author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. WILLIAM D. PIERCE
    (AC 18364)
    Schaller, Dranginis and Stoughton, Js.

      Argued April 24 —
    officially released July 10, 2001

      Richard Hustad Miller, special public defender, for the appellant (defendant).

      Toni Smith-Rosario, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Stephen Carney, assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, William D. Pierce, appeals from the judgment of the trial court finding him in violation of probation and revoking his probation. We affirm the judgment of the trial court.

On appeal, the defendant initially claimed that (1) the trial court improperly determined that he violated the conditions of his probation because the evidence was insufficient to establish a burglary in the first degree and (2) even if the trial court properly found the defendant in violation of his probation, the court’s revocation of his probation and imposition of a two year sentence was fatally flawed because the court considered the defendant to have violated a class B felony rather than merely a class A misdemeanor.

On August 28, 1998, the defendant filed a motion for the trial court to articulate the basis for its decision and the factual findings on which it was made. The court denied this request. We granted the defendant’s request for review but denied the relief requested. After briefs were filed and oral arguments were heard, this court vacated its earlier order, granted in part the relief requested in the defendant’s motion for review and ordered supplemental briefs addressing the articulation.

We ordered the trial court to articulate the following request made by the defendant: “Upon what charge did the court find a violation of probation? Was the basis burglary in the first degree, a lesser included offense, possession of burglary tools or any combination of these?” In response, the trial court rendered the following articulation: “As ordered by the Appellate Court on July 18, 2000, the basis upon which this court found a violation of probation was a violation by the defendant of Connecticut General Statutes § 53a-101 burglary in the first degree, [General Statutes] § 53a-103 burglary in the third degree and [General Statutes] § 53a-106 possession of burglar’s tools. Burglary in the third degree is a lesser included offense of burglary in the first degree.”

On the basis of the articulation, the defendant, in his supplemental brief, claims that (1) there was no evidence that he was armed with a dangerous instrument, (2) the trial court improperly relied on possession of burglar’s tools and burglary in the third degree because those crimes were not alleged by the prosecutor and (3) a probation violation may not be based on a finding of a lesser included offense.

The following facts are relevant to this appeal. On October 28, 1993, the defendant was sentenced to the custody of the commissioner of correction on three counts of burglary in the third degree. He received a total effective sentence of seven years, execution suspended after four years, followed by three years probation. On December 26, 1996, he was released on probation. On February 13, 1997, the defendant was arrested and charged with burglary in the first degree in violation of § SSa-lOl and possession of burglar’s tools in violation of § 53a-106.

On April 14, 1997, the defendant was arrested on a warrant for violation of probation. The affidavit in the arrest warrant application referred to the defendant’s arrest for burglary in the first degree and possession of burglar’s tools. The trial court conducted a hearing, found that the defendant had violated the conditions of probation, revoked his probation and imposed a term of two years imprisonment.

The defendant’s period of probation began on December 26, 1996. The defendant was suspected of committing a rash of residential burglaries in Norwich. On February 13, 1997, the Norwich police began watching the defendant’s residence. On that date, when the defendant drove away from his residence, the police followed him and found his car parked in a Montville neighborhood. The police watched the car while they hid in a wooded area behind some houses. The police eventually saw a man walking behind some houses in the dark and, upon investigation, found the defendant hiding behind a woodpile with a blue metal crowbar, a pair of gloves and a flashlight directly in front of him. The back of a nearby residence showed signs of forced entry, and it appeared that someone had rummaged through the bureau drawers in several rooms.

The defendant subsequently was taken to the Mont-ville police department and was advised of his constitutional rights. He gave a written statement in which he admitted that after 6 p.m., on February 13, 1997, he had driven to Montville, had parked on a side street and had walked to an unlit residence. He rang the doorbell and, after receiving no answer, went to the back of the residence and pried open the basement garage door. He then pried open an inside door and went upstairs where he went through the drawers and closets. He found no cash or jewelry and left by way of sliding glass doors. At the time the defendant gave his statement, he was under arrest for possession of burglar’s tools and he also admitted to having committed several other burglaries.

Under General Statutes § 53a-32, a probation revocation hearing is comprised of two distinct components. State v. Davis, 229 Conn. 285, 289, 641 A.2d 370 (1994). The trial court must first determine by a fair preponderance of the evidence whether the defendant has in fact violated a condition of probation. Id., 295. If a determination is made that a violation has been established, the trial court then determines whether the defendant’s probation should be revoked. Id., 290. “On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. General Statutes § 53a-32 (b).” (Internal quotation marks omitted.) State v. Davis, supra, 290. “In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous.” (Citation omitted; internal quotation marks omitted.) State v. Treat, 38 Conn. App. 762, 769, 664 A.2d 785, cert. denied, 235 Conn. 920, 665 A.2d 907 (1995).

I

The defendant first claims that the court improperly determined that he had violated the conditions of his probation. The defendant argues that (1) the evidence was insufficient to establish that he committed burglary in the first degree, (2) he did not receive notice of any basis for the revocation of probation other than burglary in the first degree, (3) because burglary in the third degree was not stated at the hearing as a basis for finding a violation of probation, it cannot be used as a basis for a violation of probation by the trial court or by this court and (4) his lack of notice claim warrants Golding review or plain error review. We disagree and discuss each claim in turn.

A

The defendant first argues that the evidence was insufficient to establish that he committed burglary in the first degree. Specifically, he argues that the court could not have found that he violated his probation on the ground that he committed burglary in the first degree because it could not have found that he was armed with a dangerous instrument at the time of the burglary.

The crime of burglary is elevated to the first degree when the burglar is armed with a dangerous instrument. State v. Grant, 177 Conn. 140, 146-47, 411 A.2d 917 (1979). A dangerous instrument is “any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . .” General Statutes § 53a-3 (7). Whether the crowbar with which the defendant was armed was a dangerous instrument depends on the circumstances in which it was used or attempted or threatened to be used. See State v. Grant, supra, 146.

In this case, the defendant not only used the crowbar to break into the house, but also carried it with him as he went through the house. It is a reasonable and logical inference that the defendant intended to use the crowbar as a weapon in case he was surprised while inside the house. Even if we were to conclude otherwise, the evidence clearly established the lesser included offense of burglary in the third degree, which alone is sufficient to establish a violation of probation.

B

The defendant next argues that he did not receive notice of any basis for the revocation of his probation other than burglary in the first degree. He specifically asserts that due process requires that he be given adequate notice and a hearing, and that § 53a-32 requires that such notice be given at the hearing. The defendant does not claim that the crowbar and the other items found in his possession could not be found to be burglar’s tools.

Section 53a-32 (a) provides in relevant part: “At such [probation violation] hearing the defendant shall be informed of the manner in which such defendant is alleged to have violated the conditions of such defendant’s probation or conditional discharge . . . .’’Atthe hearing, the defendant’s probation officer testified that she had initiated the revocation proceeding because of “a new felony arrest.” Because burglary in the first degree was his only new felony arrest, the defendant maintains that he was not informed at the hearing of any other basis for a violation of probation. In making this claim, the defendant overlooks the fact that he had been arrested on a warrant charging both burglary and the misdemeanor of possession of burglar’s tools.

At the defendant’s trial, testimony was offered concerning the entire incident, and, thus, the defendant was made aware, both before and during the hearing, of the evidence that he had been in possession of burglar’s tools. The defendant rightly asserts that he cannot be found in violation of probation on grounds other than those with which he is charged. State v. Carey, 30 Conn. App. 346, 349, 620 A.2d 201 (1993), rev’d on other grounds, 228 Conn. 487, 636 A.2d 840 (1994). The defendant, however, clearly had been charged with both burglary and possession of burglar’s tools and, thus, he had notice of the charges both before and during the hearing.

C

The defendant also argues that, because burglary in the third degree was not stated at the hearing as a basis for finding a violation of probation, it cannot be used as a basis for a finding of a violation of probation by the trial court or by this court. He asserts that doing so would violate the due process standards set forth in § 53a-32 and constitutional law.

The defendant fails to provide us with a clear analysis of this claim and argues that he was not given sufficient notice that he might be charged with burglary in the third degree. He acknowledges that burglary in the third degree is a lesser included offense of burglary in the first degree and, that in a criminal trial, he might be found guilty of the lesser included offense. He maintains, however, that a probation violation hearing requires stricter procedures than a criminal trial. The only authority the defendant offers for this rather unusual position is State v. Carey, supra, 30 Conn. App. 346, which does not address lesser included offenses.

It is well settled that notice of a charged offense includes notice of all lesser included offenses. State v. Gelormino, 24 Conn. App. 563, 570, 590 A.2d 480, cert. denied, 219 Conn. 911, 593 A.2d 136 (1991). A criminal defendant is put on constitutionally sufficient notice when he is charged with an offense that he may be convicted of any lesser included offense. See State v. March, 39 Conn. App. 267, 272, 664 A.2d 1157, cert. denied, 235 Conn. 930, 667 A.2d 801 (1995). We can discern no reason why this well established principle of law should not apply equally to a violation of probation hearing.

