author: Spallone, J.

text:
    Game-A-Tron Corporation v. Benjamin Gordon
    (2450)
    Hull, Borden and Spallone, Js.
    Argued October 3
    decision released November 13, 1984

      Mark S. Shipman, with whom was Leonard Bieringer, for the appellant (plaintiff).

      Kenneth J. Laska, for the appellee (defendant).
   Spallone, J.

This is an appeal by the plaintiff from the judgment of the trial court granting the defendant’s motion to confirm an arbitration award and denying the plaintiff’s application to vacate that award.

The plaintiff, Game-A-Tron Corporation, entered into a written employment contract with the defendant, Benjamin Gordon, on January 1, 1979. The contract was drafted by the plaintiff. The term of the employment contract was for one year with options to renew for successive twelve-month periods. The plaintiff was obligated to pay the defendant the sum of $35,000 annually.

Paragraph 16 of the contract provided for the unrestricted submission to arbitration of any controversies arising under it. Paragraph 21 provided that the contract was to be construed and enforced in accordance with the laws and decisions of the state of Nevada and the state of Connecticut.

The defendant worked under the contract until his employment was terminated by the plaintiff on March 16, 1979. On April 21, 1982, the defendant filed a demand for arbitration. Neither the plaintiff nor the defendant submitted any issues to the arbitrator other than those contained in the demand for arbitration. The arbitrator did not restrict the issues to be decided by him. After a hearing and the submission of briefs by both parties, the arbitrator rendered his decision in which he awarded the defendant the balance of salary due him under the contract in the amount of $20,540.36.

Thereafter, the plaintiff filed an application to vacate the arbitration award and the defendant filed a motion to confirm the award. The court granted the defendant’s motion to confirm and denied the plaintiff’s application to vacate.

On appeal, the plaintiff claims error in the court’s conclusion that the submission to the arbitrator was unrestricted. It contends that paragraph 16 of the employment contract was qualified by paragraph 21 which required that the contract be construed and enforced in accordance with the laws and decisions of the state of Nevada and the state of Connecticut, with the result that the submission to arbitration was restricted. We disagree.

The language of paragraph 16, the demand for arbitration and the arbitration decision all indicate that the submission was properly construed as unrestricted. Where the language of the arbitration clause indicates an intention of the parties to include all controversies which may arise under the agreement, and where the record reveals no specific questions which the parties submitted to the arbitrator, the submission will be construed as unrestricted. Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 20, 453 A.2d 1158 (1983); Malecki v. Burnham, 181 Conn. 211, 213, 435 A.2d 13 (1980); American Motorists Ins. Co. v. Brookman, 1 Conn. App. 219, 222, 470 A.2d 253 (1984).

The plaintiff also contends that paragraph 16, when read together with paragraph 21, clearly indicates the intent of the parties to limit all submissions to arbitration to restricted submissions. The defendant denies this intent.

Paragraph 21 is ambiguous as to its application and, if the plaintiff’s interpretation is adopted, the general language of paragraph 16 calling for unrestricted submission would be rendered meaningless. If the parties intended that the submissions were to be restricted, the reasonable and rational place to indicate this intent would have been in paragraph 16. Where the terms of a contract are fairly susceptible of two or more interpretations, the one which is the more equitable, reasonable and rational is to be preferred. Lanna v. Greene, 175 Conn. 453, 458-59, 399 A.2d 837 (1978); Texaco, Inc. v. Rogow, 150 Conn. 401, 408, 190 A.2d 48 (1963).

Since paragraph 21 is ambiguous as to its application, it should be construed against the drafter, in this case the plaintiff. Griswold v. Union Labor Life Ins. Co., 186 Conn. 507, 513, 442 A.2d 920 (1982); Simses v. North American Co. for Life & Health Ins., 175 Conn. 77, 85, 394 A.2d 710 (1978); Roby v. Connecticut General Life Ins. Co., 166 Conn. 395, 402, 349 A.2d 838 (1974). The party who actually does the writing presumably will be guided by his own interests and goals in the transaction. Ravitch v. Stollman Poultry Farms, Inc., 165 Conn. 135, 146 n.8, 328 A.2d 711 (1973). The trial court’s conclusion that the submission was unrestricted is amply supported by these principles and should not be disturbed on review.

Having concluded that the submission was unrestricted, a court need only examine the submission and award to determine whether the award conforms to the submission. Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983); Carroll v. Aetna Casualty & Surety Co., supra, 21; Waterbury v. Waterbury Police Union, 176 Conn. 401, 403-405, 407 A.2d 1013 (1979); Trumbull v. Trumbull Police Local 1745, 1 Conn. App. 207, 212, 470 A.2d 1219 (1984). Where the submission is unrestricted the award is final and binding and cannot be reviewed for error of law or fact. Carroll v. Aetna Casualty & Surety Co., supra, 19; Milford Employees Assn. v. Milford, 179 Conn. 678, 683, 427 A.2d 859 (1980); American Motorists Ins. Co. v. Brookman, supra, 223; Courchaine v. Shelby Mutual Ins. Co., 2 Conn. App. 438, 438-39, 479 A.2d 1218 (1984).

Here, the award conforms to the submission and, because the actions of the arbitrator are not subject to review under the circumstances of this case, we need not consider the other issues raised by the plaintiff.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Although this fact does not appear in the record, the plaintiff conceded it at oral argument before this court.

       The demand stated in pertinent part as follows: “Named claimant, a party to an arbitration agreement contained in a written contract, dated January 1, 1979, providing for arbitration, hereby demands arbitration thereunder.
      “IV. Miscellaneous Provisions (16). Any controversy arising from, or related to this Agreement shall be determined by arbitration, in the City of Hartford, Connecticut, in accordance with the Rules of the American Arbitration Association, and judgment upon any such determination or award may be entered in any Court having jurisdiction.
      “NATURE OF DISPUTE: Breach of Employment Contract
      “CLAIM OR RELIEF SOUGHT: Balance of salary due in the amount of $29,615.36.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Leslie Hobby et al. v. Robert S. Feldman et al.
    (2268)
    Dupont, Acting C.P.J., Borden and Daly, Js.
    Argued October 5
    decision released November 13, 1984

      Jackson T. King, Jr., for the appellants (plaintiffs).

      Leonard B. Berkman, for the appellees (defendants).
   Per Curiam.

The plaintiffs, by their complaint, sought a judgment declaring invalid the mortgage held by the defendants on the real property of the plaintiffs. The defendants, by their counterclaim, sought damages from the plaintiffs for failure to pay amounts due under an agreement. The agreement created the obligation for which the mortgage held by the defendants was security. The trial court issued a factually detailed memorandum of decision and rendered judgment for the defendants on the complaint and on the counterclaim. We have carefully considered the claims of error of the plaintiffs on appeal and find them to be without merit. They amount to an attempt to persuade us to retry the facts found by the trial court, which are amply supported by the evidence and are not clearly erroneous.

There is no error.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).


author: Hull, J.

text:
    Abraham J. Kolodney, Trustee v. Joseph F. Kolodney et al.
    (2475)
    Hull, Bobden and Spallone, Js.
    Argued October 5
    decision released November 13, 1984

      Irving B. Shurberg, for the appellant (plaintiff).

      Jason E. Pearl, with whom, on the brief, was Gary W. Gworek, for the appellee (defendant Nancy Kolodney).

      John C. Matulis, with whom, on the brief, was Kenneth J. Speyer, for the appellee (defendant Edward J. Januszewski).

      William W. Weber, for the appellee (defendant New Britain National Bank).
   Hull, J.

This action raises the question of whether an appeal from a Probate Court order requiring increased payments to the beneficiary of a testamentary trust precludes a later declaratory judgment action by which the trustee seeks to determine the extent of his discretion under the terms of the trust. The trial court concluded that the later action was precluded by the earlier and rendered a judgment dismissing the later action, from which the plaintiff appealed. We find no error.

On October 2, 1981, the Berlin Probate Court, Januszewski, J., after a hearing and pursuant to a trust created under the will of Ralph J. Kolodney, ordered the present plaintiff, Abraham J. Kolodney, trustee, to double his $1000 per month payments to the defendant beneficiary of that trust, Nancy Kolodney. On appeal to the Superior Court, the award to Nancy Kolodney was increased again to $2500 per month.

During the pendency of that appeal, this declaratory judgment action was instituted against the beneficiary, several other parties interested in the will and Judge Januszewski by the trustee, who sought answers to five questions from the Superior Court. All of the questions focus on the extent of the trustee’s discretion as to the timing and amount of any payments required under the terms of the trust. This action was dismissed by the court, N. O’Neill, J., on the motion of Judge Januszewski, as duplicative of the issues presented in the prior appeal from the Probate Court.

