author: L. Dorsey, J.

text:
    Sandra Shapiro v. City of Hartford
    (2602)
    Dupont, C.P.J., Spallone and L. Doesey, Js.
    Argued March 29
    decision released June 25, 1985

      Ronald E. Cassidento, for the appellant (plaintiff).

      Christine E. Keller, assistant corporation counsel, with whom, on the brief, were James J. Szerejko, assistant corporation counsel, and Richard H. Goldstein, corporation counsel, for the appellee (defendant).
   L. Dorsey, J.

This appeal arose from an action to recover damages for personal injuries arising out of an alleged defective condition on a public highway. The trial court granted the defendant’s motion for a directed verdict and denied the plaintiff’s motion to set aside the directed verdict. The plaintiff has appealed, claiming error in the court’s rulings on those motions.

It is agreed that the underlying notice given in this case, pursuant to General Statutes § 13a-149, was sufficient in all respects, save one. The actual date of the accident was June 9, 1979, but the statutory notice erroneously stated the date as June 16,1979. The complaint correctly stated the date.

Although the defendant, by a motion to revise, dated June 11, 1980, requested a clarification of the discrepancy between the date of the accident as stated in the notice and that alleged in the complaint, it never filed either a motion to strike or a motion to dismiss.

The matter was tried to a jury and, upon the close of the plaintiff’s case and in response to the defendant’s motion, the court directed a defendant’s verdict, reasoning that the notice was a condition precedent to the right of the plaintiff to maintain her action, that the particular date of the accident was essential to her cause of action, and that the savings clause of § 13a-149, having not been pleaded, was not applicable.

This is a statutory action pursuant to § 13a-149 of the General Statutes, not available to the plaintiff under the common law. Compliance with this statute is a condition precedent to the action itself. Hillier v. East Hartford, 167 Conn. 100, 104, 355 A.2d 1 (1974). In order to recover against a municipality pursuant to this statute, a plaintiff must prove, by a fair preponderance of the evidence, (1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence. Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981).

Unless a complaint issues within ninety days of the occurrence giving rise to the action, a party must serve written notice concerning the incident upon the municipality within that period to preserve the cause of action. The statute requires that the notice contain a general description of the injury, and of the cause thereof and of the time and place of its occurrence.

Whether a notice was intended to be or was misleading are questions of fact and are therefore to be determined by the jury and not by the court. Sizer v. Waterbury, 113 Conn. 145, 155, 154 A. 639 (1931); see also Christion v. Waterbury, 123 Conn. 152, 193 A. 602 (1937).

The notice, having appeared as an attachment to the complaint, was sufficiently pleaded to allow the plaintiff, not only to prove its validity, but also to prove that the apparent inaccuracy as to the date was not intended to mislead or that the town was, in fact, not misled.

In this case, the plaintiff conceded at oral argument in this court that no evidence was introduced during the trial to prove the elements of the savings clause of General Statutes § 13a-149. Since no evidence was introduced, there was no question of fact for the jury to decide. In the absence of such evidence, the jury could not conclude that there was or was not an intention to mislead, or that the defendant was or was not in fact misled by the inaccuracy of the time of the accident as alleged in the notice. It was, therefore, proper for the trial court to direct a verdict for the defendant.

This court, therefore, concurs with the result reached by the trial court, and affirms the judgment on related but different grounds. W. J. Megin, Inc. v. State, 181 Conn. 47, 54, 434 A.2d 306 (1980); State v. Assuntino, 180 Conn. 345, 352-53, 429 A.2d 900 (1980).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 13a-149 provides in pertinent part: “No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    Helen Huybrechts v. Francois Huybrechts
    (3216)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued April 10
    decision released June 25, 1985

      Zbigniew S. Rozbicki, for the appellant (plaintiff).

      Geoffrey Naab, for the appellee (defendant garnishee Travelers Insurance Company).
   Hull, J.

The plaintiff appeals from a judgment of the trial court pursuant to the Post-Judgment Remedies Act, Public Acts 1983, No. 83-581, § 11 (now General Statutes § 52-356c). The court held that Travelers Insurance Company, as garnishee, was not liable to the plaintiff in the amount of a debt which it owed to the defendant and upon which it had issued and paid a check. We find error.

On November 25,1980, the trial court dissolved the marriage of the parties and made several financial orders pursuant to which the defendant was obligated to pay certain sums to the plaintiff. These sums were never paid and thus, on March 24,1981, the plaintiff’s application to garnish Travelers’ debt, in the amount of $30,000, to the defendant was granted by the court. On March 17, 1981, seven days prior to the granting of the plaintiff’s application, Travelers had issued a check, drawn upon the Connecticut Bank and Trust Company (CBT), for the full amount due to the defendant. That check was delivered to the defendant’s attorney on March 19,1981. Subsequently, it was delivered to the defendant who endorsed, and deposited it for collection in a Texas bank on March 23,1981, the day prior to the garnishment of the debt. On March 25, 1981, CBT received and paid the check.

The plaintiff instituted the present action against the defendant on the underlying financial obligation, and against Travelers, as garnishee, claiming that the debt was still owed to the defendant when it received the notice of garnishment and that it, therefore, improperly released the $30,000 to the defendant.

The trial court rendered judgment for the plaintiff against the named defendant in the amount of $61,982.47. The court concluded, however, that because the defendant was no longer a “holder” of the check within the terms of Article 3 of the Uniform Commercial Code; General Statutes §§ 42a-3-101 through 42a-3-805; the debt was beyond garnishment. The court, therefore, rendered judgment for Travelers on the plaintiff’s postjudgment claim against it. The plaintiff, thereafter, filed the present appeal, raising the sole issue of whether the court erred in its conclusion that Travelers was not liable to the plaintiff under the terms of the notice of garnishment.

The trial court’s judgment would elevate the form of payment over the substance of the underlying debt. Connecticut has long recognized that “a debt, for which a check or draft is outstanding, is subject to garnishment . . . .” Kossover v. Willimantic Trust Co., 122 Conn. 166, 170, 187 A. 907 (1936). Thus, it is not the check, but the debt itself which is garnished.

The fact that a check has been issued, does not extinguish the debt: “[T]he giving of a draft by a debtor to his creditor does not discharge the debt itself until the draft is paid, it being a means adopted to enable the creditor to obtain payment of the debt and remaining, until honored or paid, but evidence of the indebtedness . . . . ” (Emphasis added.) Id., 168; see also Sperandeo v. Aetna Casualty & Surety Co., 131 Conn. 407, 410, 40 A.2d 280 (1944). Thus, in the present case, since the notice of garnishment was received prior to payment of the check by Travelers, the proceeds of the debt were still in its hands, and were subject to garnishment pursuant to General Statutes § 52-329.

As the court in Kossover conceded, this rule makes it necessary for the garnishee to take precautions if it wishes to avoid duplicate liability on the check and the garnished debt itself. Kossover v. Willimantic Trust Co., supra, 171. Professor Stephenson, in his treatise, states: “If the garnishment became effective subsequent to issuance of a check in payment but prior to presentment of the check, it is incumbent upon the garnishee to stop payment.” Stephenson, Conn. Civ. Proc. § 69. We add to that statement the caveat that the garnishee need not stop payment, but if it does not do so, its obligation under the garnishment will remain enforceable.

Although there may be occasions in which there is insufficient time to stop payment on a check; see General Statutes § 42a-4-403 (1) (bank not obligated to stop payment unless order to do so affords “reasonable opportunity to act”); that claim was not made in the present case. We decline, therefore, to decide the consequences of such a claim.

Stopping payment, however, is not the garnishee’s only option. The general rule that a check or draft does not discharge the debt until it is honored or paid, may be displaced where an agreement to the contrary is shown. Sperandeo v. Aetna Casualty & Surety Co., 131 Conn. 407, 410, 40 A.2d 280 (1944); Kossover v. Willimantic Trust Co., supra, 171.

