author: Dupont, C. J.

text:
    Sedigheh Norooz et al. v. Inland Wetlands Agency of the Town of Woodbury et al.
    (10148)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued December 4, 1991
    decision released February 4, 1992

      Maureen Danehy Cox, with whom, on the brief, was William F. Holland, for the appellant (named defendant).

      David B. Harting, for the appellees (plaintiffs).
   Dupont, C. J.

The named defendant Woodburyinland wetlands agency appeals from the decision of the trial court sustaining the plaintiffs’ appeal from the denial of their permit application by the inland wetlands agency. The trial court concluded that the agency decision must be set aside because it was based on extrarecord information, that is, material not presented to the agency at a public hearing. The material involved the reports of an engineering consultant retained by the agency to provide it with technical assistance by reviewing and commenting on the plaintiffs’ application. We conclude that it was proper for the agency to rely on this information in arriving at its decision, notwithstanding the fact that neither the reports nor the engineering consultant was available at the public hearing for comment or cross-examination by the plaintiffs. We, therefore, reverse the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiffs are the owners of 31.38 acres of undeveloped property located in the town of Woodbury. They sought to subdivide the property into eight lots suitable for single home residential development. The development necessitates the construction of approximately 900 feet of roadway. In the process of the proposed construction, one noncontiguous wetland would be filled in, portions of the road would be located within a one hundred foot setback from existing wetlands, and two driveways would be placed over a watercourse to service two of the proposed subdivision lots.

The named defendant is the duly designated municipal agency entrusted with the enforcement of the Wetlands and Watercourses Act, General Statutes §§ 22a-28 through 22a-45. In order to proceed with the proposed subdivision, it was necessary for the plaintiffs to obtain a permit from the agency, among other things, to locate the road near the wetlands, to fill in a portion of the wetlands, and to place driveways over a watercourse. Accordingly, on November 7,1989, the plaintiffs filed an application with the agency seeking a permit to perform the aforementioned construction.

Thereafter, the agency set the matter down for a public hearing on January 8,1990. The revised plans that were submitted to the agency at the January 8 hearing were somewhat different from plans that had been submitted with the plaintiffs’ prior applications. Due to the fact that there were changes in the plans, the agency continued the public hearing to January 22, 1990, to allow LandTech Consultants, Inc. (LandTech), the town engineers, to review and comment on the new plans and calculations.

At the hearing on January 22, 1990, it was determined that the agency had not received a response from LandTech concerning its comments on the plans and calculations. During the course of this hearing, concern was raised about water draining from an adjacent property causing a gully to wash down sediment. The public hearing was then continued to February 13, 1990, to allow the plaintiffs to have a water design developed and to give LandTech time to review the revisions.

LandTech submitted a letter to the agency dated January 26, 1990, that reviewed the plaintiffs’ application and their revised plans and calculations. At the February 13,1990 meeting, the plaintiffs submitted a letter from their engineer in response to comments received by the agency from LandTech. In addition, the plaintiffs submitted their revised drainage calculations dated February 13, 1990, and revised plans dated February 13, 1990. The revised plans and calculations were offered by the plaintiffs in an attempt to resolve all the concerns that had been raised by Land-Tech and the agency.

Because new plans and calculations were presented at the hearing, the agency determined that the matter would be tabled until this information was forwarded to LandTech for review and comment. No further public hearings were scheduled by the agency. The agency next discussed the application at its meeting on February 26,1990. At this time, the agency disclosed that it had received a letter from LandTech dated February 23,1990, which reviewed the plaintiffs’ revised plans and drainage calculations and the impact of the plans and calculations on the wetlands. The agency’s consideration of the application was continued until the agency’s meeting of March 12,1990, to allow the agency to review this new information from Land-Tech. On March 12, the agency received another letter (dated March 9) from LandTech stating that LandTech had reviewed various documents submitted in support of the subdivision application and concluding that its review of those materials did not alter the opinions expressed in its February 23 letter to the agency.

At the March 12, 1990 meeting, and without holding any further public hearings or requesting comments from the plaintiffs on LandTech’s February 23 and March 9 letters, the agency voted to deny the application for an inland wetlands permit to construct the subdivision. The agency expressly relied on the information supplied to it by LandTech in the February 23 letter as a basis for the denial of the application. After the plaintiffs successfully challenged the use of the February 23 letter by the agency in the trial court, the agency appealed to this court.

It is beyond dispute that a municipal administrative agency, “composed of laymen, is entitled to technical and professional assistance regarding matters beyond its expertise. . . . This entitlement is necessarily implied in the legislation creating the [agency] and setting forth its duties.” (Citations omitted.) Spero v. Zoning Board of Appeals, 217 Conn. 435, 444, 586 A.2d 590 (1991); Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 571, 538 A.2d 1039 (1988). The issue presented by this appeal, however, is whether such assistance may be provided to a local administrative agency outside the confines of the hearing in a manner insulated from review, comment or cross-examination by a party to the proceeding.

Our law clearly prohibits the use of information by a municipal agency that has been supplied to it by a party to a contested hearing on an ex parte basis. “While proceedings before [municipal agencies] are informal and are conducted without regard to the strict rules of evidence; McCrann v. Town Plan & Zoning Commission, 161 Conn. 65, 77, 282 A.2d 900 [1971]; Parsons v. Board of Zoning Appeals, 140 Conn. 290, 292, 99 A.2d 149 [1953]; nevertheless, they cannot be so conducted as to violate the fundamental rules of natural justice. Miklus v. Zoning Board of Appeals, 154 Conn. 399, 406, 225 A.2d 637 [1967]. Due process of law requires that the parties involved have an opportunity to know the facts on which the [agency] is asked to act, to cross-examine witnesses and to offer rebuttal evidence. The [agency] could not properly consider additional evidence submitted by [a party] after the public hearing without providing the necessary safeguards guaranteed to [an opposing party] and to the public. ‘This means a fair opportunity to cross-examine witnesses, to inspect documents presented and to offer evidence in explanation or rebuttal. Waddell v. Board of Zoning Appeals, 136 Conn. 1, 9, 68 A.2d 152 [1949]. Not to do so would deny those [supporting or] opposing the application the right to be fully apprised of the facts on which the [agency] is asked to act. Parish of St. Andrew’s Church v. Zoning Board of Appeals, 155 Conn. 350, 358, 232 A.2d 916 [1967]; Wunder v. Macomber, 34 Misc. 2d 281, 290, 228 N.Y.S.2d 552 [1962]; 2 Rathkopf, Law of Zoning & Planning (3d Ed.), p. 44-2.’ Wasicki v. Zoning Board, 163 Conn. 166, 172-73, 302 A.2d 276 [1972].” Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207-208, 355 A.2d 21 (1974).

Thus, the technical and professional assistance to which a municipal administrative agency is entitled does not include “ ‘the receipt, ex parte, of information supplied by a party to the controversy without affording his opposition an opportunity to know of the information and to offer evidence in explanation or rebuttal.’ ” Blaker v. Planning & Zoning Commission, 212 Conn. 471, 478, 562 A.2d 1093 (1989); Pizzola v. Planning & Zoning Commission, supra, 208.

In contrast to this well settled rule, however, there are a number of cases which have approved the consideration of information by a local administrative agency supplied to it by its own technical or professional experts outside the confines of the administrative hearing. In Yurdin v. Town Plan & Zoning Commission, 145 Conn. 416, 420-21, 143 A.2d 639, cert. denied, 358 U.S. 894, 79 S. Ct. 155, 3 L. Ed. 2d 121 (1958), the local administrative agency conferred in executive session following the public hearing with the town planning director and the town planning technician in order to obtain an explanation of certain evidence in the record. Similarly, in Kyser v. Zoning Board of Appeals, 155 Conn. 236, 249-51, 230 A.2d 595 (1967), two municipal officials were called into the agency’s executive session to explain certain discrepancies in the record. Likewise, in McCrann v. Town Plan & Zoning Com mission, 161 Conn. 65, 77-78, 282 A.2d 900 (1971), the agency met in executive session with its planning consultant who had previously spoken in favor of the site plan being considered by the municipal agency. Finally, in Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 184-85, 286 A.2d 299 (1971), the local agency considered a report received subsequent to the public hearing that was submitted to it by its outside planning consultant at the request of the local agency. In each of these cases, the extrarecord information received by the agency from its technical consultant was not sufficient reason to invalidate the administrative decision.