By 1850, it was already “well settled, that the pendency of a prior suit between the same parties, for the same thing, will [generally] abate a latter suit; because, in such a case, the last is deemed to be unnecessary, and therefore vexatious.” Quinebaug Bank v. Tarbox, 20 Conn. 510, 515 (1850). The few exceptions to this rule occur where the application of the rule would deprive the plaintiff “of any substantial right which the law gives him as incident to the determination of the issues or the direct and speedy collection of his debt.” Dettenborn v. Hartford-National Bank & Trust Co., 121 Conn. 388, 393, 185 A. 82 (1936); see also Brochin v. Connecticut Importing Co., 137 Conn. 350, 77 A.2d 336 (1950). Thus, where a Probate Court appeal and a Superior Court action are both instituted in the same matter, the latter will not be dismissed if it affords the plaintiff a remedy otherwise unavailable before the Probate Court; Dettenborn v. Hartford-National Bank & Trust Co., supra; or where the plaintiffs only alternative would be “time-consuming and might well have cost him the opportunity of assuring . . . the collection of any judgment he might obtain.” Brochin v. Connecticut Importing Co., supra, 353.

Where, however, the plaintiffs “could have so easily procured the advantage . . . which they did obtain in the second action by getting an order . . . in the first action . . . the second action . . . was unreasonable.” Cole v. Associated Construction Co., 141 Conn. 49, 56, 103 A.2d 529 (1954). It is into this last group of cases that most actions for declaratory judgments fall. “It is manifestly unwise and unnecessary to permit a new action for a declaratory judgment when the same question can be determined in the pending action.” Buchman v. Taylor, 151 Conn. 209, 211, 196 A.2d 111 (1963); see also Redmond v. Matthies, 149 Conn. 423, 427-28, 180 A.2d 639 (1962).

In the present case, the five claims upon which the plaintiff sought rulings from the Superior Court are directly involved in the appeal to the Superior Court from the decision of the Probate Court. They have since been decided, either explicitly or by necessary implication, by the Superior Court, Doyle, J., in that appeal.

It should also be noted that a Probate Court judge is never a proper party defendant to a declaratory judgment resulting from his construction of a will in an action before him.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The provisions of that trust read in part: “Fourth: All the rest, residue and remainder of my estate, of whatsoever the same may consist and wheresoever situated, I give, devise and bequeath to my said brother, Abraham J. Kolodney, to serve without bond, and if he is unable or unwilling to act, then to The New Britain National Bank, a national banking association located in said Town of New Britain, in trust, however, to pay over to my daughter, Nancy Kolodney, when she has reached or shall reach the age of fifty years. During the period while my Trustee, whichever one may act shall hold any estate in trust, he or it shall have the power to invest and reinvest the same and to collect the income therefrom and expend so much of the net income and principal thereof for the comfortable maintenance, support and education of my said daughter as he or it shall, in his or its sole discretion, deem advisable, or in the event my said daughter shall not be living at the time of my death or shall not survive to receive all of the trust estate hereunder in accordance with the terms hereof, then I give, devise and bequeath all said rest, residue and remainder estate or all of said trust estate then remaining, whichever the case may be, to her children then living and the issue then living of any deceased child of hers, equally per stirpes.”

       That appeal is, pursuant to General Statutes § 45-288, a trial de novo; Haverin v. Welch, 129 Conn. 309, 315, 27 A.2d 791 (1942); though limited to the jurisdiction of the Probate Court. MacKinnon v. Burke, 25 Conn. Sup. 285, 289, 203 A.2d 85 (1964), quoting Slattery v. Woodin, 90 Conn. 48, 50, 96 A. 178 (1915).

       Those five questions read as follows:
      “1. Whether the plaintiff has the sole and absolute discretion pursuant to said trust to determine what, if any, payments may be made to the defendant Nancy Kolodney.
      “2. Whether said trust requires the plaintiff to make any payments to the defendant Nancy Kolodney.
      “3. Whether the defendant Probate Judge Edward J. Januszewski has the power to order the plaintiff to make any specific payment to the defendant Nancy J. Kolodney.
      “4. Whether the defendant Probate Judge Edward J. Januszewski has the power to remove the plaintiff as trustee if the plaintiff fails to make any specified monthly payments to the defendant Nancy Kolodney.
      “5. Whether the defendant Probate Judge Edward J. Januszewski has the power to remove the plaintiff as trustee if the plaintiff fails to make any payment to the defendant Nancy Kolodney.”

       The opinion of the Superior Court for the judicial district of Hartford-New Britain at New Britain, No. 408498 (1984), Doyle, J., on the appeal from the Probate Court, deals directly with two of the questions raised here. Specifically, questions one and three are dealt with in Judge Doyle’s memorandum of decision. A casual glance at the five questions at issue here reveals that they are so redundant as to render specific discussion of each of the remaining questions unnecessary. See footnote 4, supra.
      It should be noted that the trustee has elected to appeal to this court from the judgment in the appeal from the Probate Court. That appeal is pending.


text:
    Deborah DiUlio v. Richard Goulet et al.
    (2456)
    Hull, Borden and Spallone, Js.
    Argued October 12
    decision released November 20, 1984

      Sanford J. Plepler, with whom, on the brief, was David T. Walpole, for the appellant (plaintiff).

      Thomas P. Barrett, with whom were Julie A. Harris and, on the brief, William J. Gallitto, for the appellee (defendant National Association for Stock Car Auto Racing, Inc.).
   Hull, J.

This case involves the validity of a release of liability signed by the plaintiff, who subsequently suffered injuries due to the alleged negligence of the named defendant and others. The trial court granted the motion for summary judgment filed by the defendant National Association for Stock Car Auto Racing, Inc. (NASCAR), concluding that the release was valid and that the plaintiff’s signature bound her to the agreement. The plaintiff appeals from the summary judgment rendered against her.

At approximately 6 p.m. on May 16,1980, the plaintiff, Deborah DiUlio, arrived at Stafford Springs Speedway to observe her boyfriend, the defendant Richard Goulet, race his car. She went to the pit area where Goulet’s car was being prepared for the upcoming race. To gain entry to the pit area, the plaintiff had to wait in line with a number of other people by a gate. Before being allowed through the gate, she was required to sign both a form entitled “Release of Liability” and a pit permit which she was to retain while in the pit area.

Approximately one hour later, DiUlio was injured as she walked between the front of Goulet’s car and the rear of the trailer which was used to transport the car to the racetrack. A mechanic, the defendant Edmund Leduke, was behind the wheel of the car when it jerked forward and pinned the plaintiff between the two vehicles. DiUlio brought suit, claiming negligence, against Goulet, Leduke and NASCAR, which conducted the racing on the night in question.

NASCAR moved for summary judgment asserting that the release of liability and pit pass signed by the plaintiff left no genuine issues of material fact to be tried. In support of its motion, NASCAR attached several pages of transcript from DiUlio’s deposition. DiUlio responded by filing a counteraffidavit. Both her affidavit and the deposition transcript contain statements suggesting that DiUlio was rushed through the gate and was unable to read the documents which she signed. We find error.

Cases involving negligence are ill-suited to determination by summary judgment. Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984); Spencer v. Good Earth Restaurant Corporation, 164 Conn. 194, 198, 319 A.2d 403 (1972). Summary judgment should only be granted when there is no genuine issue of material fact remaining in the case. Practice Book § 384; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984); Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 372, 260 A.2d 596 (1969). Here, even though the plaintiff signed a release, the plaintiffs deposition and counteraffidavit raise a genuine issue of material fact as to her assent to the terms of the release. If there was no mutual assent, the release was not valid. Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 414, 446 A.2d 799 (1982); Malone v. Santora, 135 Conn. 286, 291, 64 A.2d 51 (1949); Maynard v. James, 109 Conn. 365, 370, 146 A. 614 (1929); Calamari & Perillo, Contracts (2d Ed.) pp. 23-24. “The general rule is that where a person of mature years and who can read and write, signs or accepts a formal written contract affecting his pecuniary interests, it is his duty to read it and notice of its contents will be imputed to him if he negligently fails to do so; but this rule is subject to qualifications, including intervention of fraud or artifice, or mistake not due to negligence, and applies only if nothing has been said or done to mislead the person sought to be charged or to put a man of reasonable business prudence off his guard in the matter.” (Citations omitted.) Ursini v. Goldman, 118 Conn. 554, 562, 173 A. 789 (1934). Obviously, the trial court accepted NASCAR’s affidavit and discounted the plaintiffs counteraffidavit, in effect, resolving the issue of the plaintiffs assent to the release in favor of the defendant. This is not the function of the court when ruling on a motion for summary judgment. Its proper role is not to try issues of fact but to determine whether there is a material issue of fact. Batick v. Seymour, supra, 647; Associates Discount Corporation v. Smith’s Lincoln-Mercury Sales, Inc., 153 Conn. 176, 180, 214 A.2d 909 (1965). In light of this holding, we do not reach the plaintiffs claim that public policy disfavors releases such as the one present in this case.

