text:
    Wadia Enterprises, Inc. v. Carolyne Hirschfeld et al.
    (14540)
    Peters, C. J., Borden, Berdon, Katz and F. X. Hennessy, Js.

      Argued October 28
    decision released December 22, 1992

      Robert A. Slavitt, with whom was Michael J. Lawrence, for the appellant (plaintiff).

      Michael D. Bromley, with whom, on the brief, was Burt M. Hoffman, for the appellees (defendants).
   Katz, J.

The principal issue in this case is whether the plaintiff contractor produced sufficient evidence of the defendant homeowners’ alleged bad faith so as to survive their motion for summary judgment under the Home Improvement Act (act), General Statutes § 20-418 et seq. The plaintiff appeals from the judgment of the Appellate Court affirming the decision of the trial court granting the defendants’ motion for summary judgment. We affirm.

The plaintiff, Wadia Enterprises, Inc., brought an action to recover damages against the defendants, Carolyne Hirschfeld, also known as Caroline Hirschfeld, and Robert B. Machinist, under theories of breach of contract, quasi contract and foreclosure of a mechanic’s lien. The defendants filed an answer and special defenses asserting, inter alia, that the contract violated General Statutes § 20-429 (a) (6) of the act and was therefore unenforceable. The plaintiff subsequently amended its complaint to allege that the defendants had acted in bad faith by asserting the protection of the act after attempting to enforce their rights under the contract. The defendants filed a motion for summary judgment, alleging that, by failing to contain the required notice of the right of cancellation, the contract violated the act and was therefore unenforceable as a matter of law. In opposing the motion, the plaintiff claimed that the defendants had acted in bad faith and thus could not seek the protection of the act. The trial court granted the defendants’ motion for summary judgment and the Appellate Court affirmed; Wadia Enterprises, Inc. v. Hirschfeld, 27 Conn. App. 162, 604 A.2d 1339 (1992); concluding that the plaintiff had failed to present a sufficient factual basis to raise a genuine issue of bad faith on the part of the defendants. We affirm the judgment of the Appellate Court.

The opinion of the Appellate Court discloses the following facts. On August 21,1989, the parties entered into a detailed, written contract for the renovation of and addition to the defendants’ house in Greenwich. The defendants’ architect and New York attorneys prepared the contract before presenting it to the plaintiff for execution. The contract provided that a total contract price of $599,314.80 would be payable in ten installments and that the defendants could retain five percent of each installment payment until the architect’s certification of the completion of the job. The contract further provided for substantial completion of the project 170 week days after the building permit was obtained, a liquidated damages clause of $500 per day for failure to complete the project within the time provided in the contract, supervision of the project by the defendants’ architect, and for additional work to be performed at the request of the defendants by means of “change orders.” The contract was a home improvement contract within the meaning of the act. The contract did not, however, provide the notice of the right of cancellation required by § 20-429 (a) (6) of the act. Id., 164.

The plaintiff subsequently worked on the defendants’ house pursuant to the contract and to additional change orders for an added expense of approximately $150,000 to $200,000. Between September 14, 1989, and September 5,1990, the defendants’ architect approved and the defendants paid the first nine requisitions for payment, minus the five percent retainage pursuant to the contract. On August 30, 1990, the architect approved and certified for payment the tenth and final requisition in the amount of $64,000. Of this amount, $35,676 was attributable to amounts that the defendants had retained pursuant to the five percent retainage clause. The defendants refused to pay the final installment. Instead, the defendants asserted that sums due under the contract’s $500 per day liquidated damages clause should be set off against the plaintiff’s final requisition for payment. Id.

On September 9,1990, the plaintiff filed a mechanic’s lien on the Greenwich land records, and subsequently commenced this action to foreclose that lien, and to recover damages for breach of contract and quasi contract. In their answer and special defenses, the defendants denied the existence of an outstanding balance in favor of the plaintiff, and alleged, inter alia, that the contract failed to contain the notice of the right of cancellation as required by § 20-429 (a) (6), and therefore was invalid and unenforceable against the defendants. The plaintiff subsequently amended its complaint, alleging that the defendants’ refusal to make final payment constituted a bad faith use of the act. The defendants filed an answer and special defenses to the amended complaint, substantially reiterating their prior answer and special defenses. The plaintiff filed a reply denying all of the defendants’ special defenses and asserting that the defendants, by enforcing the terms of the contract and making payments pursuant to the terms of the contract, were precluded from asserting the invalidity of the contract and, by those same actions, had waived their right to assert the invalidity of the contract. Id., 164-65.

