTPA by subcontracting the defendant homeowners’ roofing work to a roofer who was not registered as a home improvement contractor under the Home Improvement Act. We held that the Home Improvement Act does not require that subcontractors be registered as home improvement contractors. Id., 204. In O’Donnell, we examined the legislative history of the Home Improvement Act and stated that “[n]owhere in the legislative consideration is there revealed an intent to include subcontractors within the registration requirement. Its aim was targeted only at contractors who deal directly with property owners. . . .

“The contract between the contractor and the subcontractor is not within the purview of the act, and need not be under its pmpose and premise, for by its terms the contractor is responsible to the consumer and the commissioner of consumer protection for whatever the subcontractor may do.” Id., 203-204.

Although we agree with the trial court that the provisions of the Home Improvement Act do not apply to subcontractors, we do not agree that the trial court’s conclusion that Simon was a general contractor and the plaintiff was acting as a subcontractor to Simon legally and logically follows from the facts found by the attorney trial referee.

In its memorandum of decision, the trial court stated that “the facts found by the referee must stand unchallenged, including the finding that Simon performed the functions of a general contractor. It follows legally and logically that if Simon was a general contractor, then the plaintiff was a subcontractor . . . .” The attorney trial referee did not find as a fact that Simon served as a general contractor for the renovation work performed on the defendants’ home. Rather, in the section of his corrected report titled “Legal Discussion,” the referee concluded that because Simon performed many of the duties of a general contractor, he was a general contractor and, therefore, the provisions of the Home Improvement Act do not apply to the transaction between the plaintiff and the defendants. “Any legal conclusions reached by an attorney trial referee have no conclusive effect. . . . The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney trial referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment.” (Citation omitted; internal quotation marks omitted.) State Bank of Westchester v. New Dimension Homes of Connecticut, Inc., 38 Conn. App. 491, 497, 661 A.2d 119 (1995), quoting Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 510, 508 A.2d 415 (1986); see also Amica Mutual Ins. Co. v. Woods, 48 Conn. App. 690, 692-93 n.4, 711 A.2d 1208, cert. denied, 245 Conn. 916, 719 A.2d 900 (1998).

The following facts regarding the status of the plaintiff, the defendants and Simon, were found by the attorney trial referee. The defendants and BCS entered into a written agreement pursuant to which BCS agreed to act as consultant to the defendants on a project to renovate their single-family home. The agreement provides that BCS has no “authority to sign contracts, change orders or necessary documents unless . . . the owner in writing requests [BCS] to sign in owners’ interest. [BCS] will not be responsible or liable for any financial obligations of the owner when signing as consultant to the owners.” In accordance with the agreement, Simon was designated as construction manager for the project. Simon contacted the plaintiff to provide services to the defendants. As a result of proposals made by the plaintiff and conveyed to the defendants by Simon, and pursuant to subsequent discussions between the plaintiff and the defendants and between the plaintiff and Simon, the plaintiff provided painting and wallpapering services to the defendants. The plaintiff did not enter into a written contract with the defendants. It was understood, however, by the plaintiff, the defendants and Simon, that the defendants would pay the plaintiff for his materials and labor. The plaintiff did not enter into a contract with Simon to provide materials and labor to the defendants. Simon supervised the plaintiffs work at the defendants’ home. The plaintiff discussed changes in the nature of his work and received instructions and approval from both Simon and the defendants. The defendants made payments directly to the plaintiff in the amount of $12,840.

We conclude that the trial court improperly determined that the facts found legally and logically lead to the conclusion that the plaintiff was a subcontractor to Simon, who served as a general contractor for the renovation work performed on the defendants’ home. The record reveals that Simon never entered into a contract with the defendants to perform renovations to their home, but instead served as a construction manager for a firm that had agreed to provide consulting services to the defendants. Therefore, Simon was not obligated to perform any renovation work for the defendants that could have been the subject of a subcontract with the plaintiff. In addition, Simon was not paid by the defendants for work performed by the plaintiff. Finally, all of the parties understood that the defendants would pay the plaintiff for his materials and labor, and the defendants did in fact make payments directly to the plaintiff in the amount of $12,840.