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

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       In the deposition, the following exchange took place:
      “Mr. Barrett: This is a Proof of Loss for Participant Accident Report. “Q. Would you tell me why there is no reason you could read it.
      “A. Because there is a big line, and they just want you to sign and go.” Paragraph four of the plaintiff’s counteraffidavit contains the following statement: “I did not read any part of the Pit Permit or the Release form because the gatemen rushed me as well as other people in the long line through the gate.”


text:
    In re Juvenile Appeal (84-6)

    (2560)
    Hull, Borden and Spallone, Js.
    Argued October 4
    decision released November 20, 1984

      PaulD’Astous, for the appellant (father of the minor children).

      JohnH. Doermann, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (commissioner of children and youth services).

      Cornelius J. Ivers, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Spallone, J.

This is an appeal by the respondent, the father of three minor children, from a judgment terminating his parental rights to his children pursuant to General Statutes § 17-43a.

The record reveals the following facts: On January 2, 1982, the respondent killed his wife, the mother of the children involved in this appeal, and their fifteen year old daughter in the family apartment. The three surviving children, who were present in the home at the time, were placed by the department of children and youth services (hereinafter DCYS) with foster caretakers. Under an ex parte order of temporary custody, the children were subsequently placed in the care of relatives.

The respondent, who had fled to Puerto Rico, was apprehended and charged with two counts of murder. He pleaded guilty to both counts under the Alford doctrine; North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); and was sentenced to concurrent terms of imprisonment totalling forty years. Thereafter, the children were adjudicated as “uncared for” and committed to the custody of DCYS.

DCYS petitioned under General Statutes § 17-43a to terminate the respondent’s parental rights with respect to each of the children. The trial court granted the petitions on the ground that there was “no ongoing parent-child relationship” and that “to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child.” The respondent has appealed from that judgment.

The sole issue in this appeal is whether the court erred in finding that there was no ongoing parent-child relationship between the, respondent and his children. The respondent claims that there was insufficient evidence to support the conclusion that no ongoing parent-child relationship existed. We disagree.

Our statutes define the termination of parental rights as “the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent . . . .” General Statutes § 45-61b (g). It is a most serious and sensitive realm of judicial action. Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975). When state interference is brought to bear on the parent-child relationship, the natural rights of parents in their children are to be afforded deference and, absent a powerful countervailing interest, protection. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 13, 438 A.2d 801 (1981); In re Juvenile Appeal (Anonymous), 177 Conn. 648, 671, 420 A.2d 875 (1979); In re Juvenile Appeal (84-3), 1 Conn. App. 463, 466, 473 A.2d 795 (1984). To justify the termination of parental rights in the absence of consent, one or more of the grounds set forth in General Statutes § 17-43a must be proven by clear and convincing evidence. In re Juvenile Appeal (84-3), supra, 467; see In re Juvenile Appeal (83-CD), 189 Conn. 276, 296, 455 A.2d 1313 (1983).

General Statutes § 17-43a (a) (4), the section pursuant to which the trial court terminated the respondent’s parental rights, requires that a two-pronged determination be made. First, the court must determine that no ongoing parent-child relationship exists; and second, it must look into the future and determine whether it would be detrimental to the child’s best interests to allow time for such a relationship to develop. In re Juvenile Appeal (Anonymous), supra, 670; In re Juvenile Appeal (84-3), supra, 479.

Here, the respondent claims that the trial court erred in its finding as to the first prong of the determination. Specifically, he argues that the court erred in concluding that there was no ongoing parent-child relationship because the children have present memories and feelings for him. The respondent claims that these memories or feelings, although negative, are proof of his ongoing parental relationship with his children. He bases his argument on In re Juvenile Appeal (Anonymous), supra, in which the Supreme Court, in construing § 17-43a (a) (4), stated: “It is reasonable to read the language of ‘no ongoing parent-child relationship’ to contemplate a situation in which, regardless of fault, a child either has never known his or her parents, so that no relationship has ever developed between them, or has definitely lost that relationship, so that despite its former existence it has now been completely displaced. In either case the ultimate question is whether the child has no present memories or feelings for the natural parent. . . . The statute does not authorize the termination of parental rights upon a showing of a troubled relationship, but only upon a showing of no relationship.” (Emphasis in original.) Id., 670-71.

W'e must keep in mind that in fashioning the definition of “no ongoing parent-child relationship” the Supreme Court in In re Juvenile Appeal (Anonymous), supra, was construing General Statutes § 17-43a (a) (4). Both the statute and its subsequent judicial gloss must be read so as to make common sense and so as not to lead to a bizarre result. Eagle Hill Corporation v. Commission on Hospitals & Health Care, 2 Conn. App. 68, 75, 477 A.2d 660 (1984). Thus, in applying that definition to the facts of this case, we focus on “the ultimate question [of] whether the child has no present memories or feelings for the natural parent.” (Emphasis added.) In re Juvenile Appeal (Anonymous), supra. Common sense and the avoidance of bizarre results dictate that we read that language in its ordinary meaning. As the respondent conceded in argument before this court, his line of reasoning would apply as well if the children had similar feelings toward him resulting from an attempt, on his part, to kill them. As used here, “for” means “what is said or felt in favor of someone or something: pro.” Webster, Third New International Dictionary. We must conclude, therefore, that the phrase “feelings for the natural parent” refers to feelings of a positive nature. It does not encompass the extreme, psychologically corrosive and destructive feelings which are evident in this situation.

This tragic case forces us, therefore, to consider the meaning of “no ongoing parent-child relationship” in a family scenario which exceeds in pathos the trouble and confusion which characterized the parent-child relationship in In re Juvenile Appeal (Anonymous), supra. The oldest of the children, A, had the devastating experience of seeing his father repeatedly stab his mother and sister after a violent argument. A testified that he does not want to see or talk to his father because of what he did and that he has not spoken with him since the killings. The court found that all three children have a valid reason to fear the respondent, and that they do not want to see, talk to or hear from him. The court also accepted the testimony of Rolando Martinez, a psychiatric social worker at the Child Guidance Clinic for Central Connecticut, who had seen the children approximately eight to ten times and testified that, when discussing the respondent, the children are depressed, anxious and fearful of the respondent, and that the thought of having contact with him elicited in them suicidal and homicidal thoughts. He stated that any continued contact with the respondent would be further damaging to the children and that some long-term emotional and psychological problems would follow them throughout their lives. Martinez concluded that the children were not prepared to deal with the respondent at any time in the near future and that, although they may wish to have contact with their father at some time in their adult lives, there was no need for them to have any forced contact with him during their childhood.

We recognize that incarceration of a parent alone does not constitute abandonment; In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 443, 446 A.2d 808 (1982); or cause for termination of that parent’s rights. Matter of Troy, 27 Or. App. 185, 188-89, 555 P.2d 933 (1976); see In re Juvenile Appeal (Docket No. 10155), supra. Here, however, there is more. The respondent is incarcerated because he has, by his own actions, not only terrorized his children but denied them a maternal relationship.

In In re Juvenile Appeal (Anonymous), supra, 674-75, the mother-child relationship in question possessed certain positive attributes. While the evidence revealed “a relationship in a state of some disrepair”; id; the child claimed still to love and enjoy her visits with her mother. In this case, the childrens’ ideations of homicide and suicide, sleep disturbances, nightmares and other after-effects of the respondent’s acts sharply contrast to the affection expressed in In re Juvenile Appeal (Anonymous), supra. Somewhere a line must be drawn between a relationship which is “troubled and confused”; id., 670; and one in which a parent by his own act has caused the destruction of a family. In striking at the heart of the family, the respondent demonstrated total disregard for the impact of his actions upon the emotional well-being of his children. The legacy of this disregard will live with the children for many years to come.

There is no error.

In this opinion the other judges concurred.

       The respondent is currently serving that sentence at the Connecticut Correctional Institution, Somers.

       General Statutes § 46b-120 provides in pertinent part: “[A] child or youth may be found ‘uncared for’ who is homeless or whose home cannot provide the specialized care which his physical, emotional or mental condition requires.”
      General Statutes § 46b-129 (a) provides in pertinent part: “[T]he commissioner of children and youth services . . . having information that a child or youth is neglected, uncared-for or dependent, may file with the superior court ... a verified petition plainly stating such facts'as bring the child or youth within the jurisdiction of the court as neglected, uncared-for, or dependent, within the meaning of section 46b-120 . . . and praying for appropriate action by the court . . . .”

