author: Spallone, J.

text:
    The Continental Insurance Company v. Connecticut Natural Gas Corporation The Continental Insurance Company v. Airco, Inc.
    (2649)
    (2661)
    Dupont, C. J., Spallone and Daly, Js.
    Argued April 9
    decision released August 20, 1985

      James A. Wade, with whom, on the brief, was Thomas A. Young, for the appellant-appellee (defendant in the first case).

      Joel J. Rottner, for the appellee-appellant in the first case, appellant in the second case (plaintiff in both cases).

      George J. Markley, for the appellee (defendant in the second case).
   Spallone, J.

These are combined appeals. In Continental Ins. Co. v. Connecticut Natural Gas Corporation, the defendant, Connecticut Natural Gas Corporation (CNG), is appealing from a judgment rendered in favor of the plaintiff, The Continental Insurance Company (Continental). In that case, the trial court found that Continental was entitled to reimbursement of funds paid to CNG under a contract of insurance after CNG received an arbitration award allegedly covering the same loss. Continental has cross appealed as to the amount of interest awarded on that judgment. In the second case, Continental Ins. Co. v. Airco, Inc., which was a subrogation action, Continental appeals from a judgment in favor of Airco, Inc. (Airco).

The facts pertinent to both cases are as follows. On November 4,1970, CNG entered into a contract with Aireo wherein Aireo agreed to construct a liquified natural gas plant according to certain design specifications. Aireo incorporated a 1202 Turbine and Elliot Compressor into the structure as the plant’s main power source. On September 30,1973, slightly over a year after the plant was built, the turbine exploded. At the time of the explosion, CNG was insured by Oil Insurance Association and Continental. Oil Insurance Association paid CNG $9834.67 for fire loss. Continental paid CNG $260,165.40 for damage to the turbine. In exchange for that payment, CNG gave Continental a subrogation receipt, by which CNG acknowledged receiving the amount paid “in full settlement of [its] claims and demands ... for loss and damage by machine accident” and subrogated Continental “to all the rights, claims and interest which [it] may have against any person or corporation liable for the loss . . . .”

In May, 1975, Continental commenced the subrogation action, Continental Ins. Co. v. Airco, Inc., to recover the amount it had paid to CNG for the damage to the turbine. Two weeks after that action was instituted, CNG applied to the Superior Court for an order to show cause why Aireo should not be ordered to arbitrate with CNG concerning the controversies between them in accordance with the provisions of their contract. Continental’s subrogation action against Aireo was subsequently stayed by stipulation of the parties, pending completion of the arbitration proceedings. On December 21,1977, the arbitrators awarded CNG $526,492, which Aireo paid in full. Continental thereafter initiated the action against CNG for reimbursement of the amount which it had paid CNG under its policy of insurance, contending that its subrogated claim against Aireo was included in the award.

Continental Ins. Co. v. Connecticut Natural Gas Corporation and Continental Ins. Co. v. Airco, Inc., the latter having been released from the stay, were consolidated and tried together. In the first case, the trial court concluded that the payment of $260,165.40 by Continental to CNG was included in the arbitration award. After deducting $48,000 for arbitration expenses, the court rendered judgment for Continental in the amount of $212,165.40, plus interest from February 3,1978, the date CNG was paid by Aireo. In Continental Ins. Co. v. Airco, Inc., the trial court rendered judgment for Airco, on the ground that the arbitration between CNG and Airco was res judicata as to Airco’s liability.

I

Continental Ins. Co. v. Connecticut Natural Gas Corporation

A

CNG’s central argument on appeal is that the court erred in concluding that Continental was entitled to a portion of the arbitration award because the award was not intended to compensate for any loss covered under its policy with Continental. It contends that the award compensated only for losses arising from Airco’s failure to meet the contract specifications for the construction of the liquified gas plant and not for loss due to the “machine accident.” We see no merit in this claim.

In reviewing an arbitration award, the award itself rather than the accompanying memorandum of the arbitrators controls. Ordinarily, their memorandum is irrelevant except as it may be referred to in determining whether the award exceeds the scope of the submission. Waterbury Construction Co. v. Board of Education, 189 Conn. 560, 563, 457 A.2d 310 (1983). The propriety of the award has not been challenged in any respect, and we, therefore, assume that it conformed to the submission. See Naugatuck v. AFSCME, 190 Conn. 323, 325, 460 A.2d 1285 (1983).

Since arbitration is a creature of contract, the parties themselves, by their submission, define the power of the arbitrators; Malecki v. Burnham, 181 Conn. 211, 212-13, 435 A.2d 13 (1980); and delineate the issues to be decided. Board of Education v. AFSCME, 195 Conn. 266, 271, 487 A.2d 553 (1985). An arbitration award is thus interpreted in terms of the agreement of submission. American Brass Co. v. Torrington Brass Workers Union, 141 Conn. 514, 521, 107 A.2d 255 (1954). We consequently must examine the language of the submission and the intent of the parties expressed therein to determine the coverage of the award. In this case, the language is unambiguous.

The submission provided as follows: “1. On September 30, 1973, a failure occurred in the Nordberg Gas Turbine extensively damaging it and the Elliott Compressor attached thereto as well as the stack and heat exchangers, as a result of which CNG was required to expend substantial sums to repair the compressor and dismantle the Turbine.

“2. The Nordberg Turbine known as Model G55 (equivalent of HS 1202) specified by Aireo could not meet performance requirements as it was of inadequate size for it but purchased a larger HS Model 1203 from the manufacturer at a cost of $625,000 less $100,000 credit for the damaged Model 1202 net cost being $525,000.

“3. The damages incurred by CNG as a result of 1 and 2 above are:

Replacement of 1202 with 1203 Turbine $526,492

Vendor labor purchased 67,087

Vendor material purchased 1,736

CNG labor 3,768

CNG material purchased 1,736

Consultant fees - J.A. Klapper 45,896

$646,715”

The submission thus presented two claims, one for the failure which occurred when the turbine exploded on September 30,1973, and the other for the inadequacy of the turbine in terms of the contract specifications. For both of these claims, CNG sought damages of $646,715, of which $526,492 related to replacement of the turbine. The arbitrators awarded CNG exactly $526,492.

The record, furthermore, reveals that at the outset of the arbitration proceedings, CNG’s attorney specifically stated that he included in his claim the monies he had received from CNG’s insurers: “In bringing our arbitration proceeding, I included the entire loss. In that loss, there is, of course, the $270,000 [sic] which we have been paid. I certainly don’t want to be paid twice.” The arbitrators indicated their understanding that this amount was included in CNG’s claim. In a memorandum setting forth the grounds of their decision, they stated that “[t]he award . . . has not been reduced by the amount of $260,165.40 paid by Continental to CNG.” The arbitrators also stated in their memorandum that “they make no decision as to whether or not CNG is obligated upon payment of the award herein to reimburse Continental $260,165.40, reduced by CNG’s expenses herein or any portion thereof.” As noted by the trial court, if, in fact, the award had not included the sum of $260,165.40 paid by Continental to CNG, there would have been no need for the arbitrators to even mention reimbursement by CNG to Continental or contribution of CNG’s arbitration expenses.

Any ambiguity in an agreement must flow from the language used and not from one party’s subjective perception of the terms. Reese v. First Connecticut Small Business Investment Co., 182 Conn. 326, 327, 438 A.2d 99 (1980). Where there is no ambiguity, we will not indulge in construction. See Zullo v. Smith, 179 Conn. 596, 601, 427 A.2d 409 (1980). Having reviewed the language of the submission, which is unambiguous in its expression of the parties’ intent, and the facts as they are reflected in the record before us, we conclude that the trial court’s finding that the award of $526,492 included the $260,165.40 paid to CNG by Continental was reasonable.

B

CNG’s remaining claim of error, that Continental was not entitled to be reimbursed from the arbitration award, is premised upon the assumption that the award did not include any amount received from Continental. Having determined that the trial court was correct in finding that this amount was included in the award, we conclude that there is no error in the trial court’s determination that reimbursement was warranted.

The principle that an insurer which has paid a claim for property destroyed through the fault of a third person may, in certain circumstances, be reimbursed out of the funds received by the insured in satisfaction of his claim against the third person, is generally recognized. 44 Am. Jur. 2d, Insurance § 1841. There are several theories upon which an insurer may recover such payments. The first is that the insured, by releasing the wrongdoer from liability, breached an express contract with the insurer, whether that contract be the original policy or a collateral agreement executed when the insurer paid the policy claim; the second is that the release or settlement gave rise to an implied promise to reimburse the insurer; and the third is based on equity. Id., § 1842.

In this case, when CNG received the subrogation receipt from Continental, it recognized Continental’s right to be subrogated to the amount paid. The resolution of the dispute between CNG and Aireo through arbitration, however, effectively compromised any claim Continental had under the subrogation receipt. To permit CNG to retain the payment would, as the trial court found, result in CNG’s unjust enrichment.

c

In its cross appeal, Continental claims that the trial court erred in awarding interest only from February 3, 1978. It argues that interest should have been awarded from December 6, 1974, the date it paid CNG. There is no merit to this claim. No debt was owed Continental by CNG prior to the arbitration award and the payment by Aireo to CNG pursuant to that award.