The defendants moved for summary judgment with supporting affidavits and a memorandum of law, claiming that the underlying contract was unenforceable pursuant to § 20-429 (a) (6). The plaintiff filed affidavits and a memorandum of law in opposition to the defendants’ motion, contending that there was a genuine issue of material fact as to the defendants’ bad faith. In granting the defendants’ motion for summary judgment, the trial court stated that although bad faith on the part of the homeowner would appear to preclude the homeowner from asserting the protection of the act under Barrett Builders v. Miller, 215 Conn. 316, 328, 576 A.2d 455 (1990), the plaintiff had not provided any evidence that would raise a genuine issue relating to the bad faith of the defendants. The trial court further ruled that waiver was not applicable to this action because Barrett Builders made it clear that a homeowner does not waive the protection of the act simply by making payments and invoking certain provisions of the contract.

The Appellate Court affirmed the judgment of the trial court. Recognizing that Barrett Builders “suggested that bad faith on the part of a homeowner might preclude use of the [a]ct as a defense”; Wadia Enterprises, Inc. v. Hirschfeld, supra, 168; the Appellate Court defined the concept of bad faith as involving some element of “design or motive of interest or ill will.” Id., 169. After examination of the pleadings, the Appellate Court determined that the plaintiff had not provided any evidence that the defendants “knew of the defect in the contract and affirmatively concealed or induced the plaintiff into signing the contract so as to be in a position thereafter to utilize the [a]ct’s protection.” Id., 170. The Appellate Court concluded, therefore, that the plaintiff had failed to present a genuine issue of bad faith on the part of the defendants. The Appellate Court also concluded that “[i]n light of the clear expression of public policy establishing that the [a]ct precludes a contractor’s recovery under an unenforceable home improvement contract, the plaintiff’s claims that the defendants are not to be afforded the [a]ct’s protection because of waiver, estoppel and consent must fail.” Id., 170-71.

We granted certification limited to the following issue: “Was the Appellate Court correct in upholding the Superior Court’s finding that no genuine issue of material fact was raised by the plaintiff relating to bad faith, waiver, estoppel and/or consent on the part of the defendants?” Wadia Enterprises, Inc. v. Hirschfeld, 222 Conn. 904, 606 A.2d 1330 (1992). We conclude that the Appellate Court’s decision was correct.

I

The plaintiff first contends that the trial court improperly concluded that no genuine issue of material fact existed as to its claim that the defendants had acted in bad faith in invoking the act as a defense. We disagree.

“The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Pursuant to Practice Book § 384, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact”; (internal quotation marks omitted) Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); “it [is] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.” Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990). “The presence ... of an alleged adverse claim is not sufficient to defeat a motion for summary judgment.” Farrell v. Farrell, 182 Conn. 34, 39, 438 A.2d 415 (1980); Real Estate Auctions, Inc. v. Senie, 28 Conn. App. 563, 567, 611 A.2d 452 (1992). Moreover, “[i]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, 781, quoting Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984).

In Barrett Builders v. Miller, supra, A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 340, 576 A.2d 464 (1990), Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 350, 576 A.2d 149 (1990), and Sidney v. DeVries, 215 Conn. 350, 354, 575 A.2d 228 (1990), we stated in dictum that, in the absence of bad faith, a homeowner is privileged to repudiate a home improvement contract that violates the act. In Habetz v. Condon, 224 Conn. 231, 618 A.2d 501 (1992), decided today, we have more fully addressed the bad faith exception and held that proof of a homeowner’s bad faith will preclude that homeowner from repudiating with impunity a home improvement contract that violates the act. We defined bad faith as involving “ ‘actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive.’ ” Id., 237. In other words, “[b]ad faith means more than mere negligence; it involves a dishonest purpose.” Id.