       This determination was based on General Statutes § 17-43a which provides: “(a) In respect to any child committed to the commissioner of children and youth services in accordance with section 46b-129 . . . the commissioner . . . may petition the court for the termination of parental rights with reference to such child'. . . . The superior court upon hearing and notice . . . may grant such petition if it finds, upon clear and convincing evidence, that over an extended period of time, which, except as hereinafter provided in this subsection, shall not be less than one year: . . . (4) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child.”
      The court dismissed as not proven an alternate ground alleged by DCYS pursuant to General Statutes § 17-43a (a) (2), which provides for termination of parental rights if the parents have failed to achieve a degree of personal rehabilitation that would allow them to assume a responsible position in their child’s life. The dismissal of this alternate ground is not at issue in this case.

       The son testified, in part, as follows:
      “Q. What happened?
      “A. They got into an argument at I don’t know what time it was. He came in the room, started arguing and fighting, and then he asked her did she want him to stay there. She said no, because he was drunk. She said if he comes drunk, he has to leave. So then he came drunk. She told him leave, and he started hitting her, punching her, and then he came in the room with a knife and he hit my mother and sister and they scratched his face. Then he took out the knife and started stabbing them.
      “Q. Do you know how many times he stabbed her?
      “A. No.
      “Q. Was it many times?
      “A. Yeah, he took turns like.”

       The record also reveals a history of domestic violence by the respondent towards his wife and children. A study submitted to the trial court by Helen Figueroa, a DCYS social worker, states that the wife “allegedly suffered facial bruises and a head injury, requiring eighteen stitches” resulting from an argument with the respondent. In a report to the DCYS, Rolando Martinez and Herbert Gewirtz, Clinical Director of the Child Guidance Clinic for Central Connecticut, quote the children as stating: “[The respondent] use [sic] to beat us kids and my mother everyday. One time he hit my mother in the head with a chair. In New York I had to call the cops on him twice. I don’t have any good memories about him.”

       In that case, the mother was separated from her child because she was involuntarily committed to a state hospital. During the three month period of the mother’s hospitalization, the child was adjudicated “uncared-for” and committed to the care of DCYS. The mother’s subsequent attempts to reunite with her child were stymied by financial difficulties and administrative delays. Despite her efforts, DCYS successfully petitioned to revoke her parental rights.

       The court’s characterization of the parent-child relationship as “troubled” in In re Juvenile Appeal (Anonymous), 177 Conn. 648, 670, 420 A.2d 875 (1979), appears to have arisen as much from the development of an “intervening formation of a new relationship between the child and her foster parents”; id.; as from any problems which preceded the mother’s involuntary commitment, as to which that case is silent.


text:
    Peter Kusterer v. Edward Sheehy et al.
    (2463)
    Hull, Borden, and Spallone, Js.
    Argued October 12
    decision released November 27, 1984

      Lewis R. Whitehead, corporation counsel, for the appellants (defendants).

      Socrates H. Mihalakos, for the appellee (plaintiff).
   Hull, J.

As a result of the refusal of the five defendants, who constituted the board of selectmen of the town of Woodbridge, to convey a parcel of town-owned land to the plaintiff, Peter Kusterer, he brought suit seeking a writ of mandamus. The defendants appeal from the judgment granting the writ of mandamus and ordering conveyance of the land to the plaintiff. We find error.

On April 28,1982, the board submitted to the Wood-bridge planning commission the plaintiffs proposal to purchase 1.2 acres of property and the house thereon, known as the Rice House. On May 3, 1982, the commission disapproved the proposal, citing the “strategic” location of the land and the fact that the parcel to be conveyed was approximately 12,728 square feet short of the 65,000 square foot minimum lot required by the town's zoning regulations.

Thereafter, on July 12,1982, a town meeting, called in response to a petition filed by the plaintiff, voted to sell the land in question. The board refused to comply with that vote and the plaintiff instituted this suit. The defendants briefed five claims of error, one of which is dispositive of this appeal.

The defendants’ first claim of error focuses on the trial court’s conclusion that the vote of the town meeting “was a mandate which the selectmen were obliged to follow.” The defendants admit that the vote of the town meeting was to sell the property and that under § 4-4 of the town charter the board had a duty to “be [Responsible for carrying out the acts, policies and ordinances of the Town Meeting,” as the plaintiff claims. The defendants assert, however, that this duty applies only to acts of the town meeting which are otherwise within its powers. We agree.

Section 4-2 (a) of the Woodbridge charter states: “The Board of Selectmen shall be the legislative body of the Town. It shall be vested with and shall exercise all powers of the Town except: (1) Powers otherwise allocated by this Charter. (2) Powers otherwise allocated by General Statute or applicable Special Act and not vested in the Board of Selectmen by this Charter. (3) Powers delegated by the Board of Selectmen by ordinance, so long as the same shall remain in effect.” (Emphasis added.) That provision “plainly and adequately expresses the intention of its drafters [and] it must be given effect.” Burwell v. Board of Selectmen, 178 Conn. 509, 519, 423 A.2d 156 (1979). A common sense reading of the provision indicates that the board retains control over the sale of town-owned land absent an express grant of that power elsewhere. Since we can find no such grant, we conclude that the board has plenary legislative powers in the town of Woodbridge.

This reading of the charter is bolstered by the maxim “expressio unius est exclusio alteráis.” To construe a specific provision in the charter it is necessary to look at the charter as a whole. Mitchell v. King, 169 Conn. 140, 144, 363 A.2d 68 (1975). The legislative powers of the town meeting are specifically set out in the charter and the power to order the sale of town land is not among them. State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957). We therefore conclude that the drafters did not intend to provide the town meeting with this power.

In view of our conclusion that the town meeting did not have the power to force the sale of the land in question, we do not reach the remainder of the issues raised by the defendants in this appeal.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       This appeal, originally filed in the Appellate Session of the Superior Court, was transferred to the Supreme Court, and was thereafter transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       At oral argument it was explained that the location was “strategic” because the land in question abutted a recreation area and would encroach upon that area if the parcel to be sold was increased to conform to zoning requirements.

       The land in question is located in a “Residence A” district. Although several uses other than purely residential ones are permissible under the ordinance, the 65,000 square foot minimum lot size is applicable to all uses under § 3.13 of the regulations. Section 3.44 of those regulations prohibits the creation or reduction of a lot below the minimum prescribed.

       The town meeting is expressly given the power to block sales of the town land in excess of $25,000 under § 4-8 (a) of the charter. This provision demonstrates clearly that the powers of the town meeting relative to town land were considered by the drafters of the charter. Additional powers granted to the town meeting include the power to petition for enactment of certain ordinances; § 4-5 (g); the power to reject the proposed annual budget; § 6-2 (h); the power to reject supplemental appropriations; § 6-3 (b) (1); and the power to reject capital projects in excess of $1,000,000; § 6-4.


author: Borden, J.

text:
    Karl B. Leabo et al. v. Steven Leninski et al.
    (2433)
    Hull, Borden and Spallone, Js.

      Argued October 3
    decision released November 27, 1984

      Peter C. Barrett, for the appellant-appellee (named defendant).

      Gordon A. Evans, with whom, on the brief, was Richard H. Lamere, for the appellees-appellants (plaintiffs).
   Borden, J.

This is a suit to quiet title to a private road known as Walden Hill Road, in Guilford, in which the plaintiffs also sought injunctive relief and damages. The trial court rendered a judgment declaring that the plaintiffs have a right of way over Walden Hill Road and awarding them exemplary damages. The defendant Steven Leninski, who owns the fee to the road, appeals from this judgment, and the plaintiffs, who are owners of lots abutting the road, cross appeal.

This case is a subsequent chapter of what the trial court described as a long and bitter feud between the plaintiff Karl B. Leabo and the defendant, which has already resulted in one Supreme Court decision. Leabo v. Leninski, 182 Conn. 611, 438 A.2d 1153 (1981). Some of the facts of that case are pertinent here. In 1959, the Guilford zoning commission approved a subdivision plan of certain property owned by the estate of George T. Sperry located in the Sachem’s Head section of Guilford. The subdivision consisted of six lots situated north of Falcon Road and a small piece of rocky shore, known as the “Second Piece,” located south of Falcon Road. Falcon Road runs east and west along the beach on Long Island Sound and west of Walden Hill Road. The estate also owned additional property not included in the subdivision plan. That property consisted of a 2.23 acre parcel located on the east side of Walden Hill Road and a small beach, approximately 1300 square feet in area, located south of Falcon Road and east of the “Second Piece.” Leabo v. Leninski, supra, 612.