Although Yurdin and its progeny, recently cited with approval in Spero v. Zoning Board of Appeals, supra, create a broad exception to the general prohibition on communications occurring outside the confines of an administrative hearing regarding the subject of the hearing where the communication comes from the administrative agency’s technical consultant, they do so against a backdrop of a failure of appellants to show a violation of due process. In Yurdin, Kyser, McCrann and Holt-Lock, there was no evidence in the record that the extrarecord information had any effect upon the administrative decision. Without a showing of such prejudice, the courts in those cases were not called on to explore the limits, if any, to the exception afforded to extrarecord communications provided to a municipal agency by its technical experts. We, therefore, conclude that the broad exception to the general prohibition on communications received by administrative agencies outside the confines of the hearing as discussed in Yurdin and its progeny needs further analysis before it should be applied. See Blaker v. Planning & Zoning Commission, supra.

Our case law has, in fact, placed certain constraints on the extrarecord use of information supplied to municipal agencies by their technical and professional consultants. Specifically, in Connecticut Natural Gas Corporation v. PUCA, 183 Conn. 128, 439 A.2d 282 (1981), the issue was whether the administrative agency had properly relied on a report of one of its employees (referred to as the Rothschild report) because it was submitted after the close of the contested hearing. Rather than broadly approving the use of extrarecord information from one of its technical consultants, the court’s detailed analysis of the extrarecord communication turned instead on the content of the information received by the agency outside the confines of the hearing. Thus, the court approved of agency use of “those parts of the Rothschild report . . . which consist of analysis or summary of record evidence or which point out inconsistencies in the plaintiff’s witnesses’ testimony or the lack of support in the record for some of their opinions” specifically because they “are not evidencei” and because “[therefore the plaintiff had no right to rebut those parts or to cross-examine Rothschild about them.” (Emphasis added.) Id., 138. The court, however, found that the agency’s reliance on certain information and analysis in the Rothschild report may have been improper since it seemed to rely on factual material that was never read into the record. Id., 138-39.

This distinction between the proper use of extrarecord analysis of evidence already in the record and the improper use of such evidence recently provided provided the basis for the analysis in Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 560 A.2d 403 (1989). There, the court considered whether an administrative tribunal was required to take official notice of its own specialized knowledge and notify the parties of the particular expert knowledge on which it intended to rely in deciding the matter before it. Distinguishing between the “process of proof” and the “evaluation of evidence,” the court agreed with the following analysis: “ ‘The difference between an administrative tribunal’s use of non-record information included within its expert knowledge, as a substitute for evidence or notice, and its application of its background in evaluating and drawing conclusions from the evidence that is in the record, is primarily a difference of degree rather than of kind. In principle, reliance upon the examiner’s knowledge in the process of proof is permissible only within the confines of official notice, whereas the examiner’s use of his experience in evaluating “proof” that has been offered is not only unavoidable but, indeed, desirable; . . .’ E. Gellhorn,‘Rules of Evidence and Official Notice in Formal Administrative Hearings,’ 1971 Duke L.J. 1, 43 (1971).” Id., 532-33.

This refined analysis, which focuses on the nature and content of the extrarecord information relied on by an administrative agency, was recently used by this court in Brookfield Plaza Limited Partnership v. Zoning Commission, 21 Conn. App. 489, 574 A.2d 825 (1990). The Brookfield Plaza case involved the propriety of the use of a report by the administrative agency that was prepared by its chairman. There, we concluded that “the common thread [running through our case law] is that it is unfair for either the applicants or the opponents to submit additional evidence to the [agency] without giving the other party an opportunity to respond to this additional evidence.” (Emphasis in original.) Id., 495.

We must determine whether the specific material involved in this case, namely, the February 23, 1990 and March 9,1990 letters from LandTech to the agency were properly considered by the agency. The proper inquiry for a reviewing court, when confronted with an administrative agency’s reliance on nonrecord information provided by its technical or professional experts, is a determination of whether the challenged material includes or is based on any fact or evidence that was not previously presented at the public hearing in the matter.

Neither the trial court nor the plaintiffs have identified any fact or evidence relied on in those letters which was not already evidence of record in the administrative proceedings. Our review of those documents and the record of the administrative proceedings, moreover, discloses that both letters are limited to a review of, a comment on and an opinion concerning evidence of record. There is no indication or suggestion in either letter that facts not already of record in the lengthy administrative proceeding were considered by Land-Tech in forming its conclusions and recommendations to the agency. The agency properly relied on these documents, and the trial court should not have sustained the plaintiffs’ appeal.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       Also named as defendants were the chairman and secretary of the Wood-bury inland wetlands agency, the Woodbury town clerk, and the commissioner of the Connecticut department of environmental protection. None of these defendants is involved in this appeal.

       This action was brought by the named plaintiff and Pouran Aleali. Both are parties to this appeal.

       The plaintiffs had filed three previous applications with the agency involving the same property. Two of the applications were withdrawn, and the third application was denied. These prior applications are not involved in this appeal.

       The Agency denied the application for the following reasons: “1. Section 6.1.e.i—the proposed activity—the construction of two hundred linear feet of roadway within a wetland, and two driveways will lead to the degradation of surface water and water quality by alterations in the subsurface flows within wetlands resulting from the damming effect of driveway and road construction. (Town engineer’s letter of 2/23/90)
      “2. Section 6.1.e.i—the proposed activity will reduce the wetland and watercourse quality from the accumulation of deicing sands. The application includes a plunge pool, but its capacity cannot be determined from the detail provided. (Town engineer’s letter of 2/23/90)
      “3. Section 6.1.e.i.—The proposed construction of the detention facility has the potential for the discharge of significant quantities of sediment into the wetland and watercourse. The application does not propose a mitigation strategy including erosion controls and construction sequencing. (Town engineer’s letters of 2/23/90, 1/26/90 and 11/29/90)
      “4. Section 6.1.e.i.—The proposed activity which includes the construction of the roadway and driveways within the wetlands fails to adequately control the discharge of sediment on the site. The plan indicated sediment barriers at the top of slopes rather than at the base, and proposed fill sections within the wetlands with no filter barriers shown.
      “5. Section 6.1.e.i-6.1.e.vii.—The alternative to wetlands disturbance for the construction of driveways to lots 7 and 8 has not been addressed by the applicant.”
      In addition, the following was placed in the agency’s minutes in connection with the denial of the application: “Reason for denial by all four members: The Agency felt that the consulting engineer (LandTech Consultants, Inc.) had addressed a number of concerns throughout the review period, and that the applicant hadn’t adequately satisfied and addressed these concerns.”


source: Caselaw Access Project

author: Wagner, J.

license: Public Domain

text:
    State of Connecticut v. Leslie L. Lewis
    (9458)
    O’Connell, Lavery and Wagner, Js.

      Argued September 25, 1991
    decision released February 4, 1992

      Francis T. Mandanici, assistant public defender, with whom, on the brief, were Daniel E. Dilzer, Robert E. Luysterborghs and Laura E. Savage, certified legal interns, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Gold, assistant state’s attorney, for the appellee (state).
   Wagner, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a).

The defendant claims that the trial court abused its discretion (1) in refusing to permit the defendant to present his anticipated defense to the jury panels prior to voir dire, (2) in refusing to permit defense counsel to ask prospective jurors to describe themselves in one word, (3) in refusing to disclose the psychiatric records of the victim after in camera review, and (4) in limiting certain testimony of a police officer. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On September 23, 1989, the defendant and victim were cellmates while incarcerated at the Manson Youth Institute in Cheshire. On that date, the defendant held a razor to the victim, threatened to hurt him if he moved, and sexually assaulted him.