Interest ordinarily begins to run from the time when money is due and payable. Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 274, 287 A.2d 374 (1971). “The determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than through the application of any arbitrary rule.” Bernhard v. Rochester German Ins. Co., 79 Conn. 388, 398, 65 A. 134 (1906). The underlying issue is whether, under the circumstances, the detention of the money is not wrongful. Cecio Bros., Inc. v. Feldmann, supra, 275; Vernon Foodliner, Inc. v. Central Mutual Ins. Co., 1 Conn. App. 595, 599, 474 A.2d 468 (1984). As between Continental and CNG, no money was due and payable to Continental prior to February 3,1978. We conclude that the trial court did not err in its award of interest.

II

Continental Ins. Co. v. Aibco, Inc.

Our holding in Continental Ins. Co. v. Connecticut Natural Gas Corporation effectively disposes of this appeal. Because Continental prevailed in its suit against CNG, it is precluded from pursuing its claim against Airco as subrogee of CNG. A subrogee has no rights against a third person beyond what the subrogor had. Connecticut Savings Bank v. First National Bank & Trust Co., 138 Conn. 298, 305, 84 A.2d 267 (1951). Here, by virtue of the judgment in the first case, Continental’s claim as subrogee has been satisfied. The trial court correctly concluded that judgment for the defendant was warranted.

There is no error.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Gennarini Construction Company, Inc. v. Messina Painting & Decorating Company
    (3609)
    Dupont, C. J., Borden and Spallone, Js.
    Argued May 17
    decision released August 20, 1985

      Ernest E. LaFollette, for the appellant (plaintiff).

      Sharon W. Dornfeld, for the appellee (defendant).
   Borden, J.

The plaintiff appeals from the judgment of the trial court granting the defendant’s motion to confirm an arbitration award and denying the plaintiffs application to vacate the award.

The trial court found the following facts: The plaintiff contractor entered into a subcontract with the defendant subcontractor to do painting work on a public project. A dispute arose because of the defendant’s use of nonunion painters. The defendant completed the subcontract in a timely fashion, and the architect and public authority accepted the project.

The defendant claimed that money was due it on the subcontract and the parties submitted the claim to arbitration. The submission encompassed two issues: (1) what money, if any, was owed to the defendant; and (2) whether General Statutes § 49-41a (b) could be applied by the arbitrator in this case, and, if so, what remedy was to be awarded.

The arbitrator found that the plaintiff owed the defendant $5142.42 on the subcontract. He also found that he had the authority to provide a remedy under General Statutes § 49-41a (b), and awarded the defendant interest and attorney’s fees under that statute.

The plaintiff filed an application to vacate the arbitration award and the defendant filed a motion to confirm it. The defendant also moved for an order awarding it supplemental interest and attorney’s fees which had accrued subsequent to the date of the arbitration award. In a detailed memorandum of decision, the trial court granted the defendant’s motion to confirm the award and denied the plaintiff’s application to vacate. It did not address the issue of the supplemental award of interest and attorney’s fees.

On appeal, the plaintiff claims that the trial court erred in upholding the arbitrator’s award because the arbitrator exceeded the scope of the submissions and his powers in interpreting the statute. The defendant, by way of a preliminary statement of issues; see Practice Book § 3012 (a); claims that the trial court erred in failing to award supplemental attorney’s fees and interest to the defendant. We find no error on either of the parties’ claims.

The plaintiffs claims that the arbitrator exceeded the scope of the submissions and his powers are unavailing. The two submissions to the arbitrator were broadly phrased and included questions involving the merits of the appeal as well as questions of arbitrability of damages under General Statutes § 49-41a (b). As the trial court found, the submissions were unrestricted. No conditional language was used by the parties binding the court to strict rules of law. Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 584-85, 440 A.2d 774 (1981); Chase Brass & Copper Co. v. Chase Brass & Copper Workers Union, 139 Conn. 591, 595-96, 96 A.2d 209 (1953). Where the submission is unrestricted, the award is final and binding and cannot be reviewed for errors of law or fact. Roraback v. Travelers Ins. Co., 4 Conn. App. 21, 23, 492 A.2d 208 (1985).

The first question submitted was plainly unrestricted by its terms. See footnote 2, supra. The parties are bound by the arbitrator’s decision on that question. Roraback v. Travelers Ins. Co., supra, 23-24.

The second question submitted embraced the issue of arbitrability under a certain statute and the applicability and availability of a remedy under that statute if found arbitrable. Neither party chose to compel a judicial determination of the issue of arbitrability prior to arbitration, although the option was available to them. Schwarzschild v. Martin, 191 Conn. 316, 323, 464 A.2d 774 (1983); New Britain v. Connecticut State Board of Mediation & Arbitration, 178 Conn. 557, 560, 424 A.2d 263 (1979); see also General Statutes § 52-415 (parties may request that arbitrators ask court’s advice on questions arising during hearing). The invocation of a specific statute under which to determine damages is not, in and of itself, sufficient to restrict the submission. Cf. Chase Brass & Copper Co. v. Chase Brass & Copper Workers Union, supra. The second question, therefore, was also unrestricted although it left the question of arbitrability to the arbitrator.

“[WJhere the issue of arbitrability is committed to an arbitrator for determination, ‘the court is bound by the arbitrator’s determination unless that determination clearly falls within the proscriptions of § 52-418 of the General Statutes, or procedurally violates the parties’ agreement.’ ” Waterbury Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 63, 357 A.2d 466 (1975). The award in this case did not do so.

A challenge to an award on the ground that the arbitrator has exceeded his powers or so imperfectly executed them that a mutual, final and definitive award was not made upon the matter submitted; General Statutes § 52-418 (a) (4); is reviewed by comparing the award with the submission. Roraback v. Travelers Ins. Co., supra, 23. In making such a comparison, where the submission is unrestricted, the court will not review the evidence or the legal questions involved but is bound by the arbitrator’s legal and factual determinations. Game-A-Tron Corporation v. Gordon, 2 Conn. App. 692, 695, 483 A.2d 620 (1984). The terms of the award in this case tracked the language of the parties’ second submission and clearly conformed to it. The award, therefore, cannot be vacated pursuant to General Statutes § 52-418 (a) (4), as the plaintiff suggests.

There is no allegation here that the arbitrator’s determination procedurally violated the terms of the parties’ contract. The pertinent clauses of the contract indicate that the parties did not delineate any narrow procedural limits to govern arbitration which might arise between them. See Waterbury Board of Education v. Waterbury Teachers Assn., supra, 62. In addition, procedural irregularities may be waived. Id., 63. If any existed here, they are deemed waived by the parties’ failure to raise them in the trial court. Id. The parties chose to submit the question of arbitrability of General Statutes § 49-41a (b), and of a potential award under that statute, to the arbitrators. See Schwarzschild v. Martin, supra; New Britain v. Connecticut State Board of Mediation & Arbitration, supra. The parties, therefore, are also bound by the arbitrator’s decisions on the second question submitted. See footnote 2, supra.

We do not address the merits of the defendant’s claim that the trial court erred in failing to award supplemental interest and attorney’s fees under General Statutes § 49-41a (b). The defendant did not file a cross appeal raising this issue; Practice Book § 3003; and the claim is not properly before us. Connecticut National Bank v. Nagy, 2 Conn. App. 448, 449, 479 A.2d 1224 (1984). The defendant claims that there was no judgment or decision from which it could properly cross appeal under Practice Book § 3003 because the trial court did not rule on the issue of supplementary interest arid attorney’s fees in its memorandum of decision and because the court “passed” the issue pending this appeal when the defendant filed a postjudgment “Motion for Order” requesting a particular financial award. The trial court’s failure to rule on this issue, however, did not authorize the defendant to disregard the rules of court; rather, the defendant’s remedy was to use the Practice Book to secure a ruling by the trial court on this issue, for this court to review.

A motion for rectification addressed to the trial court pursuant to Practice Book § 3082, followed by a motion to review addressed to this court under Practice Book § 3108, if necessary, would have been appropriate. Alternatively, the defendant could have requested that this court order the trial court to complete the record pursuant to Practice Book §§ 3096 and 3107. Since the defendant did not follow any of these procedures, the issue is not a proper subject of review for this court. Connecticut National Bank v. Nagy, supra, 449.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 49-41a (b) provides: “If payment is not made by the general contractor or any of its subcontractors in accordance with such requirements, the subcontractor shall set forth his claim against the general contractor and the subcontractor of a subcontractor shall set forth its claim against the subcontractor through notice by registered or certified mail. Ten days after the receipt of that notice, the general contractor shall be liable to its subcontractor, and the subcontractor shall be liable to its subcontractor, for interest on the amount due and owing at the rate of one per cent per month. In addition, the general contractor, upon written demand of its subcontractor, or the subcontractor, upon written demand of its subcontractor, shall be required to place funds in the amount of the claim, plus interest of one per cent, in an interest-bearing escrow account in a bank in this state, provided the general contractor or subcontractor may refuse to place the funds in escrow on the grounds that the subcontractor has not substantially performed the work according to the terms of his or its employment. In the event that such general contractor or subcontractor refuses to place such funds in escrow, and the party making a claim against it under this section is found to have substantially performed its work in accordance with the terms of its employment in any arbitration or litigation to determine the validity of such claim, then such general contractor or subcontractor shall pay the attorney’s fees of such party.”