The trial court here found the following facts, which are not disputed in this appeal: The estate sold the six lots, Walden Hill Road and the “Second Piece” to Falcon, Inc. Falcon, Inc., conveyed the six lots and the “Second Piece” to the plaintiffs or their predecessors in interest. Each deed granted the owners rights to the beach and conveyed a right of way “for all purposes whatsoever, over, upon, through and across Walden Hill Road.” All successive deeds reconveying the lots granted a similar right of way to Walden Hill Road. Walden Hill Road is fifty feet wide but only the middle twenty feet are paved and used as a traveled way by the lot owners. “Tree lawns” were planted on the unpaved portions of the road by the lot owners, who maintained those areas and the paved portion of the road.

In 1975, Leabo learned that the Sperry estate’s remaining land in the area, including the 2.23 acre parcel adjoining Walden Hill Road and the small beach to the southeast of the road, was for sale. Leabo consulted with his attorney and with the Sachem’s Head Association, the local zoning authority; both advised him that conversion of the four summer cottages on the 2.23 acre lot to year-round use would violate existing zoning ordinances. After hearing that the defendant was interested in purchasing the property and winterizing the four summer cottages, Leabo had his attorney send the defendant a letter advising him that such a conversion would be in violation of the zoning ordinances and that Leabo would oppose it.

Three days later, the defendant purchased the 2.23 acre lot and small beach. His deed made his rights to the beach subservient to those of the other lot owners and granted him an easement to use the road similar to that granted to the plaintiffs or their predecessors in interest.

The defendant’s actions following his purchase of the property have been the subject of prior litigation. See Leabo v. Leninski, supra; Zoning Commission v. Leninski, 34 Conn. Sup. 66, 376 A.2d 771 (1976). He began to convert a three car garage on the ground floor of one of the cottages into an apartment and was ordered to stop by the local zoning authority and the court. After he refused to stop, he was held in contempt and ordered to undo the conversion.

Angered by the court order, he began a campaign of retaliation and malicious harassment against Leabo. He painted a cottage which was directly across from Leabo’s property red, white and blue so that it resembled a crude version of the American flag; he erected two large wooden crosses, one in front of the painted cottage and the second on a hill directly across from Leabo’s home; further, he posted a crude, oversized, homemade sign proclaiming the beach open to the public. Successful suits were brought by Leabo and other lot owners defining their beach rights and enjoining the posting of signs. See Leabo v. Leninski, supra; Zoning Commission v. Leninski, supra. This suit focuses on the plaintiffs’ rights in Walden Hill Road, which the defendant subsequently purchased.

After purchasing Walden Hill Road, the defendant cut down the trees on some of the tree lawns to make room for the hundreds of cars and bicycles he expected after declaring the beach to be public. When Leabo continued to mow the tree lawn in front of his home, but within the defendant’s roadway, the defendant called the police and had his attorney demand that Leabo cease his actions.

The defendant then proceeded to heap debris on the tree lawns. Leabo continued to remove the debris even after the defendant again called the police to order Leabo to stop. Thereafter, the defendant dug up the tree lawn in front of Leabo’s home. Ultimately, the defendant brought in heavy construction equipment and placed boulders on the tree lawn in front of the plaintiffs’ homes. The defendant himself placed some of the large boulders in front of Leabo’s home, interfering with Leabo’s access to his mailbox and to the entrance of his home.

The plaintiffs brought this suit to quiet title under General Statutes § 47-31, and for other relief, naming as defendants Leninski and other lot owners who were interested parties. See footnote 1, supra. The complaint claimed, inter alia, adverse possession of the road, sought a determination of the rights of the parties to the road, and requested injunctive and monetary relief. The court concluded that the plaintiffs failed to prove title to the road by adverse possession but that they had an absolute right to make use of the traveled portion as well as the untraveled portion of Walden Hill Road, and that the defendant wilfully, wrongfully and unreasonably interfered with that right. The court further found that the defendant deliberately and maliciously interfered with the rights of the plaintiffs, especially Leabo, to the enjoyment of their homes, and that the Leabos bore the brunt of the defendant’s malicious harassment, causing Leabo to suffer great mental anguish, inconvenience and expense. The court awarded all the plaintiffs exemplary damages of $13,541.10, on the basis of their legal expenses, but declined to award compensatory damages.

I

The Appeal

The defendant first argues that interference with the plaintiffs’ rights of way was not pleaded as a theory of recovery and that the court, therefore, erroneously based its decision on this theory. The plaintiffs’ complaint was in four counts, which the defendant suggests should be strictly construed as making only two claims of adverse possession and two claims of trespass, and as not claiming interference with rights of way. We disagree.

A formalistic or highly technical construction of pleadings is contrary to a proper view of pleading requirements. O’Brien v.Seyer, 183 Conn. 199, 210-11, 439 A.2d 292 (1981). “[Sjlight linguistic ambiguity” does not serve to nullify a cause of action which is sufficiently raised to notify the defendant of its existence. Schenck v. Pelkey, 176 Conn. 245, 255, 405 A.2d 665 (1978); Buckley v. Lovallo, 2 Conn. App. 579, 587, 481 A.2d 1286 (1984). “Justice is not served by accepting a claim of variance [between allegations and proof] from a party who at all times has been in a position of knowing the true state of facts.” Schaller v. Roadside Inn, Inc., 154 Conn. 61, 67, 221 A.2d 263 (1966).

The first two counts of the complaint incorporate into the pleadings the deeds which conveyed the respective lots to each plaintiff. These deeds, which were attached to the complaint, recited the rights of way granted with the lots. Both the third and fourth counts state in part that the “plaintiffs have had their access to the paved portion of Walden Hill Road and their right of way restricted . . . .” (Emphasis added.) In conjunction with these allegations, the plaintiffs’ claim for relief requested, inter alia, that the defendant be enjoined from further interference with “plaintiffs’ access to the paved portion of Walden Hill Road and plaintiffs’right of way . . . .” (Emphasis added.)

Construing these allegations favorably to the pleaders; O’Connor v. Dory Corporation, 174 Conn. 65, 69, 381 A.2d 559 (1977); we conclude that they gave sufficient notice to the defendant that the plaintiffs were proceeding on the theory of interference with deeded rights of way as well as the theory of adverse possession of the road. Under these pleadings, the plaintiffs were not required to abandon one theory of recovery in order to pursue another.

The defendant also argues that the court erred in including certain attorney’s fees in the exemplary damages award because the plaintiff did not prove them by evidence. The plaintiffs introduced into evidence a bill for legal services in the amount of $11,041.10, which the court used as a basis for the exemplary damages award. The court awarded an additional $2500, however, for services not reflected in the bill but rendered in preparation for the trial, during the trial and in preparing the plaintiffs’ post-trial brief. The time spent on these activities was not the subject of evidence during the trial, but was asserted in the plaintiffs’ post-trial brief to the court, which assertion the court accepted. The defendant does not dispute the $11,041.10 awarded, but he does dispute the propriety of the additional $2500 and urges that the award be decreased by that amount. We agree that this additional amount was improperly awarded, and we remand for a proper determination of the exemplary damages award.

Exemplary damages are limited to the amount which compensates the plaintiff for the expenses of litigation less taxable costs. Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 127, 222 A.2d 220 (1966). Although contract damages may be based on the court’s general knowledge of the time involved in litigation and reasonable fees charged by attorneys; Bizzoco v. Chinitz, 193 Conn. 304, 310-11, 476 A.2d 572 (1984); Appliances, Inc. v. Yost, 186 Conn. 673, 681, 443 A.2d 486 (1982); Piantedosi v. Floridia, 186 Conn. 275, 279, 440 A.2d 977 (1982); a different evidentiary standard is used in the determination of exemplary damages. Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 245, 440 A.2d 306 (1982); Wedig v. Brinster, 1 Conn. App. 123, 134 n.5, 469 A.2d 783 (1983). “[F]or an award of punitive damages, it is essential that evidence of the cost of the litigation of the case being tried must be offered.” Vandersluis v. Weil, 176 Conn. 353, 359, 407 A.2d 982 (1978); Yavis v. Sullivan, 137 Conn. 253, 261, 76 A.2d 99 (1950) (no punitive damages recoverable because no evidence of cost of litigation offered); Wedig v. Brinster, supra, 134 (evidence properly introduced to establish punitive damages).