II

The defendant next claims that even if the court properly found him in violation of his probation, that its revocation of his probation and imposition of a two year sentence was fatally flawed because it considered the defendant to have violated a class B felony rather than merely a class A misdemeanor. Specifically, the defendant argues that the court abused its discretion in putting into effect two of the three years of his suspended sentence. The defendant alleges that the court must have improperly considered that he was armed with a dangerous instrument. Because we concluded that the court reasonably and logically may have inferred that the crowbar was a dangerous instrument, under the circumstances, we conclude that this claim is without merit.

Even if we were to agree with the defendant, we conclude that the trial court did not abuse its discretion in this case. Revocation of probation “shall not be ordered except upon consideration of the whole record . . . .” (Internal quotation marks omitted.) State v. Treat, supra, 38 Conn. App. 771. Every reasonable presumption should be made in favor of the correctness of the court’s ruling and reversal is required only where an abuse of discretion is manifest or where an injustice appears to have been done. Walker v. Commissioner of Correction, 223 Conn. 411, 414-15, 611 A.2d 413 (1992), overruled in part on other grounds, Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994).

In this case, the court ordered a probation report in accordance with the defendant’s request. At the defendant’s revocation of probation hearing, the court declined to consider the numerous pending burglary charges but, instead, considered the defendant’s extensive criminal history and his expressed need for drug counseling. We therefore conclude that the court did not abuse its discretion in revoking the defendant’s probation and in imposing a two year sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-101 (a) provides: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument, or (2) in 1 he course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       General Statutes § 53a-106 provides: “(a) Aperson is guilty of manufacturing or possession of burglar’s tools when he manufactures or has in his possession any tool, instrument or other thing adapted, designed or commonly used for advancing or facilitating offenses involving unlawful entry into premises, or offenses involving forcible breaking of safes or other containers or depositories of property, under circumstances manifesting an intent to use or knowledge that some person intends to use the same in the commission of an offense of such character.
      “(b) Manufacturing or possession of burglar’s tools is a class A misdemeanor.”


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    CHARLES D. GIANETTI v. NORWALK HOSPITAL ET AL.
    (AC 20197)
    Landau, Mihalakos and Dupont, Js.
    Argued April 5 —
    officially released July 10, 2001

      William F. Gallagher, with whom were AlanNeigher, and, on the brief, Hugh D. Hughes and Judith M. Trutt, for the appellant (plaintiff).

      Robert A. Lacobelle, with whom, on the brief, was Samantha A. Kretzmer, for the appellee (defendant Norwalk Hospital).
   Opinion

DUPONT, J.

The plaintiff appeals from the judgment of the trial court rendered after it denied his motion for a permanent injunction and awarded him $1 as nominal damages in his action against the defendants for breach of contract. The fundamental issue is whether a “lost volume seller” theory of damages as provided in 3 Restatement (Second), Contracts §§ 347, comment (f), and 350, comment (d) (1981), should be followed in cases involving a breach of a contract for personal services, a question of first impression in Connecticut. We conclude that the Restatement should be followed and that the plaintiff is a lost volume seller as defined in the Restatement on the basis of the particular facts of this case. We also conclude that the plaintiff was entitled to more than nominal damages for the breach of his contract with the defendant hospital. We affirm the judgment as to the denial of a permanent injunction, reverse the judgment of $1 and remand the matter to the trial court for a hearing in damages, limited to finding the amount due the plaintiff for his lost profit in 1984, as a result of the defendants’ breach of the contract.

This case has had an interminable judicial life. It began with a complaint in December, 1983, in which the plaintiff, a licensed plastic surgeon with staff privileges at the defendant hospital, sought damages and an injunction to prevent the defendants from denying his reappointment to the hospital medical staff. The case was referred to an attorney trial referee, who found in his report that there was an enforceable contract between the hospital and the plaintiff, and that the hospital had breached the contract because the defendants had failed to follow the procedural requirements of its bylaws in terminating his appointment. The defendant objected to the acceptance of the report, whereupon the parties agreed to reserve two questions of law for appellate review, which our Supreme Court decided in Gianetti v. Norwalk Hospital, 211 Conn. 51, 557 A.2d 1249 (1989).

In Gianetti, our Supreme Court held that the bylaws of the hospital did not create a contract between the plaintiff and the defendant hospital but that there was, nevertheless, a contractual relationship between the hospital and the plaintiff. “[T]he medical staff bylaws, per se, do not create a contractual relationship between the hospital and the plaintiff but because of the undertakings of the plaintiff and the hospital and because the hospital has a duty to obey its bylaws, the bylaws have now become ‘an enforceable part of the contract’ between the hospital and this physician to whom it has given privileges at the hospital.” (Emphasis in original.) Id., 63. Our Supreme Court also determined that the rights and duties arising out of the contractual relationship are subject to judicial review.

The trial court subsequently accepted the referee’s report, rendered a judgment of liability and referred the matter for a hearing. After that hearing, the court denied a permanent injunction because the plaintiff had not proved irreparable harm or that he was without an adequate remedy at law and awarded the plaintiff $1 as nominal damages. The court held that none of the evidence offered at the hearing in damages provided a reasonable basis for establishing with reasonable certainty any economic loss or damages arising out of the defendants’ breach of contract. The court’s reasoning was based on its conclusion that the case was not a “lost volume seller” case because such cases do not apply to contracts for personal services and that the doctrine of mitigation of damages applied.

The relevant facts are not disputed. The plaintiff is a solo physician providing medical services in the field of plastic surgery. In 1974, he was appointed as a provisional staff member of the defendant hospital. In 1977, and yearly thereafter until the end of December, 1983, he was granted privileges as an assistant attending staff physician. The hospital grants staff privileges for one year terms subject to reapplication for the renewal of privileges at the end of each year. The plaintiff had applied for reappointment for the 1984 calendar year. The board of directors, on the basis of the recommendations of its committees, would either reappoint a physician to the hospital staff and grant him privileges for another term of one year or decline to reappoint him. The hospital did not reappoint the defendant for the 1984 calendar year.

As an assistant attending staff physician, the plaintiff worked primarily in the defendant hospital’s emergency room. Neither the plaintiff nor the other plastic surgeons on the hospital staff needed to be or remain physically in the emergency room, but were on call in the event the hospital required their services. The plaintiff had staff privileges at the defendant hospital at the same time as he had staff privileges at four other hospitals. During the last full year that the plaintiff was on the staff of the defendant hospital, there were three plastic surgeons on the defendant’s staff. The plastic surgeons on call at the defendant hospital were also on call at other hospitals at the same time. Each physician on the defendant hospital’s staff as a plastic surgeon, including the plaintiff, was responsible for billing the patient treated or the patient’s health provider for any emergency services performed.

In 1984, the year immediately following the termination of his staff privileges, the plaintiffs gross income for the services performed at other hospitals was $225,815. In 1983, the plaintiff had a gross income from services he performed at the defendant hospital of $43,687, gross income from all other hospitals of $172,890 and a net overall income of $112,375.

On the basis of those facts, the court concluded that the plaintiff could not qualify as a lost volume seller pursuant to the Restatement. The court determined that this was not a lost volume seller case “where the claimant had enough capacity to have fully performed the contract as well as his or its other business.” The court relied on McMahon v. Bryant Electric Co., 121 Conn. 397, 185 A. 181 (1936), to conclude that a lost volume seller theory of damages had been adopted in Connecticut, but that the theory did not apply to contracts for personal services. Whether the seller of personal services can be treated for purposes of a damages award as a lost volume seller is a question of law, but whether the plaintiff could or would have taken on additional work at the same time as the original contract is a question of fact to be determined by the trier.

The term “lost volume seller” is usually attributed to Professor Robert J. Harris. See R. Harris, “A Radical Restatement of the Law of Seller’s Damages: Sales Act and Commercial Code Results Compared,” 18 Stan. L. Rev. 66 (1964). As the title of the article implies, that theory of damages usually applies to the sale of goods. See General Statutes § 42a-2-708 (2). The pertinent sections of the Restatement (Second), Contracts, with which we are concerned, apply, however, also to the sale of services. The measure of damages in such cases is the lost volume of business that the nonbreaching seller in a contract for the sale of goods or services incurs because of the buyer’s breach, undiminished by the profits from the sale of similar goods or services during the term of the breached contract. Snyder v. Herbert Greenbaum & Associates, Inc., 38 Md. App. 144, 154 & n.3, 380 A.2d 618 (1977). A lost volume seller can have two expectations, a profit from the breached contract and a profit from one or more other contracts that the seller can perform simultaneously with the breached contract. Id.