       The submissions presented to the arbitrator took the following form:
      “1. Does Gennarini Construction Co., Inc. owe Messina Painting & Decorating Co. any money pursuant to a subcontract entered into on Decernber 1,1982 for painting work on the Old Danbury Jail Rehabilitation Project? If so, how much money does Gennarini owe Messina?
      “2. Does the Arbitrator have authority to enter a remedy under Section 49-41a (b) of the General Statutes? If so, should the statute be applied in this case, and, if so, what shall the remedy be?”

       This court, in response to the defendant’s motion, permitted the defendant to file its preliminary statement of issues in an untimely fashion. The defendant suggests that this meant the court would review the claims raised in it. The permission to file a preliminary statement of issues late is just that, a permission to file, and does not necessarily imply that this court will address the merits of the claims raised in that statement where they are otherwise improperly before us.

       The defendant stated at oral argument before this court that its post-judgment “Motion for Order” sought relief pursuant to Practice Book § 3082. An examination of the order reveals that rectification was not sought and that § 3082 was not invoked. We cannot accept post-hoc explanations by counsel of what procedure they meant to follow when the record reveals that procedure was not followed.
      The defendant also filed a “Motion for Further Articulation” in this court which was denied for failure to file a threshold motion for rectification in the trial court. Practice Book § 3082. This could not be viewed as a motion to review under Practice Book § 3108 since the requisite motion before the trial court was never made. Nor could it be interpreted as a motion asking this court to complete the record under Practice Book §§ 3096 or 3107. The failure of the defendant to adhere to any of the procedures set forth in the Practice Book to perfect the record for an appeal prevents us from addressing this issue. See Montanaro v. Snow, 4 Conn. App. 46, 50-51, 492 A.2d 223 (1985).


text:
    Pauline Bisson v. Leo J. Bisson
    (3286)
    Dupont, C. J., Borden and Spallone, Js.
    Argued June 11
    decision released August 20, 1985

      Herberts. Wolfe, with whom, on the brief, was Linda B. Meyers, for the appellant (defendant).

      William J. Eddy, for the appellee (plaintiff).
   Spallone, J.

In this appeal by the defendant from the judgment in a dissolution action, the trial court found the following facts. At the time of this action, the plaintiff and the defendant had been married for thirty-three years. Their children, issue of the marriage, had all attained majority. The defendant is the principal of a corporation engaged in a lucrative manufacturing business. Through the manipulative use of corporate funds, he has maintained a lifestyle disproportionate to the amount of his stated net weekly income, without incurring debts of any major consequence. The plaintiff, during the course of the marriage, had never been employed outside the home.

Although the marriage had gone well for a number of years, the relationship had been strained by the defendant’s extramarital affairs. About four years prior to the present action, the defendant became involved with a female employee of his firm. At the time of trial, this relationship had progressed to the point where the defendant and the employee were living together and had made plans to marry.

The trial court found that the marriage between the parties had broken down irretrievably and that the conduct of the defendant was a substantial factor in causing that breakdown. In granting a dissolution of the marriage, the court granted financial awards, which included, inter alia, that the defendant pay the plaintiff weekly alimony of $600, that the plaintiff be named as irrevocable beneficiary of certain life insurance policies and that the defendant pay certain expenses of the plaintiff totalling $18,500, within sixty days. To secure these payments, the court entered the following order: “The defendant is ordered not to sell, pledge, transfer, or encumber his corporate stock in Hartford Tape & Label Incorporated or in the real estate owned by it without the consent of the plaintiff; or, failing such consent, upon the order of the court.”

The sole claim of error being urged upon this court is the propriety of the security order. The defendant’s contention that the court abused its discretion in entering that order is utterly without merit.

General Statutes § 46b-82 provides in pertinent part: “At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other. . . . [and] may direct that security be given therefor on such terms as the court may deem desirable. . . .” (Emphasis added.) The use of the word “may” in the statute clearly invokes the discretionary power of the trial court. See Fritz v. Madow, 179 Conn. 269, 272, 426 A.2d 268 (1979). Our review is thus limited to ascertaining whether the order for security constituted an abuse of the trial court’s discretion. Vaiuso v. Vaiuso, 2 Conn. App. 141, 147, 477 A.2d 678, cert. denied, 194 Conn. 807, 482 A.2d 712 (1984). For us to conclude that the trial court abused its discretion, we must ultimately discern whether the court could reasonably conclude as it did. Timm v. Timm, 195 Conn. 202, 207, 487 A.2d 191 (1985).

Security for the payment of alimony may appropriately be required where the court reasonably anticipates that the obligor spouse’s extravagant disposition of property may render the enforcement of the order difficult. 24 Am. Jur. 2d, Divorce and Separation § 771. The amount of security which a court may order depends upon the evidence in the particular case. Id. Because of the trial court’s unique opportunity to observe the appearance and attitude of the parties and to evaluate the evidence firsthand, we accord great weight to its judgment when financial awards in a dissolution action are challenged on appeal. Timm v. Timm, supra, 206; Eldridge v. Eldridge, 4 Conn. App. 489, 491-92, 495 A.2d 283 (1985).

The record and the transcript in this case are replete with instances reflecting the inclination of the defendant to engage in financial manipulation. We therefore conclude that the trial court’s decision to require security for its financial awards finds full support in the evidence elicited at the trial.

There is no error.

In this opinion the other judges concurred.


author: Hull, J.

text:
    Conservation Commission of the Town of Simsbury v. Edmund W. Price et al.
    (3557)
    Hull, Borden and Spallone, Js.
    Argued June 6
    decision released August 20, 1985

      Kenneth J. McDonnell, for the appellants (defendants).

      Marshall K. Berger, Jr., with whom, on the brief, was Jonathans. Zorn, law student intern, for the appellee (plaintiff).
   Hull, J.

This appeal arises out of a judgment of the trial court awarding the plaintiff, the Simsbury conservation commission, attorney’s fees which it had incurred in defending a prior appeal to the Supreme Court by the defendants. We find no error.

The course of the dispute underlying this appeal is fully set forth in the Supreme Court’s opinion in Price’s first appeal. The plaintiff, claiming a violation of the Inland Wetlands and Watercourses Act; General Statutes §§ 22a-36 through 22a-45; sought to enjoin the defendant property owners from continuing work on a certain dam repair project on their property. After the Supreme Court affirmed the trial court’s judgment granting a permanent injunction to the plaintiff, the plaintiff moved, in the trial court, for costs and attorney’s fees incurred by it in defending that appeal. The trial court, N. O’Neill, J., granted the plaintiff’s motion and awarded it costs and fees totalling $9686.33. The defendants then filed this appeal claiming that the trial court erred (1) in deciding that it had the authority to rule on the plaintiffs motion, (2) in deciding that General Statutes § 22a-44 authorized the assessment of costs and fees incurred in defending an appeal, and (3) in assessing punitive damages against the defendants for exercising their right to appeal.

The defendants’ first claim, that the trial court erred in deciding that it had the authority to assess costs and fees incurred in an appeal, is based upon their reading of Practice Book § 326. That section requires that a motion to set aside or open a judgment must be filed within four months of the date upon which it was rendered. From that section, the defendants conclude that the lack of such a motion in the present case renders the court’s subsequent award of fees and costs a nullity.

This argument is fatally flawed, however. Practice Book § 326 contains two express exceptions to its general rule. That provision does not apply where otherwise provided by law and where the court has continuing jurisdiction. In the present case, the court retained continuing jurisdiction through its original grant of a permanent injunction to the town. “It cannot be doubted that courts have inherent power to change or modify their own injunctions where circumstances or pertinent law have so changed as to make it equitable to do so.” Adams v. Vaill, 158 Conn. 478, 482 (1969). The awarding of attorney’s fees in an action under this statute is ancillary to the injunction itself.

Further, it should be obvious that before “[a]ll costs, fees and expenses in connection with such action . . . together with reasonable attorney’s fees” can be assessed; General Statutes § 22a-44 (b); the action must be concluded so that the amount of those costs, fees and expenses can be computed. “We must avoid a consequence which fails to attain a rational and sensible result . . . .” LaProvidenza v. State Employees’ Retirement Commission, 178 Conn. 23, 29, 420 A.2d 905 (1979); see also Dukes v. Durante, 192 Conn. 207, 214, 471 A.2d 1368 (1984). “In construing a statute courts must presume that a reasonable and rational result was intended.” Frazier v. Manson, 176 Conn. 638, 643, 410 A.2d 475 (1979). The most appropriate time for the town to request its costs, fees and expenses was after the defendants’ appeal had been concluded. Hence, its motion for costs was timely under the statute and the court was within its authority to rule upon that motion.