The trial court based its judgment on the fact that the above-cited rule was formulated prior to Connecticut’s adoption of the Uniform Commercial Code. We conclude that the Uniform Commercial Code is not applicable to the question of the validity of the garnishment in this case. Reliance on Article 3 of the Uniform Commercial Code is misplaced, for that part of the Code would deal, in general, with the bank’s obligations regarding the check. The present case, on the other hand, deals with the underlying debt which Travelers became obligated to pay.

There is error, the judgment is set aside and the case is remanded with direction to render judgment as on file except that judgment should be rendered for the plaintiff as against the garnishee, Travelers Insurance Company, in the amount of $30,000.

In this opinion the other judges concurred.

       That debt, otherwise irrelevant to this case, arose out of the defendant’s release of all claims which he had against Travelers’ insured, the Symphony Society of San Antonio, regarding breach of contract.
      Travelers argued, at the trial level and before this court, that it owed no debt to the defendant. Rather, it claimed that its obligation was to its insured and that the defendant had no cause of action against Travelers itself. Since the trial court held that “the requisite debtor creditor relationship can be said to have existed,” the Travelers cannot dispute that conclusion in the absence of a preliminary statement of issues as required by Practice Book § 3012 (a). Thus, we decline to disturb that conclusion of the trial court.


author: Borden, J.

text:
    Louise W. Stearns v. Arthur B. Stearns
    (2810)
    Hull, Borden and Daly, Js.
    Argued April 12
    decision released June 25, 1985

      Thomas W. Mochnick, with whom was F. Timothy McNamara, for the appellant (defendant).

      William C. Kroll, for the appellee (plaintiff).
   Borden, J.

The defendant in this marital dissolution case appeals from the awards of alimony and support incident to the judgment of dissolution. We find no error.

The trial court found the following facts: The parties were married in 1949. During their thirty-four years of marriage, they had eight children, one of whom is still a minor. While both parties agree that the marriage had broken down irretrievably, the defendant was more at fault. He had had an extramarital affair with another woman for the last three years of his marriage to the plaintiff, had fathered a child with the other woman, had purchased a house for the woman and baby to live in from assets owned jointly with the plaintiff, and had denied having such an affair to his wife for three years, admitting it only when the other woman was seven months pregnant.

The court further found that the plaintiff had a high school education and had been a wife and mother for most of her married life. She had been a typist before her oldest child was born. During the latter years of the marriage, she worked part-time at the defendant’s dairy doing clerical work. At the time of the dissolution, she was employed as a cashier, with a net income of $78 per week. She owned a one-half interest with the defendant in the marital home, valued at $100,000, in a 1978 automobile, valued at $2500, in an affiliated mutual fund, valued at $15,000, and in fifty shares of Travelers Insurance Company stock, valued at $1500. She had no other assets except for household furnishings.

The defendant was a dairy farmer who worked on the family-run dairy farm which was originally started by his grandfather. In January, 1952, three years after the parties were married, a partnership was formed by Willard J. Stearns, the defendant’s father, and his sons, including the defendant, to rim the business. In 1978, a corporation encompassing the partnership known as Willard J. Stearns & Sons was formed. The defendant owned 503 shares of this corporation, his brother, 503 shares, and his father, 506 shares. Two of the defendant’s sons own 30 to 35 shares each and two of the defendant’s brother’s sons own 30 to 35 shares each. The defendant, therefore, owns approximately 30 percent of the stock.

The court chose not to believe the defendant’s total valuation of his shares of stock at $100,000, or less than $200 per share. It found that based on all the evidence presented the stock was worth, at the very least, $1000 per share. The evidence considered by the court on this issue included the following: The corporation’s tax returns showed net profits between 1978 and 1982 in the range from $71,000 to $135,000. One of the defendant’s brothers, who had a 25% interest in the corporation, sold his interest in 1970 for $140,000. The sales from the dairy corporation had risen from $1.1 million in 1978 to $1.5 million in 1982. The land and buildings had been appraised by the defendant’s appraiser in 1978 for $1,071,000. Three buildings, costing $150,000, had since been built on the property. A1982 buy-sell agreement signed by the defendant listed the stock’s worth at $1000 per share. The plaintiffs accountant appraised the corporation in 1983, using the 1978 appraisal of $1,071,000 for the land and buildings. His appraisal of the total fair market value of the corporation was $2,467,073.22, arrived at by taking the net assets of the corporation, excluding good will, calculated at $1,896,379.77, and adding in the good will of the business, calculated at $570,693.45.

The court also chose not to accept the defendant’s claim that his income from the dairy business was only about $18,000. The court stated that, “[although this may be so, the court does not believe that it has to be so.” The court believed that the statement of the plaintiff’s appraiser in his 1983 appraisal that “[t]he average salary for the three officers [of the corporation] was $16,083.33 for the year ended June 30,1982. This amount was very low considering the corporation had sales in excess of 1.5 million dollars for the year ended June 30,1982.” The defendant’s sons earn $30,000 per year from the dairy* business. His 1978 income tax return shows that for 1978 alone, his income from the farm was $48,000. The court found that the evidence indicated that the defendant and other officers are taking less money from the business as income so that the corporation can buy more assets and increase the value df the business.

The court also found that the defendant owned a one half interest in a real estate partnership with his brother, valued at $80,000. The partnership had rental income of $990 per month, plus income from the sale of wood and from the dairy farm for the use of 100 acres owned by the partnership. The defendant nets $46 per week from the partnership. The court made additional findings about the defendant’s financial status which are undisputed.

The court rendered a judgment of dissolution, which provided, in part, that the defendant transfer to the plaintiff all his right, title and interest in the marital home, the 1978 automobile, the affiliated mutual fund and the 50 shares of Travelers Insurance Company stock; that the defendant pay, as unallocated alimony and support, $1500 per month until the minor child of the marriage reaches age eighteen, at which time he shall pay $1000 per month as periodic alimony; that the defendant pay $175,000 as lump sum alimony, to be paid at the rate of $17,500 per year for ten years; and that the defendant pay $10,000 of the plaintiff’s counsel fees. On appeal, the defendant makes two principal claims: (1) that the trial court erred in the methodology it used to arrive at the value of the stock and in valuing the stock at $1000 per share; and (2) that the trial court erred in requiring the defendant to pay $1500 per month as unallocated alimony and support.

The defendant’s first claim is couched in terms suggesting that the court misapplied the law in this case, but the claim actually boils down to the defendant’s disagreement with the court’s evaluation of the credibility of the witnesses and the weight to be given certain evidence. It should be reiterated that the weight to be given the evidence and the credibility of the witnesses are within the sole province of the trial court. Vaiuso v. Vaiuso, 2 Conn. App. 141, 146, 477 A.2d 678, cert. denied, 194 Conn. 807, 482 A.2d 712 (1984). The trial court has the “ ‘unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us.’ ” Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984), quoting Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). With this standard of review in mind, we cannot say, as the defendant would have us do, that the trial court’s valuation was clearly erroneous because it relied on the testimony of the plaintiff’s appraiser and accountant. Turgeon v. Turgeon, 190 Conn. 269, 275-76, 460 A.2d 1260 (1983).

The defendant’s additional argument in this regard, challenging the court’s reliance on the buy-sell agreement and the value of the defendant’s brother’s interest in the business a few years before it was incorporated, is also without merit. The court was entitled to consider these as elements tending to establish value and factor them into its analysis of the value of the corporate stock. Fair market value is the price that would probably result from fair negotiations between a willing seller and a willing buyer. Turgeon v. Turgeon, supra, 275. Since this was a closely held, family run business, it is reasonable for the court to have inferred that any actual willing buyers were likely to be the corporation or other family members who were stockholders. The buy-sell agreement appears to place a fair and considered purchase price on the stock. The court, therefore, properly used it to aid in its determination of the current fair market value of the stock. Similarly, the transfer of a one quarter interest in the business in 1970 for $140,000 could be used as an indication of the value which the other family members, individually or through the corporation, might place on the defendant’s stock. It was, therefore, appropriately relied upon in the court’s determination.