The exact term “lost volume seller” is not used in the Restatement (Second), Contracts, but those words provide the basis for the analysis in those cases and law review articles involving §§ 347 and 350. Comment (d) of § 350 of the Restatement (Second), Contracts provides: “The mere fact that an injured party can make arrangements for the disposition of the goods or services that he was to supply under the contract does not necessarily mean that by doing so he will avoid loss. If he would have entered into both transactions but for the breach, he has ‘lost volume’ as a result of the breach. See comment f to § 347. In that case the second transaction is not a ‘substitute’ for the first one. See illustrations 9 and 10 [of comment (d)].” (Emphasis added.) At the outset, we note that the comment embraces both goods and services, and that illustration 10 in comment (d) involves a contract for personal service, the paving of a parking lot, rather than the supply of goods. The key to when plaintiffs can keep the monetary benefits of the breached contract, undiminished by the doctrine of mitigation of damages, lies in whether the plaintiffs could have and would have entered a second contract simultaneously with the breached contract, in which event, the second contract is not a substitute for the first.

Comment (f) of § 347 provides examples of “lost volume” cases. In relevant part, the comment provides: “If the injured party could and would have entered into the subsequent contract, even if the [original] contract had not been broken, and could have had the benefit of both, he can be said to have ‘lost volume’ and the subsequent transaction is not a substitute for the broken contract. The injured party’s damages are then based on the net profit that he has lost as a result of the broken contract. ...” 3 Restatement (Second), supra, § 347, comment (f). The comment also provides that it is a question of fact whether the injured party would have chosen to enter the second transaction if there had been no breach of the first contract.

“[T]he lost-volume rule has been recognized throughout the country.” CIC Corp. v. Ragtime, Inc., 319 N.J. Super. 662, 668, 726 A.2d 316 (App. Div. 1999). Many state courts, as well as judicial commentators, have determined that in appropriate circumstances, the Restatement’s lost volume seller theory should be used in awarding damages. D. Matthews, “Should the Doctrine of Lost Volume Seller Be Retained? A Response to Professor Breen,” 51 U. Miami L. Rev. 1195, 1197 (1997). “The philosophical heart of the lost volume theory is that the seller would have generated a second sale irrespective of the buyer’s breach. It follows that the lost volume seller cannot possibly mitigate damages. For this reason, the majority of both courts and commentators have recognized the illegitimacy of the mitigation argument.” Id., 1214. The definition of a lost volume seller makes a mitigation of damages doctrine unusable.

Most of the lost volume seller cases involve the sale of goods, rather than personal service; see, e.g., Seaboard Music Co. v. Germano, 24 Cal. App. 3d 618, 101 Cal. Rptr. 255 (1972); Wired Music, Inc. v. D.M. Clark, 26 Ill. App. 2d 413, 168 N.E.2d 736 (1960); Jetz Service Co. v. Salina Properties, 19 Kan. App. 2d 144, 865 P.2d 1051 (1993); CIC Corp. v. Ragtime, Inc., supra, 319 N.J. Super. 662; but, as previously discussed, the Restatement sections involved in this case apply to the sale of services as well.

A number of courts have adopted the Restatement’s theory of damages in situations involving personal services. Katz Communications, Inc. v. Evening News Assn., 705 F.2d 20, 26 (2d Cir. 1983); Ullman-Briggs, Inc. v. Salton, Inc., 754 F. Sup. 1003, 1008-1009 (S.D.N.Y. 1991), aff'd without opinion sub nom. Ullman-Briggs, Inc. v. Deerfield Housewares, Inc., 100 F.3d 942 (2d Cir. 1996); Donald Rubin, Inc. v. Schwartz, 191 App. Div. 2d 171, 594 N.Y.S.2d 193 (1993), aff'd, 220 App. Div. 2d 323, 632 N.Y.S.2d 787 (1995); Lone Star Ford, Inc. v. McCormick, 838 S.W.2d 734, 740 (Tex. App. 1992), writ denied (Jan. 27, 1993).

A nonexclusive personal services contract requiring a limited amount of time, but not requiring that the seller devote all of his time to the buyer, allows the seller to receive damages as a lost volume seller if that seller can demonstrate that he intended to take on additional contracts and that he had the capacity to enter other contracts. Lone Star Ford, Inc. v. McCormick, supra, 838 S.W.2d 740. Only when the breach enables a wronged seller to earn additional income should the court use the mitigation of damages doctrine to reduce the amount of damages the breaching buyer of the personal service has to pay the wronged seller. Donald Rubin, Inc. v. Schwartz, supra, 191 App. Div. 2d 172. If, however, the seller could and would have entered a second transaction simultaneously, the seller’s damages are based on the net profit he or she lost as a result of the breach, without any deduction by the buyer for the profit from services rendered by the seller to others. Id.

Whenever new markets for a plaintiff are additional volume, and not a substitute for the old breached contract, a plaintiff may recover damages as a lost volume seller without a deduction from those damages of the net income received from new clients. Katz Communications, Inc. v. Evening News Assn., supra, 705 F.2d 26. If a contract does not require all of the time of the seller and does not preclude the seller from undertaking the performance of other contracts simultaneously, the seller is not obliged to minimize damages by reducing the amount the breaching buyer owes for the breach. Seaboard Music Co. v. Germano, supra, 24 Cal. App. 3d 623.

In sum, for sellers of personal services to come within the purview of the Restatement’s lost volume seller theory and recover their undiminished lost profit from the breaching buyer, they must establish the capacity to make an additional sale, that it would have been profitable to make an additional sale of personal services and that they probably would have made an additional sale absent the buyer’s breach. Rodriguez v. Learjet, Inc., 24 Kan. App. 2d 461, 466-67, 946 P.2d 1010 (1997).

The defendant relies on Davis v. West Community Hospital, 755 F.2d 455 (5th Cir. 1985), another case involving the sale of personal services. In that case, the plaintiff physician, who had staff privileges at two hospitals, was unsuccessful in his action for damages for the suspension of his staff privileges because his income increased following his suspension. The theory under which the plaintiff presented his claim, however, was a tortious interference with a business relationship, rather than a claim as a lost volume seller. Id., 466. The court in Davis did not discuss the lost volume seller theory and applied the doctrine of mitigation of damages. Because that case is distinguishable, we discount its value in deciding the present case and rely instead on the other cases that have followed the same sections of the Restatement as are here involved.

In deciding whether Connecticut ought to allow recovery on the basis of the theory of damages of 3 Restatement (Second), Contracts §§ 347 and 350, we recognize that Restatements of the Law are an authoritative source for many of our holdings. See, e.g., Binette v. Sabo, 244 Conn. 23, 34, 710 A.2d 688 (1998); Darling v. Burrone Bros., Inc., 162 Conn. 187, 198, 292 A.2d 912 (1972); Wachtel v. Rosol, 159 Conn. 496, 499-500, 271 A.2d 84 (1970). We hold that the Restatement sections discussed in this opinion should be followed in those personal services cases where the plaintiff sellers can show by a preponderance of the evidence that they would and could have performed another contract simultaneously for the same time period that the breached contract would have run, and that in such instances a wrongdoer buyer cannot deduct the revenue from the second contract from the profit that would have been due were it not for the breach. In other words, the doctrine of mitigation of damages is not applied in such cases, and the measure of damages is the amount the plaintiff would have earned from the performance of the breached contract were it not for the breach, less any costs attributable to its performance.

The plaintiffs loss of the monetary benefit of the breached contract in such cases should not be affected by the net revenue earned elsewhere, and that loss is the appropriate award of damages. See 22 Am. Jur. 2d Damages § 509 (1988). Because the trial court in this case concluded that the plaintiffs award of damages could not be based on a lost volume seller theory, the court applied the doctrine of mitigation of damages. Applying that doctrine in a well reasoned analysis, the court found that the plaintiffs income had increased over the years since 1984 when he was not reappointed to the staff, that the plaintiffs exhibits to prove damages were flawed, and that there was no reasonable certainty that any economic loss or damage arose from the defendants’ breach of contract. The court, therefore, awarded the plaintiff $1 in nominal damages. If this were a case in which a lost volume seller theory of damages could not and did not apply, and if, therefore, the defendant would have the benefit of the mitigation of damages doctrine, we would agree with the trial court.

In this case, the uncontroverted facts were that the plaintiff had the capacity to enter into other contracts with other hospitals simultaneously with his contract with the defendant hospital, that it was profitable for him to do so and that he would have made such additional sales of his services in the future, whether or not the hospital breached its contract with him. The plaintiff has shown that it was more probable than not that he would have worked during 1984 at a number of hospitals as well as at the defendant hospital had he continued to be a member of the staff at the defendant hospital. Although ordinarily whether the plaintiff intended to enter additional contracts is a question of fact, no other conclusion is possible here on the basis of the subsidiary facts found by the trial court. We conclude that as a matter of law, in a contract for personal services in some cases, such as this one, a seller can, in the event of a breach, receive an award of damages in accord with the particular comments of the Restatement (Second), Contracts, and that the application of a mitigation of damages doctrine in such cases would be improper.

Because we have determined that Connecticut, in appropriate cases, should follow 3 Restatement (Second), Contracts §§ 347, comment (f), and 350, comment (d), in situations involving the sale of personal services, we next consider whether the plaintiff in this case was entitled to more than nominal damages.

At the hearing in damages held in 1999, the plaintiff claimed that his financial loss should be measured by the additional income he would have earned at the defendant hospital during the fifteen years that had elapsed since his loss of staff privileges in 1984, as well as for the next ten years from 1999 that he intended to work.