The defendants’ second claim of error is that General Statutes § 22a-44 (b) does not authorize the assessment of costs, fees and expenses incurred at the appellate level. In support of this argument, they point to the potentially unlimited liability to which a violator of the statute could be exposed for attorney’s fees incurred by towns in defending or prosecuting appeals. Such exposure, they argue, would have a drastic chilling effect on appellate review of judgments rendered pursuant to this statute.

The short answer to this claim is that an assessment of attorney’s fees is discretionary with the court, by the statute’s express terms.

Further, there is no way to interpret the terms of the statute to distinguish trial fees from appellate fees. The statute uses the term “action” rather than “trial.” Legislative intent is to be ascertained from the language of the statute itself if the language is plain and unambiguous. Mancinone v. Warden, 162 Conn. 430, 439, 294 A.2d 564 (1972); Little v. Ives, 158 Conn. 452, 455, 262 A.2d 174 (1969). To construe the statute as the defendants urge would be to frustrate the obviously ameliorative purposes of the statute by allowing attorney’s fees at the trial level and not at the appellate level. Thus, we conclude that the legislature did not intend to preclude a town from recovering appellate costs. Had it wished to do so, that goal could easily have been accomplished through a simple change in the wording of the statute.

Finally, the defendants claim that the court assessed “punitive damages” against them for pursuing their appeal. This argument is based on their conclusion that their original appeal was a benefit to other landowners because it clarified the meaning of the statute. Further, they argue that they might not have appealed had they known of their exposure to an assessment of costs incurred by the town in defense of their appeal.

Since we have concluded that the statute was clear regarding their liability for fees, the defendants’ second argument fails. With regard to their first argument, we note that, although the Supreme Court’s decision was lengthy, it was unanimous in its strong support of the trial court’s decision. The defendants’ claimed assistance to other landowners through the pursuit of their appeal is illusory in light of the clear language employed in the statute.

The defendants also argue that “[cjertainly the Defendants’ original appeal was not frivolous and unjustified. The trial court abused its discretion in ordering the Defendants to pay all of the attorneys fees and costs requested by the plaintiff.” The test to be applied by the court in assessing costs and fees, however, is not whether the action, or the appeal, is “frivolous and unjustified.” Rather, it is clear from the express terms of General Statutes § 22a-44 (b) that costs and fees were intended “to restore the affected wetlands or watercourses to their condition prior to the violation, whenever possible,” and to place the financial burden of restoration upon the violator. We note that the defendants do not claim that the amount charged by the plaintiff’s counsel was unreasonable in relation to the work done. We find no abuse of the trial court’s discretion in this case.

There is no error.

In this opinion the other judges concurred.

        Conservation Commission v. Price, 193 Conn. 414, 479 A.2d 187 (1984).

       The named defendant’s wife, Ruth D. Price, is also a party hereto.

       General Statutes § 22a-44 (b) provides: “Any person who commits, takes part in, or assists in any violation of any provision of sections 22a-36 to 22a-45, inclusive, including regulations promulgated by the commissioner and ordinances and regulations promulgated by municipalities or districts pursuant to the grant of authority herein contained, shall be fined not more than one thousand dollars for each offense. Each violation of said sections shall be a separate and distinct offense, and, in the case of a continuing violation, each day’s continuance thereof shall be deemed to be a separate and distinct offense. The superior court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to impose fines pursuant to this section. All costs, fees and expenses in connection with such action shall be assessed as damages against the violator together with reasonable attorney’s fees which may be allowed, all of which shall be awarded to the commissioner, municipality, district or person which brought such action. The moneys collected pursuant to this section shall be used by the commissioner of environmental protection, to restore the affected wetlands or watercourses to their condition prior to the violation, wherever possible.”

       Practice Book § 326 provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court.
      ‘ ‘Upon the filing of a motion to open or set aside a civil judgment, except a judgment in a small claims or juvenile matter, the moving party shall pay to the clerk the filing fee prescribed by statute unless such fee has been waived by the court.”

       The defendants also argue that the length of the court’s opinion on their appeal, and the amount of time expended by the town in preparing its defense, somehow supports their claim that the appeal was justified and that they should, therefore, not be assessed costs. We simply note that the length of an opinion and the amount of time spent in preparing to defend an appeal often bear no relationship to the difficulty or validity of the issues raised therein.


author: Daly, J.

text:
    Jennifer Kingsley v. Sadi International Company
    (3212)
    Hull, Borden and Daly, Js.
    Argued June 11
    decision released August 20, 1985

      Michael D. O’Connell, with whom, on the brief, were Marcel J. Bernier and William C. Turney, for the appellant (plaintiff).

      William J. Sweeney, with whom, on the brief, was Walter A. Clebowicz, for the appellee (defendant).
   Daly, J.

The plaintiff initiated this action against the defendant for failing to abide by the terms of an agreement under which the defendant agreed to purchase a new automobile for the plaintiff as payment for services rendered in locating real property for purchase. The defendant filed a motion to dismiss claiming that, since there was no allegation in the complaint that the plaintiff was licensed by the Connecticut real estate commission, the court lacked subject matter jurisdiction under General Statutes § 20-325a (a). From the granting of the motion to dismiss and the denial of the plaintiff’s motion to reargue, the plaintiff has appealed.

The plaintiff claimed at oral argument in the trial court that she was acting at all times on behalf of the defendant, which was her employer, and that she was not acting for another but, rather, as an agent of the defendant and hence was not required to be licensed. See footnote 1, supra. The plaintiff relied on Colli v. Real Estate Commission, 169 Conn. 445, 451, 364 A.2d 167 (1975), which held that a person negotiating for himself or on behalf of his corporation is not included within the terms “real estate broker or real estate salesman.”

Practice Book § 143 provides in part: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter .... This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.”

The trial court considered the complaint, the affidavit of the plaintiff’s mother and the written agreement in reaching its conclusion. It held that “one may infer that the plaintiff ‘performed services for the defendant’ in connection with the defendant’s purchase and renovation of certain real estate in New London. It is not clear, however, that the plaintiffs claimed performance falls within the exclusionary language of Colli, i.e., that she was acting ‘on behalf of [her] corporation.’ Accordingly, the court is not able to conclude, on the basis of the allegations of her complaint, that the plaintiff was acting in the capacity of a principal, and the defendant’s motion to dismiss is granted.”

A trial court must consider the allegations of the complaint in their most favorable light when deciding a jurisdictional question raised by a pretrial motion to dismiss. Reynolds v. Soffer, 183 Conn. 67, 68, 438 A.2d 1163 (1981). Although only the plaintiff submitted an affidavit that disclosed the presence of an issue of fact—whether the plaintiff was acting as an agent or employee of the defendant—the trial court granted the motion without an evidentiary hearing.

“Where affidavits filed by opposing parties present undisputed facts, the court may rule upon the motion without taking additional evidence concerning those facts. This procedure in no way diminishes the right of the parties to present and prove all competent facts in issue within the allegations of their respective pleadings. Moreover, this practice encourages judicial expediency by eliminating evidentiary hearings in those cases where material facts are undisputed .... [H]owever, a different practice obtains where there exists a genuine issue of material fact. Affidavits which disclose genuine issues of material fact cannot resolve the factual dispute raised by them .... A judicial determination of such issues must then be made.” Garden Mutual Benefit Assn. v. Levy, 37 Conn. Sup. 790, 791-92, 437 A.2d 141 (1981). The trial court must conduct an evidentiary hearing to insure the right of each party to present all relevant and material evidence for such judicial resolution. Id., 792.

The material presented to the trial court on the defendant’s motion to dismiss left it unclear whether the plaintiff was acting as an agent of the defendant. Given that the plaintiff’s allegations should have been read favorably to her, the proper course was not to dismiss the complaint, but to set the matter down for an evidentiary hearing on that factual issue.

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

In this opinion the other judges concurred.

       General Statutes § 20-325a (a) provides in pertinent part: “No person who is not licensed under the provisions of this chapter . . . shall commence or bring any action in any court of this state ... to recover any commission, compensation or other payment in respect of any act done or service rendered by him, the doing or rendering of which is prohibited under the provisions of this chapter except by persons duly licensed under this chapter.”
      General Statutes § 20-312 provides in pertinent part: “No person shall act as a real estate broker or real estate salesman without a license issued by the commission . . . .”
      Thus, pursuant to these two statutes no person who is not properly licensed may sue in our courts for payment for services rendered as a real estate broker or salesman. We agree with the defendant that the strong, clear language of General Statutes § 20-325a (a) makes the issue of a license, when it is required as a condition of rendering such services, an issue affecting the subject matter jurisdiction of the court.


author: Pickett, J.

text:
    State of Connecticut v. Lillian Lewtan
    (3626)
    Hull, Daly and Pickett, Js.

      Argued June 17
    decision released August 27, 1985

      Carl R. Ajello, for the appellant (defendant).