The defendant’s claim that the court’s valuation was improper, therefore, must fail. The question of fair market value is a question of fact and must stand unless found to be clearly erroneous. Turgeon v. Turgeon, supra, 275-76. “It is generally recognized that closely held corporate stock cannot be valued reasonably by the application of any inflexible formula.” Id., 276. “In assessing the value of . . . property . . . the trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation. Esposito v. Commissioner of Transporation, 167 Conn. 439, 441, 356 A.2d 175 [1945]; Textron, Inc. v. Wood, 167 Conn. 334, 345, 355 A.2d 307 [1974]. The trial court has the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as he finds applicable; his determination is reviewable only if he misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was his duty to regard.” Turgeon v. Turgeon, supra, 294. The trial court specified that “[b]ased on all the evidence presented, the court believes that the defendant’s stock is worth, at the very least, $1,000 per share.” The opinions of the appraiser, the accountant and the defendant were taken into account, as well as other items in evidence tending to show the stock’s value. The court restated the general formulation used by the accountant to determine market value; it was not misapplied. Nor did the court overlook or disregard any other test which it was required to consider. There is no contention that the method used by the accountant was not a “recognized appraisal method.”

The court properly weighed all the evidence before it. Despite the defendant’s effort to transform this claim of an abuse of discretion in a marital dissolution case into a complex corporate valuation case, we find it is the former. There was ample evidence to support the court’s valuation of $1000 per share and its assessment was not clearly erroneous or an abuse of discretion.

The defendant’s second claim, that the court’s award of unallocated alimony and support was erroneous, stands on three bases, none of which has merit. First, the facts of this case indicate that it was appropriate for the court to base its award for alimony and child support on the earning capacity of the defendant rather than the actual earned income; Miller v. Miller, 181 Conn. 610, 611-12, 436 A.2d 279 (1980); Schmidt v. Schmidt, 180 Conn. 184, 189-90, 429 A.2d 470 (1980); and the court did not err in so doing. Second, the court did not find that the defendant, a minority shareholder in the corporation, could unilaterally increase his earnings from the corporation; the defendant mischaracterizes the court’s findings by stating that it did so. Third, the admission of the accountant’s 1983 appraisal report was not excepted to, and the defendant cannot challenge its admissibility on appeal. State v. Jackson, 3 Conn. App. 132, 134-35, 485 A.2d 934 (1985).

There is no error.

In this opinion the other judges concurred.

       The defendant also raised a challenge to the court’s award of counsel fees in its preliminary statement of issues, but failed to brief this issue. We, therefore, consider it abandoned. City Savings Bank of Bridgeport v. Dessoff, 3 Conn. App. 644, 646 n.3, 491 A.2d 424 (1985).

       The defendant does argue that the method used by the accountant is improper because it is not the method of valuation “expressly approved” by the Supreme Court in Turgeon v. Turgeon, 190 Conn. 269, 274, 460 A.2d 1260 (1983). This argument distorts what the court stated in Turgeon. In that case, two expert appraisers testified, one using the capitalization of income approach and one using a liquidation approach. The court stated that, under the facts of that case, it was more appropriate to use the capitalization of income approach, which had previously been approved by the court, than a liquidation approach. Id. It did not state, or even imply, that this was the only method of valuation available. Rather, the court stated that an inflexible formula could not be used to value closely held corporate stock reasonably. The trial court in the present case was correct in not requiring a certain formula be used, and in being flexible in applying the method presented in light of the other evidence presented in the case, as directed by Turgeon.

      Furthermore, unlike Turgeon, only one method of valuation was presented in this case, which was never objected to on the basis of not being a recognized method of valuation. The defendant was given ample opportunity to cross-examine the accountant and point out faults in the method used. This, however, affected only the weight of the evidence, and not the court’s ability to use it in its ultimate determination.


author: Per Curiam.

text:
    Myron L. Glanz v. James R. Testa et al.
    (2677)
    Daly, Spada and Zoarski, Js.
    Argued April 26
    decision released June 25, 1985

      Larry R. Levine, for the appellant-appellee (plaintiff).

      Eliot B. Gersten, for the appellees-appellants (defendants).
   Per Curiam.

The plaintiff was granted an ex parte prejudgment remedy to attach real property of the defendants. The defendants filed a motion to dissolve pursuant to General Statutes § 52-278e. At the hearing scheduled on the motion, the trial court refused to hear evidence because it found that the plaintiffs affidavit submitted with the ex parte prejudgment remedy application was insufficient. From the trial court’s granting of the motion to dissolve, the plaintiff has appealed and the defendants have cross appealed.

The plaintiff contends the trial court was required to hear testimony and accept evidence at the hearing on the motion to dissolve, and the question of probable cause to sustain the validity of the plaintiff’s claim is to be determined at the hearing.

Subsequent to the trial court’s decision, this court addressed the same issue and held that the affidavit need not stand alone in determining probable cause, and that “the prejudgment remedy statute can only be invoked successfully, if challenged at a hearing, by factual rather than conclusory evidence of probable cause based on the affidavit and evidence at the hearing, if any.” Self-Service Sales Corporation v. Heinz, 1 Conn. App. 188, 194, 470 A.2d 701 (1984). Even if a court erred in granting an ex parte real estate attachment because of a defective affidavit, the plaintiff may still prove probable cause at a hearing to dissolve or modify the attachment. Lengyel & Lengyel Builders, Inc. v. Hill, 1 Conn. App. 349, 351, 471 A.2d 975 (1984).

In light of the disposition of this appeal, there is no need to consider the merits of the defendants’ cross appeal.

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


author: Spada, J.

text:
    Connecticut Savings Bank v. Central Builders’ Supply Company, Inc., et al.
    (2860)
    Daly, Spada and Puktill, Js.
    Argued April 26
    decision released June 25, 1985

      James W. Shea, for the appellants (defendants).

      Joseph H. Pellegrino, for the appellee (plaintiff).
   Spada, J.

The plaintiff, Connecticut Savings Bank, a mortgage lending bank, seeks to foreclose its mortgage security against Central Builders’ Supply Company, Inc., the equity owner of a Branford shopping center, and against Norman and Sally B. Oestreicher, principal owners of Central Builders and guarantors of the mortgage note. The defendants specially pleaded that a collateral agreement between the parties precluded the plaintiff from foreclosing on its security.

The issue raised on appeal is whether the parties intended to make the mortgage note the repository of their final understanding upon the particular matter of agreement. We answer in the affirmative.

The evidence could reasonably establish the following facts. On January 31, 1973, the plaintiff loaned $450,000 to the defendants, secured by a mortgage on a North Branford shopping center. The terms of the note provided for monthly payments amortized over twenty years, “except that the entire balance unpaid on the 1st day of February, 1981, if any, shall then be payable or shall be payable at any time thereafter at the option of the holder hereof.” On December 27, 1972, the defendants accepted the terms of the plaintiff’s commitment letter which specifically set forth the terms of the loan as being “8 years, 0 months (callable at the option of the Bank).” Prior to February 1,1981, the plaintiff demanded payment of the unpaid balance. The defendants refused, charging that the plaintiff’s right to exercise its option of early payment was conditioned upon a principal tenant’s nonrenewal of its lease.

At trial, the defendants claimed that the note was not intended to contain all the terms of the parties’ agreement; that the callable option was waived upon the releasing by an anchor tenant; and that the trial court erred in refusing to vary and contradict the terms of the note.

The trial court concluded that it was not the parties’ intent to reach an agreement other than that expressed by the written words of the mortgage note, that the option was properly exercised, and that the plaintiff was entitled to proceed with its foreclosure.