To determine the proper amount to which the plaintiff is entitled as damages, we must decide the length of time during which he would be entitled to lost profits. In the cases previously discussed, the terms of the contract for the sellers of personal service had not yet expired at the time of the buyers’ breach, and damages were based on the net profits for the unexpired term of the breached contract.

The interpretation of a written contract is a question of law. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179, 544 A.2d 1185 (1988). Here, at the end of 1983, if the plaintiff had been allowed to continue as a staff member of the defendant hospital it would have been for one year. The term of each of his contracts was for one year and any breach of a contract could, as a maximum, only involve one year.

The attorney trial referee’s report was based on a breach by the defendant hospital of certain of its bylaws governing the procedure involved in the steps required for nonreappointment of a member of the hospital staff. The report was accepted, which was tantamount to a finding of liability for the breach. Had the bylaws been followed, the plaintiff would either have been appointed for one additional year, beginning January 1, 1984, or his contract would have been terminated on December 31, 1983. If we assume the latter, the defendant hospital would be encouraged to ignore procedural guidelines since such a breach would only provide the plaintiff and others, similarly situated, with nominal damages. The defendant would only need to wait until near the end of the term of a one year contract, fail to renew, not fulfill procedural requirements and then owe nominal damages. The cost to the defendant then “by doing wrong” would be minimal; the plaintiff would have won the battle of being properly treated as a lost volume seller of personal services but would have lost the war in terms of damages. As a matter of public policy, courts should consider remedies that discourage breaches of contract. D. Matthews, supra, 51 U. Miami L. Rev. 1217-18.

The plaintiff seeks an award of damages for twenty-five years. We conclude, however, that damages embracing more than one year on the basis of the facts of this case are not warranted. The plaintiff had a personal services contract for 1983, probably renewable for another year, 1984, not a twenty-five year annuity for his working personal services life. The plaintiffs damages should encompass one year, 1984.

Those damages must be ascertained by finding what the net profits from a contract with the defendant would have produced in 1984 had the defendant not breached the contract. See Katz Communications, Inc. v. Evening News Assn., supra, 705 F.2d 26. In ascertaining that sum, the trial court has the right to resort to reasonable conjecture and probable estimates, and to make the best approximation possible. Id., 25; see also Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 69-70, 717 A.2d 724 (1998) (profits in year prior to breach to be extrapolated to time remaining on contract that was breached). If there is an appreciable savings to the plaintiff as a result of not having to perform the contract, that savings should be deducted from the damages otherwise due to the plaintiff to find the plaintiffs net profit. Katz Communications, Inc. v. Evening News Assn., supra, 26.

The plaintiff is due the net profit he would have had during 1984 at the defendant hospital had his contract not been breached, plus any interest that may be awarded on that sum. See General Statutes § 37-3a. The liability in this case was a delict based on a procedural deficiency. Liability here is not inextricably intertwined with damages due, and a new trial as to both damages and liability is not necessary. See Harewood v. Carter, 63 Conn. App. 199, 772 A.2d 764 (2001). Accordingly, our remand is limited to damages only.

The plaintiff claims, in the alternative, that if he is not afforded a new hearing in damages, he should be awarded a permanent injunction providing him with reinstatement to his former position on the staff of the defendant hospital. Although we have concluded that a hearing in damages is necessary, we briefly discuss the alternative claim. The trial court concluded that the injunctive relief sought by the plaintiff was not warranted. We agree.

The plaintiff did not introduce any evidence that due to the denial of his staff position, he failed to obtain malpractice insurance or was not allowed to take board examinations or file applications at other hospitals for staff privileges, which failures might have caused irreparable harm. He has an adequate remedy at law because any damage to him is redressed by our remand to determine the amount of money required to put him in the position he would have enjoyed had there been no breach.

We affirm the judgment denying the plaintiff a permanent injunction; we reverse the judgment of $1 as to amount only and remand the matter for a hearing in damages to ascertain the amount of the net profit the plaintiff would have obtained in 1984 from his contract with the hospital had there been no breach of contract and with direction to thereafter render judgment for the plaintiff in that amount.

In this opinion the other judges concurred.

       The defendants are Norwalk Hospital (hospital), the chairman of the department of surgery of the hospital, the chief of staff of the hospital, the president of the hospital, and the chief of plastic and reconstructive surgery at the hospital.

       The doctrine of mitigation of damages requires the nonbreaching party to a contract to make reasonable efforts to minimize damages arising from the breach. Danpar Associates v. Somersville Mills Sales Room, Inc., 182 Conn. 444, 446, 438 A.2d 708 (1980).

       Article III, § 3b, of the medical staff bylaws states: “Reappointments shall be for a period not more than one calendar year. For the purposes of these bylaws the medical staff year commences on the first day of January and ends on the thirty-first day of December of each year.”

       Article V of the medical staff bylaws, entitled “Procedure for Appointment and Reappointment,” provides in § 2b that “the department concerned shall determine whether to recommend to the medical staff that the practitioner be appointed to the medical staff . . . .”

       The court, cites McMahon as determinative of the validity in Connecticut of the theory of lost volume seller damages in contracts for the sale of goods. The defendant does not mention the case in its brief and the plaintiff disputes the accuracy of such a holding. The court also noted that such a theory cannot apply to personal service contracts because of the holding in McMahon. We read the case as holding' that the doctrine of mitigation of damages applies to contracts of personal service in some instances, but that in other cases the party injured is not obliged to seek and perform other contracts for the benefit of the breacher of the contract. Thus, although the decision does not mention the Restatement of Contracts or use the words “lost volume,” it does embrace its rationale, but is silent as to its use in the sale of personal services.

       Illustration 10 reads as follows: “A contracts to pay B $20,000 for paving A’s parking lot, which would give B a net profit of $3,000. A bréales the contract by repudiating it before B begins work. If B would have made the contract with A in addition to other contracts, B’s efforts to obtain other contracts do not affect his damages. B’s damages for A’s breach of contract include his $3,000 loss of profit.” 3 Restatement (Second), supra, § 350, comment (d), illustration 10.

       Pennsylvania is the only jurisdiction of which we are aware in which a court has rejected the concept of the lost volume seller. See Northeastern Vending Co. v. P.D.O., Inc., 414 Pa. Super. 200, 204-205, 606 A.2d 936 (1992).


author: LANDAU, J. HENNESSY, J.,

text:
    WEBSTER TRUST ET AL. v. RUSSELL C. ROLY, SR., ET AL.
    (AC 20291)
    Landau, Mihalakos and Hennessy, Js.

      Argued January 12 —
    officially released July 10, 2001

      Pasquale Young, for the appellants (plaintiffs).

      Frederick P. Leaf, with whom, on the brief, was Susan King Shaw, for the appellees (defendant Gerald S. Adinolfi et al.).
   Opinion

LANDAU, J.

The plaintiffs appeal from the judgment rendered in favor of the defendants following a trial to the court. In this action, the plaintiffs prayed for equitable relief in the form of specific performance or a constructive trust with respect to certain real property. Although the parties raised many issues in their briefs, this court need only decide whether the trial court improperly concluded (1) that the offer to purchase was not bona fide, (2) that the plaintiffs failed to prove that they did not receive notice pursuant to the agreement at issue, in part, because the court improperly refused to admit into evidence a third party complaint, and (3) that the agreement was unreasonable and unrealistic. We reverse the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. On July 5, 1977, the defendants Russell C. Roly, Sr., and Eleanor Augur Roly (Rolys) conveyed 9.84 acres of real property in North Branford to John Lescovich, who now is deceased. On September 26, 1977, the Rolys entered into a written agreement with Lescovich (agreement), which stated, in part, that the Rolys “agree to give [Lescovich] personal notice of any bona fide offer to purchase any or all of’ the real property (land) they own in North Branford. The agreement was duly recorded in the land records of North Bran-ford. Lescovich died in March, 1994, and the 9.84 acres and the agreement were devised by order of the Probate Court on November 13, 1997, to the family trust that had been created by Lescovich.

On April 9, 1997, the defendants Ruth A. Adinolfi and Gerald S. Adinolfi signed a standard real estate agreement form, offering to purchase the land for $100,000. The Rolys accepted the offer by signing the agreement form on April 14, 1997. At the time, Russell C. Roly, Sr., was acting as Eleanor Augur Roly’s conservator, and he secured approval from the Probate Court for Eleanor Augur Roly’s estate to sell the land for $100,000. According to Ruth A. Adinolfi, the attorney that the Adinolfis retained to represent their interests in the transaction knew that there might be a preemptive option with respect to the land. On June 30, 1997, the Rolys, acting through Russell C. Roly, Sr., conveyed all of the land to the Adinolfis in consideration of $100,000. Russell C. Roly, Sr., received $50,000 and Eleanor Augur Roly’s estate received $50,000.