The plaintiff claims that it has raised a factual issue as to the defendants’ bad faith attempt to use the act as both a sword and a shield to avoid final payment to the plaintiff. The plaintiff directs our attention to the following evidence that it submitted in opposition to the defendants’ motion for summary judgment: the defendants prepared the underlying defective contract through their New York attorneys and architect and then relied on the same contract as a defense to its enforcement; the defendants certified payments and retained five percent; despite certification by their agent, the defendants refused to make final payment, alleging rights in the contract they now seek to repudiate; the defendants withheld one half of the payments pursuant to the contract; the defendants forced the plaintiff to extend credit for change orders under provisions of the contract they now seek to repudiate; and the defendants enforced the delay damages clause and alleged breach of specific parts of the very contract they seek to repudiate.

None of these facts, however, indicates a dishonest purpose. The fact that the defendants had their architect and New York attorneys draft the contract does not in and of itself indicate bad faith on the part of the defendants. There is no allegation or proof that the attorneys intentionally omitted this requirement in order to have an escape hatch. At most, the New York attorneys were negligent in failing to consult Connecticut law and to include the required clause in the contract. An honest mistake does not rise to the level of bad faith. Habetz v. Condon, supra, 237; see also Funding Consultants, Inc. v. Aetna Casualty & Surety Co., 187 Conn. 637, 447 A.2d 1163 (1982); compare Grasso Paving & Landscaping, Inc. v. Five Twenty-one Corporation, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV91-120669 (July 27, 1992) (7 C.S.C.R. 844) (genuine issue of material fact as to the homeowner’s bad faith assertion of the act since the homeowner had asserted the act as a defense in another action prior to performance of the services for which the contractor was seeking compensation).

The essence of the remainder of the plaintiff’s allegations is that the defendants acted in bad faith by initially enforcing the contract and subsequently asserting the contract’s invalidity as a defense to a suit by the contractor. This contention does not, by itself, present a claim of bad faith. There is nothing dishonest or sinister about homeowners proceeding on the assumption that there is a valid contract, enforcing its provisions, and later, in defense to a suit by the contractor, upon learning that the contract is invalid, then exercising their right to repudiate it. See Caulkins v. Petrillo, 200 Conn. 713, 720, 513 A.2d 43 (1986). As noted above, the plaintiff did not allege that the defendants knew of the violation earlier, or that they purposely drafted the contract in violation of the act in order later to avoid their obligation to pay. On the contrary, the plaintiff did not even challenge the defendants’ statements in their affidavits that they had been unaware of the act prior to the commencement of this lawsuit. Farrell v. Farrell, supra, 39-40.

The plaintiff further claims that bad faith is a factual question and as such is not appropriately determined by a motion for summary judgment. The plaintiff relies on cases in which we have held that issues of motive, intent and good faith are not properly resolved on a motion for summary judgment. See, e.g., Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 376, 260 A.2d 596 (1969). We have also held, however, that even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact. See, e.g., Connell v. Colwell, supra, 251 (summary judgment granted in issue of fraudulent concealment); Dubay v. Irish, 207 Conn. 518, 534, 542 A.2d 711 (1988) (summary judgment granted in issue of wilful, wanton or reckless conduct); Multi-Service Contractors, Inc. v. Vernon, 193 Conn. 446, 452, 477 A.2d 653 (1984) (summary judgment granted on questions of good faith and wilful misconduct). In this case, the plaintiff has failed to present the necessary factual predicate to raise a genuine issue as to the defendants’ bad faith. Therefore, the Appellate Court properly affirmed the trial court’s decision to grant the defendants’ motion for summary judgment as to the plaintiff’s claim of bad faith.

II

The plaintiff next claims that the defendants impliedly consented to the work performed and thus cannot now assert the protection of the act. We disagree.

The legal significance of the plaintiffs argument appears to be that by impliedly consenting to the work performed by the plaintiff, the defendants formed an implied-in-fact contract. See Bershtein, Bershtein & Bershtein v. Nemeth, 221 Conn. 236, 242, 603 A.2d 389 (1992). We explicitly addressed this issue in Liljedahl Bros., Inc. v. Grigsby, supra, 350, and concluded that the act does not permit a home improvement contractor to recover under a theory of implied-in-fact contract when the contract violates the provisions of the act. See also Caulkins v. Petrillo, supra, and the Barrett Builders line of cases (implicit that the homeowner consented by conduct to the contractor’s work, yet not precluded from asserting the protection of the act). The fact that a homeowner may have impliedly consented to performance by the contractor does not preclude the homeowner from asserting the protection of the act.