The parol evidence rule is not a rule of evidence but a rule of substantive law, defining the limits of a contract in issue. The fundamental question is one of the intent of the parties. If they intended to make the writing the repository of their final understanding upon the particular matter of agreement, then such evidence must be excluded. Cohn v. Dunn, 111 Conn. 342, 346, 149 A. 851 (1930); Holden & Daly, Connecticut Evidence § 83, p. 293.

The defendants do not claim that the language of the note is either ambiguous or of doubtful import; rather, they argue that the parties did not intend to include their entire oral agreement in the note. The defendants assert that the plaintiffs option to call after eight years was a limited and conditional option. They contend that the parties collaterally agreed, either contemporaneously or subsequently, that the renewal of the anchor tenant’s lease would abrogate the right of an early call.

Exceptions to the parol evidence rule, such as the existence of a separate oral agreement, are permitted as to any matter upon which the document is silent and which is not inconsistent with its terms, if from the circumstances of the case, the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them. Douglas v. Nowakowski, 141 Conn. 438, 440, 106 A.2d 468 (1954); Holden & Daly, Connecticut Evidence § 83, p. 301.

The trial court in examining the mortgage note and commitment letter found the language unambiguous, clear and unequivocal in its intent and import. It further concluded that the parties’ entire agreement was expressed in the mortgage note. The issue in dispute, the option call, was directly addressed by the parties in both the commitment letter and the mortgage note, both documents approved and signed by the defendants. In deciding upon this intent, the principal barometer for the judge is found in the circumstances surrounding the particular element of the alleged extrinsic negotiation and whether it is dealt with at all in the writing. If it is mentioned, covered or dealt with in the writing, then presumably the writing was meant to represent all of the transactions on that element. Shelton Yacht & Cabana Club, Inc. v. Suto, 150 Conn. 251, 258, 188 A.2d 493 (1963), Holden & Daly, Connecticut Evidence § 83, p. 302. We cannot conclude that the defendants, at trial, effectively rebutted this presumption.

Testimony, although not required, was permitted by the trial court to prove the existence of an oral agreement made either contemporaneous with or subsequent to the mortgage note closing. The defendants’ contention that they were denied an opportunity at trial, because of the parol evidence rule, to substantiate an oral collateral agreement is contradicted by the record.

Upon an evaluation of the testimony and after a review of the relevant documents, the trial court concluded that the parties did not intend to reach an agreement other than that expressed by the mortgage note and deed.

The practical effect of the defendants’ appeal is to seek a trial de novo. We have repeatedly pronounced that a trial court’s decision will neither be reversed nor modified unless we determine that the decision is clearly erroneous. Practice Book § 3060D. The conclusions of the trial court cannot be set aside where they are legally and logically correct and where they find support in the facts set out in the memorandum of decision. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

There is no error.

In this opinion the other judges concurred.


author: Purtill, J.

text:
    Salem S. Shapiro v. Coney Island Restaurant et al.
    (2152)
    Daly, Spada and Purtill, Js.
    Argued April 26
    decision released June 25, 1985

      Donald F. Zezima, with whom, on the brief, was Brian Lyman-Askew, for the appellants (defendants).

      Jan A. Marcus, with whom, on the brief, was Alan R. Spirer, for the appellee (plaintiff).
   Purtill, J.

The plaintiff brought this action against the Coney Island Restaurant, an unincorporated business, and Eleftherios Begetis, an individual, for recovery of a fee for services performed under a written contract. The trial court rendered judgment for the plaintiff, and the defendants have appealed, claiming error in the trial court’s determination that the contract was supported by consideration and that the plaintiff performed his part of the contract. We find no error.

The following facts were determined by the trial court and are not in dispute. The parties entered into a written contract on February 14, 1974. Under the terms of this contract, the plaintiff, a consultant in the real estate and urban renewal field, was to provide technical consulting services to the defendants to establish their eligibility for maximum relocation benefits under the Uniform Relocation Assistance and Real Property Acquisition Act of 1970. In return for such services, it was agreed that the defendants would pay the plaintiff 20 percent of the gross revenue received from the Stamford urban renewal commission. The trial court found that the plaintiff performed his duties under the contract and that the defendants received $34,565 from the Stamford agency. This formed the basis of the trial court’s award of damages in the amount of $6913.

The defendants’ first claim of error, that the contract is not supported by consideration, is predicated on the fact that a determination of eligibility under the Uniform Act was made by the Department of Housing and Urban Development (HUD) on February 12, 1974. Since this was two days prior to the contract date of February 14, 1974, the defendants contend that the contract was based upon past consideration and therefore is invalid.

The basis of the defendants’ claim here is that the contract merely required the plaintiff to establish Coney Island’s eligibility under the act and that since HUD had made that determination prior to the contract date, the agreement was void for lack of consideration under the general rule that “past services will not constitute a sufficient consideration for an executory promise of compensation for those services.” Osborne v. Locke Steel Chain Co., 153 Conn. 527, 533, 218 A.2d 526 (1966); see also Dick v. Dick, 167 Conn. 210, 224, 355 A.2d 110 (1974).

The trial court found, however, that there were continuing problems with the Stamford urban renewal commission which required continued effort on the part of the plaintiff to ensure that the HUD determination was carried out. A review of the written contract clearly supports the position that the plaintiff had a continuing obligation and was obligated to more than merely assist with the initial determination.

The conclusion by the trial court that the contract was based upon adequate consideration must stand. The record of this case indicates that there was ample evidence to support the trial court’s conclusion of adequate consideration. It cannot be said, therefore, that that conclusion was, as a matter of law, unsupported by the record, incorrect or otherwise mistaken. Kaplan v. Kaplan, 186 Conn. 387, 392, 441 A.2d 629 (1982).

The defendants attempt to make much of an unapparent error in the memorandum of decision which recites that the contract was entered into on February 12,1974, the same day of the HUD determination. The record clearly indicates and the parties agree that the contract date was in fact February 14, 1974. In view of the conclusion by the court that the plaintiff’s contractual obligation extended past the HUD determination, the error is harmless. In cases where the trial court arrives at a correct decision but on mistaken grounds, which in this case appears to have involved a typographical error, the trial court’s action will be sustained if proper grounds exist to support it. State v. Geyer, 194 Conn. 1, 17, 480 A.2d 489 (1984); Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 509, 480 A.2d 584 (1984). The record amply supports the trial court’s ultimate conclusion that the contract was supported by adequate consideration.

The second claim raised by the defendants, that it was error for the trial court to conclude that the plaintiff performed his part of the contract, is a further attempt to relitigate the case. The trial court found that while much of the effort put forth by the plaintiff was for a group of clients located in the same quadrant as the defendants, the defendants were within the group and benefited from such efforts. As the trial court found, the mere fact that the defendants chose to be assisted by their accountant in negotiation, does not preclude the plaintiff from receiving benefits due him under the contract.

The conclusions of the trial court are clearly supported by the evidence and such conclusions cannot be considered to be clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 435 A.2d 24 (1980); Hartford Accident & Indemnity Co. v. Connecticut Bank & Trust Co., 2 Conn. App. 110, 113, 476 A.2d 1077, cert. denied, 194 Conn. 802, 477 A.2d 1021 (1984).

There is no error.

In this opinion the other judges concurred.


text:
    Claire Fishman v. Middlesex Mutual Assurance Company
    (2218)
    Dupont, C.P.J., Hull and Borden, Js.

      Argued March 12 decision released June 25 upon reconsideration
    affirmed August 6, 1985

      Bruce L. Levin, with whom, on the brief, was Serge G. Mihaly, for the appellant-appellee (defendant).

      Leo Gold, with whom, on the brief, was Isadore M. Madder, for the appellee-appellant (plaintiff).
   Borden, J.

In this case, we are called upon to interpret General Statutes § 52-410, which provides a judicial mechanism for a party to an arbitration agreement to compel the other party to proceed with arbitration. We are also called upon, ultimately, to decide whether the truncated procedure provided by that statute violates our constitutional principle of the separation of powers.