Our determination that Simon did not serve as a general contractor for the renovation work performed on the defendants’ home leads us to conclude that the provisions of the Home Improvement Act apply to the transaction between the plaintiff and the defendants. Since the trial court accepted the attorney trial referee’s finding that the plaintiff is not a registered home improvement contractor and does not have a written contract with the defendants, it follows that the plaintiff violated the Home Improvement Act and is not entitled to enforce the provisions of any oral agreement with the defendants. See Caulkins v. Petrillo, 200 Conn. 713, 719-20, 513 A.2d 43 (1986) (oral home improvement contract fully performed by contractor and partially performed by homeowner barred by provisions of § 20-429). Accordingly, the plaintiff was not entitled to foreclose on his mechanic’s hen.

In addition, the plaintiffs failure to comply with the Home Improvement Act “is a per se violation of CUTPA by virtue of ... § 20-427 [c], which provides that any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice.” A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990). Having mistakenly determined that the defendants had not established a violation of CUTPA because the Home Improvement Act does not apply to the transaction between the plaintiff and the defendants, the trial court never had the occasion to exercise its discretion with regard to the defendants’ alleged entitlement to damages or attorney’s fees. A remand, therefore, is necessary to allow the trial court the opportunity properly to exercise its discretion regarding the award of damages and attorney’s fees.

The judgment is reversed with respect to the complaint and the second count of the defendants’ counterclaim alleging a violation of CUTPA, and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The plaintiffs complaint dated December 15, 1993, also names Darien Design & Construction, Inc., Site Design Associates and MacMillan & Associates as defendants. Those parties are not involved in this appeal. We refer in this opinion to Harrison Higgins and Linda Higgins as the defendants.

       See General Statutes § 49-34.

       See General Statutes § 42-110a et seq.

       Although the defendants appealed from the August 11, 1997 judgment of strict foreclosure, that judgment refers to the trial court’s February 26, 1997 memorandum of decision, rendering judgment for the plaintiff on the defendants’ counterclaim that alleged a violation of CUTPA. Therefore, we consider the defendants' appeal to include both the judgment of strict foreclosure and the judgment in favor of the plaintiff as to the defendants’ counterclaim alleging a violation of CUTPA.

       See General Statutes § 20-427 (c) and (d).

       This agreement is contained on a standard form prepared by the American Institute of Architects, titled, “Owner-Construction Manager Agreement.”

       Our determination that the plaintiff was not entitled to foreclose on his mechanic’s lien makes it unnecessary to consider the second claim raised by the defendants on appeal.

       The first count of the defendants’ counterclaim is not involved in this appeal.


author: O’CONNELL, C. J.

text:
    GEORGE P. BRIGGS v. ROCCO J. SYLVESTRI ET AL.
    (AC 17104)
    (AC 17105)
    O’Connell, C. J., and Hennessy and Spallone, Js.
    Argued March 20
    officially released June 30, 1998

      Michael J. Leventhal, with whom, on the brief, was Trida L. Volkmann, for the appellants-appellees (named defendant et al.).

      Allan F. Friedman, for the appellee-appellant (jplaintiff).
   Opinion

O’CONNELL, C. J.

The plaintiff, George Briggs, brought this action seeking specific performance of a right of first refusal contained in a lease. The trial court granted specific performance with respect to one defendant and denied it as to the others.

George Briggs appealed to this court from the trial court’s judgment denying him specific performance as to the defendants Alfred Briggs, Jr., and Elizabeth Briggs. The defendant Rocco Sylvestri appealed from the part of the judgment granting specific performance as to the defendant Nancy Briggs DeBolt.

On appeal, George Briggs claims that the trial court improperly held that he was not entitled to review Sylvestri’s offer to purchase certain property prior to exercising his right of first refusal. Sylvestri’s central claim on appeal is that the trial court improperly ordered specific performance as to DeBolt’s interest because George Briggs failed to show that he was ready, willing and able to purchase her interest. We affirm the judgment of the trial court as to both appeals.