Frances Lescovich, Lescovich’s widow and sole beneficiary of the trust, has lived continuously on the 9.84 acres since Lescovich purchased it in 1977. Frances Lescovich learned of the Rolys’ conveying the land to the Adinolfis in September, 1997. In October, 1997, the plaintiffs commenced this action, seeking to enforce the agreement. The action sought damages against Russell C. Roly, Sr., a judgment of specific performance requiring the Adinolfis to convey the land to the trust in consideration of $100,000 or, in the alternative, an order that the Adinolfis create a constructive trust of the land for the benefit of the trust.

Following the presentation of evidence, the court found that there was no bona fide offer from the Adinolfis to the Rolys that triggered the notice provision of the agreement, that the plaintiffs’ interpretation of the terms of the agreement was not reasonable or realistic, that $100,000 was not equitable consideration for the real property because it was substantially less than its market value and that the plaintiffs failed to prove they did not receive notice in accordance with the agreement. This appeal followed.

I

The plaintiffs’ first claim is that the court improperly concluded that the Adinolfis’ offer to purchase the land for $100,000 was not a bona fide offer. In its memorandum of decision, the court found that the agreement did not contain a fixed price for the purchase of the land and set no time limits, Lescovich made no effort to buy the land during his lifetime, the appraised value of the land was in excess of $300,000, and that the plaintiffs were not ready, willing and able to pay the market price. Because Ruth A. Adinolfi had lived on the land her entire life, the court inferred that the Adinolfis had provided consideration of some sort beyond the $100,000 they paid for the land, although the court cited no evidence of that consideration. The court concluded that “the plaintiffs failed to prove that the price paid by [the Adinolfis] was a bona fide offer . . . .” We disagree with the court’s conclusion.

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” (Internal quotation marks omitted.) DeSalle v. Appelberg, 60 Conn. App. 386, 389-90, 759 A.2d 537, cert. denied, 255 Conn. 908, 763 A.2d 1035 (2000). “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . State v. Hodge, 248 Conn. 207, 218-24, 726 A.2d 531 [cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319] (1999). . . . State v. King, [249 Conn. 645, 660, 735 A.2d 267 (1999)].” (Internal quotation marks omitted.) State v. Ross, 251 Conn. 579, 593, 742 A.2d 312 (1999).

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . [T]he interpretation and construction of a written contract present only questions of law, within the province of the court ... so long as the contract is unambiguous and the intent of the parties can be determined from the agreement’s face. ” (Citation omitted; internal quotation marks omitted.) Short v. Connecticut Bank & Trust Co., 60 Conn. App. 362, 367, 759 A.2d 129 (2000).

Here, the agreement between Lescovich and the Rolys clearly provided that the Rolys were to give personal notice to Lescovich of any bona fide offer to purchase any or all of the land. “ ‘A right of pre-emption is a right to buy before or ahead of others; thus, a preemptive right contract is an agreement containing all the essential elements of a contract, the provisions of which give to the prospective purchaser the right to buy upon specified terms, but, and this is the important point, only if the seller decides to sell. It does not give the pre-emptioner the power to compel an unwilling owner to sell, and therefore is distinguishable from an ordinary option. Annot., 40 A.L.R.3d 920, 924 (1971).” (Emphasis added.) Hare v. McClellan, 234 Conn. 581, 588-89, 662 A.2d 1242 (1995). The facts cited by the court that Lescovich had not shown interest in the property prior to his death and that the plaintiffs had not proven that the plaintiffs were ready, willing and able to buy the land were irrelevant to its conclusion as to whether the Rolys had received a bona fide offer. Furthermore, the agreement did not permit Lescovich to compel the Rolys to sell the land until they were willing to sell the land pursuant to a bona fide offer.

The agreement clearly states that the Rolys intended to give Lescovich “a right of first refusal” to buy the land if they received a bona fide offer. “ ‘Bona fide is a legal technical expression; and the law of Great Britain and this country has annexed a certain idea to it. It . . . signifies a thing done really, with a good faith, without [fraud,] or deceit, or [collusion,] or trust.’ Ware v. Hylton, 3 Dall. (U.S.) 199, 241 [1 L. Ed. 568 (1796)]. Bona fide means real, actual, genuine; In re Herman, 183 Cal. 153, 164, 191 Pac. 934 [1920]; real and not feigned. Jones v. Light, 86 Me. 437, 442, 30 Atl. 71 [1894]; Hill v. Ahern, 135 Mass. [158], 161 [1883]; Coffin v. United States, 162 U.S. 664, 684, 16 S. Ct. 943 [40 L. Ed. 1109 (1896)].” Bridgeport Mortgage & Realty Corp. v. Whitlock, 128 Conn. 57, 61, 20 A.2d 414 (1941).

Black’s Law Dictionary defines bona fide as meaning “[i]n or with good faith; honestly, openly, and sincerely; without deceit or fraud.” Black’s Law Dictionary (6th Ed. 1990). Webster’s provides the following definition of the Latin term: “made in good faith without fraud or deceit . . . legally valid . . . sincere . . . made with earnest or wholehearted intent . . . genuine . . . not specious or counterfeit.” Webster’s Third New International Dictionary.

The case here, however, does not require a finding of whether the Adinolfis’ offer was sincere or made in good faith. Clearly, the offer was genuine because the Adinolfis were ready, willing and able to purchase the land and did, in fact, purchase the land for the price they offered. See Cohen v. Lenehan, 134 Conn. 514, 516, 58 A.2d 707 (1948) (“it appears not only that the offer was made but that it was accepted, and that the defendant was notified that the cash ‘was ready and waiting’ for him”).

The issue here is whether the Rolys were willing to sell the land to the Adinolfis for the consideration offered. See Hare v. McClellan, supra, 234 Conn. 589. The Rolys’ willingness to sell the land required them to inform the plaintiffs of the offer. The court failed to consider the evidence that the Rolys received a good faith offer and were willing to sell the land in the spring of 1997, e.g., the real estate contract they entered into with the Adinolfis and the petition to the Probate Court to secure permission to sell Eleanor Augur Roly’s interest in the land. The contract and the petition are sufficient evidence that the Rolys considered the $100,000 offer from the Adinolfis bona fide because they took steps to sell, and in fact, sold the land for that price. See Cohen v. Lenehan, supra, 134 Conn. 516. We conclude, therefore, that the court’s finding that the Adinolfis’ offer was not bona fide is clearly erroneous.

The dissent suggests that the court found that the Adinolfis gave consideration in excess of $100,000. The trier of fact may not speculate as to the additional consideration, if any, the Adinolfis had offered for the land for which there was no direct or circumstantial evidence. The court did not identify the circumstantial evidence, if any, it considered, but it inferred that there was additional consideration merely because Ruth A. Adinolfi had lived on the land her entire life. In addition to there being no direct evidence on the point, the deeds from Russell C. Roly, Sr., and from Eleanor Augur Roly’s estate merely state “in consideration of fifty thousand dollars.” The language “and other valuable consideration” is notably missing from the deeds, but such language is included in the preemptive agreement.

We, therefore, conclude that the court was clearly erroneous in finding that the Rolys did not receive a bona fide offer to purchase the land from the Adinolfis.

II

The plaintiffs’ second claim is that the court improperly concluded that they failed to prove that the Rolys did not give them personal notice of the bona fide offer to purchase the land. We agree.

In its memorandum of decision, the court stated that “[t]he plaintiffs only called two witnesses in this case: the widow of John Lescovich, Frances Lescovich, and David Freese, an officer of Webster Bank.” On the basis of our review of the trial transcript, the plaintiffs called not only Frances Lescovich and Freese but also Ruth A. Adinolfi. “ ‘A committee, or other trier, is bound to consider all the evidence which has been admitted, as far as admissible, for all the purposes for which it was offered and claimed. Not to do so is an error of law no less than it would be to exclude the evidence when offered.’ State v. Suffield & Thompsonville Bridge Co., 82 Conn. 460, 465, 74 A. 775 (1909).” (Emphasis in original.) Evans v. Warden, 29 Conn. App. 274, 277, 613 A.2d 327 (1992). In reaching its conclusion that the plaintiffs failed to prove lack of notice, the court improperly failed to acknowledge Ruth A. Adinolfi’s testimony and to assess the credibility of the witnesses.

The plaintiffs also claimed that the court improperly failed to admit into evidence a third party complaint filed by the Adinolfis seeking indemnification for their loss, if any, from Russell C. Roly, Jr., and their attorney. Third party complaints seeking indemnification may not be admitted into evidence as judicial admissions of liability. DeJesus v. Craftsman Machinery Co., 16 Conn. App. 558, 566, 548 A.2d 736 (1988). The court, therefore, properly refused to admit the third party complaint into evidence.

Ill

The plaintiffs’ third claim is that the court improperly determined that the agreement was unreasonable and unrealistic. We agree.