The plaintiff is the insured under a homeowner’s policy issued by the defendant. By a complaint dated December 20,1982, the plaintiff alleged that she is an insured of the defendant, that the policy contains an arbitration provision, a copy of which she attached to the complaint, and that the defendant has refused to arbitrate. She sought an order directing the defendant to proceed with arbitration. The complaint was served on the defendant pursuant to a summons directing it to appear on January 18, 1983. Simultaneously, the plaintiff served the defendant with another summons and complaint, returnable on January 23, 1983, for damages under the policy.

On February 22, 1983, the defendant moved to dismiss this action on the grounds, inter alia, that it is a civil action requiring a recognizance which was lacking, and that the pendency of the second action, for damages, rendered this action dismissable. On April 7, 1983, the court, Geen, J., denied the motion. On April 11,1983, and April 13,1983, the defendant filed requests to revise the complaint, seeking to require the plaintiff to make her complaint more specific as to the nature, date, cause and amount of the loss, the date of the plaintiffs demand for arbitration, and the date of the defendant’s alleged refusal to arbitrate. On April 11,1983, the defendant also filed notices of interrogatories and of requests for production. The plaintiff objected to the requests to revise and to the defendant’s discovery requests. The court did not rule on the plaintiff’s objections and the plaintiff did not comply with the defendant’s requests.

On April 18,1983, the plaintiff filed a motion for an order to proceed with arbitration, which invoked General Statutes § 52-410, and which sought a hearing on her complaint and an order directing the defendant to proceed with arbitration. The defendant objected.

The plaintiff’s motion was heard on July 11, 1983. At the hearing, the plaintiff offered no evidence, but the defendant conceded the contents of the insurance policy between the parties, that it contained the provision at issue; see footnote 1, supra; and that the defendant opposed an order of arbitration. The defendant also disputed coverage.

The court, Ford, J., rendered judgment granting the plaintiff’s motion, and ordered the defendant to proceed with arbitration, including the disputed issue of coverage. The defendant appealed, and the plaintiff cross appealed.

One of the grounds of the defendant’s appeal coincides with the sole ground of the plaintiff’s cross appeal, namely, that the court erred in submitting the question of coverage to arbitration. The parties differ, however, on the reasons for this error and, as a result, differ on the consequences of it. The defendant claims that the court should have decided the coverage question; the plaintiff claims that the defendant waived that question by not presenting it to the court in a timely and appropriate manner.

We agree, for the reasons offered by the defendant, that the court erred by ordering that the issue of coverage be decided by arbitration. We, therefore, find error on both the appeal and cross appeal as to that issue. As to the other grounds of the defendant’s appeal, we find no error.

I

The plaintiff’s complaint was brought pursuant to General Statutes § 52-410. That statute provides, in general terms, that a party seeking to compel another party to comply with an arbitration agreement may file a concise complaint with the court. If the defendant does not file an answer within five days of the return day, the parties are considered to be at issue on the complaint, and the court shall hear and dispose of the matter with the least possible delay. The defendant’s appeal raises several issues regarding the application of General Statutes § 52-410 to this case, culminating in its claim that the statute unconstitutionally intrudes on the judicial power. We consider the defendant’s claims in the inverse order of their seriousness.

II

The defendant first argues that the court erred by refusing to dismiss the complaint, on the basis of the lack of a recognizance. This argument is premised on the contention that the plaintiffs complaint is a “civil action” which requires a recognizance pursuant to Practice Book §§ 51, 52 and 53. We disagree.

Arbitration proceedings have generally not been viewed as encompassed within the concept of civil actions. E.g., Dayco Corporation v. Fred T. Roberts & Co., 192 Conn. 497, 503, 472 A.2d 780 (1984) (arbitration proceedings are not civil actions for purposes of suit, attachment and service of process on partnerships pursuant to General Statutes §§ 52-112 and 52-57 [d]); Waterbury v. Waterbury Police Union, 176 Conn. 401, 408, 407 A.2d 1013 (1979) (applications to confirm, modify or vacate arbitration awards are not civil actions for purposes of General Statutes title 52); Skidmore, Owings & Merrill v. Connecticut General Life Ins. Co., 25 Conn. Sup. 76, 86, 197 A.2d 83 (1963) (arbitration proceeding is not an action for purposes of statute of limitation). These decisions indicate that the determination of whether an arbitration proceeding is a civil action turns on the purpose for which the legislature created the proceeding and the most efficacious way to carry out that purpose. “[T]he word ‘action’ has no precise meaning and the scope of proceedings which will be included within the term . . . depends upon the nature and purpose of the particular statute in question.” Carbone v. Zoning Board of Appeals, 126 Conn. 602, 605, 13 A.2d 462 (1940). What the legislature may have intended to be a civil action for some purposes may not be a civil action for others. Skidmore, Owings & Merrill v. Connecticut General Life Ins. Co., supra; see Boltuch v. Rainaud, 137 Conn. 298, 301, 77 A.2d 94 (1950).

The purposes for which arbitration was created indicate that an application to compel arbitration is not a civil action in the context of the requirements for a recognizance. Arbitration proceedings, including court proceedings to compel arbitration, are creatures of statute in Connecticut and are not common law actions. See General Statutes §§ 52-408 through 52-424; Skidmore, Owings & Merrill v. Connecticut General Life Ins. Co., supra, 84; see also 5 Am. Jur. 2d, Arbitration and Award § 6; see generally Sturges, Commercial Arbitration and Awards. These statutes are enacted to create “an arrangement for taking and abiding by the judgment of selected persons in some disputed matter, instead of carrying it to the established tribunals of justice; and is intended to avoid the formalities, the delay, the expense and vexation of ordinary litigation.” In re Curtis-Castle Arbitration, 64 Conn. 501, 511, 30 A. 769 (1894); Dayco Corporation v. Fred T. Roberts & Co., supra; Boltuch v. Rainaud, supra; Skidmore, Owings & Merrill v. Connecticut General Life Ins. Co., supra.

In various situations, such as compelling arbitration or correcting an arbitration award, parties to arbitration proceedings are permitted to seek the assistance of the court. Boltuch v. Rainaud, supra. Resort to the court in these situations, however, does not alter the form of the proceedings from one involving arbitration into a full-fledged civil action. The policies of avoiding the formalities, expense and delay of ordinary litigation still attach. To the extent that arbitration proceedings are viewed as requiring all the formal trappings of civil actions, those policies would be frustrated.

This is especially true where an application to compel arbitration is involved. General Statutes § 52-410 allows a party to apply to the Superior Court for an order compelling a recalcitrant party to a written agreement for arbitration to proceed with arbitration. Subsection (c) of this statute provides that “the court or judge shall hear the matter either at a short calendar session, or as a privileged case, or otherwise, in order to dispose of the case with the least possible delay . . . .” See footnote 3, supra. This language demonstrates that the legislature, like the courts, “favor[s] arbitration as a means of settling differences and expediting the resolution of disputes.” Trumbull v. Trumbull Police Local 1745, 1 Conn. App. 207, 211, 470 A.2d 1219 (1984); see also Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 107, 438 A.2d 1171 (1981). These means would be thwarted if a party, who contractually agreed to the arbitration but refuses to proceed with it, is able to slow down this favored process not only by requiring the other party to seek the court’s intervention, but also by insisting on all the procedural formalities, delays, and costs of an ordinary civil action. Although a recognizance for costs is important to ensure diligent prosecution and is required within a writ of civil process in some other proceedings which are not considered civil actions; Sheehan v. Zoning Commission, 173 Conn. 408, 411-12, 378 A.2d 519 (1977); such a requirement in arbitration proceedings would serve only to obstruct the legislative intent behind General Statutes § 52-410.