      Terence A. Sullivan, assistant state’s attorney, for the appellee (state).
   Pickett, J.

The defendant was found guilty, after a jury trial, of two counts of harassment in violation of General Statutes § 53a-183. She was sentenced to an effective term of ninety days in the custody of the commissioner of correction, execution suspended, and placed on probation for one year with the condition that she obtain daily psychiatric treatment. She claims, by this appeal, that she received ineffective assistance of counsel and that the court erred: (1) in refusing to order a competency examination; (2) in improperly admitting illegally obtained evidence; (3) in making erroneous rulings on evidence; and (4) in giving erroneous instructions to the jury. We find no error.

As to the first claim of error, the Supreme Court has repeatedly held that claims concerning ineffective assistance of counsel are more properly pursued in a petition for a new trial or in a petition for a writ of habeas corpus than on direct appeal. State v. Jacobowitz, 194 Conn. 408, 413, 480 A.2d 557 (1984); State v. Tirado, 194 Conn. 89, 93, 478 A.2d 606 (1984); State v. Mason, 186 Conn. 574, 578-79, 442 A.2d 1335 (1982); Miller v. Angliker, 4 Conn. App. 406, 415-16, 494 A.2d 1226 (1985). Where the sole claim on appeal is ineffective assistance of counsel, “habeas corpus is the preferred route for review.” State v. Rivera, 196 Conn. 567, 571, 494 A.2d 570 (1985). “Even those failures which the record might support cannot be properly evaluated simply by perusing the transcript.” State v. Young, 191 Conn. 636, 653, 469 A.2d 1189 (1983); see also State v. Rivera, supra, 570.

In State v. Chairamonte, 189 Conn. 61, 64, 454 A.2d 272 (1983), the Supreme Court, referring to its role in a direct appeal, stated: “Our role in a case like this, however, is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. Without a hearing in which the reasons for counsel’s decision may be elicited, any decision of ours on this claim would be entirely speculative.” See also State v. Mason, supra, 579; Miller v. Angliker, supra, 416. Therefore, we decline to rule upon the defendant’s claim of ineffective assistance of counsel and we leave the defendant to relief by way of a habeas corpus petition.

The defendant claims that the court did not grant a motion for a competency examination on January 12, 1984, just prior to the start of trial. The motion was not specifically made under the provisions of General Statutes § 54-56d, but, rather, was an oral request for a continuance. Thus, the claim on appeal that the trial court refused to order a competency examination is not technically correct.

A defendant is presumed to be competent and the burden to show the contrary is upon the party raising the issue. General Statutes § 54-56d (b). The record does not reflect an offer of proof made by the defendant to support this request. There was merely a claim of “perceived or felt stress.”

The court may, on its own motion, order a competency examination. General Statutes § 54-56d (c). It is, however, a matter of judicial discretion. State v. Bethea, 167 Conn. 80, 88-89, 355 A.2d 6 (1974). Here, the defendant had undergone an examination less than one month prior to the start of the trial and was found to be competent, able to understand the nature of the proceedings and able to assist counsel in her own defense. From the record, the court was justified in finding that the defendant’s competency to stand trial had been determined. Since the competency and psycho-social evaluation reports were part of the court’s file, every reasonable presumption should be made that the court exercised its responsibility and was familiar with its file and the above mentioned reports.

The court was in the best position to evaluate the situation before it, including the demeanor of the defendant, and its judgment must be afforded every reasonable presumption. Lucy v. Lucy, 183 Conn. 230, 232-33, 439 A.2d 302 (1981); Jacobsen v. Jacobsen, 177 Conn. 259, 262-63, 413 A.2d 854 (1979); DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709 (1972). The burden to overcome the presumption of the continuance of the status quo is on the party who seeks to prove its termination. State v. Melechinsky, 38 Conn. Sup. 384, 388, 448 A.2d 1349 (1982). There is nothing in the record to sustain the defendant’s position on this claim.

The remaining issues are also without merit. It is not illegal to tape one’s own telephone conversations. State v. DeMartin, 171 Conn. 524, 544, 370 A.2d 1038 (1976). Therefore, the claim that it was improper to admit evidence that victims of the harassing telephone calls had recorded some of them is without merit.

Likewise, the court did not err in allowing a state’s witness to testify as to the actual words spoken by the defendant. The statute under which the defendant was charged provides, in part, that a person is guilty of the crime of harassment when “with intent to harass, annoy or alarm another person, he makes a telephone call ... in a manner likely to cause annoyance or alarm.” General Statutes § 53a-183 (a) (3).

Evidence of the language used in an alleged violation of the harassment statute is relevant to show the intent of the accused in making the telephone call as well as the likelihood of its causing annoyance or alarm. Gormley v. Director, Conn. State Dept. of Probation, 632 F.2d 938, 943 (2d. Cir.), cert. denied, 449 U.S. 1023, 101 S. Ct. 591, 66 L. Ed. 2d 485 (1980). In determining questions regarding relevancy, the trial court has broad discretion. Delott v. Roraback, 179 Conn. 406, 414, 426 A.2d 791 (1980).

The testimony as to the obscene statements made by the defendant, as well as all of the conversations by the defendant over the telephone, were offered not to prove that her statements were true but that she made them. Such evidence is not hearsay. State v. Romano, 165 Conn. 239, 249, 332 A.2d 64 (1973); State v. DeNegris, 153 Conn. 5, 12, 212 A.2d 894 (1965); State v. Tolisano, 136 Conn. 210, 214, 70 A.2d 118 (1949). Even if it were hearsay, however, it would be admissible to show the state of mind and intent of the defendant. See State v. Periere, 186 Conn. 599, 605-607, 442 A.2d 1345 (1982).

The defendant also claims that the trial court erred in overruling her objection to testimony by a witness for the state as to the effect which the telephone calls had upon his family. The testimony was properly admitted. The witness was testifying as to his observation of the child relative to telephone calls made to the family home by the defendant. These observations were relevant to show that the calls were, in the words of the statute, “likely to cause annoyance or alarm.” General Statutes § 53a-183 (a) (3).

The defendant’s final claim of error is that the trial court failed to instruct the jury properly concerning her failure to testify. 6The instruction given was as follows: “Now, at this point I will tell you that an accused person is not obliged to take the stand in her own behalf, and I instruct you that you may not draw an unfavorable inference from the defendant’s failure to testify.” The defendant claims that the court did not explain the meaning of the word “inference.” The charge was not misleading and the words used were those mandated by General Statutes § 54-84 (b). State v. Burke, 182 Conn. 330, 333, 438 A.2d 93 (1980).

It is not error for a court to refuse to define words which are “used and might be understood in their ordinary meanings.” State v. Maresca, 173 Conn. 450, 460, 377 A.2d 1330 (1977). The issue is whether the jury could have been misled by the court’s instructions. State v. Kurvin, 186 Conn. 555, 572, 442 A.2d 1327 (1982); State v. Ruiz, 171 Conn. 264, 273, 368 A.2d 222 (1976); State v. Rose, 169 Conn. 683, 687-88, 363 A.2d 1077 (1975). The word “inference” is commonly and frequently used in the English language. It is not necessary to define words which are commonly used and which are defined in our standard dictionaries. “[T]he definition of words in our standard dictionaries is taken as a matter of common knowledge which the jury is supposed to possess.” State v. Asherman, 193 Conn. 695, 737, 478 A.2d 227 (1984).

There is no error.

In this opinion the other judges concurred.

       The pertinent portion of the transcript provides: “Mr. Hunt: I’m making a motion for the Court to consider, subsequent to the finding of December 14th by the Diagnostic Clinic and as a result of perceived or felt stress by my client on proceeding today, she is not effectively able to assist counsel in the trial of the case.” (Emphasis added.)

       General Statutes § 54-56d (b) provides: “presumption of competency. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by clear and convincing evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry.”

       The trial court’s judgment file provides: “Said accused was . . . presented before said court on December 6, 1983 upon motion by the Assistant State’s Attorney regarding alleged violation of conditions of release and following the hearing, the court ordered a competency evaluation pursuant to Section 54-56d of the Connecticut General Statutes. The evaluation was conducted by the Court’s Diagnostic Clinic on December 14,1983 and in the written report submitted to the court, the team reached the unanimous opinion that Lillian Lewtan was able to stand trial in that she had an understanding of the legal proceedings against her, and an ability to cooperate with counsel in her own defense.”

       No specific ground for the objection was given and no subsequent objection or motion to strike was made following the court’s preliminary ruling. State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983). It is not error if a defendant does not pursue an objection or motion to strike following a preliminary ruling by the court which states that an objection is premature. Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 251, 268 A.2d 391 (1970). Since a proper objection was not made during the trial, the court could consider this issue abandoned. Practice Book §§ 288 and 3063; State v. Addazio, 169 Conn. 416, 427-28, 363 A.2d 153 (1975).