I

The defendant’s first claim involves a ruling of the trial court prohibiting the defendant (1) from informing a jury panel, in his preliminary statement, that homosexuality was a primary issue in the case and that his defense was “consent” and (2) from subsequently informing the panelists during voir dire that his defense would be consent. This ruling was made after four jurors had been selected and the first panel exhausted, but before the proceedings involving the second and third panels. Defense counsel had referred to the homosexuality issue and the defense of consent in his opening statement to the first panel. In its ruling, however, the court indicated that the defendant could ask prospective jurors whether they would be biased if the defendant was a homosexual.

The defendant claims that this ruling violated his rights under various constitutional provisions and the rules of practice, particularly where the assistant state’s attorney was permitted to make an opening statement to the panel referring to the criminal charges and mentioning that the defendant and the victim were cellmates, and where the court had read a long form information and referred to the sexual assault count as “rape.”

Preliminary statements by counsel to a jury panel are limited to the “names of other counsel . . . prospective witnesses and other relevant facts.” Practice Book § 847. The trial court is vested with broad discretion with respect to the selection of jurors and arguments of counsel; its exercise of discretion will not be disturbed on appeal unless it has been clearly exceeded or abused, or a party has been prejudiced. State v. Anthony, 172 Conn. 172, 174, 374 A.2d 156 (1976); cf. State v. Ridley, 7 Conn. App. 503, 506, 509 A.2d 546, cert. denied, 201 Conn. 803, 513 A.2d 698 (1986). The trial court did not abuse its discretion in prohibiting defense counsel from referring in his preliminary statement to the issue of homosexuality or his anticipated defense of consent, or from referring to the defense of consent in his voir dire examination. Further, we fail to see how the defendant was prejudiced by the court’s ruling. See State v. Anthony, supra, 175.

II

The defendant further claims that the trial court abused its discretion when it barred defense counsel from asking each venireperson to describe himself or herself in “one word.” The defendant argues that in a case involving an issue of homosexuality, which may arouse deep-seated prejudice, such a question was an effective and, for him, necessary method of ascertaining such prejudice.

Although this claim was not made at trial in this exact form, we address it here because the defendant did sufficiently raise the issue of defense counsel’s desire to inquire into possible bias on the part of the potential jurors to permit appellate review. State v. Dabkowski, 199 Conn. 193, 198, 506 A.2d 118 (1986). Undoubtedly, a party may question a prospective juror for the purpose of ascertaining bias or predisposition, but the questions must be pertinent and proper and the trial court has some control over the character and extent of such questions. State v. Couture, 218 Conn. 309, 317-19, 589 A.2d 343 (1991); State v. Cross, 72 Conn. 722, 730, 46 A. 148 (1900); see also Duffy v. Carroll, 137 Conn. 51, 75 A.2d 33 (1950). We conclude, moreover, that the defendant was not prejudiced by his inability to propound that particular inquiry because the trial court properly allowed his questions to prospective jurors that either explicitly related to or directly probed the issue of possible bias against homosexuals. State v. Pollitt, 205 Conn. 61, 73-75, 530 A.2d 155 (1987); State v. Marsh, 168 Conn. 520, 521-28, 362 A.2d 523 (1975); State v. Higgs, 143 Conn. 138, 142, 120 A.2d 152 (1956).

Ill

The defendant next challenges the trial court’s refusal to disclose the victim’s psychiatric records after an in camera review. See generally State v. D’Ambrosio, 212 Conn. 50, 58-59, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990). “Once the trial court has made its [in camera] inspection, the court’s determination of a defendant’s access to the witness’ records lies in the court’s sound discretion, which we will not disturb [in the absence of an abuse of that discretion].” Id. Our review of the records in question, which were properly sealed and preserved for appellate review, discloses nothing therein to be exculpatory in nature or relevant to the victim’s credibility, including any references to sexual fantasies or homosexual tendencies. See In re Christopher G., 20 Conn. App. 101, 108-12, 564 A.2d 619 (1989), cert. denied, 213 Conn. 814, 569 A.2d 549 (1990); see also id., 112-14 (O’Connell, J., dissenting). The trial court therefore did not abuse its discretion in refusing to release the records to the defendant.

IV

Finally, the defendant claims that the trial court improperly excluded certain testimony of a police officer. In an offer of proof, out of the presence of the jury, the officer testified regarding (1) the victim’s alleged association with homosexuals, (2) the officer’s opinion of the victim’s veracity in matters related to sexual assault, (3) a prior complaint made by the victim to the police in an unrelated criminal incident that had been processed in a warrant application but subsequently refused by a prosecutor, and (4) the officer’s opinion as to the victim’s reputation in the community. Before the jury, however, the officer was permitted to testify only that, in his opinion, the victim was not truthful in general.

A witness may be impeached by evidence of specific acts of misconduct that relate to veracity, but not by those that merely illustrate general bad behavior. Demers v. State, 209 Conn. 143, 156, 547 A.2d 28 (1988); Vogel v. Sylvester, 148 Conn. 666, 676, 174 A.2d 122 (1961). A court has wide discretion, however, to exclude such evidence if it has only slight relevance due to its remoteness in time, its minimal bearing on credibility, or its tendency to inject a collateral issue into the trial. State v. James, 211 Conn. 555, 572, 560 A.2d 426 (1989); Vogel v. Sylvester, supra; State v. Jones, 22 Conn. App. 665, 668, 578 A.2d 667 (1990). Likewise, the veracity of a witness may be attacked either by evidence of the witness’ general reputation in the community for veracity or by opinion evidence of those who have had an opportunity to form, and who have formed, an opinion as to the character of the witness with respect to truth and veracity. State v. Pettersen, 17 Conn. App. 174, 181, 551 A.2d 763 (1988); see also C. Tait & J. LaPlante, Connecticut Evidence §§ 7.22.2 and 7.23.

We conclude that the court acted well within its discretion when it excluded the proposed testimony. Testimony regarding a person’s association with known homosexuals is not probative of his veracity or of his homosexuality. Since the officer was permitted to give his opinion as to the victim’s veracity in general, little value would be added if that opinion was narrowed to the victim’s veracity regarding sexual assault matters. In addition, no logical nexus exists between a prior unrelated complaint by the victim that failed to ripen into a signed warrant and the issue of the victim’s veracity. Finally, in view of the police officer’s testimony that he had no personal knowledge of the victim’s reputation in the community, there was no basis for admitting his opinion as to such reputation. State v. Jones, supra; State v. Pettersen, supra.

The judgment is affirmed.

In this opinion the other judges concurred.


author: Foti, J.

text:
    Reid and Riege, P.C. v. Brainerd Cashman Insurance Agency, Inc., et al.
    (10238)
    Daly, Foti and Lavery, Js.

      Argued December 6, 1991
    decision released February 11, 1992

      E. Timothy Sullivan, Jr., for the appellant (defendant Kwik Care).

      Mark H. Dean, for the appellee (plaintiff).
   Foti, J.

The plaintiff, a professional corporation, instituted this action seeking a judgment declaring that garnishments served on it by the defendant Kwik Care were ineffective and invalid. The defendant Kwik Care, doing business as VIP Health Care, appeals from the judgment ordered by the court following its granting of the plaintiffs motion for summary judgment. The defendant claims that the court improperly found that there was no genuine issue as to any material fact and that the plaintiff was entitled to judgment as a matter of law. We reverse the judgment of the trial court.

The court found the following facts. On October 27, 1989, the commissioner of income maintenance approved a settlement agreement with Al-Charles, Inc. and entered a consent order. The agreement provided that the department of income maintenance would issue a $150,000 medicaid reimbursement check payable to Al-Charles, Inc., and Reid & Riege, P.C., attorneys for Albert D. Lizzi. It further provided that Reid & Riege would endorse the check and turn it over to Lizzi “in toto as per an agreement between those two.” (Emphasis in original.)

On November 30, 1989, the defendant served an “order granting prejudgment remedy ex parte” on Reid & Riege, which sought to garnish to the value of $35,000 the property of Al-Charles, Inc., held by the plaintiff in the form of the medicaid reimbursement check payable to both Al-Charles, Inc., and the plaintiff. On December 7, 1989, the plaintiff received the check.

The court concluded that the settlement agreement, in and of itself, did not create a debt due from the plaintiff to Al-Charles, Inc. The court pointed out that the plaintiff did not receive the reimbursement check until December 7, 1989. Because the court found that delivery of the check was a condition precedent to the check’s becoming a debt due, the court concluded that there was no debt due on November 30, 1989, the date of the attempted garnishment.