Ill

The plaintiff’s final claim is that the defendants impliedly waived the protection of the act by enforcing certain provisions of the contract and making payments pursuant to the contract. Specifically, the plaintiff claims that by retaining five percent of the payment due, requesting extensions of credit, and certifying payments, the defendants waived the right to raise the invalidity of the contract. We are unpersuaded.

Waiver is the intentional relinquishment of a known right. Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 629, 613 A.2d 739 (1992); Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 561, 316 A.2d 394 (1972). Waiver need not be express, “but may consist of acts or conduct from which a waiver may be implied. . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Citation omitted; internal quotation marks omitted.) Novella v. Hartford Accident & Indemnity Co., supra, 562; O'Hara v. State, 218 Conn. 628, 641, 590 A.2d 948 (1991). Assuming that implied waiver may avoid the right to rely on the statute, in order to sustain such a claim, the plaintiff would still have to make a showing that the defendants knew of their right to invalidate the contract under the act before they could waive its protection. The plaintiff has failed to establish that the defendants knew about the requirements of the act. In the absence of such proof, the defendants, as homeowners, were legally entitled to assume the validity of their contract with the plaintiff and to enforce its terms. Accordingly, the defendants did not impliedly waive the protection of the act.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 20-429 provides in pertinent part: “required contract PROVISIONS; ENFORCEABILITY. NEGATIVE OPTION PROVISIONS PROHIBITED. OWNER TO RECEIVE COPY. CONTRACTS CONSIDERED HOME solicitation sales, (a) No 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 in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. Each change in the terms and conditions of a contract shall be in writing and shall be signed by the owner and contractor.”

       See footnote 1, supra.

       The defendants also alleged the following: (1) the contract violated the Home Solicitation Sales Act, General Statutes § 42-134a et seq.; (2) the plaintiff failed to perform all of its obligations under the contract, and has performed certain obligations in a defective manner; (3) the plaintiff abandoned its contractual obligations; and (4) the quantum meruit count of the complaint fails because the existence of an express contract defeats an action of quantum meruit.

       In their second answer, the defendants also denied that the liquidated damage clause was a penalty and admitted the extension of the completion date.

       Moreover, in their answer, the defendants stated that they had relied on the act for the first time after suit had been brought. This statement was relied upon by the plaintiff at oral argument in connection with the implied waiver argument. See part III, infra, of this opinion. This undisputed fact does not contradict, but rather supports, the statements in the defendants’ affidavits denying prior knowledge of the act.

       We reserve the question, as we did in Barrett Builders v. Miller, 215 Conn. 316, 327 n.5, 328, 576 A.2d 455 (1990), of whether the homeowner can recover “a down payment or progress payments made during the performance of home improvements but prior to the discovery of the invalidity of the contract. . . . Arguably, a homeowner who has made such progress payments has impliedly consented to the work performed. The issue raised by a suit to recover partial payments differs substantially from that raised by refusal to pay sums alleged to be due on an invalid contract.”

       We conclude, without deciding the applicability of the plaintiffs equitable estoppel claim, that the plaintiff has failed to demonstrate the factual predicate necessary to sustain an action under the doctrine of equitable estoppel. “[Equitable] estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury.” (Internal quotation marks omitted.) O’Sullivan v. Bergenty, 214 Conn. 641, 648, 573 A.2d 729 (1990). Additionally, “it is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge.” (Internal quotation marks omitted.) Id., 650; Spear-Newman, Inc. v. Modern Floors Corporation, 149 Conn. 88, 91-92, 175 A.2d 565 (1961). Even if the defendants, by-drafting the contract, induced the plaintiff to believe that the contract was valid and the plaintiff relied on the validity of the contract, the plaintiff cannot show that he exercised due diligence in ascertaining the act’s requirements and yet still failed to be familiar with the provisions of the act. As a licensed home improvement contractor, he certainly had the means and the obligation to discover the requirements of a home improvement contract. “We cannot apply the doctrine of equitable estoppel in a case in which the party requesting the relief claims ignorance of the laws governing his own profession, when such ignorance of the law is the primary cause of his need for such relief.” Currie v. Marano, 13 Conn. App. 527, 532, 537 A.2d 1036, cert. denied, 207 Conn. 809, 541 A.2d 1238 (1988).