The bill for $11,041.10 was properly offered into evidence and used to determine damages. From this exhibit, the court had evidence of the reasonable hourly rate of the plaintiffs’ counsel. Additionally, the court knew of counsel’s activities during the trial and the length of the trial. Fees for the conduct of the trial would have been permissibly assessed based on the hourly rate and the length of the trial. See Hoenig v. Lubetkin, 137 Conn. 516, 525, 79 A.2d 278 (1951). The court, however, went beyond its bounds when it awarded fees for trial preparation and preparation of the post-trial brief without evidence or personal knowledge of those items. This was error. Because the lump sum of $2500 was awarded for the pretrial, trial and post-trial activities, it is impossible for us to allocate the award among those three elements. A remand is appropriate, therefore, for a rehearing on this portion of the award.

Finally, the defendant claims that exemplary damages were erroneously awarded to all of the plaintiffs. He argues that, because the record supports a finding of malice only toward the plaintiff Leabo, exemplary damages should only have been awarded in the amount of the attorney’s fees attributable to representation of Leabo. We disagree.

“Punitive [or exemplary] damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights.” Alaimo v. Royer, 188 Conn. 36, 42, 448 A.2d 207 (1982), quoting Vandersluis v. Weil, supra. Such damages are designed to compensate plaintiffs for their injuries and not to punish defendants for their offenses. Miller v. Drouin, 183 Conn. 189, 190, 438 A.2d 863 (1981). The court found that the defendant’s conduct clearly established a pattern of malicious and wanton misconduct. He displayed a wanton disregard of all the plaintiffs’ rights, although his malice was aimed at Leabo. “[A]n actual intention to do harm to the plaintiffs is not necessary” for an award of exemplary damages if the defendant acts in reckless disregard of the results he knew or should have known would affect the plaintiffs. Collens v. New Canaan Water Co., 155 Conn. 477, 490, 234 A.2d 825 (1967).

The court found that all the plaintiffs had been injured to some extent, but that the Leabos bore the brunt of the malicious harassment by the defendant. It found that justice and equity require that the plaintiffs, especially Leabo, be compensated by the defendant “for the damages suffered because of Mr. Leninski’s malicious and wilful conduct toward them and for his intentional disruption of their enjoyment of their property rights.” (Emphasis added.) The defendant cannot complain that not all the plaintiffs should receive exemplary damages solely because he meant to injure only one and injured the others only incidentally. This court will not retry the facts or disturb the findings of malice and injury by the trial court; Kelsey v. Connecticut State Employees Assn., 179 Conn. 606, 615, 427 A.2d 420 (1980); Hobby v. Feldman, 2 Conn. App. 696, 697, 482 A.2d 1226 (1984); and we will not upset the exemplary damages award warranted by those findings.

II

The Cross Appeal

The first claim in the plaintiffs’ cross appeal is that the court erred in limiting recovery to exemplary damages and, thus, in failing to award compensatory damages for mental anguish, invasion of privacy and diminution of property values. The court read the complaint as one for exemplary damages only, which are limited to the costs of litigation less taxable costs. Wedig v. Brinster, supra, 134. It also ruled that, even if this limitation on its award were not observed, it would limit its award of damages accordingly because of the difficulty of placing a monetary figure on the compensatory damages claimed. We agree that, as to Leabo only, the court erred in limiting its award to exemplary damages.

Although the cross appeal was taken by all the plaintiffs, and although evidence of liability was offered with respect to them, it is clear from our examination of the briefs and transcript that evidence of damages for mental anguish and invasion of privacy was offered only with respect to Leabo. Thus, only he can be said to have proved any such damages. The other plaintiffs may also have technically and legally suffered those injuries. Even if that is the case, they are only entitled to nominal damages and this court will not ordinarily reverse and grant a new trial merely for the failure to award nominal damages. Rubin v. Rios, 186 Conn. 754, 756, 443 A.2d 1273 (1982); Preisner v. Illman, 1 Conn. App. 264, 269, 470 A.2d 1237 (1984); but see Kelly v. Ivler, 187 Conn. 31, 450 A.2d 817 (1982) (remanded for rendition of judgment of nominal damages). We therefore affirm that part of the trial court’s judgment denying compensatory damages for mental anguish and invasion of privacy to the other plaintiffs, on the alternative theory that no evidence of such damages was offered with respect to them. See State v. Beckenbach, 1 Conn. App. 669, 673 n.4, 476 A.2d 591, cert. granted, 193 Conn. 806, 477 A.2d 659 (1984).

As to Leabo, the complaint adequately pleaded a cause of action for compensatory, as well as exemplary, damages arising from the defendant’s conduct. It alleged that his tortious conduct was performed “wilfully, wantonly and maliciously,” and that the “[plaintiffs in this action have been caused great inconvenience, expense, damage and mental suffering by said acts of . . . Leninski . . . .”

Leabo established this cause of action. The court specifically found that he “conclusively proved, that . . . Leninski, by a course of deliberate and intentionally harrassing conduct extending over a period of many months, wilfully and maliciously interfered with Leabo’s enjoyment of his property and caused him great mental anguish, inconvenience and expense.” This finding, which the evidence supports, necessarily triggered not only an award of exemplary damages, but also an inquiry into the amount of compensatory damages to be awarded for that mental anguish, inconvenience and expense.

A fair reading of the court’s memorandum of decision indicates that it declined to award such compensatory damages, not because of a failure of proof by Leabo, but because of the difficulty of arriving at a monetary figure for them. This was error.

It is axiomatic that the plaintiff who establishes tort liability is entitled to fair, just and reasonable compensation for his injuries. Herb v. Kerr, 190 Conn. 136, 139, 459 A.2d 521 (1983); Hulk v. Aishberg, 126 Conn. 360, 362, 11 A.2d 380 (1940). “Damages in personal injury cases cannot be computed mathematically, nor does the law furnish any precise, definite rule for their assessment.” Sadonis v. Govan, 132 Conn. 668, 670, 46 A.2d 895 (1946); Conaway v. Prestia, 191 Conn. 484, 494, 464 A.2d 847 (1983). The court has, and must exercise, a wide discretion in the amount of damages for personal injuries, and the amount awarded in each case depends largely on the judgment of the trier. Johnson v. Flammia, 169 Conn. 491, 500, 363 A.2d 1048 (1975). “That damages may be difficult to assess is, in itself, insufficient reason for refusing them once the right to damages has been established.” Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 420, 446 A.2d 799 (1982); Ball v. Pardy Construction Co., 108 Conn. 549, 551, 143 A. 855 (1928). The fact that it is difficult to measure pain and suffering in terms of money does not prevent a recovery; Sadonis v. Govan, supra, 670; see also Doeltz v. Longshore, Inc., 126 Conn. 597, 600, 13 A.2d 505 (1940); as long as there is a reasonable basis in the evidence for that recovery. Conaway v. Prestia, supra, 494.

These same principles apply here where the injury proven was mental and emotional, rather than physical. “Medical science and mental health fields have advanced sufficiently to enable a trier of fact to determine the extent of mental suffering by the same standard of proof as physical suffering. See Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117, 121 (Me. 1970). In today’s world, both supply equal grist for the [trial court’s] mill, based on ‘[t]he ordinary knowledge acquired from everyday experience by the [trial court] . . . .’ Id., 122.” Buckley v. Lovallo, 2 Conn. App. 579, 589, 481 A.2d 1286 (1984). Here, there was evidence that, as a result of the defendant’s conduct, Leabo and his family felt compelled to go elsewhere during the summertime rather than stay at their home in Sachem’s Head, and that there was tension and strain in the family. There was also evidence that the defendant’s conduct contributed to a divorce between Leabo and his wife. The court also found that the second cross erected by the defendant was intended specifically to harass the Leabo family, that he knew that the Leabos were Jewish, and that from time to time he would shout anti-Jewish epithets at Leabo. This evidence and these findings, together with the reasonable inferences which could have been drawn about the natural effect of the defendant’s conduct on its target, provided a sufficient basis for an award of compensatory damages.

The same cannot be said, however, of the plaintiffs’ additional claim on the cross appeal, namely that the court erred in failing to award damages for diminution of property values. As all the plaintiffs, including Leabo, conceded in oral argument in this court, there was no evidence of such a diminution. Although the trial court did not decline to award these damages on that basis, “we are free to sustain a trial court’s judgment on a theory different from that adopted by it . . . .” State v. Beckenbach, supra, 673 n.4. Because of the absence of such evidence, we find no error in that part of the trial court’s judgment which denied damages for diminution of the values of the plaintiffs’ properties.

The plaintiffs’ final claim is that the court erred in failing either to order the defendant to remove the boulders or to award damages for the cost of their removal. The defendant responds that we should not review this claim because the plaintiffs did not include it in their preliminary statement of issues under Practice Book § 3012 (a). We agree.