In our analysis, we must first point out that this case is distinguishable from a case arising out of the attempted garnishment of a bank account wherein the funds sought to be garnished are not yet deposited. Here, it is not disputed that service of a writ of garnishment subjects to the claims of a creditor only a debt that is due to the underlying debtor at the time of the garnishment. Hospital of St. Raphael v. New Haven Savings Bank, 205 Conn. 604, 608, 534 A.2d 1189 (1987). The parties also agree that a creditor may garnish funds that are due and owing to a debtor at the time of service of the writ of garnishment, but payable in the future, if the obligation to pay is (1) definite and absolute, and (2) not contingent on a future event. Wilber v. New Haven Water Co., 37 Conn. Sup. 877, 879-80, 441 A.2d 863 (1982). “A debt is owing and thus available for garnishment if the garnishee has an existing obligation to pay the debtor either in the present or the future.” F & W Welding Service, Inc. v. ADL Contracting Corporation, 217 Conn. 507, 515, 587 A.2d 92 (1991). Such an obligation to pay in the future “exists” if the garnishee’s liability to pay the obligation is certain. Id. The obligation is not rendered uncertain merely because the debt is unliquidated, or because it may be diminished or defeated by a condition subsequent. Id., 516.

Because the plaintiff’s obligation to pay Al-Charles, Inc., or Lizzi originates in the contract of settlement, the validity of the defendant’s garnishment depends on the nature of the obligation as defined by the terms of the agreement. See id., 517. “Whether the performance of a certain act by a party to a contract is a condition precedent to the duty of the other party to act depends on the intent of the parties as expressed in that contract and read in light of the circumstances surrounding the execution of the instrument.” Ravitch v. Stollman Poultry Farms, Inc., 165 Conn. 135, 149, 328 A.2d 711 (1973). It is axiomatic that the intent of the parties is a question of fact. Summary judgment is inappropriate where the inferences that the parties seek to have drawn concern questions of intent. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 376, 260 A.2d 596 (1969).

The plaintiff’s position regarding Al-Charles, Inc., Lizzi and the department of income maintenancSTnust be viewed in light of the intent of the parties. Such an issue raises a question of fact. The trial court must determine whether the settlement contract created a debt due by the plaintiff to Al-Charles, Inc., within the meaning of our law, and whether actual receipt of the check from the department was merely a condition subsequent, the failure of which could defeat an existing obligation, rather than a condition precedent to the obligation. See Calechman v. Great Atlantic & Pacific Tea Co., 120 Conn. 265, 270, 180 A. 450 (1935). “The validity of a garnishment . . . must be determined not from hindsight, but by evaluating the status of the debt at the time of service of the writ of garnishment.” F & W Welding Service, Inc. v. ADL Contracting Corporation, supra, 519. The trial court must determine the status of the debt at that time by interpreting the intent of the parties to the settlement agreement.

“ ‘ “Summary judgment shall be rendered if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Practice Book § 384.” ’ Lomangino v. LaChance Farms, Inc., 17 Conn. App. 436, 438, 553 A.2d 197 (1989). The court’s function is not to decide issues of material fact but instead simply to determine whether such issues exist.” DeMotses v. Leonard Schwartz Nissan, Inc., 22 Conn. App. 464, 466, 578 A.2d 144 (1990). In moving for summary judgment, the plaintiff has the burden of showing the nonexistence of any material fact. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). Here, the defendant, in opposing summary judgment, substantiated its adverse claim by means of an affidavit and other exhibits demonstrating the existence of a disputed factual issue. Practice Book §§ 380 and 381; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984).

The defendant has established a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists. Multi-Service Contractors, Inc. v. Vernon, 193 Conn. 446, 452, 477 A.2d 653 (1984).

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       The action was withdrawn as to the named defendant, Brainerd Cash-man Insurance Agency, Inc. In this opinion, we refer to Kwik Care as the defendant.

       During oral arguments, the plaintiff, through its counsel, Mark H. Dean, stated that it had never represented Al-Charles, Inc. The record, however, indicates otherwise. An affidavit by an assistant attorney general, Kenneth A. Graham, filed by the defendant in opposition to the plaintiffs motion for summary judgment, states that in the matter of Al-Charles, Inc. v. State of Connecticut, File No. 9876, Attorney Mark H. Dean on behalf of Reid & Riege, P.C., represented the corporation, and that Al-Charles, Inc. was the sole claimant in the matter. Further, attached to the affidavit as submitted to the court is a copy of a letter, dated August 2, 1988, from Dean to the claims commissioner indicating that the plaintiff represented the claimant Al-Charles, Inc., File No. 9876, and requesting that the commissioner refrain from taking any action on the claim for sixty days so that the plaintiff could review and more fully prepare the claim.

       We note that it is unclear in the record to whom “those two” refers.


text:
    Mary-Anne Mulholland v. James C. Mulholland
    (10206)
    O’Connell, Foti and Heiman, Js.
    Argued December 6, 1991
    decision released February 11, 1992

      Bruce S. Beck, for the appellant (defendant), with whom, on the brief, was James C. Mulholland, pro se.

      Eliot J. Nerenberg, for the appellee (plaintiff).
   Foti, J.

In this dissolution action, the defendant appeals challenging financial orders of the trial court. The defendant claims that the trial court improperly (1) entered the order of child support in order to balance the incomes of the parties, (2) adjusted the child support order to account for a shared custody order, (3) failed to consider the child support guidelines, (4) based the child support order on the defendant’s gross rather than net income, (5) imposed a higher support obligation for the younger of the two minor children, (6) awarded alimony, and (7) based its financial orders on the plaintiff’s financial affidavit. Because our decision regarding the first claim is dispositive, we do not address the defendant’s remaining claims.

The parties were married on September 26, 1980. The two children born of the marriage were six and four years of age at the time of the dissolution. The plaintiff was thirty-seven and the defendant was thirty-eight at that time. Both were practicing attorneys. On January 16,1991, the court dissolved the parties’ marriage and, after an evidentiary hearing on all pertinent issues, the court issued and read a memorandum of decision on April 23,1991. The court granted the parties joint legal custody of the children, and directed that primary residence be with the plaintiff. The court ordered the defendant to pay $360 per week as child support, designating $260 for the younger child and $100 for the older child. The defendant was ordered to pay one half of any substantial expenses incurred by the plaintiff on behalf of the children. The plaintiff was awarded $1 per year as periodic alimony for five years or until her remarriage, modifiable upon her involuntary loss of employment or her medically certifiable inability to continue employment. The plaintiff was awarded the marital home and the defendant was to receive $13,000 for his half interest in the property, payable in sixty equal monthly installments beginning May 1,1996. There were additional orders relating to the living arrangements for the children and their medical insurance coverage.

After hearing oral argument, the court denied the defendant’s motion to reconsider the child support order on June 11, 1991. The defendant appeals from the child support and alimony awards, claiming that the court improperly entered the child support order for the purpose of balancing the incomes of the divorced parents. We agree.

“[T]he purpose of a child support order is to provide for the care and well-being of minor children, and not to equalize the available income of divorced parents . . . Battersby v. Battersby, 218 Conn. 467, 473, 590 A.2d 427 (1991). The decision in Battersby was released May 7, 1991, shortly after rendition of the judgment in the present case. The record is clear that because the court found a substantial diversity in the parties’ incomes, it entered the support order with the intent of balancing them. The record is also clear that on the defendant’s motion for reargument and reconsideration on June 11, 1991, the court recognized the holding in Battersby and again made it clear that the intent of the support order was to equalize the parties’ incomes.