The defendant argues that the 1978 promulgation of Practice Book § 256, which provided in part that “administrative appeals are civil actions,” judicially abrogates the cases formerly holding that administrative appeals were not civil actions; e.g., Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 653, 363 A.2d 1085 (1975); Bank Building & Equipment Corporation v. Architectural Examining Board, 153 Conn. 121, 124, 214 A.2d 377 (1965); and that arbitration proceedings are covered by its provisions. This argument fails to take into account, however, that the decisions affected by this amendment involved appeals from administrative agencies. E.g., Chieppo v. Robert E. McMichael, Inc., supra (appeal from workers’ compensation commissioner); Bank Building & Equipment Corporation v. Architectural Examining Board, supra (appeal from examining board); Carbone v. Zoning Board of Appeals, supra (appeal from zoning board). Cases involving arbitration proceedings since the promulgation of the rule, although not specifically mentioning Practice Book § 256, have indicated that this section is not apropos to arbitration proceedings. Dayco Corporation v. Fred, T. Roberts & Co., supra (arbitration proceedings are not civil actions for purposes of General Statutes §§ 52-112, 52-57 [d]); Waterbury v. Waterbury Police Union, supra (proceedings to confirm, modify or vacate arbitration awards are not civil actions). It, therefore, does not compel us to conclude that they are civil actions.

Ill

The defendant next claims that the court erred by refusing to dismiss the complaint on the basis of the pendency of the other action. This claim is without merit.

The rule permitting dismissal of an action because of a prior pending action does not apply when the two actions are for different purposes or ends, or where they involve different issues. Nielsen v. Nielsen, 3 Conn. App. 679, 682, 491 A.2d 1112 (1985). Here, the other action seeks damages under the insurance policy; this action seeks only an order compelling the defendant to arbitrate. Furthermore, as the trial court pointed out, the insurance policy has a one year limitation of action clause. The purpose of the other action is simply to preserve the plaintiffs rights in the event that she fails in her attempt to compel arbitration by this action. Since there is a valid reason for bringing the other action, it is not vexatious or oppressive, and the rule of dismissal does not apply. Southland Corporation v. Vernon, 1 Conn. App. 439, 452, 473 A.2d 318 (1984). Upon an order compelling arbitration in this action, the other action may be stayed. See General Statutes § 52-409.

IV

The defendant’s next claim is that General Statutes § 52-410 does not apply to this case, because the clause relied on by the plaintiff calls for appraisal, not arbitration. See footnote 1, supra. This claim is disposed of by Covenant Ins. Co. v. Banks, 177 Conn. 273, 279-80, 413 A.2d 862 (1979).

V

The defendant also argues that the court erred by adjudicating the controversy before the pleadings were formally closed and while the defendant’s discovery requests were unanswered. We disagree.

We first consider that prong of the defendant’s argument regarding the closing of the pleadings. The defendant claims that, despite the statute; see footnote 3, supra; it was entitled to the full panoply of pleadings provided by Practice Book § 112, and that, because its request to revise had neither been complied with nor the plaintiffs objection to it sustained, the court could not adjudicate the plaintiffs complaint.

We need not decide, on this record, whether the statute deprives the defendant of the right to dismiss or strike the plaintiff’s complaint, since the defendant here did not file either such motion. See Practice Book § 112 (2) and (3); footnote 5, supra. We agree with the trial court, however, that the statute does not contemplate that a request to revise may be interposed between the plaintiff’s complaint and the defendant’s answer. This position is consistent with the underlying purpose of the statute, which is to provide a prompt and “appropriate procedure for an insured who needs judicial assistance when an insurer unreasonably refuses to proceed with the appraisal procedure specified in the insurance contract”; Covenant Ins. Co. v. Banks, supra, 278; as an alternative “to an expensive and time-consuming suit on the policy for the amount of the loss.” Id., 280. This is also consistent with the fact that the statute describes the basic, minimal allegations of a claim brought pursuant to its provisions. General Statutes § 52-410 (b); see footnote 3, supra. The plaintiff’s complaint essentially conformed to the provisions of that statute.

The statute seeks to avoid unnecessary delays in bringing the issues to a head by providing that, if the defendant does not file an answer within five days of the return day, the parties are to be considered at issue on the allegations of the complaint. “The last sentence of the portion of [General Statutes § 52-410 (c)] delineates the procedure to be followed . . . .'' Visselli v. American Fidelity Co., 155 Conn. 622, 627, 237 A.2d 561 (1967). The pleadings were closed here by virtue of the defendant's failure to file an answer within the five day period.

This does not mean, however, that the defendant was deprived of the right to any special defenses which it may have had. Special defenses are a part of the answer to a complaint. Practice Book § 112 (5); footnote 5, supra. Special defenses contesting coverage may be filed as part of the answer to an action to compel arbitration under an insurance contract, pursuant to General Statutes § 52-410. See Visselli v. American Fidelity Co., supra, 624, 626. In such a case, by filing such a special defense, the defendant would not be assuming the burden of proof of that issue; the special defense would simply raise the issue, the burden of proof of which would remain on the plaintiff. Id., 626-27; Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 278, 231 A.2d 531 (1967); Rochon v. Preferred Accident Ins. Co., 118 Conn. 190, 195, 171 A. 429 (1934).

The statute, however, precludes the defendant from successfully claiming that its discovery requests were required to be ruled on and complied with before the action could be decided. Besides describing the basic form of the complaint for an application to compel arbitration, General Statutes § 52-410 also accelerates the pleading process and provides that “the court or judge shall hear the matter either at a short calendar session, or as a privileged case, or otherwise, in order to dispose of the case with the least possible delay, and shall either grant the order or deny the application, according to the rights of the parties.” These provisions emphasize the statute’s purpose of avoiding unnecessary delays in deciding the issue of whether to compel arbitration by indicating that a proceeding under this statute does not follow the normal progression of a civil action.

Since a proceeding under General Statutes § 52-410 does not follow the pattern of an ordinary civil action it cannot be seen as a civil action for purposes of discovery as well as for purposes of pleading. Our rationale for determining that these proceedings are not civil actions for purposes of a recognizance requirement is just as applicable in this context. The policies behind a proceeding to compel arbitration are equally frustrated by a delay due to discovery as a delay due to insistence on pleading formalities. We see no reason to suggest that this proceeding undertakes a change in form between the two stages of pleading and discovery.

The discovery process as set out in the Practice Book, therefore, is not applicable to proceedings under General Statutes § 52-410. Cf. Southland Corporation v. Vernon, 1 Conn. App. 439, 473 A.2d 318 (1984) (summary process); Housing Authority v. Boyd, 36 Conn. Sup. 47, 410 A.2d 494 (1979) (same). The Practice Book provisions governing the discovery process apply only to “any civil action . . . probate appeal, or . . . administrative appeal.” Practice Book §§ 218, 223, 227, 229; see also General Statutes § 52-197. The defendant, therefore, was not entitled to compliance with its discovery requests or a ruling on them before the plaintiff’s claim was adjudicated.

VI

The defendant next argues that the court erred by ordering that the issue of coverage, which the defendant disputed, be determined by the arbitrators. We agree.

In an action to compel arbitration under an insurance policy clause such as this one; see footnote 1, supra; the issue of coverage is an antecedent question for the court. Covenant Ins. Co. v. Banks, supra, 280. Although the defendant did not, as it should have, file an answer and special defense raising this issue, the proper course was unclear enough to excuse the defendant, which had made it clear at the hearing on the plaintiffs motion to compel arbitration that it disputed coverage. Thus, on remand it will be necessary for the trial court to resolve the disputed issue of coverage.