The trial court found the following facts. George Briggs occupies property at 403 Greenwich Avenue in Greenwich under a long-term lease that he had entered into with his father. The express provisions of the lease granted him the right of first refusal to purchase the property. Following their father’s death and upon the settlement of his estate, George Briggs and his three siblings each inherited a one-quarter interest in the property as tenants in common subject to the leasehold. This settlement also reaffirmed George Briggs’ right of first refusal in the property.

On December 10, 1993, Alfred Briggs and Elizabeth Briggs notified George Briggs by letter that they had received an offer from Sylvestri to purchase their respective one-quarter interests in the property. The letter further asked that George Briggs respond within fifteen days as to whether he intended to exercise his rights under the lease. The letter specified that if George Briggs failed to respond, Alfred Briggs and Elizabeth Briggs would assume that he waived any right to purchase their interests in the property.

On December 18, 1993, George Briggs responded by letter and requested a copy of Sylvestri’s offer. He further requested that the fifteen days be extended to sixty days. On January 24, 1994, Alfred Briggs sent George Briggs a letter agreeing to the sixty day extension period, which was to expire on February 14, 1994, and informed George Briggs of changes in the terms of the proposed transaction with Sylvestri. Proof of Sylvestri’s offer was not included with the letter. George Briggs made no further inquiries regarding the property and failed to exercise his right to purchase the property prior to February 14, 1994.

On March 4, 1994, Alfred Briggs conveyed his one-quarter interest to Sylvestri. On that same day, DeBolt conveyed her interest to Sylvestri. She had not previously notified George Briggs of Sylvestri’s offer to purchase her interest in the property. On March 7 and March 17, 1994, George Briggs’ attorney notified Alfred Briggs that George Briggs remained interested in purchasing the property and that he believed his rights under the lease were still viable. On March 21, 1994, Alfred Briggs’ attorney notified George Briggs’ attorney by letter that the time during which George Briggs was permitted to exercise his option had expired on February 14, 1994, and that the letter constituted written notice of the rejection of George Briggs’ untimely attempt to purchase the property.

Elizabeth Briggs then conveyed her one-quarter interest to Sylvestri on May 3, 1994. Each of the one-quarter interests was conveyed by a separate deed, and all three were recorded in the Greenwich land records on May 6, 1994. On the same day, George Briggs learned that Sylvestri had purchased the three one-quarter interests in the property.

On July 15, 1994, George Briggs initiated this action asking the trial court to set aside all three conveyances to Sylvestri. Sylvestri counterclaimed, requesting, inter alia, that the court issue a declaratory judgment quieting title to the property.

The trial court held that George Briggs’ father clearly intended George Briggs to have a right to first refuse to buy the property and that during the settlement of the father’s estate that right was affirmed. The court then held that George Briggs defaulted by not exercising his right of first refusal by at least matching Sylvestri’s offer before February 14, 1994. To this extent, the trial court concluded that George Briggs had waived his option to purchase the interests formerly owned by Alfred Briggs and Elizabeth Briggs, and that George Briggs had had no right to review Sylvestri’s offer before making an offer of his own. The trial court therefore concluded that both Alfred Briggs’ and Elizabeth Briggs’ conveyances to Sylvestri were valid.

The trial court next found that because DeBolt did not furnish George Briggs with the right of first refusal as to her one-quarter interest prior to selling it to Sylvestri, she failed to honor an obligation owed to George Briggs. Without notice of DeBolt’s proposed sale to Sylvestri, the trial court concluded, George Briggs was under no obligation to DeBolt to tender performance or to demonstrate that he was ready, willing and able to purchase her interest. Consequently, the court ordered specific performance and canceled the sale between DeBolt and Sylvestri.

In doing so, the court held that it “may award specific performance where, as here, the lease containing the right of first refusal was recorded, and the subsequent purchaser was aware of that right, constructively and actually, when he bought the property. The deed lists [George Briggs’] right of first refusal as [an encumbrance] subject to which . . . DeBolt’s interest was devised. As the subsequent purchaser with such knowledge . . . Sylvestri took the property subject to [George Briggs’] right of first refusal.”