The record of the June 11,1991 hearing discloses the following:

“The Defendant: And in your decision—the basis for the decision appears to be that you had a desire to equalize the standards of living at each house where the children were going to spend substantial periods of time. Subsequent to Your Honor’s decision of April 23, the Supreme Court ruled in Battersby versus Battersby that—on an issue which is very similar to this—there was a lot of discussion in that case as to the application of the child support guidelines. The guidelines they were dealing with were the prior guidelines. They did have some footnotes as to the present guidelines, but for the purposes of my argument, the language I’m relying upon in Battersby is on the—page 473 of the opinion, Your Honor. Therein, toward the end, the Supreme Court says that, ‘The purpose of child support is to provide for the care and well-being—’

“The Court: It says, ‘The purpose of a child support order is to provide for the care and well-being of minor children, and not to equalize the available income of divorced parents. The trial court had the authority to reject the defendant’s suggested extrapolation of the guidelines’ percentage as inappropriate and inequitable in the circumstances before it.’ And of course, you’re talking about the opening phrasing, since ‘the purpose of a child support order is to provide for the care and well-being of minor children, and not to equalize the available income of divorced parents.’

“The Defendant: That is correct.

“The Court: And I had taken the posture, in making the $360 a week award, that my purpose—and it was— was to—

“The Defendant: Equalize income.

“The Court: —equalize the available income of divorced parents.

“The Defendant: In fact, Your Honor, if you take the figures you arrived at on your decision, the net result is almost dollar for dollar. It puts us both at approximately $80,000 per year.

“The Court: And that was my intent.”

The record further discloses:

“[Plaintiff’s Attorney]: [T]he guidelines do not apply. And Battersby, in a footnote there, does reiterate the fact that above $1500 a week combined gross income, the guidelines don’t apply.

“The Court: That’s a given.

“[Plaintiff’s Attorney]: Okay. That’s the first thing, Your Honor. Since it doesn’t apply, the question is, it’s in the court’s discretion, and what factors should the court take into account.

“The Court: How do we get around ‘the purpose of a child support order is not to equalize the available income of divorced parents’—

“[Plaintiff’s Attorney]: Your Honor, I understand.

“The Court: —when I have stated clearly that my purpose was to equalize income?”

The court concluded:

“The Court: All right. I’m going to—we’ve had enough argument on that issue. Let me say that it is quite clear that the Supreme Court, in its most recent Battersby decision, did say that the purpose of child support is not to equalize the available income of divorced parents, and I did, in discussion following the presentation of my memorandum of decision, acknowledge that this does, in fact, equalize income. It was not the sole purpose of that choice. I still feel that equitably speaking, the decision was an appropriate one under the circumstances, and one that I feel comfortable with, even upon reconsideration.”

While it is true that an action for dissolution of marriage is an inherently equitable proceeding; Sunbury v. Sunbury, 210 Conn. 170, 174, 553 A.2d 612 (1989); and that “[t]he power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage”; Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975); the court must exercise its equitable discretion appropriately. Serrano v. Serrano, 213 Conn. 1, 12, 566 A.2d 413 (1989).

“The issues involving financial orders are entirely interwoven. ‘The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.’ Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984).” Sunbury v. Sunbury, supra, 175. Having concluded that the trial court acted improperly with respect to one portion of its financial orders, we must remand the matter for a new trial with respect to all financial issues. Trella v. Trella, 24 Conn. App. 219, 223, 587 A.2d 162 (1991); Watson v. Watson, 20 Conn. App. 551, 557-58, 568 A.2d 1044 (1990). Because the trial court must reconsider all of the financial orders on remand, it is unnecessary to consider the defendant’s remaining claims at this juncture. Kinderman v. Kinderman, 19 Conn. App. 534, 538, 562 A.2d 1151, cert. denied, 212 Conn. 817, 565 A.2d 538 (1989).

The judgment is reversed as to the financial orders and the case is remanded for a new hearing on all financial issues.

In this opinion the other judges concurred.


author: Norcott, J.

text:
    Jerry L. Greenburg v. Lydia J. Greenburg
    (10182)
    Norcott, Foti and Landau, Js.
    Argued December 3, 1991
    decision released February 11, 1992

      Thomas C. C. Sargent, for the appellant (defendant).

      Mary D. Mix, for the appellee (plaintiff).
   Norcott, J.

The defendant appeals from the trial court’s decision granting the plaintiff the right to determine which colleges the parties’ children will attend pursuant to a stipulated separation agreement. The defendant claims that the decision is clearly erroneous and constitutes an impermissible modification of a contract for support. We agree.

The relevant facts are as follows. The parties’ marriage was dissolved in January, 1983, at which time a written separation agreement was incorporated by reference into the decree of dissolution. The parties first wrote the agreement and then gave it to an attorney who put it into legal form and language. One provision pertained to the college expenses of the parties’ children. That provision states: “The Husband shall be responsible for the continued education of the children until they have graduated from college or have reached the age of majority.” The plaintiff understood this to mean he would make the educational decisions, choose the schools the children would attend and pay tuition. In dissolving the marriage, the court awarded the parties joint custody of the minor children, David, Michael and Jennifer, who were to live with the plaintiff.

At the time of the agreement, the parties were experiencing extreme financial difficulties. Neither contemplated sending the children to private schools. The plaintiff wanted the children to attend public institutions of higher learning. The defendant’s daughter, Susan, whom the plaintiff had legally adopted, was attending Southern Connecticut State University at this time. Susan lived either at home or in a rooming house with friends and incurred minimal expenses. The plaintiff had decided which college Susan would attend after discussing the matter with her.

In 1987, with the help of counsel, the parties modified their separation agreement in a written stipulation that was subsequently approved by the court. One provision that was added permitted the plaintiff to take tax exemptions for Jennifer and David as long as he paid college tuition or child support. The education provision was modified to state, “The Plaintiff shall be responsible for the expenses of up to four years of college for each of the children, but said obligation shall not continue past each child’s reaching the age of twenty-five.”

The defendant understands the modified education provision to mean that the plaintiff is to pay the full college expenses of each child for four years of college until the age of twenty-five. The plaintiff believes the provision means he is to pay tuition and make all the educational decisions after discussing matters with the defendant and the children. Because the defendant gained physical custody of the children at this time, the plaintiff’s primary concern with respect to the 1987 modification was to guarantee his visitation rights. Neither party devoted much time to the review of the education provision.

Relations among the family members also began to deteriorate rapidly during this time. In early 1987, the plaintiff, who had remarried, took steps to purchase a new home. This led to conflict with the defendant and the children about whether she could enter the home to visit the children while they were in his custody. In August, 1987, the parties’ eldest son, David, matriculated at Green Mountain College, a private school in Poultney, Vermont, which he attended for two years. David was having behavioral problems at that time. In order to allow his son to reorganize his life in a new environment, the plaintiff altered his longstanding commitment to public education and permitted David to attend the private college. The plaintiff paid all costs involved, which totaled about $10,500 each school year.

Together, the plaintiff and David made the decision for David to attend Green Mountain. The plaintiff claims that the defendant was not involved in the decision. The defendant, however, objected to David’s attending that school and asserts that she was involved in the decision, but only minimally because she was not as well informed as the plaintiff about colleges. After David finished second and first in his class in his two years at Green Mountain, he sought a more challenging academic environment and was admitted to Boston University. Although the plaintiff disapproved, claiming he could not afford the higher costs involved, David transferred to Boston University for his junior and senior years, with the defendant paying the expenses.

In the summer of 1989, the plaintiff and the parties’ younger son, Michael, discussed the young man’s desire to attend Berklee College of Music in Boston. The plaintiff objected strongly because he did not consider Berk-lee to be a college as he understood the word, and because of his longstanding preference for less expensive, state supported schools. The defendant, however, approved of Michael’s choice, and he subsequently matriculated in the fall of 1990. The plaintiff has offered to pay part of the costs for David’s education at Boston University, but has refused to pay anything for Michael.

In June, 1990, the defendant filed with a state trial referee sitting as the trial court, Margaret C. Driscoll, state trial referee, a motion for construction, a motion for contempt and a motion for counsel fees. The motion for construction requested the court to interpret in the 1987 education provision the phrase “for the expenses of up to four years of college for each of the children” so as to determine “the exact extent of the obligation in monetary terms of the plaintiff for each applicable year of college education for each of the children of the parties.”