VII

This leaves the defendant’s principal claim on this appeal, namely that General Statutes § 52-410 (c) violates the constitutional doctrine of the separation of powers. The statute provides for a truncated pleading procedure and timetable, including an answer within five days of the return day. See footnote 3, supra. The Practice Book provides for a more elaborate set of pleadings, which advance at fifteen day intervals from the return day. Practice Book § 112; see footnote 5, supra. The defendant’s argument is that, by mandating when an answer must be filed, when the parties are at issue and when the court shall hear the case, the statute supersedes the Practice Book rules governing the timing and order of pleadings. Thus, the defendant maintains, the statute purports to govern matters of court procedure which are within the exclusive province of the judiciary. See Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 461 A.2d 938 (1983); State v. Clemente, 166 Conn. 501, 353 A.2d 723 (1974).

The difficult burden imposed on one who challenges the constitutionality of a state statute is by now familiar and has been oft-stated. Every statute is presumed constitutional, and its invalidity must be established beyond a reasonable doubt. Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, supra, 522; Eielson v. Parker, 179 Conn. 552, 557, 427 A.2d 814 (1980). This presumption of constitutionality is “strong,” the constitutional breach must be “clear and unequivocal,” courts approach the question “with great caution [and] . . . infinite care,” and “[t]he one attacking the legislation has the burden to negative every conceivable basis which might support it.” Peck v. Jacquemin, 196 Conn. 53, 64-65, 491 A.2d 1043 (1985). We cannot say that the defendant has carried this burden.

A statute which is challenged on the ground that it impermissibly intrudes on the judicial power is not invalid “ ‘simply because it affects the judicial function, so long as it is an exercise of power assigned by the constitution to the legislature.’ Eielson v. Parker, supra, 560; State v. Darden, [171 Conn. 677, 680-81, 372 A.2d 99 (1976)]. In many situations, executive, legislative and judicial powers necessarily overlap. In such situations, a statute is not unconstitutional unless ‘it represents an effort by the legislature to exercise a power which lies exclusively under the control of the courts;States v. Clemente, 166 Conn. 501, 507, 510-11, 353 A.2d 723 [1974]; Heiberger v. Clark, 148 Conn. 177, 169 A.2d 652 [1961]; State Bar Assn. v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863 [1958] . . . .’” Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, supra, quoting State v. Darden, supra, 679.

Because of the broad language used by our Supreme Court in other contexts indicating that the legislature has “no power to make rules of administration, practice of procedure which are binding on . . . constitutional courts”; Adams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49 (1968); see also State v. Clemente, supra, 507; State ex rel. Kelman v. Schaffer, 161 Conn. 522, 529, 290 A.2d 327 (1971); we recognize that a superficial view of the statute could lead to a conclusion of unconstitutionality. We are also aware, however, that “grave constitutional questions cannot be so easily solved. The rule of separation of governmental powers cannot always be rigidly applied.’ Matter of Rosenthal v. McGoldrick, 280 N.Y. 11, 14, 19 N.E.2d 660; 20 Am. Jur. 2d, 432, Courts, § 65.” Adams v. Rubinow, supra, 155. “There are activities in which both the legislature and the judiciary may engage without violating the prohibitions of the constitution.” State v. Clemente, supra, 510.

Within the great edifice of our constitution, the rooms assigned to the legislative and judicial magistracies are not always separated by impenetrable walls. Rather, they often open onto each other so that each can accommodate the proper functions of its occupants and can also properly aid the occupants of the neighboring rooms in the proper performance of their functions. This metaphor expresses the broad allocation of legislative and judicial powers, which has been traditionally “drawn as follows: Tt is the province of the legislative department to define rights and prescribe remedies: of the judicial to construe legislative enactments, determine the rights secured thereby, and apply the remedies prescribed.’ Atwood v. Buckingham, 78 Conn. 423, 428, 62 A. 616 [1905].” State v. Clemente, supra, 509-10. We hold that General Statutes § 52-410 falls within that traditional allocation, as a legislative definition of rights and prescription of remedy.

It is not necessary to review here the unique history of our state’s constitutional doctrine of the separation of powers. See, e.g., Szarwak v. Warden, 167 Conn. 10, 355 A.2d 49 (1974); State v. Clemente, supra; Adams v. Rubinow, supra. Suffice it to say that the judicial historians who have so ably reviewed that history generally recognize the watershed significance of Norwalk Street Ry. Co.’s Appeal, 69 Conn. 576, 37 A. 1080 (1897), and Bridgeport Public Library & Reading Room v. Burroughs Home, 85 Conn. 309, 82 A. 582 (1912). Those two cases recognized, contrary to earlier thought, that the powers granted by the people to the legislature and to the judiciary are legislative and judicial, respectively, only. Adams v. Rubinow, supra, 154. From that recognition has flowed a small spate of decisions involving questions of legislative intrusion on the judicial rule-making function. See, e.g., Mitchell v. Mitchell, 194 Conn. 312, 481 A.2d 31 (1984); cf. Steadwell v. Warden, 186 Conn. 153, 162, 439 A.2d 1078 (1982) (court lacks power to promulgate rule governing substantive rights and remedies, which is legislative function); State v. King, 187 Conn. 292, 445 A.2d 901 (1982); State v. Clemente, supra; State ex rel. Kelman v. Schaffer, supra; In re Appeal of Dattilo, 136 Conn. 488, 72 A.2d 50 (1950).

Long after the historic recognition wrought by Nor-walk and Bridgeport Public Library, however, the Supreme Court continued to recognize the validity of statutes which on their face seemed to be procedural but which, nonetheless, passed constitutional muster. In Braman v. Babcock, 98 Conn. 549, 120 A. 150 (1923), the court upheld the Declaratory Judgment Act, holding that the separation of powers did not preclude the legislature from “further enlarging] our methods of remedial justice by authorizing the extension of the novel method of judicial procedure by way of declaratory judgments, to all rights and legal relations.” Id., 556. In In the Matter of Gilhuly’s Petition, 124 Conn. 271,199 A. 436 (1938), the court approved the constitutionality of then General Statutes § 703, now General Statutes § 9-63, which creates a prompt and simple judicial remedy for a party-affiliated elector who has been removed from his party’s enrolment list. “This statute, apparently adopted by the Legislature to provide a simpler and more expeditious remedy [than mandamus], so likely upon occasion to be essential to the proper safeguarding of one’s party rights, was procedural and within its undoubted power . . . .’’(Emphasis added.) Id., 280. Indeed, General Statutes § 9-63 mandates, in fashion similar to General Statutes § 52-410 at issue in this case, that the court “shall assign the [petition] for a hearing at the earliest practicable date . . . .”

These cases stand for the proposition that where public policy, as perceived by the legislature, requires a simple and prompt proceeding in order to implement parties’ rights, the legislature is not prohibited by the constitution from creating a statutory proceeding which provides for that simplicity and promptness, and which, in order to insure simplicity and promptness, enacts as part and parcel of the statutory proceeding certain minimal procedural incidents. In such a case, the legislature is acting within its historic and traditional function of defining rights and prescribing remedies. Atwood v. Buckingham, supra. We conclude that General Statutes § 52-410 falls within that category of statutes.

This conclusion is buttressed by our strong policy, both legislative and judicial, favoring arbitration as a means of settling disputes. John A. Errichetti Assocciates v. Boutin, 183 Conn. 481, 488, 439 A.2d 416 (1981); Trumbull v. Trumbull Police Union Local 1745, 1 Conn. App. 207, 211, 470 A.2d 1219 (1984). An action to compel arbitration is precisely the kind of proceeding which requires simplicity and promptness. Covenant Ins. Co. v. Banks, supra, 278-80. We cannot say beyond a reasonable doubt that the constitution denies the legislature the power to implement that policy in the fashion provided for by General Statutes § 52-410.