source: Caselaw Access Project

author: Berdon, J.

license: Public Domain

text:
    State of Connecticut v. Stanford L. Frye
    (14494)
    Peters, C. J., Callahan, Borden, Berdon and Norcott, Js.
    Argued September 25
    decision released December 22, 1992

      Neal Cone, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   Berdon, J.

The defendant, Stanford L. Frye, was charged with the crime of possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). After a jury verdict of guilty, the defendant was sentenced to a prison term of fifteen years. The defendant appealed from the judgment of conviction to the Appellate Court, which affirmed the judgment of the trial court. State v. Frye, 26 Conn. App. 472, 602 A.2d 601 (1992). We granted certification to review the judgment of the Appellate Court on the following issue: “Did the Appellate Court properly conclude that the defendant’s request for hybrid representation did not require a proper canvass regarding waiver of his right to counsel?” State v. Frye, 221 Conn. 917, 603 A.2d 749 (1992). We conclude that a partial waiver of the right to counsel by a defendant requires the same procedural safeguards demanded when the right to counsel is waived completely. We, therefore, reverse the judgment of the Appellate Court.

Jury selection for the defendant’s trial began on January 30, 1990. On February 1, 1990, the defendant’s appointed counsel presented to the court a notice he had received from the defendant indicating that the defendant “feels unsatisfied with my level of preparation and knowledge about the case and the investigation that was done, and he indicates that he would like me to be replaced as his attorney. He also indicates he would like the right to personally cross-examine all witnesses himself.” When the trial court expressed confusion as to whether the defendant wanted to act as his own counsel, the defendant replied: “My position concerning my trial at this point as it was in the beginning [is] that I would like to represent myself concerning this matter and exercise myself to examine witnesses; cross-examine witnesses. I would, however, like counsel to advise and consult, because I do plan on taking the stand and I would need counsel to question me if I do take the stand.” The court then informed the defendant that he had a constitutional right to counsel, but that he also had the right “knowingly and intelligently” to waive his right to counsel. The court indicated that if the defendant wanted court-appointed counsel, his present counsel would continue to act as such counsel. In addition, the court stated that the defendant could represent himself with advice from counsel, but specified that the defendant could not “partially [represent himself] and then expect counsel to continue on.” Finally, the court suggested that the defendant confer with counsel to determine whether he wanted to waive his right to counsel.

After a short recess, defense counsel represented that he and the defendant had decided that the defendant would cross-examine the police officers and that they would later determine who would cross-examine other witnesses and who would present final argument. The court cautioned the defendant that he would not be given any leeway during cross-examination, but would be expected to conform to the rules of evidence. The court then ruled that the defendant would be allowed to act as his own counsel, with court-appointed counsel available to advise him throughout the trial.

Both the Connecticut and the United States constitutions guarantee a criminal defendant the right to assistance of counsel. State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984) (Gethers I); State v. Gethers, 197 Conn. 369, 376, 497 A.2d 408 (1985) (Gethers II); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). A criminal defendant also has the right to appear pro se in a criminal trial, following an intelligent and voluntary waiver of the right to counsel. Gethers II, supra; see Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). “When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forego those relinquished benefits.” Faretta v. California, supra, 835.

“Hybrid representation,” sometimes described as “cocounsel” status, occurs when both the defendant and defense counsel conduct portions of the defendant’s trial. Gethers II, supra, 383. This court has held that although a defendant does not have a right to hybrid representation under either the Connecticut or the United States constitution; id., 382-84; a trial court may exercise its discretion to allow such representation. See id., 382-94. Moreover, Practice Book § 964 specifies that a defendant who represents himself may request the assistance of standby counsel, but “[s]uch counsel shall not interfere with the defendant’s presentation of the case and may give advice only upon request.” As a result, a variety of representational arrangements between a defendant and standby counsel can arise. The principal issue on appeal, then, is where to draw the line within the spectrum of professional representation and self-representation that will trigger the need for a full canvass of the defendant to obtain an effective waiver of the right to counsel.