After a hearing in August, 1990, the court in April, 1991, ruled that the plaintiff has the right to make the ultimate decision as to what colleges the children attend. The court further determined that expenses of the children’s college educations “include living expenses, travel expenses to and from the school as well as tuition and books and materials required by the courses the child is taking.” Finally, the court declared that the defendant was responsible for the expenses of the children when they are home from school, as long as she is receiving child support.

On appeal, the defendant’s sole challenge is to the trial court’s determination that the plaintiff has the right to determine which colleges the children will attend. She argues that, in light of the wording of the modified education provision, the trial court’s finding is clearly erroneous. We agree.

When a judgment incorporates a separation agreement in accordance with a stipulation of the parties, it is to be regarded and construed as a contract. Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990) ; Zivic v. Zivic, 26 Conn. App. 5, 7, 596 A.2d 475 (1991) ; Albrecht v. Albrecht, 19 Conn. App. 146, 152, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989); Kolkmeyer v. Kolkmeyer, 18 Conn. App. 336, 340, 558 A.2d 253 (1989). Construction of such an agreement is an issue of fact to be resolved by the trial court as the trier of fact. Barnard v. Barnard, supra. We review such findings, as we do other findings of fact, under the very limited “ ‘clearly erroneous’ ” standard. Zivic v. Zivic, supra, 7-8; DeMatteo v. DeMatteo, 21 Conn. App. 582, 585, 575 A.2d 243, cert. denied, 216 Conn. 802, 577 A.2d 715 (1990); Albrecht v. Albrecht, supra; Kolkmeyer v. Kolkmeyer, supra. The ultimate issue for an appellate court is whether the trial court could reasonably have concluded as it did. Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 835 (1975); Gallagher v. Gallagher, 11 Conn. App. 509, 514, 528 A.2d 379 (1987). In that regard, every presumption is given in favor of the correctness of the trial court’s action. Gallo v. Gallo, 184 Conn. 36, 44, 440 A.2d 782 (1981); Gallagher v. Gallagher, supra.

In giving meaning to the terms of a contract, the court should construe the agreement as a whole, and its relevant provisions are to be considered together. Barnard v. Barnard, supra; 17 Am. Jur. 2d, Contracts § 258. The contract must be construed to give effect to the intent of the contracting parties. Barnard v. Barnard, supra; Sturman v. Socha, 191 Conn. 1, 10, 463 A.2d 527 (1983). “ ‘This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained.’ ” Kolkmeyer v. Kolkmeyer, supra, quoting Sweeny v. Sweeny, 9 Conn. App. 498, 500-501, 519 A.2d 1237 (1987). “[I]ntent . . . is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” Sturman v. Socha, supra; Marcus v. Marcus, 175 Conn. 138, 141-42, 394 A.2d 727 (1978); Baldwin v. Baldwin, 19 Conn. App. 420, 422, 562 A.2d 581 (1989). When the language is clear and unambiguous, however, the contract is to be given effect according to its terms. Barnard v. Barnard, supra, 110. In such a case, no room exists for construction. Gino’s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 138, 475 A.2d 305 (1984).

With these principles in mind, we turn to the trial court’s interpretation of the education provision. From our review of the record, we conclude that it was improper for the trial court to determine that the plaintiff has the ultimate right to select the colleges the children attend.

Initially, we note that in Albrecht v. Albrecht, supra, the trial court found that a separation agreement requiring the parties to pay their children’s college expenses permitted one of the parties a one year delay in making such payments. Id., 160. The agreement provided in pertinent part: “ ‘the husband and wife agree to be responsible for the payment of the children’s college expenses in direct proportion to their respective adjusted gross incomes as reflected on their income tax returns at the time such expenses are incurred and after deducting the first $25,000 from such adjusted gross income.’ ” Id., 151-52. This court held that in determining the parties’ obligations under the agreement, the trial court “was required to rely on the relevant provisions of the agreement and was not free to add its own terms . . . .” Id., 159-60. This court determined that because the language of the educational provision did not authorize a one year delay in making the payments, it was improper for the trial court “to have grafted such a provision onto the agreement.” Id., 160.

The same rationale is applicable here. The education provision in the parties’ separation agreement clearly and unequivocally imposes on the plaintiff an obligation to pay for four years of college expenses for each child until age twenty-five. It does not grant him sole decision making authority with respect to college selection. Such power is neither expressed nor implied in the parties’ agreement, and thus cannot be added to it.

Further, our well established principles of contract interpretation make clear that the trial court could not reasonably have concluded that the plaintiff has the right to decide which colleges the children attend. Pasquariello v. Pasquariello, supra; Gallagher v. Gallagher, supra. A fair and reasonable construction of the language at issue, in accord with its ordinary meaning, does not ineluctably lead to the conclusion that the parties intended the plaintiff exclusively to decide which colleges the children attend. Sturman v. Socha, supra; Marcus v. Marcus, supra; Baldwin v. Baldwin, supra. A court simply cannot “disregard the words used by the parties or revise, add to, or create a new agreement.” Collins v. Sears, Roebuck & Co., 164 Conn. 369, 374, 321 A.2d 444 (1973). “A term not expressly included will not be read into a contract unless it arises by necessary implication from the provisions of the instrument.” Texaco, Inc. v. Rogow, 150 Conn. 401, 408, 190 A.2d 48 (1963).

Finally, we note that the testimony shows that the plaintiff was acutely aware of his precarious financial situation at all times during and after his marriage to the defendant. He had the opportunity, not once but twice, in 1983 and in 1987, to insert appropriate language into the agreement to ensure that he would have the legal right to choose the children’s colleges and thus to gain a measure of control over his financial future. Although he could have incorporated such language, the indisputable fact is that he did not do so. A court cannot change or vary the construction and legal effect of a contract because the terms are inconvenient or even unreasonable. Whitaker v. Cannon Mills Co., 132 Conn. 434, 440, 45 A.2d 120 (1945). It is hornbook law that courts do not rewrite contracts for parties. Collins v. Sears, Roebuck & Co., supra, 373-74. “ ‘[Although one may sympathize with the position in which the plaintiff finds himself the fact remains that by the separation agreement he made his bed’ ” and now must lie in it. McAnerney v. McAnerney, 165 Conn. 277, 287, 334 A.2d 437 (1973); Klein v. Klein, 3 Conn. App. 421, 423, 488 A.2d 1288 (1985). We therefore conclude that the trial court’s ruling that the plaintiff has the sole right to decide which colleges the children attend is clearly erroneous.

The judgment is reversed, and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       Paragraph 8 of the modified agreement provides: “For so long as the Plaintiff pays college tuition or child support he will be entitled to the exemption for Jennifer and David. The Defendant shall be entitled to the exemption for Michael until the year in which he commences college. The Defendant will sign any documents necessary to facilitate the foregoing.”

       The plaintiff testified that during discussions about the 1987 modification, “[tjhirty seconds” was devoted to the education provision.

       This appeal concerns only the motion for construction, which we understand to be, in essence, a motion for articulation, since a motion for construction does not exist under our rules of practice. We do not consider the motions for contempt or counsel fees, which were not ruled upon by the trial court.

       The plaintiff also argues that his claimed right to select the children’s colleges finds support when the educational provision is read in conjunction with the provision granting him a tax exemption for Jennifer and David as long as he pays their tuition or child support. This argument, however, merely assumes its conclusion. We see no necessary link between payment of tuition or child support and a right to select the children’s colleges.


author: Per Curiam.

text:
    Robert Fromer v. Tree Warden of the City of New London et al.
    (10334)
    Landau, Heiman and Cretella, Js.
    Argued January 8
    decision released February 11, 1992

      Robert Fromer, pro se, the appellant (plaintiff).

      Myron B. Bell, for the appellees (defendants).
   Per Curiam.

On August 30,1990, the defendant tree warden approved the request of the defendant city of New London to remove forty-seven honey locust trees on Captain’s Walk, a pedestrian mall, in order to reopen a street known as State Street which had been converted earlier to a pedestrian walkway. The plaintiff, claiming to be aggrieved pursuant to General Statutes § 22a-19, appealed to the Superior Court from that decision pursuant to General Statutes § 23-59. On May 30, 1991, the trial court dismissed the plaintiff’s administrative appeal, and this appeal followed.