Furthermore, even under the rubric which allocates to the judiciary the exclusive power to make rules governing practice and procedure, that allocation is not absolute. “The effect of the development in the understanding of the true meaning of the constitutional provision for separation of powers, in the intervening years since 1818, as far as rule making is concerned, is that the General Assembly has no power to make rules of administration, practice or procedure which are binding on . . . the . . . constitutional courts and that any attempt on its part to exercise such power is dependent, for its efficacy, upon the acquiescence of the constitutional court involved. In re Appeal of Dattilo, 136 Conn. 488, 492, 72 A.2d 50 [1950]. Manifestation of such acquiescence may, although it need not, take the form of the adoption of the statutory rule as a rule of court in the exercise of the court’s inherent rule-making power. Heiberger v. Clark, [148 Conn. 177, 185, 169 A.2d 652 (1961)]; State Bar Assn. v. Connecticut Bank & Trust Co., [145 Conn. 222, 231, 140 A.2d 863 (1958)].” (Emphasis added.) Adams v. Rubinow, supra, 156.

The Supreme Court has, therefore, recognized that the judiciary may properly acquiesce in a legislatively created procedure, and that the form of such acquiescence is not limited to adopting the statutory procedure as a rule of court. Thus, the fact that the judges of the Superior Court have not adopted rules mirroring General Statutes § 52-410, as they have done with respect to other statutory procedures; see, e.g., Practice Book § 362A (summary process procedure); is not determinative of the constitutional argument.

General Statutes § 52-410 is the progeny of section 3 of Public Acts 1929, No. 593, entitled “An Act Providing For The Arbitration Of Disputes,” enacted in April, 1929, and codified as § 5842 of the 1930 General Statutes. It has remained virtually unchanged since. There have never been any rules of court adopted to implement it. Nonetheless, we have no doubt that in the more than fifty-six intervening years there have been hundreds, if not thousands, of proceedings held in the Superior Court pursuant to it. There have been thirteen Supreme Court and Appellate Court cases construing it and approving its procedures. To the extent that General Statutes § 52-410 represents a legislative attempt at rule-making, we have no hesitancy in finding, from this history, manifest acquiescence by the Superior Court in that attempt. Adams v. Rubinow, supra.

We acknowledge that long acquiescence by the courts in legislation does not automatically preclude review of the validity of that legislation. State v. DellaCamera, 166 Conn. 557, 561-62, 353 A.2d 750 (1974). Even upon review after long acquiescence, “ ‘[i]f the invalidity of the enactment is evident beyond a reasonable doubt, our duty, delicate as the task may be, is to nullify the statute.’ ” Id., 562. As we have previously discussed, however, the invalidity of this statute has not been established beyond a reasonable doubt and we need not perform this delicate duty.

There is error in part on the appeal and the cross appeal, the judgment is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The arbitration clause provides: “Appraisal. If you and we fail to agree on the amount of loss, either one can demand that the amount of the loss be set by appraisal. If either makes a written demand for appraisal, each shall select a competent, independent appraiser and notify the other of the appraiser’s identity within 20 days of receipt of the written demand. The two appraisers shall then select a competent, impartial umpire. If the two appraisers are unable to agree upon an umpire within 15 days, you or we can ask a judge of a court of record in the state where the residence premises is located to select an umpire. The appraisers shall then set the amount of the loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon shall be the amount of the loss. If the appraisers fail to agree within a reasonable time, they shall submit their differences to the umpire. Written agreement signed by any two of these three shall set the amount of the loss. Each appraiser shall be paid by the party selecting that appraiser. Other expenses of the appraisal and the compensation of the umpire shall be paid equally by you and us.”

       Although that action forms the basis of one of the defendant’s claims on appeal in this case, no judgment has yet been rendered on it and it is not directly before us in this appeal.

       General Statutes § 52-410 provides: “APPLICATION FOR COURT order to PROCEED with arbitration, (a) A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order directing the parties to proceed with the arbitration in compliance with their agreement. The application shall be by writ of summons and complaint, served in the manner provided by law.
      “(b) The complaint may be in the following form:‘1. On . . ., 19. ., the plaintiff and the defendant entered into a written agreement for arbitration, of which exhibit A, hereto attached, is a copy. 2. The defendant has neglected and refused to perform the agreement for arbitration, although the plaintiff is ready and willing to perform the agreement. The plaintiff claims an order directing the defendant to proceed with an arbitration in compliance therewith.’
      “(c) The parties shall be considered as at issue on the allegations of the complaint unless the defendant files answer thereto within five days from the return day, and the court or judge shall hear the matter either at a short calendar session, or as a privileged case, or otherwise, in order to dispose of the case with the least possible delay, and shall either grant the order or deny the application, according to the rights of the parties.”

       In Waterbury v. Waterbury Police Union, 176 Conn. 401, 407 A.2d 1013 (1979), the court reached its conclusion that “proceedings brought pursuant to § 52-420 to confirm, modify or vacate arbitration awards are not civil actions within the meaning of title 52”; id., 408; by looking to the legislative objective establishing special proceedings such as arbitration and whether the objective would be frustrated by holding them to be civil actions. The court in this regard looked to the rationale of Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 363 A.2d 1085 (1975), and other administrative appeal cases. In so doing, the court did not imply that arbitration proceedings were administrative appeals controlled by Practice Book § 256. Rather, the court indicated that where there is no specific expression such as § 256 stating a proceeding is a civil action, the court must examine the legislative purposes behind the creation of the proceeding and the effect on those purposes if the proceedings are considered civil actions. That this was the analysis used by the courts for administrative appeals prior to the promulgation of § 256 does not suggest that § 256 now governs arbitration proceedings, for which there is no specific language stating that they are to be treated as civil actions.

       Practice Book § 112 provides as follows: “sec. 112. —pleadings ALLOWED AND THEIR ORDER
      The order of pleading shall be as follows:

        (1) The plaintiffs complaint.
      (2) The defendant’s motion to dismiss the complaint.
      (3) The defendant’s request to revise the complaint.
      (4) The defendant’s motion to strike the complaint.
      (5) The defendant’s answer (including any special defenses) to the complaint.
      (6) The plaintiff’s request to revise the defendant’s answer.
      (7) The plaintiffs motion to strike the defendant’s answer.
      (8) The plaintiffs reply to any special defenses.”

       We note, however, that Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 231 A.2d 531 (1967), and its progeny, including Visselli v. American Fidelity Co., 155 Conn. 622, 237 A.2d 561 (1967), have been legislatively overruled by General Statutes § 38-175c to the extent that they held that an insurer could limit the issues relating to uninsured motorist coverage which the arbitrator could decide. Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 41, 434 A.2d 304 (1980). That statute is not involved here.

       Such a statute may also be unconstitutional if it significantly interferes with the orderly conduct of the court. Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 522, 461 A.2d 938 (1983). The defendant does not claim any such infirmity here, nor do we perceive one.

       The constitutional courts are now the Supreme Court, the Appellate Court, and the Superior Court. Conn. Const., amend. XX.

       See John A. Errichetti Associates v. Boutin, 183 Conn. 481, 439 A.2d 416 (1981); W. J. Megin, Inc. v. State, 181 Conn. 47, 434 A.2d 306 (1980); Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 434 A.2d 304 (1980); Covenant Ins. Co. v. Banks, 177 Conn. 273, 413 A.2d 862 (1979); A. Sangivanni & Sons v. F. M. Floryan & Co., 158 Conn. 467, 262 A.2d 159 (1969); Visselli v. American Fidelity Co., 155 Conn. 622, 237 A.2d 561 (1967); Frager v. Pennsylvania General Ins. Co., 155 Conn. 270, 231 A.2d 531 (1967); Mayron’s Bake Shops, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 154, 176 A.2d 574 (1961); International Union v. General Electric Co., 148 Conn. 693, 174 A.2d 298 (1961); Dewart v. Northeastern Gas Transmission Co., 140 Conn. 446, 101 A.2d 299 (1953); International Brotherhood, of Teamsters v. Shapiro, 138 Conn. 57, 82 A.2d 345 (1951); Colt’s Industrial Union v. Colt’s Mfg. Co., 137 Conn. 305, 77 A.2d 301 (1950); Southington v. Major Machinery Corporation, 1 Conn. App. 253, 470 A.2d 1230 (1984).