       While this ground was not properly preserved for appeal, it has been considered pursuant to State v. Tatem, 194 Conn. 594, 595, 483 A.2d 1087 (1984).


text:
    Barbara Nan Rempt v. Henry F. Rempt
    (3140)
    Borden, Spallone and Daly, Js.

      Argued April 12
    decision released August 27, 1985

      Eugene C. Cushman, for the appellant (plaintiff).

      Russel E. Vile, for the appellee (defendant).
   Spallone, J.

This is an appeal by the plaintiff from a postjudgment order modifying an award of unallocated alimony and child support. The parties were divorced in July, 1983. Pursuant to the dissolution decree, which incorporated a written separation agreement, custody of the parties’ two minor daughters, bom on November 17, 1967, and February 1, 1969, was awarded to the plaintiff. The defendant was ordered to pay the plaintiff $400 per week in unallocated child support and alimony. That amount was to be paid for a period of eleven years, provided that upon the eighteenth birthday of each child, the amount would be reduced by $75 per week. The decree also provided, in accordance with the separation agreement, that neither the term nor the amount of unallocated alimony and child support was subject to modification.

Following the dissolution, the plaintiff lived with the two children in the marital residence which, incident to the decree, had been placed in her name. In November, 1983, the older of the daughters moved out of the family home and moved in with neighbors. Upon learning of this, the defendant reduced his weekly payments to the plaintiff to $350 per week.

The defendant moved to modify the judgment by reducing the amount of child support which he was obligated to pay the plaintiff. On the basis of the wording of the original decree, which provided that the unallocated payments would be reduced by $75 per week when each child reached eighteen, he maintained that $75 of the unallocated award of $400 per week was intended as support for each child. Because one child no longer lived with the plaintiff, he argued that the award should be reduced by $75. The trial court granted the motion to modify and ordered that the award be reduced to $325 per week, retroactive to January 16, 1984. No evidence as to the child’s needs was offered.

The issues raised in this appeal are, first, whether the the trial court was precluded by the language of the decree from modifying the award of child support and, second, whether the court erred in reducing that award solely because one of the minor children moved out of the custodial parent’s home. We find error.

The first issue raised by the plaintiff was dispositively addressed in Guille v. Guille, 196 Conn. 260, 492 A.2d 175 (1985). In Guille, the Supreme Court stated that a minor child’s right to parental support “has an independent character, separate and apart from the terms of the support obligations as set out in the judgment of dissolution.” Id., 263. It held that neither the language of General Statutes § 46b-86 (a) nor the provision in a decree purporting to preclude modification was effective, in that case, to restrict permanently a later court’s power to modify the terms of child support. Id., 265. The trial court in this case was not precluded by the language of the decree from modifying the award of child support.

It is clear that an order for support of children may not be modified unless there has been a “substantial change of circumstances” after the issuance of the original order. General Statutes § 46b-86 (a); Bozzi v. Bozzi, 177 Conn. 232, 237, 413 A.2d 834 (1979). The party seeking modification must “clearly and definitely” demonstrate a substantial change in circumstances which was uncontemplated at the time the order was entered. Kelepecz v. Kelepecz, 187 Conn. 537, 538, 447 A.2d 8 (1982). In modifying child support orders, the court may consider all of the criteria enumerated in General Statutes § 46b-84; Howat v. Howat, 1 Conn. App. 400, 403-404, 472 A.2d 799 (1984); one of the most important of which is the needs of the child. Brown v. Brown, 190 Conn. 345, 349, 460 A.2d 1287 (1983).

In this case, the original order was for unallocated alimony and support. Part of the order, presumptively $75 per week per child, was for support and was consequently modifiable. Since the financial ability of the defendant to continue providing support in that amount was never in dispute, the court was required to consider only the child’s needs. See General Statutes § 46b-84 (b); Raymond v. Raymond, 165 Conn. 735, 739, 345 A.2d 48 (1974). As we have noted, no evidence was presented to the court as to those needs. In the absence of such evidence, there could be no showing of a “substantial change of circumstances” to support the reduction of child support owed to the plaintiff under the original order.

An award for payment of support of the child whose custody has been awarded to a parent should properly be directed to that parent for the benefit of the child. 24 Am. Jur. 2d, Divorce and Separation § 1028. It is the right and obligation of the custodial parent to determine how and in what manner child maintenance funds should be spent. 27B C.J.S., Divorce § 321 (2), p. 639. By diverting these funds from the plaintiff, the court significantly reduced her ability to make those decisions. Evidence should have been taken to determine whether, and to what extent, the support portion of the order was to be modified and redirected from the plaintiff to the person actually providing the child with shelter and other necessities.

There is error, the judgment modifying the alimony and child support award is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurrred.

       General Statutes § 46b-86 provides: “(a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law.
      “(b) In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the superior court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.”

       We note that in this case, as in Guille, the minor children were not represented by counsel when the dissolution judgment was rendered. Guille v. Guille, 196 Conn. 260, 261-62, 492 A.2d 175 (1985).


author: Per Curiam;.

text:
    Price Saver, Inc. v. Leonard P. Maynard
    (3413)
    Spallone, Daly and Jacobson, Js.
    Argued May 24
    decision released August 27, 1985

      Gwen B. Dreilinger, with whom, on the brief, was Steven A. Torneo, for the appellant (defendant).

      John D. Boland, with whom, on the brief, was Timothy W. McNally, for the appellee (plaintiff).
   Per Curiam;.

The defendant has appealed from the trial court’s denial of his motion to vacate a prejudgment attachment on real estate.

The sole issue to be determined on review is whether the court erred in finding probable cause sufficient to sustain and continue a previously granted ex parte prejudgment attachment of real estate. We find no error.

Subsequent to the filing of the complaint in this matter, the plaintiff applied for and was granted an ex parte prejudgment attachment on real estate owned by the defendant. Pursuant to General Statutes § 52-2786, the defendant then moved to modify or vacate the prejudgment remedy. After a hearing at which the parties were fully heard, the court, Allen, J., found that there was probable cause to sustain the attachment and denied the motion to modify or vacate.

In acting upon a prejudgment remedy, the court is required to determine “whether or not there is probable cause to sustain the validity of the plaintiffs claim.” General Statutes § 52-278d (a). The plaintiff must provide an affidavit “setting forth a statement of facts sufficient to show that there is probable cause that judgment will be rendered in the matter” in his or her favor. General Statutes § 52-278c (a) (2). “The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.” (Emphasis in original.) Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984), quoting Wall v. Toomey, 52 Conn. 35, 36 (1884).

The trial court has broad discretion in determining whether there is sufficient probable cause to grant a prejudgment remedy. Three S. Development Co. v. Santore, supra, 176; Augeri v. C.F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977). The trial court’s decision will not be overruled unless there is clear error. Augeri v. C.F. Wooding Co., supra.

In reviewing the granting of a prejudgment remedy, this court does not duplicate the trial court’s weighing of the probabilities of success of the underlying claim, but instead must determine whether the trial court’s conclusion was reasonable. Three S. Development Co. v. Santore, supra, 176.

The affidavit and the evidence elicited at the hearing amply support the reasonableness of the trial court’s conclusion that probable cause existed that judgment would be rendered in this matter in favor of the plaintiff.

There is no error.

       General Statutes § 52-278e reads in pertinent part: “The defendant appearing in such action may move to dissolve or modify the prejudgment remedy granted pursuant to this section in which event the court shall proceed to hear and determine such motion expeditiously.”


text:
    Eugene L. Berube v. Personnel Appeals Board of the City of Stamford
    (2659)
    Hull, Spallone and Daly, Js.
    Argued May 15
    decision released August 27, 1985

      Thomas E. Minogue, Jr., with whom, on the brief, was Peter L. Masanotti, for the appellant (plaintiff).

      Alice L. Perry, assistant corporation counsel, with whom, on the brief, was Jay H. Sandak, corporation counsel, for the appellee (defendant).
   Daly, J.

The plaintiff appeals from the decision of the defendant Stamford personnel appeals board (PAB) sustaining the action of the Stamford superintendent of parks (superintendent) in discharging him from the position of supervisor of maintenance operations in the parks department.

The factual situation does not appear to be in dispute: On or about October 13,1977, the superintendent notified the plaintiff that he would be dismissed from his position subject to a hearing before the Stamford personnel commission (commission). The commission scheduled a hearing for October 20, 1977, which was adjourned until November 9,1977, at which time it was concluded. On November 8, 1977, the revised charter of the city of Stamford was approved by a public referendum and became effective. The commission was replaced by the PAB under the revised charter.

On November 15,1977, the commission rendered its decision sustaining the plaintiffs dismissal for incompetency. An appeal was taken and the trial court, Reynolds, J., ruled that the authority of the commission had terminated on November 8, 1977, due to the charter revision. The plaintiff was ordered to be retained in his position at full pay until the PAB rendered its decision. The plaintiff was ordered to file his appeal before the PAB within two weeks after it was legally constituted. The PAB was legally constituted on January 16,1978, and the plaintiff filed his appeal on January 23,1978. The hearing before the PAB was commenced on April 24, 1978, and the decision to affirm the dismissal was rendered on July 17, 1978.