“Whether a preemptive option is reasonable or unreasonable is a question of law for the court. Cf. Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 530, 546 A.2d 216 (1988) (reasonableness of covenant not to compete); Scott v. General Iron & Welding Co., 171 Conn. 132, 137-38, 368 A.2d 111 (1976) (same). In making its determination of whether such a preemptive option is reasonable, the court must take into account the following factors: ‘(1) the purpose of the pre-emption, (2) its duration, and (3) the method of determining the price to be paid.’ Annot., supra, 40 A.L.R.3d 926; Metropolitan Transportation Authority v. Bruken Realty Corp., 67 N.Y.2d 156, 167-68, 492 N.E.2d 379, 501 N.Y.S.2d 306 (1986); J L J Associates, Inc. v. Persiani, 41 Conn. Sup. 79, 88, 650 A.2d 50 (1988); see generally 1 Restatement (Second), Property, Donative Transfers § 4.4 (1983). Thus, although the court’s ultimate determination of the reasonableness of the preemptive option is a legal one, the court can make that legal determination only after engaging in factual determinations regarding the purpose, duration and method of setting the price for the parcel in question.” Hare v. McClellan, supra, 234 Conn. 589-90.

Here, the court did not perform the factual analysis necessary to determine whether the agreement, a preemptive option, was reasonable. The court found that the agreement did not fix a price for the land and contained no time limitations. The court did note that Frances Lescovich testified, with respect to the agreement, that Lescovich was seeking additional property to expand their horse farm, but drew no conclusion as to whether that purpose was reasonable.

As to the other Hare reasonableness factors, the agreement directly speaks to them. Lescovich was to give to the Rolys notice of his intention to purchase the land within twelve hours of his receiving notice of the bona fide offer. “The duration of the restraint is not measured by the life of the preemptive right.” (Internal quotation marks omitted.) Id., 592. “[T]he duration of a restriction is not measured by the life of the right, but by the ‘period during which the right could be exercised after the [seller] decided to sell.’ ” Id. The court did not address the duration factor.

Furthermore, the agreement provided that Lescovich was to provide notice “of his intention to buy any such land upon the same terms and conditions contained in any such bona fide offer to purchase . . . .” The price of the land was to be established by the bona fide offer, which terms and conditions Lescovich, or the plaintiffs, had to meet. The court did not consider that language. Because the court failed to apply the analysis adopted by Hare, its conclusion that the agreement was unreasonable is clearly erroneous.

For the foregoing reasons, the judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion MIHALAKOS, J., concurred.

HENNESSY, J.,

dissenting. I respectfully disagree with the majority and would affirm the judgment of the trial court. I believe that the majority, in part I of its opinion, incorrectly concluded that the offer by the defendants Ruth A. Adinolfi and Gerald S. Adinolfi to purchase the land was a bona fide offer. Additionally, I believe that the dispositive issue of the appeal is whether the Adinolfis’ $100,000 offer was a bona fide offer, not whether the Adinolfis were “ready, willing and able to purchase the land” as the majority suggests. The majority’s conclusion that the offer was genuine because the Adinolfis were “ready, willing and able” to buy the property is unsupported by case law. This court has often referred to a party’s readiness and willingness to purchase land in specific performance cases. Those cases, however, do not stand for the proposition that a party’s offer is bona fide if a party is ready, willing and able to purchase land by that offer. As stated previously, to create case law that supports that conclusion would be to usurp the trial court’s right to determine the bona fides of an offer or other issue. The fact that a party is “ready, willing and able” to purchase land may lend support to proving that the party is a bona fide purchaser. It does not, however, prove that an offer made by that individual is a bona fide offer. The majority has improperly substituted the test for bona fide purchaser as the test for bona fide offer.

The majority improperly focuses its analysis on whether the Adinolfis were bona fide purchasers. The trial court’s determination that the Adinolfis’ $100,000 offer was not bona fide is a finding of fact. Thus, as the majority states, and I agree, the proper standard of review is whether the court’s findings are clearly erroneous.

Although the majority’s conclusion about the bona fides of the offer does reach the result the majority seeks to reach, namely to find that the offer in this case does trigger the right of first refusal, the majority fails to see the wider ramifications of such a holding. By its approach, the majority states that any offer that is accepted is, ipso facto, a bona fide offer. That would write out of existence the preface bona fide as used with respect to offers in areas of the law too numerous to recount here.

Additionally, the majority’s opinion would rewrite, sub silentio, our Supreme court’s long-standing rule that the question of the bona fides of anything is a question of fact for the trier of fact. See Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 107, 671 A.2d 349 (1996); Hamm v. Taylor, 180 Conn. 491, 496, 429 A.2d 946 (1980); Goldman v. Coppola, 149 Conn. 317, 320, 179 A.2d 817 (1962); Cohen v. Lenehan, 134 Conn. 514, 516, 58 A.2d 707 (1948); Sullo v. Luysterborghs, 129 Conn. 172, 175, 26 A.2d 784 (1942); cf. Rice v. Rice, 134 Conn. 440, 445, 58 A.2d 523 (1948), aff'd, 336 U.S. 674, 69 S. Ct. 751, 93 L. Ed. 957 (1949). It is the policy of this court that we do not create conflict with prior holdings of our Supreme Court. The majority opinion in this case would abrogate more than one-half century of Supreme Court precedent on a matter of first impression before this court.

The majority opinion states that “[t]he court did not identify the circumstantial evidence, if any, it considered” when concluding that the sale was not the result of a bona fide offer. The facts show otherwise. The court listed the other factors it considered, the most compelling factor being that the daughter of the sellers had lived on the land all of her life prior to purchasing it. Other factors that led the court to find that the sale was not the result of a bona fide offer were that “[t]he plaintiffs failed to prove that the price paid by the daughter was a bona fide offer or that they were ready and willing to pay the market price.” “We do not duplicate the role of the trial court in weighing the evidence, but determine only whether the trial court’s conclusion was reasonable. In the absence of clear error [we] should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of . . . the witnesses.” (Internal quotation marks omitted.) Lapuk v. Simons, 41 Conn. App. 750, 677 A.2d 24, cert. denied, 239 Conn. 926, 683 A.2d 21 (1996).

I believe that the trial court reasonably could have found that the sale of property for substantially less than its fair market value to the seller’s daughter and son-in-law, the natural objects of his bounty, was not the result of a bona fide offer. “Our role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives.” (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 842, 661 A.2d 539 (1995). The trial court listed the factors it took into account when making its finding. As such, the finding of the court is not clearly erroneous and the judgment of the court must be affirmed.

Moreover, the contract granting John Lescovich the right of first refusal was constructed in such a manner that would allow a transfer of the property without triggering the right. The contract states in relevant part: “This agreement shall continue in force during the life of the Grantee and for twenty-one (21) years thereafter, and is binding on the heirs, successors] and assigns of the parties hereto.” By including that phrase, the drafter did not restrict the grantee, now seller, from conveying the property without activating the right of first refusal. By binding the “heirs, successors] and assigns of the parties,” the drafter protected the holder of the right of first refusal while still allowing a conveyance of the land in a manner that does not activate the right. This court has held that “[w]here the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) Sachs v. Sachs, 60 Conn. App. 337, 343, 759 A.2d 510 (2000). This court “will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . .” (Internal quotation marks omitted.) Id.

“It is the general rule that a contract is to be inteipreted according to the intent expressed in its language and not by an intent the court may believe existed in the minds of the parties.” (Internal quotation marks omitted.) John M. Glover Agency v. RDB Building, LLC, 60 Conn. App. 640, 644, 760 A.2d 980 (2000). In particular, this court endeavors to give effect to all the terms of a contract. The majority’s conclusion that any sale would activate the right would fail to give effect to the provision of the contract that kept it in force during the life of the grantee and for twenty-one years thereafter.

At the end of part I, the majority states that “[t]he contract and petition are sufficient evidence that the [defendants Russell C. Roly, Sr., and his wife, Eleanor Augur Roly] considered the $100,000 offer from the Adinolfis bona fide because they took steps to sell, and in fact, sold the land for that price.” I would submit that this conclusory statement is unsupported by case law and does not prove that the court’s finding was clearly erroneous. Consequently, the trial court reasonably could have found that the sale did not trigger the right of first refusal.

II

Part II of the majority opinion deals with the notice requirement of the right of first refusal. I would agree with the majority that if the right of first refusal had been triggered, and the plaintiff did not receive notice in accordance with the terms of the right, then the sale to the Adinolfis would have been improper. See Briggs v. Sylvestri, 49 Conn. App. 297, 304, 714 A.2d 56 (1998). I can not, however, adopt the reasoning in part II in that it fails to (1) explain what part of Ruth A. Adinolfi’s testimony contradicts the trial court’s findings or (2) articulate the reasons why it finds that the trial court’s findings were in error.

Further, I agree with the majority that a trier of fact must consider all of the evidence before it. I note, however, that the court in this case has done just that. Additionally, “[t]his court has proclaimed repeatedly that it is not within our province to retiy facts. ... A factual ruling of a trial court will not be disturbed unless it is clearly erroneous.” (Internal quotation marks omitted.) Id., 305. Thus, I believe the ruling of the trial court should be affirmed.

I would affirm the judgment of the trial court.

       The plaintiffs are the trustees of the John Lescovich family trust (trust): Webster Trust, successor trustee to Sachem Trust Company, which was a successor trustee to Lafayette Bank and Trust Company, an original trustee, and Pasquale Young.