The plaintiffs’ preliminary statement of issues is confined to their claims involving the court’s failure to award compensatory damages for mental anguish, invasion of privacy and diminution of property values. It does not refer to the claim of which they now seek review. Since this claim does not involve a constitutional issue and does not rise to the level of plain error or a miscarriage of justice, and since the defendant urges compliance with the rule, we decline to consider it. Barrett v. Central Vermont Railway, Inc., 2 Conn. App. 530, 535-36, 480 A.2d 589 (1984).

There is error in part on the appeal and on the cross appeal, the judgment is set aside and the case is remanded for a new hearing limited to a determination of that portion of the exemplary damages of the plaintiffs arising from preparation for the trial, the trial itself and preparation of the post-trial brief, and to a determination of compensatory damages for mental anguish and invasion of privacy suffered by the plaintiff Karl B. Leabo only.

In this opinion the other judges concurred.

       Although other interested parties were named as defendants in the trial court, only Leninski appealed. We therefore refer to him as the defendant.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       The terms “punitive damages” and “exemplary damages” are “merely alternate labels for the same remedy” and no distinction exists between them. (Footnote omitted.) Alaimo v. Royer, 188 Conn. 36, 42-43, 448 A.2d 207 (1982)

       The plaintiffs could easily have introduced evidence of the time spent in preparation for the trial. As to the post-trial brief, they could have introduced evidence of a reasonable estimate and requested permission to open their case if that estimate proved substantially inaccurate.

       We note that the plaintiffs did not offer evidence of the cost of removal of the boulders or suggest that they could not remove them.


text:
    Marsha Kron Warner et al. v. Merchants Bank & Trust Company et al.
    (2472)
    Dupont, Acting C.P.J., Hull and Spallone, Js.
    Argued October 2
    decision released November 27, 1984

      Kevin A. Coles, for the appellants (plaintiffs).

      John Keogh, with whom, on the brief, was Thomas J. Vetter, for the appellee (named defendant).
   Spallone, J.

The plaintiffs, Marsha Kron Warner and Deborah Kron Smith, brought this action seeking damages for an alleged breach of fiduciary obligations owed to them arising out of a testamentary trust contained in the will of their father, Leon Kron.

Leon Kron died on March 14, 1971, leaving a will dated June 17,1970, in which the defendant Merchants Bank and Trust Company was named trustee of a residuary trust for the benefit of the plaintiffs. The will provided that the residue of the testator’s estate was to be held in trust for the plaintiffs in the event that either or both were under the age of twenty-five at the time of the testator’s death. When Leon Kron died, both of the plaintiffs were under the age of twenty-five. Nearly ten years later, a mutual distribution agreement was signed by the plaintiffs and all interested heirs at law. When the agreement was filed in the Norwalk Probate Court on January 30,1981, both plaintiffs were over the age of twenty-five.

In their complaint, the plaintiffs allege that during the period from the date of their father’s death to the filing of the distribution, the defendant, as trustee, had a duty to collect and distribute to them all income earned during the administration of the estate. The defendant moved for summary judgment on the grounds that it was not liable as a fiduciary and that the mutual distribution agreement served as full settlement of the plaintiffs’ claims. The trial court rendered summary judgment for the defendant, and the plaintiffs have appealed from that judgment.

While the plaintiffs have raised a number of issues on appeal, we view the central question to be whether the trust provided for in the testator’s will ever came into existence. We hold that it did not. Under the terms of the will, the defendant was named as trustee of a residuary trust. As the trial court aptly stated: “By the terms of Leon Kron’s will the residue of the estate was the portion to be held in trust. The residue of an estate is that portion which remains after the payment of debts, charges and particular legacies. First National Bank & Trust Co. v. Baker, 124 Conn. 577, 587 [1 A.2d 283] (1938). The residue of Leon Kron’s estate could not be ascertained until the time of the mutual distribution agreement. It is at the time of settlement that a trustee is entitled to receive from the administrator the entire residue of an estate. Shepard v. Union & New Haven Trust Co., 106 Conn. 627, 633 [138 A. 809] (1927). The duties of a trustee are placed upon him after the settlement of the estate is completed. Ryder v. Lyon, 85 Conn. 245, 252 [82 A. 573] (1912).” (Emphasis in original.)

Until the mutual distribution was filed on January 30,1981, the executrix of Leon Kron’s estate had possession of the estate and full authority to settle any and all claims in favor of or against it. The defendant was powerless to act as trustee prior to that time. The mere existence of the trust asset did not and could not give rise to a duty on the defendant’s part to collect and administer that asset. We consequently see no merit in the claim that General Statutes § 45-277a required the defendant to assume the role of fiduciary prior to the final distribution, when doing so would bypass the executrix and override the express terms of the testator’s will.

Whatever claims the plaintiffs had arising out of § 45-277a were properly directed to the executrix who controlled the assets of the estate during its administration. We hold that all claims arising out of General Statutes § 45-277a were resolved when the plaintiffs, then over the age of twenty-five, voluntarily joined the rest of the legatees in filing a mutual distribution pursuant to General Statutes § 45-272a. The plaintiffs cannot now make a claim against the defendant for failing to perform a duty that was not required of it, or for interest earned during the period of administration. Any claim for such interest was relinquished upon their signing of the mutual distribution agreement.

The trial court did not err when it granted the defendants’ motion for summary judgment. “When a motion for summary judgment is filed and supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided [by the Practice Book], must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, summary judgment shall be entered against him. Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 5, 357 A.2d 484 (1975).” (Footnote omitted.) Farrell v. Farrell, 182 Conn. 34, 38, 438 A.2d 415 (1980).

Here, the defendant supported its motion for summary judgment with two affidavits claiming to show by the nature of its dealings that it never had any control over the assets of the estate. In response, the plaintiff Marsha Kron Warner filed her sworn response to the defendant’s request for admissions and a counteraffidavit, claiming that the defendant’s formal communications with and payment of interest and dividends to the estate indicated an acceptance of the trust. These dealings that the defendant had with the estate were the normal activities performed by a bank in a depositor-bank relationship and do not establish the acceptance of a trust. Clearly, when the trust res could not be ascertained until the estate was distributed, there was no acceptance. “It is elementary that there can be no trust without a res, that there must be a definite subject matter. Bassett v. City Bank & Trust Co., 115 Conn. 1, 21, [160 A. 69 (1932)] 81 A.L.R. 1488; Shippee v. Pallotti, Andretta & Co., Inc., 117 Conn. 472, 477 [168 A. 880 (1933)].” Danbury National Bank v. Millard, 14 Conn. Sup. 174, 184 (1946). The court was correct in concluding that the defendant was entitled to summary judgment.

There is no error.

In this opinion the other judges concurred.

       The other defendants in this action are Tillie Thelen and the law firm of Lepofsky, Lepofsky and Lang. No affirmative claims were made against them. As used in this opinion, “defendant” hereinafter refers to Merchants Bank and Trust Company.

       Paragraph five of the testator’s will provides as follows:
      “All the rest, residue and remainder of my estate, to which I may be legally or equitably entitled, real, personal, mixed of every kind and description, and wheresoever situated of which I may die seized or possessed,'or to which in any manner, I am entitled to at the time of my decease, including all lapsed legacies, and any part of my estate which may not have been effectually devised or bequeathed, and all property over which at the time of my death I shall have power of testamentary disposition, the whole being hereinafter referred to as my residuary estate, I give, bequeath and devise unto my daughters, MARSHA KRON and DEBORAH KRON, issue of my marriage to JANICE KRON, in equal shares absolutely.
      “Should either of my daughters be under twenty-five (25) years of age at the time of my decease, then her share shall go to the MERCHANTS BANK AND TRUST COMPANY, a banking institution located in the Town of Norwalk, in trust, however, until such daughter becomes twenty-five (25) years of age. THE MERCHANTS BANK AND TRUST COMPANY, as Trustee herein, shall, at its sole and own discretion, have the right to use both the corpus and income from whatever trusts as are created herein for the proper education and support of my daughters. During the continuance of the Trust, as is set forth herein, said trustee shall apply the income and/or the corpus thereof to the use of my daughters in such proportions and amounts equal or unequal as said trustee shall, in its sole and own discretion, determine to be fair and just under the circumstances, having regard to the needs, wants and abilities, and the desires and needs for education. In the event of unequal distribution of income or corpus among my daughters under the circumstances as set forth herein, it is my direction that there be no equalization or adjustment thereof.”

       Marsha Kron Warner was bom on October 3,1953. Deborah Kron Smith was bom on January 9, 1956.

       The parties to the agreement were the plaintiffs, the former wife of the decedent and the wife of the decedent as of the date of his death. All mutually agreed to divide, apportion and distribute the remaining property of the decedent among themselves, and to foresake all claims which any might have against the property assigned to the others. The agreement arose out of a probate appeal, Helen Kron v. Appeal from Probate et al., Superior Court, Judicial District of Fairfield at Bridgeport, No. 77-0166864S (1981), in which the plaintiffs herein were named as defendants.