In addition to canceling DeBolt’s sale to Sylvestri, the court directed DeBolt immediately to offer George Briggs the opportunity to purchase her one-quarter interest in the property. The trial court found Sylvestri’s claims to be without merit and concluded that its decision quieted title to the property. Sylvestri filed a motion for articulation, to which the trial court responded. Both George Briggs and Sylvestri appeal from the trial court’s decision. We affirm the trial court’s judgment as to both appeals.

I

George Briggs claims that the trial court improperly held that he was not entitled to receive proof of Sylvestri’s offer prior to being obligated to exercise his right of first refusal. He claims that there is no controlling Connecticut case law pertaining to this issue and that it would be illogical to require a holder of such a right to match an offer that has not been proven to be legitimate. George Briggs asserts that such a requirement would unreasonably force the holder either to act on the seller’s statement or to lose his right of first refusal. We are not persuaded.

Connecticut case law holds that “a right of first refusal . . . [is] conditioned on the occurrence of two events: [the property owner’s] desire to sell the property, and [his] receipt of an acceptable offer from a bona fide purchaser.” Smith v. Hevro Realty Corp., 199 Conn. 330, 335, 507 A.2d 980 (1986).This right merely requires the property owner, “before it [sells] the [property] to some third party, to offer it to [the holder of the right] on the same terms it [is] willing to accept from the third party.” Id., 336. A letter of notice to the holder, which sets out the terms of the proposed transaction, is all that is required. See id.

Smith does not require that the property owner provide the holder with proof of a third party’s offer. It merely requires the owner to be in possession of an acceptable offer from a bona fide purchaser and that the owner notify the holder of that offer and then tender the property to the holder on the same terms. In this case, it remains undisputed that Alfred Briggs notified George Briggs in writing of Sylvestri’s status as a third party purchaser and of the terms of Sylvestri’s offer. The trial court found this letter sufficient to provide George Briggs with the parameters necessary for him to decide whether to exercise his right of first refusal. George Briggs, however, failed to take any action before February 14, 1994. The trial court properly concluded that George Briggs waived his right to purchase Alfred Briggs’ and Elizabeth Briggs’ respective one-quarter interests in the property.

II

On appeal, Sylvestri claims that for specific performance properly to be ordered, George Briggs was required to prove that, at all times, he was ready, willing and able to purchase the property. See Allen v. Nissley, 184 Conn. 539, 542, 440 A.2d 231 (1981). Sylvestri asserts that George Briggs failed to offer proof of his financial ability to purchase DeBolt’s interest and that the trial court’s conclusion to the contrary was erroneous.

“The granting of specific performance of a contract to sell land is a remedy which rests in the broad discretion of the trial court depending on all of the facts and circumstances when viewed in light of the settled principles of equity. . . . That being so, there can be no established rules and fixed principles laid down for its application . . . .” (Emphasis in original; internal quotation marks omitted.) Natural Harmony, Inc. v. Normand, 211 Conn. 145, 149-50, 558 A.2d 231 (1989).

In this case, the trial court made a specific finding that George Briggs had, in fact, the “financial wherewithal to purchase the one-quarter interest by way of cash or through a combination of cash and mortgaging.” See footnote 7. The court further concluded that George Briggs met his burden of proof that he was ready, willing and able to purchase DeBolt’s one-quarter interest in the property.

“This court has proclaimed repeatedly that it is not within our province to retry facts. ... A factual ruling of a trial court will not be disturbed unless it is clearly erroneous.” (Citations omitted.) Natural Harmony, Inc. v. Normand, supra, 211 Conn. 150.

Sylvestri’s claims on appeal are “challenges that are inextricably connected to the factual findings made by the trial court. . . . The discretionary equitable ruling of the trial court is legally and logically sound.” Id., 150-51. The trial court properly canceled the transaction between DeBolt and Sylvestri.

The judgments are affirmed.

In this opinion the other judges concurred.

       Rocco Sylvestri died on March 23,1997, prior to the filing of this appeal. The executors of his estate, Scott Sylvestri and Virginia Y. Sylvestri (Sylvestri), are defendants for the purposes of this appeal.