       The original defendants were Russell C. Roly, Sr., and his wife, Eleanor Augur Roly, Ruth A. Adinolfi and Gerald S. Adinolfi. Ruth A. Adinolfi is Eleanor Augur Roly’s daughter. Russell C. Roly, Sr., died during the pendency of the action, and the plaintiffs withdrew their claims against his estate.

       At trial and in their briefs, the parties refer to the agreement as a right of first refusal. “A right of first refusal is known more technically as a preemptive option, as a right of preemption, or simply as a preemption.” Hare v. McClellan, 234 Conn. 581, 588, 662 A.2d 1242 (1995).

       The agreement states: “FOR ONE DOLLAR AND OTHER VALUABLE CONSIDERATIONS, We Russell Roly and Eleanor Roly both of the Town of North Branford, County of New Haven and State of Connecticut (hereinafter referred to as the Grantors) do give and grant to JOHN LESCOVICH (hereinafter referred to as Grantee) of said North Branford and to his heirs, successors and assigns a right of first refusal to purchase all of the land owned by Grantors located in said Town of North Branford and situated to the west of land conveyed by the Grantors to the Grantee on the date of this instrument. The Grantors agree to give the Grantee personal notice of any bona fide offer to purchase any or all of said land and the Grantee shall give notice to the Grantor within twelve (12) hours of the receipt of notice by him of his intention to buy any such land upon the same terms and conditions contained in any such bona fide offer to purchase any of the land referred to in this agreement.

      “The Grantors agree to convey any land covered by this agreement by warranty deed free and clear of all encumbrances if the right of first refusal is exercised by the Grantee. This agreement shall continue in force during the life of the Grantee and for twenty-one (21) years thereafter, and is binding on the heirs, successor and assigns of the parties hereto.
      “IN WITNESS WHEREOF, the parties have hereunto set their hands and seals at New Haven, Connecticut this 26th day of September, 1977.” (Emphasis added.)

       The form contains the following language at the top of the page: “This is a legal and binding contract designed for the purchase and sale of one family residential property in the New Haven area. This form has been approved by the Greater New Haven Association of REALTORS*, Inc. It is appropriate for most BUT NOT ALL such transactions. If this form does not appear to either BUYER or SELLER to be appropriate for a particular transaction, you are urged to discuss the purchase or sale with an attorney of your choice BEFORE YOU SIGN. No provisions of this contract are fixed by law and all terms and conditions are subject to negotiation prior to signing.”

       On direct examination, Ruth A. Adinolfi testified in response to questions from the plaintiffs’ counsel, in part, as follows:
      “Q: Did you sign a contract with, you and your husband sign a contract with your step-dad and your mom to purchase this property?
      “A: With the person that was in charge of their estate, Russell, Jr.
      “Q: But Russell also—
      “A: And Russell, Sr., signed it also, that’s correct, right, April, I believe April.
      “Q: Excuse me.
      “A: April of ’97.
      * * *
      “Q: And your mom had a conservator over her person in: this state, is that correct, because she was aged and not capable of taking care of her affairs?
      “A: Uh huh (affirmative).

        ‘"Q: You said earlier that you knew there might be a right of first refusal?
      “A: I had heard there might be but I did not know it to be a fact because I did not know my mother’s or step-dad’s legal business.
      “Q: Who had you heard it from?
      "A: I can’t even tell you who I had heard it from, but we knew, we had heard it but did not know it to be a fact.
      “Q: You mean we, you and your husband Gerald had heard that there may be?
      “A: That’s correct.
      “Q: Did you question anybody, your attorney?
      “A: The attorney knew it.
      “Q: He knew what?
      “A: That when we hired him I said there very well could have been. . . . When I talked to [the attorney] when he called me back when I was setting up the closing he, you know, he told me that it would take some time, because Russ, Jr., wanted to close very quickly and he said no, it’s going to take some time because it has to be probated. So that’s when [the attorney] called me and said, you know, we’re getting there but it’s going to take time, it may not be until June or July because I’m going to dot all the I’s and cross all the T’s, that’s the exact words [the attorney] said to me.”

       There was evidence that the Rolys gave the Adinolfis land upon which to build a house when they were married. Ruth A. Adinolfi had previously lived in the house that Lescovich purchased as an improvement on the 9.84 acres.

       The relevant portion of the court’s memorandum of decision states: “[I]n this case before this court there is no fixed price for the purchase of the property. Nor any time limitations. The expectation of the plaintiffs to purchase this property which was worth in excess of $300,000 for the purchase price paid by a daughter of the grantors is certainly unreasonable and inequitable. The grantee of the right of first refusal at no time up to his death showed any interest in the land. Only after his death and with some other considerations not testified to is a claim to purchase the property for less than true value in excess of $300,000.
      “The argument of the plaintiffs that because there is a method to determine the price being set by a bona fide offer satisfies this court to look favorably upon ordering specific performance at the same purchase price given to a daughter is not only unreasonable but unrealistic. This court infers that there were other considerations in determining the purchase price for her. She had lived on the property for most of her life. The plaintiffs failed to prove that the price paid by the daughter was a bona fide offer or that they were ready and willing to pay the market price.” (Emphasis in original.)

       The majority agrees with the dissent that the determination of whether something is bona fide is a question of fact for the trier. The trier is to determine good faith or absence of fraud, as the following cases illustrate.
      Where the plaintiff argued that the defendants’ offer to purchase real property was not made in good faith because they required a bridge loan, “[t]he trial court could reasonably reach the conclusion that when the defendant was notified that the purchasers were ready to close the deal they had immediately available the necessary funds to do so, and that they had the financial ability to perform.” Cohen v. Lenehan, 134 Conn. 514, 516, 58 A.2d 707 (1948).
      “The plaintiff attacked the court’s finding that the minutes showing the donation of 250 shares of stock by [defendant] were written through ignorance and error, and that the correcting entry treating the transaction as a sale of stock to the corporation in return for the cancelation of indebtedness was a bona fide correction of an honest mistake.” Goldman v. Coppola, 149 Conn. 317, 320, 179 A.2d 817 (1962).
      “The defendants’ real claim seems to be that the plaintiff did not produce a bona fide customer, but merely an intermediary who purchased the property solely for the purpose of conveying title to a customer who was notproduced by the plaintiff and to whom the premises were later conveyed by [the so-called intermediary]. This was an issue of fact which the trial court decided against the defendants, upon sufficient supporting testimony. The further claim is that the plaintiff was acting merely as an agent for the buyer to secure a loan, and not for the defendants as a broker for the sale of the property.” Sullo v. Luysterborghs, 129 Conn. 172, 175, 26 A.2d 784 (1942).

        “[T]he bona fides of a mortgage, the possible use of a mortgage to evade the usury statutes, were questions of fact and that the creditor’s demurrer to a defense of usury should therefore have been overruled. Such a holding is not tantamount to a conclusion that uneonscionability is to be determined, as a question of law, merely by reference to the terms of the challenged instruments.” Hamm v. Taylor, 180 Conn. 491, 496, 429 A.2d 946 (1980).
      “[A] plaintiff may establish a prima facie case of discrimination through inference by presenting facts [that are] sufficient to remove the most likely bona fide reasons for an employment action .... From a showing that an employment decision was not made for legitimate reasons, a fact finder may infer that the decision was made for illegitimate reasons.” (Citation omitted; internal quotation marks omitted.) Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 107, 671 A.2d 349 (1996).

       Query whether the dissent considers bona fide offer synonymous with bona fide purchaser for value.

       There is a strong suggestion in the dissent that because the Rolys are related to the Adinolfis, they could sell the land to them for less than market value and avoid the terms of the agreement. If the Rolys during their lifetimes had wanted to give the land to the Adinolfis or to bequeath the land to them, nothing in the agreement prevented them from doing so. If the Rolys had wanted to except an offer from the Adinolfis from the agreement, they should have negotiated that contract term with Lescovich.

       Because we resolve the plaintiffs’ claim on an evidentiary basis, we need not reach the question of whether the plaintiffs had the burden to prove that they did not receive notice, a negative, or whether the defendants had the burden to prove that they provided notice.

       See footnote 2 of the majority opinion.

         The majority states: “The case here, however, does not require a finding of whether the Adinolfis’ offer was sincere or made in good faith. Clearly, the offer was genuine because the Adinolfis were ready, willing and able to purchase the land and did, in fact, purchase the land for the price they offered.”

       See Mucci v. Brockton Bocee Club, Inc., 19 Mass. App. 155, 158, 472 N.E.2d 966, review denied, 394 Mass. 1102 (1985), wherein the Massachusetts Appeals Court held that the question of whether an act is bona fide for purposes oí a right of first refusal to purchase property is one of fact, and the party alleging its absence ordinarily has the burden of proof.

       I note that although the sale did not activate the right, the right of first refusal remains in full force and effect, and continues to bind the Adinolfis for the remainder of the twenty-one year period recited in the agreement. Specifically, if the Adinolfis offer the property for sale and receive a bona fide offer to purchase the property within the remainder of the twenty-one year period, they would be bound to honor the plaintiffs’ right of first refusal.