In November, 1990, the trees that are the subject of the challenged administrative action were removed by the defendant city of New London. Thus, the plaintiff’s challenge to the defendant tree warden’s approval of the removal of the trees, and his related claims for injunctive relief, are moot. The existence of an actual controversy is an essential jurisdictional prerequisite. Furstein v. Hill, 218 Conn. 610, 627, 590 A.2d 939 (1991). It is not the province of our courts to decide moot questions, the determination of which cannot result in the granting of actual or practical relief. Id.; Winthal v. Fabrizi, 26 Conn. App. 45, 47, 596 A.2d 939 (1991). In the absence of an actual and existing controversy for us to adjudicate in any sense of the term, the courts of this state may not be used as a vehicle to obtain judicial opinions on points of law. Hallas v. Windsor, 212 Conn. 338, 347, 562 A.2d 499 (1989); Housing Authority v. Melanson, 23 Conn. App. 519, 521, 582 A.2d 1179 (1990).

Furthermore, the plaintiff’s claims for monetary relief are not cognizable in an administrative appeal. ‘ ‘[Administrative relief cannot encompass a monetary award.” Cummings v. Tripp, 204 Conn. 67, 80, 527 A.2d 1230 (1987).

Accordingly, the trial court properly dismissed the plaintiff’s administrative appeal.

The judgment is affirmed.


text:
    Michael Krawiec et al. v. Blake Manor Development Corporation et al.
    (9641)
    Daly, Foti and Landau, Js.
    Argued November 7, 1991
    decision released February 11, 1992

      Salvatore V. Vitrano, for the appellant (named defendant).

      John L. Laudati, for the appellee (plaintiff).
   Foti, J.

The defendant Blake Manor Development Corporation appeals from the judgment of the trial court. In their complaint, the plaintiffs alleged (1) breach of contract, (2) violation of expressed and implied warranties, (3) fraudulent misrepresentations, (4) violation of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA), and (5) fraudulent conveyance. The court rendered judgment for the plaintiffs against the defendant corporation on counts one, two and four, and against all of the defendants on count five. The court rendered judgment for the defendant corporation on count three. The defendant claims that the trial court (1) improperly concluded that it had violated implied warranties, (2) improperly concluded that it had violated CUTPA, and (3) abused its discretion in concluding that the plaintiffs were entitled to damages in the amount of $15,468 and attorney’s fees in the amount of $8680. We affirm the judgment of the trial court.

The trial court found the following facts. On September 1,1987, the plaintiffs purchased lot number seventeen in the Blake Manor subdivision from the defendant. The subdivision, located in New Britain, consists of thirty-one lots laid out on the side of a hill. It was developed in three stages. The defendant used the engineering plans of the previous owner and developer and did not hire its own engineer to review the preexisting site grading plans or to perform any engineering tests before proceeding with its development. The plaintiffs found the property through a real estate agent. This agent was the office secretary for the defendant. The plaintiffs had four young children, were expecting another child, and wanted a larger home with a spacious backyard. The defendant’s agents told them that they should wait until the second phase of the development in that tract because lot number seventeen would be large enough to meet their needs.

On February 23, 1987, the plaintiffs entered into a contract with the defendant for the purchase and construction of a home on lot number seventeen for $182,900. The contract provided a limited warranty program that required that the defendant’s performance adhere to standards of normal workmanship. The warranty required that the defendant establish the necessary grades and sewers to ensure proper drainage away from buildings. Further, it required that no standing water should remain in a manmade landscaped area twenty-four hours after a rain except swales and collecting areas which may drain as long as forty-eight hours after a rain or from sump pump discharge. It also provided that once the proper grades and swales were established by the defendant, the plaintiffs were required to maintain them.

In the spring of 1988, the plaintiffs and other homeowners living in the tract experienced severe flooding and erosion of their lots. All of the topsoil on the plaintiffs’ lot washed away. Their backyard became a swamp with a foot of mud and gullies of up to two and three feet deep. The lot had not been rough graded properly. The contours were much steeper than shown on the subdivision map and water was draining onto it from all of the other lots. In August, 1988, the plaintiffs paid $968 for a minimal rough and finish grading, filling and reseeding. By the spring of 1989 the same conditions returned. The lot required additional regrading and removal of trees damaged by the flooding and erosion.

The city of New Britain ordered the implementation of an erosion remediation plan. This plan was principally designed to correct the drainage conditions of the roads and storm sewers in the subdivision. It did not address the individual concerns of the homeowners regarding their properties. The plaintiffs and other property owners signed agreements allowing the defendant to do the corrective work, which satisfied the city’s concerns but did not solve the plaintiffs’ problems. The defendant did not regrade the plaintiffs’ property at the time it implemented the city’s remediation and erosion control plan.

At the request of the parties, the court viewed the premises at the conclusion of the evidence and in the presence of counsel. The erosion and drainage problems continued on the property and it was obvious that there had been unsuccessful attempts to remedy the condition. Trees located on the property were dying as a result of improper rough grading, and standing water remained on the property for weeks.

I

The defendant first claims that the court improperly concluded that it had violated implied warranties under General Statutes § 47-118. The defendant argues that General Statutes §§ 47-116 through 47-121, entitled “New Home Warranties,” limits the warranties to single-family dwelling units and fixtures or structures made a part thereof. The defendant states that the court improperly found that the term “improvement” as defined by § 47-116 and used in § 47-118 included and extended to “soil and drainage defects.” The defendant claims that § 47-118 contains implied warranties that apply only to a single-family dwelling unit, fixture or structure made a part thereof. We do not agree.

General Statutes §§ 47-116 and 47-118 “impose liability under an implied warranty on the builder/vendor of a new home in favor of the purchaser of any improved real estate.” Beckman v. Jalich Homes, Inc., 190 Conn. 299, 307, 460 A.2d 488 (1983). “ Tt is a cardinal rule of construction that statutes are to be construed so that they carry out the intent of the legislature. The intent is to be ascertained from the language of the statute itself, if the language is plain and unambiguous.’ ” Cashman v. Calvo, 196 Conn. 509, 512, 493 A.2d 891 (1985), quoting Hartford Hospital v. Hartford, 160 Conn. 370, 375, 279 A.2d 561 (1971). There is no language in §§ 47-116 through 47-121 that limits any part of those statutes to the structure of the newly constructed single-family dwelling. Rather, the logical reading of the definitions contained in § 47-116, in conjunction with § 47-118 setting forth the implied warranties, leads us to conclude that the legislature intended that the implied warranties apply to both the newly constructed single-family dwelling and the lot upon which it sits when they are sold to a purchaser as a package by the builder/vendor.

The trial court correctly concluded that “[bjecause tract homes are sold as a package, that is, the house and lot are sold together, the implied warranties are breached not only because of structural defects but also because of the unsuitability of the lot upon which the house was built.” The trial court, citing Hesson v. Walmsley Construction Co., 422 So. 2d 943 (Fla. Dist. Ct. App. 1982), also noted that a builder/vendor is in a better position than a buyer to investigate the quality of the land when developing the tract. Placing on the builder the onus of furnishing the buyer with a functional home and a suitable house site encourages the builder to exercise greater care in the selection of building sites. Further, because the developer is in a better position than the purchaser to prevent problems relating to soil and drainage defects in the soil, the implied warranties of good workmanship should extend to those defects.

The court properly concluded that the defendant breached the implied statutory warranties that the drainage system would be installed according to sound engineering standards, and that the house would be constructed on the lot in a workmanlike manner and would be fit for habitation.

II

The defendant next claims that the court improperly concluded that it had violated CUTPA. The defendant points out that the court based its finding of a CUTPA violation on the defendant’s breach of the statutory implied warranties. The defendant argues that because the finding of a breach of warranty is not supported by the record, the finding of a CUTPA violation cannot stand. It further claims that the other criteria as set forth by the “cigarette rule” have not been met. We do not agree.