The defendant maintains that a waiver canvass was required in this case because he could not fully appreciate or anticipate the risks that are inherent in a hybrid representation. The state counters, as the Appellate Court held, that the trial court did not have to undertake a waiver canvass because, according to the state’s brief, “[t]he defendant never waived his right to counsel but readily accepted his participation.” We are not persuaded. Although the defendant did accept appointed counsel’s assistance, the defendant, himself, directed and presented key portions of his defense. For instance, the defendant both cross-examined the police officers who testified for the state and presented final argument to the jury. By conducting these activities himself, the defendant necessarily waived his right to have them performed by counsel.

Appellate courts have used two prevalent modes of analysis, the “dominant role” mode and the “core functions” mode, to determine when a trial court must conduct a waiver canvass following a request for hybrid representation. The defendant argues that under either mode of analysis the trial court was required to obtain a valid waiver in this case. Under “dominant role” analysis, a waiver canvass is required when a defendant assumes responsibility for the case. By taking charge, “the defendant has forfeited the right to have an attorney make the critical strategic and tactical decisions pertaining to the defense, and has thus waived the right to counsel. In such a situation, the record must show that a defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.” (Internal quotation marks omitted.) People v. Jones, 53 Cal. 3d 1115, 1142, 811 P.2d 757, 282 Cal. Rptr. 465 (1991), cert. denied, U.S. , 112 S. Ct. 1491, 117 L. Ed. 2d 631 (1992). If counsel retains control over the case, a defendant has not waived the right to counsel, and the trial court need not canvass a defendant to obtain a knowing and intelligent waiver of the right to counsel. Id. Under the “core functions” mode of analysis, a valid waiver of the right to counsel must be obtained when a defendant performs core functions that he has a constitutional right to have his attorney perform. United States v. Kimmel, 672 F.2d 720, 721 (9th Cir. 1982).

We decline to adopt either the “dominant role” or the “core functions” model for determining when a waiver canvass is required in cases of hybrid representation. Both of these tests are difficult to apply because they focus on the functions actually assumed by a defendant during trial. When conducting the waiver canvass, the trial court may not be able to predict what role a defendant will play in the defense. See Parren v. State, 309 Md. 260, 269, 523 A.2d 597 (1987) (only after trial can the trial court ascertain whether a defendant enjoyed representation by counsel, self-representation or hybrid representation). The trial court, therefore, cannot effectively apply either test to determine whether an intelligent and voluntary waiver of the right to counsel is required until after the fact.

In Maynard v. Meachum, 545 F.2d 273, 277 (1st Cir. 1976), the court noted: “We can conceive of no reason why the standard for waiving part of a constitutional right should be different from the standard for waiver of the entire right.” We agree and hold that when a defendant requests a partial waiver of the right to counsel, the court must employ the same procedural safeguards that are required to ensure a knowing and intelligent waiver of the entire right to counsel. A waiver canvass is required in such situations because “whatever label is attached to [the representation arrangement], the net result [is that a defendant] had less than the full representation by counsel to which, absent a valid waiver, he was entitled under the [constitution].” Id. Such a bright line rule should eliminate guesswork and confusion on the part of the trial courts and elicit a standard response whenever a defendant indicates that he or she wishes to conduct some aspect of the defense pro se.

Requiring a waiver canvass ensures that a defendant is “aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.” (Internal quotation marks omitted.)Faretta v. California, supra, 835. The pitfalls of self-representation await defendants who choose to play a role in their defense, whether they represent themselves without any assistance from counsel, participate extensively in presenting their defense, or play a limited role in their defense. See United States v. Kimmel, supra, 721 (the accused will often undermine his own defense by assuming functions traditionally performed by a lawyer).