       I also agree with the majority that the court properly refused to admit the third party complaint into evidence.


author: O’CONNELL, J.

text:
    ROBERT HARGROVE ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF NORTH HAVEN ET AL. ROBERT F. BURNS ET AL. v. ROBERT HARGROVE ET AL.
    (AC 20751)
    Foti, Sclialler and O’Connell, Js.
    Argued April 25 —
    officially released July 10, 2001

      Thomas E. Crosby, for the appellants (plaintiffs in the first case, defendants in the second case).

      Robert K. Ciulla, with whom, on the brief, was Jennifer N. Coppola, for the appellees (defendants in the first case, plaintiffs in the second case).
   Opinion

O’CONNELL, J.

The dispositive issue in this consolidated appeal is whether the trial court rendered its decisions within 120 days. We conclude that it did not and remand the cases for new hearings.

The following facts and procedural history are necessary for a disposition of this appeal. On May 19, 1999, Robert F. Bums, the zoning enforcement officer of the town of North Haven, issued a cease and desist order to Robert Hargrove and Gail Hargrove ordering them to cease the operation of a facility for recovering addicts on their real property in a residential district and from renting rooms to more than four individuals at a time. On June 4, 1999, the Hargroves appealed to the zoning board of appeals of the town of North Haven (board), asserting that their use of the property was a legal nonconforming use pursuant to the town zoning regulations. On July 15,1999, the board denied the Hargroves’ appeal, and notice of that decision issued on July 22, 1999. Subsequently, Bums filed an application for a temporary injunction, seeking to enforce the cease and desist order by enjoining the Hargroves from operating a business on their property and from renting rooms to more than four persons. Thereafter, the Hargroves appealed to the trial court from the decision of the board upholding the cease and desist order. The administrative appeal from the board’s decision and the injunction action were consolidated, and oral arguments were heard before the trial court on October 25, 1999. The court issued its memorandum of decision 129 days later. In its decision, the court dismissed the administrative appeal and granted the board’s application for injunctive relief.

We granted the Hargroves’ petition for certification to appeal the zoning case, limited to the issue of whether the trial court’s decision was void because it was not issued within 120 days. No certification was required for the Hargroves to bring the question of the timeliness of the judgment in the injunction action before this court.

The board argues that the Hargroves have appealed only from the zoning decision and, therefore, that the injunction remains in effect. This argument is based on a misunderstanding of the record. Our examination of the record discloses that the court considered and rendered judgment in both cases. Furthermore, it is clear that the Hargroves have appealed to this court from both judgments.

On February 28, 2000, the zoning appeal inexplicably appeared on a calendar for the assignment of administrative appeals. The Hargroves’ counsel appeared and, when the case was called, inquired about the status of the case. The judge presiding at that call was unable to furnish any information concerning the case. The board suggests that this was a waiver of the 120 day requirement. We recognize that a party’s waiver of the 120 day requirement need not be express and may be implied from its conduct. See Building Supply Corp. v. Lawrence Brunoli, Inc., 40 Conn. App. 89, 96-97, 669 A.2d 620, cert. denied, 236 Conn. 920, 674 A.2d 1326 (1996). We are not persuaded, however, that counsel’s responding to the calendar call constituted a waiver.

If the parties do not waive the requirements of General Statutes § 51-183b, the trial court loses jurisdiction after 120 days and the judgment is voidable upon timely objection. See Building Supply Corp. v. Lawrence Brunoli, Inc., supra, 40 Conn. App. 96-97. Under the circumstances of this case, we conclude that the trial court had no jurisdiction to render judgment.

The judgments in the zoning appeal and the injunction action are reversed and the cases are remanded for new trials.

In this opinion the other judges concurred.

       The actions were consolidated at the trial court and treated as one appeal in this court.

       The parties are transposed as plaintiffs and defendants in the two cases. To avoid confusion, we refer to the parties by name rather than as plaintiff or defendant.

       Also named as plaintiffs in the injunction action were the North Haven planning and zoning commission and the town of North Haven.

       Although the parties do not agree on the exact number of days, it is undisputed that the trial court’s decision in the present case was rendered more than 120 days after completion of the hearings.

         The record reflects that the court issued two judgments, one dismissing the administrative appeal and the other granting the application for injunctive relief.

       General Statutes § 51-183b provides in relevant part: “Any judge of the Superior Court and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause . . . shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”
      An administrative appeal is a civil action within the meaning of § 51-183b. Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 423, 426 A.2d 1324 (1980).

       The appeal form lists both trial court docket numbers.

       The calendar did not list any counsel for the zoning board.

       During the assignment of administrative appeals, the following colloquy occurred:
      “The Court: Hargrove versus North Haven Zoning Board. I believe that’s in the hands of Judge Pittman.
      “Mr. Crosby [the Hargroves’ attorney]: Yes, Your Honor. We argued this on October 25th. I don’t know if it’s appropriate to ask the clerk to inquire of its status only because it was supposed to be an expedited matter that she took.
      “The Court: Okay. I’m not sure we have any information for you on that, but you’ll be able to follow that up another — this is not the place to give you the answer. I don’t know.
      “Mr. Crosby: Okay. All right. Thank you, Your Honor.
      “(Whereupon, the matter concluded).”


author: PER CURIAM.

text:
    REGINA E. LANE v. KENNETH H. LANE
    (AC 19592)
    Schaller, Spear and Hennessy, Js.
    Argued April 3 —
    officially released July 10, 2001

      Regina E. Lane, pro se, the appellant (plaintiff).

      Kenneth H. Lane, pro se, the appellee (defendant).

      Louis I. Parley, for the minor children.
   Opinion

PER CURIAM.

The plaintiff, Regina Lane, appeals from the judgments of the trial court rendered following the granting of the motions of the defendant, Kenneth Lane, for modification of custody of the parties’ minor children and to find the plaintiff in contempt of the court’s order that required the plaintiff to consult with the defendant on all nonemergency health care involving the minor children. We affirm the judgments of the trial court.

The court dissolved the parties’ marriage on July 18, 1997, awarded the plaintiff sole custody of the three minor children and granted the defendant specific parenting time rights. The defendant subsequently filed a motion for modification of custody, claiming that the plaintiff had interfered with his visitation rights, that she had attempted to alienate the children from him and that she did not consult with him with respect to nonemergency medical treatment of the children.

After a twenty-four day trial, the trial court set forth a comprehensive eighty-six page opinion in which it concluded that the plaintiff was depriving the children of a relationship with their father and the defendant father of a relationship with his children. The court found this to be a substantial change in circumstances and granted the defendant’s motion for modification of custody.

“The authority to render orders of custody and visitation are found in General Statutes § 46b-56, which provides in part: (a) In any controversy before the superior court as to the custody or care of minor children . . . the court may at any time make or modify any proper order regarding . . . custody and visitation . . . . (b) In making any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child .... Before a trial court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child.” (Internal quotation marks omitted.) Brubeck v. Burns-Brubeck, 42 Conn. App. 583, 585, 680 A.2d 327 (1996). “The sole question is whether the trial court abused its discretion in deciding that the best interests of the child would be served by [granting the defendant’s motion]. The trial court had the advantage of observing the witnesses and the parties. Considerable evidence was presented concerning the activities of the parties since [the dissolution of the marriage]. In circumstances like these, whether the best interests of the [child] dictate a change of custody is left to the broad discretion of the trial court. ... A mere difference of opinion or judgment cannot justify the intervention of this court. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Citations omitted; internal quotation marks omitted.) Id., 586-87. The trial court in the present case had ample evidence before it to conclude that there had been a substantial change in circumstances and that a change in custody was in the best interests of the children. We conclude that the court did not abuse its discretion.

The plaintiff also claims that the court abused its discretion when it found her in wilful contempt of the court order that “the plaintiff shall not initiate medical, therapy or educational care for the children without the prior written consent of the defendant except in the case of emergency.” The plaintiff claimed that the six week old growth on her son’s wrist required immediate medical attention and that she was unable to request and to receive a response from the defendant in time. The plaintiff also claimed that she took her daughter for medical treatment of a month old lump and did not have the time to attain a written response from the defendant concerning this treatment. The court found “after hearing all the testimony and examining all the evidence, that the plaintiff, Regina Lane, wilfully and knowingly violated the court’s order” and fined the plaintiff $200 for the incident with respect to her daughter and further fined the plaintiff $250 for the incident with respect to her son.

“Appellate review of a contempt adjudication is limited to determining questions of jurisdiction such as whether the act for which the penalty was imposed could constitute contempt, and whether the punishment imposed was within the authority of the court.” Tatro v. Tatro, 24 Conn. App. 180, 185, 587 A.2d 154 (1991). In the matter before us, it is clear that the court could have found, on the basis of the admissions of the plaintiff, that the reasons given for her taking the children for medical treatment were not of an emergency nature and were done without prior written consent of the defendant in direct violation of the court’s order. The fines imposed as a result of the contempts were well within the authority and discretion of the court.

The judgments are affirmed.

       The plaintiff has set forth twenty-two issues, most of which do not directly address the modification of custody judgment or the judgment of contempt and the fine connected therewith.