       This appeal, originally filed in the Supreme Court, was transferred to this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 2 (c).

       Paragraph eight of the testator’s will provides in part:
      “My Executrix or Executor, as the case may be, is to have immediate seizure and possession of all my estate. I hereby give unto my said Executrix or Executor, as the case may be, full power and authority to sell, transfer, convey, deliver and convert, in her or his discretion, even without petition to or order of court, and without inventory, appraisement, notice, report, confirmation and without furnishing bond, (if lawfully permitted so to do), the whole or any part of said estate, whether real, personal or mixed, at either public or private sale for cash or partly cash and partly credit, upon such terms and to such parties as she or he may deem advisable; to retain and continue to hold any asset, real, personal or mixed, received by her or him as part of my estate or any increase thereof; to extend, renew from time to time, or pay in whole or in part any indebtedness existing at the time of my decease; to settle and compound any and all claims either in favor of or against my estate, upon such terms as she or he may deem proper . . . and the exercise of such authority and power by my Executrix or Executor, as the case may be, shall be final and conclusive and not subject to question by any person interested in my estate . . . .’’(Emphasis added.)
      The defendant Tillie Thelen was the executrix of the estate.

       General Statutes § 45-277a provides in pertinent part as follows:
      “(a) Unless otherwise expressly provided by the will of a testator dying after October 1,1949, all net income from real and personal property earned during the period of administration of the estate of such testator and not payable to others or otherwise disposed of by the will shall be distributed pro rata as income to or for the benefit of the immediate income beneficiaries of any trusts created out of the residuary estate of such testator and the other persons entitled to such residuary estate. . . . Unless otherwise directed in the will, income shall be payable to the income beneficiaries of trusts, or to tenants for life or for a term of years from the date of testator’s death. Nothing contained in this section shall affect the right of any person to income on any portion of the estate not part of the residuary estate of such testator.


text:
    Shelby Mutual Insurance Company v. David Evans David Evans v. Shelby Mutual Insurance Company
    (7596)
    (7597)
    (7775)
    Borden, O’Connell and Foti, Js.
    Argued June 8
    decision released September 19, 1989

      Bruce L. Levin, with whom, on the brief, was Serge G. Mihaly, for the appellant (Shelby Mutual Insurance Company).

      Robert R. Sheldon, for the appellee (David Evans).
   Borden, J.

In these consolidated appeals, Shelby Mutual Insurance Company (Shelby) appeals from three judgments that in effect confirmed an arbitration award in favor of David Evans. The dispositive issue is whether Practice Book § 525 is mandatory or directory in the context of a case in which the trial court has already ordered arbitration to proceed. We hold that under these circumstances Practice Book § 525 is directory and we find error.

Certain facts are not in dispute. Evans, who is an insured under a motor vehicle policy issued by Shelby, filed an application with the trial court to require Shelby to proceed with arbitration of a certain claim by Evans for underinsured and uninsured motorist benefits. The court, Melville, J., granted the application, and the parties proceeded to arbitrate the matter. On May 2,1988, the arbitrators rendered their award in favor of Evans in the amount of $44,647.

On May 12,1988, Shelby presented an application to the court seeking, inter alia, to vacate or correct the award. This application was accompanied by an order to show cause and a citation to Evans to appear for a hearing on June 7, 1988. The court, Harrigan, J., signed the order and citation, and an assistant clerk notified Shelby’s counsel by telephone to pick up the signed papers. The papers were not picked up by Shelby, however, until after June 7, 1988, and were never served on Evans. On June 22,1988, Shelby filed a second application to vacate or correct the award, accompanied by and referring to its earlier application dated May 12,1988. Evans moved to dismiss this application on the ground that it had not been filed within thirty days of the award as required by General Statutes § 52-420 (b).

Meanwhile, on May 24, 1988, Shelby filed a motion to correct or vacate the award, and certified service of it to Evans’ counsel pursuant to Practice Book § 120. Evans acknowledges timely receipt of a copy of this motion. Shelby filed this motion in the same trial court case as Evans’ original motion to compel arbitration. The court, Harrigan, J., denied this motion on the ground that Practice Book § 525 is mandatory in requiring that there be “a citation directing the adverse party or parties in the arbitration proceeding to appear on a day certain and show cause, if any there be, why the application should not be granted.” Shelby appealed that decision in appeal No. 7597. The court, Harrigan, J., also granted Evans’ motion to dismiss Shelby’s second application to vacate on the ground that it did not comply with the time requirement of General Statutes § 52-420 (b). Shelby appealed that decision in appeal No. 7596.

Thereafter, the court, Thompson, J., confirmed the arbitrators’ award. Shelby appealed that decision in appeal No. 7775.

We agree with Shelby’s claim that the court erred by denying Shelby’s motion to vacate filed on May 24, 1988, because under the circumstances of this case Practice Book § 525 is directory and not mandatory. We therefore need not consider Shelby’s other claims of error.

There is no dispute that Shelby’s motion filed on May 24, 1988, was made within thirty days of the award, and thus complied with General Statutes § 52-420 (b). See footnote 3, supra. We conclude, moreover, that the provisions of Practice Book § 525, requiring a citation and order to show cause in proceedings to confirm, vacate or correct an arbitration award, are directory and not mandatory where, as in this case, the award is the result of arbitration proceedings compelled by a prior court order. We therefore hold that Shelby’s motion and service pursuant to Practice Book § 120 were sufficient.

Whether a rule of practice is mandatory or directory depends on “ ‘ “whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 68, 82 A.2d 345 (1951). If it is a matter of substance, the statutory provision is mandatory. State ex rel. Eastern Color Printing Co. v. Jenks, 150 Conn. 444, 451, 190 A.2d 591 (1963). If, however, the . . . provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.” ’ ” Rowe v. Godou, 12 Conn. App. 538, 542, 532 A.2d 978 (1987), rev’d on other grounds, 209 Conn. 273, 550 A.2d 1073 (1988).

First, the purpose of Practice Book § 525 is to secure an orderly and efficient mechanism for judicial action when a party seeks to confirm, vacate or correct an award. The purposes of a citation and order to show cause are ordinarily to obtain personal jurisdiction over and give proper notice to a party. Where the parties are already in court regarding the arbitration proceeding, there is no vital need for a citation and order to show cause. Second, the provisions of Practice Book § 525 are stated in the affirmative, “unaccompanied by negative words.” Rowe v. Godou, supra; compare Hughes v. Bemer, 200 Conn. 400, 510 A.2d 992 (1986), with Pepe v. New Britain, 203 Conn. 281, 286-88, 524 A.2d 629 (1987). Third, Practice Book § 525 complements General Statutes § 54-420 (a), which provides: “(a) Any application under section 52-417, 52-418 or 52-419 shall be heard in the manner provided by law for hearing written motions at a short calendar session, or otherwise as the court or judge may direct, in order to dispose of the case with the least possible delay.” (Emphasis added.) If Shelby’s motion could have been heard “in the manner provided by law for hearing written motions at a short calendar session,” there is no reason under the circumstances of this case why it could not also be filed and notice of it served in the same manner.

There is error. In appeal No. 7597, the judgment denying the motion to vacate filed by Shelby Mutual Insurance Company is set aside, in appeal No. 7775, the judgment confirming the arbitration award is set aside, and those two cases are remanded for further proceedings according to law. Appeal No. 7596 is dismissed as moot.

In this opinion the other judges concurred.

       Although in certain respects the trial court created three different files and, hence, Shelby appealed from three different judgments, it is clear that all three judgments derived from the same order to proceed with arbitration, the same arbitration award, and the same set of postaward proceedings. We therefore consider all the proceedings as having taken place in one case. For purposes of the judgment files, however, our rescript will indicate the proper disposition of each separate judgment involved in these appeals.

       Practice Book § 525 provides: “In proceedings brought for confirming, vacating or correcting an arbitration award under Gen. Stat., §§ 52-417, 52-418 or 52-419, the court or judge to whom the application is made shall cause to be issued a citation directing the adverse party or parties in the arbitration proceeding to appear on a day certain and show cause, if any there be, why the application should not be granted.”

       General Statutes § 52-420 (b) provides: “No motion to vacate, modify or correct an [arbitration] award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion.”

       In that same case, Evans had earlier, while the arbitration proceeding was pending, applied for a court order directing an out-of-state witness to appear for a deposition to be used in the arbitration proceeding and had filed a notice of that deposition.

       We need not decide in this case whether a different result would obtain where the parties proceeded to arbitration without the necessity of a court order.