Having determined that the trial court was required to conduct a waiver canvass, we must inquire whether the trial court in the present case directed an adequate inquiry to determine whether the defendant made a knowing and intelligent waiver of his right to counsel. The trial court must “take special care to advise the defendant as to the pitfalls of self-representation.” 2 W. LaFave & J. Israel, Criminal Procedure (1984) § 11.5 (c), p. 45. Waiver of the right to counsel will not be presumed or inferred from a silent reeord. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Whether there has been an intelligent waiver of the right to counsel depends upon the particular facts and circumstances surrounding each case. Id. The state bears the burden of proving that the right to counsel was knowingly and intelligently waived. Sawicki v. Johnson, 475 F.2d 183, 185 (6th Cir. 1973).

Practice Book § 961 affirms the accused’s right to waive assistance of counsel and establishes minimum criteria for determining whether a waiver is knowing and intelligent. Section 961 provides: “A defendant shall be permitted to waive his right to counsel and shall be permitted to represent himself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant: (1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled; (2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent himself; (3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and (4) Has been made aware of the dangers and disadvantages of self-representation.”

In the present case, the court merely informed the defendant of his right to counsel, ascertained that he had the intelligence to comprehend the magnitude of his choice to represent himself, and gave him a cursory warning about the difficulties of self-representation. At issue are the remaining criteria in § 961, which go to the heart of the requirement that a waiver be knowing and intelligent. Although a defendant “need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation,” a defendant must be aware of the nature and complexity of the charges he faces so that he can make an intelligent choice between professional representation and self-representation. Gethers II, supra, 376. We conclude that the inquiry in the present case was insufficient to obtain an intelligent waiver of the right to counsel because the defendant was not apprised of the complexity involved in defending himself against the crime charged.

The defendant was charged with possession of cocaine by a person who is not drug-dependent pursuant to General Statutes § 21a-278 (b). As the defendant noted in his brief, determining whether to present evidence of drug dependency is a complex issue. Certainly, the trial court was not obligated to point out in painful detail the legal arguments subsumed within this strategic decision. Nevertheless, the trial court must fulfill its duty to explain the problems of self-representation to a person not trained in the law. This standard was not met in this case.

Although a trial court may generally presume that defense counsel has explained to a defendant the nature of the offense; Gethers I, supra, 537; the record in this case indicates that the defendant felt “unsatisfied with [his attorney’s] level of preparation and knowledge about the case.” Moreover, the defendant informed the court that “I haven’t talked to [the appointed attorney] no more than 20 minutes at the most.” These factors required the court to delve more deeply into the question of whether the defendant had sufficient understanding of the nature and complexity of the charges against him to have the capacity to make an intelligent waiver of his right to counsel. Here, the trial court failed to warn the defendant of the difficult task before him. We conclude that the defendant was not made aware of the dangers of self-representation in this particular case and was, therefore, unable to make a knowing and intelligent partial waiver of the right to counsel.

“The right to counsel is so basic that its violation mandates reversal even if no particular prejudice is shown and even if there is overwhelming evidence of guilt.” State v. Varricchio, 10 Conn. App. 265, 270, 522 A.2d 843 (1987); see also United States v. Decoster, 624 F.2d 196, 201 (D.C. Cir. 1979). Accordingly, the trial court’s failure to conduct an adequate canvass to ensure that the defendant’s partial waiver of the right to counsel was made knowingly and intelligently requires that the defendant be granted a new trial.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for a new trial.

In this opinion the other justices concurred.

       General Statutes § 21a-278 (b) provides in pertinent part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years.”

       We also certified a second issue: “Did the Appellate Court properly conclude that the defendant’s exception to the trial court’s jury instructions, regarding the absence of a limiting instruction on the defendant’s criminal record, was inadequate to preserve that issue for appeal?” State v. Frye, 221 Conn. 917, 603 A.2d 749 (1992). Because we reverse and remand to the trial court for a new trial on the basis of the first issue, we need not reach the second issue.

       The defendant discussed in his brief the following difficulties in choosing whether to present evidence of drug dependency: (1) A jury exposed to evidence of drug dependency is not likely to entertain a reasonable doubt as to simple possession; and (2) evidence of drug dependency may bolster a claim that the defendant had a motive to sell drugs, thus helping to secure conviction under General Statutes § 21a-277; however, (3) failure to put on any evidence of drug dependency is to risk conviction for General Statutes § 21a-278 (b)—possession by a person who is not drug-dependent.