The plaintiff appealed to the Superior Court, claiming, in part, that the PAB convened its hearing more than thirty days after the plaintiff had filed his appeal in violation of § 740.1 of the charter of the city of Stamford. The state trial referee, Hon. William L. Tierney, Jr., noted that the plaintiff had raised the time factor at the April 24 hearing and, when his objection was denied, proceeded to a full hearing after which the plaintiffs discharge for incompetency was upheld. The defendant’s defenses of waiver and estoppel were adopted by the referee in sustaining the action of the PAB.

The sole issue that we must address on appeal is whether the failure to conduct a hearing within thirty days in accordance with § 740.1 of the charter vitiates the action of the PAB and nullifies the discharge of the plaintiff.

The plaintiff relies heavily on Jones v. Civil Service Commission, 175 Conn. 504, 400 A.2d 721 (1978). In Jones, the court construed similar language and held that the word “shall,” in reference to the thirty day time period in which the civil service commission was to hold a hearing on an appeal taken to it, was mandatory and that the doctrine of substantial compliance was not to be considered. There, the employee was discharged from employment and deprived of his salary during the five month appeal period. The New Britain civil service commission was a fully operational administrative body which acknowledged that it was required to commence the hearing within thirty days, as set forth in the applicable regulation, since it requested an extension of time from the discharged employee.

Jones v. Civil Service Commission, supra, can be distinguished from the present case. The Stamford PAB, in contrast, was a newly created board which was not operational until it was funded on April 3, 1978. See 1 Am. Jur. 2d, Administrative Law § 25. The hearing was conducted within thirty days of its funding. Furthermore, the plaintiff was being paid his full salary during the appeal process and was not prejudiced in any way by the delay. Although we do not believe that there was any waiver by the plaintiff in proceeding with the hearing, on the facts of this case, the appeal can be dismissed on the merits.

There is no error.

In this opinion the other judges concurred.

       Section 740.1 of the charter of the city of Stamford provides, in pertinent part: “Within a reasonable time, which shall not exceed thirty days of receipt of notification [of the employee’s appeal], the board shall hold a hearing at which the employee may be represented by counsel.”


text:
    Joan L. Benson v. John T. Benson
    (3014)
    Borden, Spallone and Daly, Js.
    Argued May 16
    decision released August 27, 1985

      Louis Kiefer, for the appellant (defendant).

      Norman J. Voog, with whom, on the brief, was Paul S. Ranando, for the appellee (plaintiff).
   Daly, J.

This is an appeal by the defendant from an award of attorney’s fees and travel expenses to the plaintiff, incurred principally as a result of defending a motion filed by the defendant for modification of custody of their minor daughter.

On August 7, 1974, a judgment dissolving the marriage of the parties was rendered whereby custody of the minor children, including Tamara Lalia Benson, was awarded to the plaintiff mother, Joan L. Benson. The defendant father, John T. Benson, was to have reasonable visitation including one full month during the summer vacation. Shortly thereafter, the plaintiff moved to Colorado with the children. On July 24,1983, while Tamara, then fourteen years old, was visiting the defendant in Connecticut pursuant to the judgment, he moved to obtain custody of her.

The plaintiff moved to dismiss the defendant’s motion for modification claiming that under the Uniform Child Custody Jurisdiction Act (UCCJA), since Tamara had been residing with the plaintiff for the preceding years, Connecticut lacked jurisdiction to entertain the matter under General Statutes § 46b-93, and, further, that Connecticut was an inconvenient and inappropriate forum under General Statutes §§ 46b-97 (a) and (c).* In the same motion, the plaintiff also sought counsel fees.

On August 29, 1983, the trial court, Glass, J., sustained the plaintiffs motion to dismiss, setting forth both lack of jurisdiction and inappropriate forum as grounds. Nothing was mentioned in the memorandum of decision about the plaintiffs counsel fees, so she renewed her request on September 9, 1983. From August 29 through November 29,1983, the defendant filed a plethora of motions including motions for modification, stay of proceedings, contempt, attorney’s fees for himself, and objections to the plaintiff’s motion for counsel fees.

On January 3, 1984, the trial court, J. Healey, J., awarded the plaintiff $2000 in counsel fees for defending the first motion for modification, $1500 for subsequent proceedings, and $300 in travel expenses. The defendant appealed to this court from that award. Subsequently, the plaintiff was awarded an additional $1500 to defend the appeal here.

The defendant claims that the trial court had no jurisdiction to award counsel fees and travel expenses after it dismissed his motion for modification of the judgment of dissolution in order to obtain custody of Tamara for himself.

While Judge Glass indicated that under the UCCJA the trial court lacked jurisdiction, he also found that Connecticut was an inconvenient forum and that a court of Colorado would be a more appropriate forum. Under General Statutes § 46b-97 (g), if a court determines that “it is clearly an inappropriate forum, it may require the party who commenced the proceedings to pay, in addition to the costs of the proceedings in this state, necessary travel and other expenses, including attorneys’ fees, incurred by other parties or their witnesses.” In a case which is pending, and before lack of jurisdiction is determined by a final judgment, the court has the power to make allowances to the wife to aid her defense of an action brought by the husband against her. Morgan v. Morgan, 104 Conn. 412, 415, 133 A. 249 (1926). If a motion for an allowance has been made prior to the final judgment but the motion has not been passed upon, the Superior Court still has jurisdiction over it. Id., 418-19. The plaintiff’s motion for counsel fees was contained in her motion to dismiss. The fact that the trial court did not act promptly on the motion, under the circumstances of this case, did not cause the court to lose its authority, considering that “[t]he deferral of litigation allowances until after trial has been the approved practice in this state.” Arrigoni v. Arrigoni, 184 Conn. 513, 518, 440 A.2d 206 (1981).

The defendant claims that Judge Healey erred in awarding attorney’s fees and travel expenses under General Statutes § 46b-62. That section provides in part that “[i]n any proceeding seeking relief under the provisions of this chapter and section . . . 46b-l . . . the court may order either spouse to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82.” General Statutes § 46b-1 includes family matters such as custody under the UCCJA. Because § 46b-62 specifically encompasses matters involving the UCCJA, we conclude that the defendant’s claim lacks merit. The defendant further claims that the use of the word “spouse,” rather than “party,” in General Statutes § 46b-62, limits the award of counsel fees to a current spouse. We do not agree. Section 46b-62 is expressly applicable to any proceeding seeking relief under the provisions of chapter 815j of the General Statutes concerning dissolution of marriage, legal separation and annulment.

The defendant next claims that Judge Healey could not have awarded counsel fees and travel expenses under General Statutes § 46b-97 (g) when he made a finding that Connecticut was not a clearly inappropriate forum. The reference in § 46b-62 to § 46b-l, which includes custody proceedings under the UCCJA, however, precludes this argument.

The defendant’s final claim, that the court lacked inherent authority to award counsel fees, also lacks merit. “The allowance of counsel fees is within the sound discretion of the trial court; Ridolfi v. Ridolfi, 178 Conn. 377, 380, 423 A.2d 85 (1979); provided the court considers the parties’ respective financial abilities and the criteria set forth in General Statutes § 46b-82. General Statues § 46b-62.” Burton v. Burton, 189 Conn. 129, 141-42, 454 A.2d 1282 (1983). Furthermore, the inherent power of the court to award an allowance to defend an appeal is well settled. Friedlander v. Friedlander, 191 Conn. 81, 87, 463 A.2d 587 (1983). The basis for the allowance is to prevent the wife from being deprived of her rights because she lacks funds. Id.

Our review of the record before us rebuts the plaintiff’s contention that Judge Healey failed to consider the applicable statutory criteria. The trial court, moreover, is not obligated to make an express finding on each of the statutory criteria. Posada v. Posada, 179 Conn. 568, 573, 427 A.2d 406 (1980). It is clear from the record that the plaintiff lacked adequate assets to defend against the various motions and the present appeal. Barnes v. Barnes, 190 Conn. 491, 495, 460 A.2d 1302 (1983).

“Under the common law of England and of most of the states of the union, the power to make an allowance for counsel fees and expenses of litigation in matters pertaining to actions for divorce is inherent in the court.” Krasnow v. Krasnow, 140 Conn. 254, 261, 99 A.2d 104 (1953). In addition to counsel fees, an award of detective and accountant fees may be allowed under appropriate circumstances. Stoner v. Stoner, 163 Conn. 345, 357, 307 A.2d 146 (1972). By analogy, an allowance for travel expenses was appropriate here, particularly since the plaintiff was ordered to appear by the court.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 46b-93 provides in part: “(a) The superior court shall have jurisdiction to make a child custody determination by initial or modification decree if: (1) This state (A) is the home state of the child at the time of commencement of the proceeding, or (B) had been the child’s home state within six months before the commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or (2) it is in the best interest of the child that a court of this state assume jurisdiction because (A) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (B) there is available in this state substantial evidence concerning the child’s present or future care, protection, training and personal relationships; or (3) the child is physically present in this state and (A) the child has been abandoned or (B) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or (4) (A) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivisions (2) or (3) of this subsection, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (B) it is in the best interest of the child that this court assume jurisdiction.”