       Sylvestri asserts five claims on appeal. Although the language differs in each claim, the allegations are virtually the same, namely that the trial court improperly awarded George Briggs specific performance because George Briggs failed to prove that he was ready, willing and able to perform under the contract at all times.
      Sylvestri specifically claims that the trial court improperly (1) granted George Briggs specific performance as to his right of first refusal when he failed to show that he was ready, willing and able to perform the contract at all times; (2) held that George Briggs was not obligated to prove that he was ready, willing and able to perform because DeBolt breached the notice requirements of the contract; (3) held that George Briggs was not obligated to prove the essential elements of his claim for specific performance because Sylvestri took the property subject to notice of George Briggs’ right of first refusal; (4) determined that there was sufficient evidence to support the conclusion that George Briggs was able to perform at the time of the contract; and (5) granted specific performance of a right of first refusal when it failed to determine if George Briggs proved he was ready, willing and able to perform at the time of trial.
      With respect to the second claim, the trial court’s response to the motion for articulation filed by Sylvestri clearly states that the trial court’s findings did not obviate George Briggs’ obligation to prove that he was ready, willing and able to perform under the contract. See footnote 7.

       The relevant language of the lease is as follows: “Witnesseth: that the landlord has leased, and does hereby lease to the said Tenant, the following described premises: One, three story building, and all that land at 403 Greenwich Avenue, Greenwich, Connecticut. . . .
      “And George P. Briggs be given first option to purchase said property if for sale in the future.”
      The trial court held, and we agree, that the aforementioned language gave George Briggs a right of first refusal that would ripen into an option to purchase after an offer to purchase has been received from a third party. See Smith v. Hevro Realty Corp., 199 Conn. 330, 335, 507 A.2d 980 (1986).

       George Briggs’ brother, Douglas Briggs, who initially held a one-quarter interest in the property, conveyed his interest to George Briggs prior to the commencement of this action. That conveyance is not at issue here and does not affect our decision.

       We presume “deed” referred to the certificate of devise issued by the Probate Court.

       The status of the title following the trial court’s decision is that George Briggs owned a one-quarter interest, Sylvestri owned a one-half interest and DeBolt owned a one-quarter interest.

       The relevant portion of the trial court’s memorandum in response to the motion for articulation provides: “The appellants have filed a motion for articulation, the specifics and the response to which are as follows:
      “1. Articulate whether or not the court found that the plaintiff offered any proof at trial that he was ready, willing and able to perform the contract for the one-quarter interest of defendant Nancy DeBolt in 403 Greenwich Avenue, Greenwich, Connecticut, as conveyed to defendant Rocco J. Sylvestri in 1994.
      “Response: The court did not make a specific finding as to whether the plaintiff was ready, willing and able to perform on the contract for the aforesaid one-quarter interest. The court found that since defendant Nancy DeBolt sold her interest in the property to defendant Rocco Sylvestri without advance notice to and without giving the plaintiff an opportunity to purchase, the plaintiff at that time was under no obligation and had no opportunity to tender performance or to demonstrate that he was ready, willing and able to purchase her interest. See Didriksen v. Havens, 136 Conn. 41, 47, 68 A.2d 163 (1949). However, the court found as credible the plaintiffs testimony that early on in the negotiations between all of the parties he gave his lawyer a check in the amount of $10,000 as a down payment. Furthermore, the court found as credible the plaintiffs testimony that he was receiving at least $2,500 per month as rent for the 403 Greenwich Avenue building and paying only $650 per month as rent therefor. These facts the court found as a sufficient basis for finding that the plaintiff had the financial wherewithal to purchase the one-quarter interest by way of cash or through a combination of cash and mortgaging.
      “2. Articulate whether or not the court found that the plaintiff, George P. Briggs, proved at trial that he was ready, willing and able to perform the contract for the one-quarter ownership interest of Nancy DeBolt as awarded in the judgment.
      “Response: See Response to Articulation No. 1.
      “3. Articulate whether the court’s finding, at page thirteen of the decision, that plaintiff had no advance notice of the sale, obviates his obligation to prove, at trial for specific performance, that he was ready, willing and able to perform, since the court’s decision is unclear as to this issue.
      “Response: No.”