       General Statutes § 46b-97 (a) provides: “A court which has jurisdiction under this chapter to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.”
      General Statutes § 46b-97 (c) provides : “In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, including but not limited to: (1) Another state is or recently was the child’s home state; (2) another state has a closer connection with the child and his family or with the child and one or more of the contestants; (3) substantial evidence concerning the child’s present or future care, protection, training and personal relationships is more readily available in another state; (4) the parties have agreed on another forum which is no less appropriate; and (5) the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in section 46b-91.”

       General Statutes § 46b-l provides in pertinent part: “Matters within the jurisdiction of the superior court deemed to be family relations matters shall be matters affecting or involving: . . . (12) all rights and remedies provided for in chapter 815j [dissolution of marriage, legal separation and annulment]; . . . (16) custody proceeding brought under the provisions of chapter 815o [UCCJA].”

       See, e.g., Viglione v. Viglione, 171 Conn. 213, 218, 368 A.2d 202 (1976), where counsel fees were ordered in favor of the plaintiff wife who had remarried.


text:
    William Marrinan et al. v. Bert Hamer
    (2956)
    Hull, Boeden and Daly, Js.
    Argued May 14
    decision released August 27, 1985

      Diane Polan, for the appellant (defendant).

      Gerald A. Heffernan, for the appellees (plaintiffs).
   Daly, J.

The defendant has appealed from a summary judgment rendered in favor of the plaintiffs in a summary process action concerning the termination of a lease agreement and the validity of a notice to quit.

The parties entered into a written lease whereby the defendant leased premises in West Haven from the plaintiffs for one year from August 1, 1982, through July 31,1983, for $6600, payable at a monthly rent of $550. On August 29,1983, the plaintiffs initiated a summary process action in two counts. The plaintiffs subsequently withdrew the second count on September 22, 1983, and filed a revised complaint on the basis of the first count only.

The second count of the original complaint alleged that the defendant had failed to comply with various sections of General Statutes § 47a-ll relating to tenant’s duties and responsibilities. The notice to quit possession relating to this count was served on June 30, 1983. The plaintiffs withdrew this count when they realized that they had failed to comply with the notice requirements of General Statutes § 47a-15.

The first count is based on a notice to quit that was served on July 13, 1983, demanding vacation of the premises by July 31, 1983. The defendant claims that the second notice to quit possession was ineffectual since the lease had been terminated by the first notice to quit of June 30, 1983.

On appeal, the defendant claims that the trial court erred (1) in denying his motion to dismiss the first count of the complaint, and (2) in granting the plaintiffs’ motion for summary judgment. The defendant concedes that the issues involved in both his claims are the same.

A plaintiff may withdraw any action that has been returned to court and entered on the docket before a hearing has commenced on the merits; General Statutes § 52-80; and also may amend any defect, or insert new counts, in a complaint within the first thirty days after the return day. General Statutes § 52-128; Practice Book § 175. Under these time constraints, the plaintiffs’ withdrawal of the second count was timely. The revised complaint, filed after the withdrawal of the second count, because it was complete in itself, entirely superseded the original complaint. “[I]ts voluntary filing operated as a withdrawal of the original complaint, which thereupon became merely a part of the history of the case.” Wesley v. DeFonce Contracting Corporation, 153 Conn. 400, 404, 216 A.2d 811 (1966).

Summary process is a statutory remedy which enables the landlord to recover possession from the tenant upon the termination of a lease. General Statutes § 47a-23. “Because of the summary nature of this remedy, the statute granting it has been narrowly construed and strictly followed.” Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 600-601, 96 A.2d 217 (1953). A summary process action is initiated by giving the required notice to quit pursuant to the statute. Webb v. Ambler, 125 Conn. 543, 552-53, 7 A.2d 228 (1939). The first notice to quit, served on June 30,1983, on which the second count was based, became a part of the history of the case when that count was withdrawn; the second count was no longer before the court.

General Statutes § 47a-15 provides remedies to the landlord in the event that a tenant fails to comply with a lease agreement. “The language of the statute [§ 47a-15] is clear and unequivocal. It creates a thirty-day reconciliation period, allowing errant tenants to remedy their first miscue within twenty-one days of the termination notice.” Kapa Associates v. Flores, 35 Conn. Sup. 274, 278, 408 A.2d 22 (1979). The legislative purpose is to discourage summary evictions against first offenders; the machinery of summary process is suspended pending any reoccurence of substantially the same violation within six months. Id.

The June 30,1983 notice to quit was invalid because the requirements of § 47a-15 had not been complied with. The plaintiffs, conceding the inadequacy of the June 30 notice to quit, withdrew the second count. “Invalid,” according to Ballentine’s Law Dictionary, means: “Illegal, having no force or effect or efficacy; void; null.” Webster, Seventh New Collegiate Dictionary, defines “invalid” as “being without foundation or force in fact, truth or law.” Because the notice to quit of June 30 had no effect, it could not have terminated the lease. We conclude, therefore, that the trial court did not err in denying the defendant’s motion to dismiss the first count and in thereafter granting the plaintiff’s motion for summary judgment.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 47a-15 provides: “noncompliance by tenant, landlord’s remedies. Except in the case in which the landlord elects to proceed under sections 47a-23 to 47a-23b, inclusive, to evict based on nonpayment of rent or based on conduct by the tenant which is illegal, if there is a material noncompliance with section 47a-ll which materially affects the health and safety of the other tenants or materially affects the physical condition of the premises, or if there is a material noncompliance by the tenant with the rental agreement or a material noncompliance with the rules and regulations adopted in accordance with section 47a-9, the landlord may deliver a written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than thirty days after receipt of the notice. If such breach can be remedied by repair by the tenant or payment of damages by the tenant to the landlord, and such breach is not so remedied within twenty-one days the rental agreement shall terminate except that (1) if the breach is remediable by repairs or the payment of damages and the tenant adequately remedies the breach within such twenty-one day period, the rental agreement shall not terminate; or (2) if substantially the same act or omission for which notice was given recurs within six months, the landlord may terminate the rental agreement in accordance with the provisions of sections 47a-23 to 47a-23b, inclusive.”


author: Per Curiam.

text:
    Leo Ruhl v. Town of Fairfield
    (3422)
    Dupont, C. J., Borden and Brenneman, Js.
    Argued June 7
    decision released August 27, 1985

      Paul M. Tymniak, for the appellant (defendant).

      T. Paul Tremont and Robert R. Sheldon filed a brief for the appellee (plaintiff).
   Per Curiam.

The plaintiff was injured while walking on Fairfield Beach Road in the town of Fairfield. He brought an action pursuant to General Statutes § 13a-149 against the defendant town of Fairfield for breach of its statutory duty to keep the public highway in repair. The case was referred to an attorney trial referee pursuant to General Statutes § 52-434 (a) (4). After trial, the attorney referee filed a report setting forth his findings and awarding damages to the plaintiff. The trial court rendered judgment accepting the report, from which the defendant appeals.

On this appeal, the defendant challenges two findings of the attorney trial referee: (1) that the road in question was a public highway by dedication; and (2) that the defects in the roadway were the sole proximate cause of the plaintiff’s injuries.

Proceedings before attorney state trial referees are governed by procedures set forth in Practice Book §§ 434 through 444. Upon the filing of the referee’s report, the defendant filed no motion to correct the findings as provided in § 438 of the Practice Book. Instead, the defendant filed a general objection to the trial court’s acceptance of the referee’s report pursuant to § 440 as being “contrary to the weight of law.”

Neither issue raised on this appeal involves a question of law. Whether a road which has not been formally accepted by a town has become a public highway by dedication is a question of fact. Meder v. Milford, 190 Conn. 72, 75, 458 A.2d 1158 (1983); Meshberg v. Bridgeport City Trust Co., 180 Conn. 274, 279, 429 A.2d 865 (1980). Likewise, whether defects in a public roadway were the sole proximate cause of a plaintiffs injuries is a question of fact. Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983); Fukelman v. Middletown, 4 Conn. App. 30, 31, 492 A.2d 214 (1985).

Having filed no motion to correct any of the facts or to add further facts to those found by the attorney trial referee, the defendant has waived any right to attack the subordinate factual findings in the report. Harbor Construction Corporation v. D.V. Frione & Co., 158 Conn. 14, 255 A.2d 823 (1969). Absent a motion to correct and a subsequent exception to the report, the trial court, in ruling on the objection, was limited to determining whether the subordinate facts were sufficient to support the ultimate factual conclusions. Practice Book § 440. This court is limited to considering whether the “facts found and the conclusions reached in the report are adequate to support the judgments.” Harbor Construction Corporation v. D. V. Frione & Co., supra, 21. We find that they are.

There is no error.

       This is the only indication this court has of the substance of the defendant’s objections since no transcript was filed of the July 16,1984 hearing before the trial court on the defendant’s objection to the acceptance of the report.