The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce, and whether a practice is unfair depends on the finding of a violation of an identifiable public policy. Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 257, 550 A.2d 1061 (1988). Connecticut courts, having adopted the federal “cigarette rule,” consider the following criteria to determine whether certain practices violate CUTPA: “ ‘(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—-whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).’ ” FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244-45 n.5, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972); McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 567-68,473 A.2d 1185 (1984). Our Supreme Court has noted that while in certain cases all three criteria set forth in the “cigarette rule” may be required to be satisfied, generally all need not be satisfied to support a finding of unfairness. Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 242, 520 A.2d 1008 (1987). “A practice may be unfair because of the degree to which it meets one of the criteria.” Id.

“Whether a practice is unfair and thus violates CUTPA is an issue of fact.” DeMotses v. Leonard Schwartz Nissan, Inc., 22 Conn. App. 464, 466, 578 A.2d 144 (1990). The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court. Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). Here, the trial court made specific findings of fact. It is clear that “[t]his court may reject a factual finding only if it is clearly erroneous, that is, if the finding is ‘unsupported by the record, incorrect, or otherwise mistaken.’ ” J & J Enterprises of Lenoir, Inc. v. Shaw, 190 Conn. 321, 322, 460 A.2d 1283 (1983). The trial court’s findings are not clearly erroneous and the trial court’s conclusion that the defendant’s violation of the implied warranties pursuant to § 47-118 offended public policy is supported by the record.

Ill

The defendant’s final claim is that the trial court abused its discretion in concluding that the plaintiffs were entitled to damages in the amount of $15,468 and attorney’s fees in the amount of $8600. The defendant argues that the court’s findings, pursuant to which it awarded the sum of $12,000 for damages for regrading, were unsupported by the evidence, and that, since the court incorrectly concluded that the defendant had violated CUTPA, its award of attorney’s fees was clearly erroneous and unsupported by the record.

“It is beyond dispute that the trial court has broad discretion in determining the relevancy and materiality of evidence.” Web Press Services Corporation v. New London Motors, Inc., 203 Conn. 342, 355, 525 A.2d 57 (1987). The credibility of witnesses and the weight to be accorded their testimony are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible. Ferri v. Pyramid Construction Co., 186 Conn. 682, 690, 443 A.2d 478 (1982); New Haven Water Co. v. Board of Tax Review, 166 Conn. 232, 240, 348 A.2d 641 (1974).

In rendering judgment, the court awarded $968 for preliminary costs, $12,000 for regrading, and $2500 for tree removal for a total of $15,468. In explaining, the court stated: “The court would indicate with regard to damages that although a serious attack was made upon the expertise and credibility of Dean Burhoe, the court finds that that attack on his expertise does not affect the accuracy and the believability of the observations that he made. He apparently is the only non-party witness in this case who actually was present when the situation was most pronounced, in the spring of 1988. The court does not perceive Burhoe’s testimony on the issue, actually the critical issue with regard to Burhoe’s testimony was not whether the erosion sedimentation plan did the job that the city expected it would do, but whether it did the job to which the [plaintiffs] were entitled as a matter of law insofar as their own lot was concerned.

“Burhoe by reason of being a landscaper, of having observed the original conditions, the court finds and gives great weight to his testimony. The court would also note that although it found helpful testimony of [two other witnesses] that their concerns obviously were different in kind and scope from those of the [plaintiffs], so that the court has given great weight and accepts the testimony of Burhoe as to damages, although not necessarily relying on his testimony with regard to issues of liability. . . . Burhoe indicated that these estimates were reasonable ones . . . .”

The record is clear that Burhoe’s testimony established that there was an improper rough grade and drainage and that proper completion of the job required replacement of the topsoil along with the furnishing of sod and seed that had been eroded due to poor drainage. Burhoe testified that it would cost $12,000 to fix the back and side yards. He also described the regrading process and pointed out that the $12,000 estimate would be for topsoil, spreading of the topsoil, sod and placement of the sod, rough grading, equipment and additional fill. There was evidence to support the trial court’s findings that those damages were reasonably and necessarily incurred as a result of the defendant’s breach and statutory violations.

Because we have already concluded that the trial court properly found a violation of CUTPA, an award of attorney’s fees was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       There are also four individual defendants, directors and officers of the defendant corporation, who have not appealed from the judgment rendered against them on the fifth count of the complaint. We will refer in this opinion to Blake Manor Development Corporation as the defendant.

       The plaintiffs are Michael and Donna Krawiee.

       The defendant filed a counterclaim that was removed from the matter by substituted pleadings upon the defendant’s refiling of its answer and special defenses.

       There is no written memorandum of decision, nor is the oral decision, as transcribed, signed by the trial judge. Practice Book § 4059. The plaintiffs have filed, as an appendix, a transcript of the oral decision. Practice Book § 4074. It is the appellant who bears the burden of providing an adequate record for review. Oakes v. New England Dairies, Inc., 219 Conn. 1, 16, 591 A.2d 1261 (1991); see Practice Book § 4061.

       General Statutes § 47-118 provides in pertinent part: “(a) In every sale of an improvement by a vendor to a purchaser, except as provided in subsection (b) of this section or excluded or modified pursuant to subsection (d), warranties are implied that the improvement is: (1) Free from faulty materials; (2) constructed according to sound engineering standards; (3) constructed in a workman-like manner, and (4) fit for habitation, at the time of the delivery of the deed to a completed improvement, or at the time of completion of an improvement not completed when the deed is delivered.

        “(b) The implied warranties subsection (a) of this section shall not apply to any condition that an inspection of the premises would reveal to a reasonably diligent purchaser at the time the contract is signed.
      “(c) If the purchaser, expressly or by implication, makes known to the vendor the particular purpose for which the improvement is required, and it appears that the purchaser relies on the vendor’s skill and judgment, there is an implied warranty that the improvement is reasonably fit for the purpose.”

       General Statutes § 47-116 provides in pertinent part: “As used in this chapter, unless the context otherwise requires: ‘Improvement’ means any newly constructed single family dwelling unit, any conversion condominium unit being conveyed by the declarant and any fixture or structure which is made a part thereof at the time of construction or conversion by any building contractor, subcontractor or declarant . . . .”


author: Heiman, J.

text:
    International Association of Firefighters, Local 786, et al. v. Thomas Serrani et al.
    (10197)
    Daly, Foti and Heiman, Js.
    Argued December 3, 1991
    decision released February 11, 1992

      Anthony F. Slez, Jr., for the appellant (plaintiff).

      James V. Minor, assistant corporation counsel, with whom, on the brief, was Paul D. Shapero, corporation counsel, for the appellees (defendants).
   Heiman, J.

The plaintiffs in this labor dispute, the International Association of Firefighters, Local 786, and certain probationary firefighters laid off by the city of Stamford, appeal from the trial court’s denial of their application for a temporary injunction.

We first note that in the absence of a statutory exception, the denial of an application for a temporary injunction generally is not an appealable final judgment. Doublewal Corporation v. Toffolon, 195 Conn. 384, 389, 488 A.2d 444 (1985). General Statutes § 31-118, however, authorizes any party aggrieved by a decision of the court on an application for a temporary injunction in a labor dispute to appeal from the final judgment thereon. The term “final judgment” as used in the statute means a decision that “definitely determines a motion for the issuance of a temporary injunction either in favor of or against the party seeking it.” H. O. Canfield Co., v. United Construction Workers, 134 Conn. 358, 362, 57 A.2d 624 (1948). Thus, we have subject matter jurisdiction over this appeal.

The plaintiffs claim that the trial court (1) abused its discretion in making an express finding that a layoff did not repudiate the parties’ collective bargaining agreement, (2) incorrectly found that the parties’ collective bargaining agreement must give way to the fiscal constraints facing the city despite the city’s failure to establish any real fiscal necessity for the immediate layoffs, (3) improperly found that there was no substantial probability that the plaintiffs would suffer irreparable harm from its denial of the application, and (4) improperly found the existence of an adequate remedy at law. We affirm the trial court’s judgment.

The facts necessary to our resolution of this appeal may be summarized as follows. The plaintiff International Association of Firefighters, Local 786, is the certified collective bargaining unit representing all uniformed firefighters employed by the city of Stamford. The individual plaintiffs are probationary uniformed firefighters laid off by the city. The defendants are the city of Stamford; Thomas Serrani, mayor of Stamford; Sim Bernstein, personnel director for the city of Stamford; and the fire commission of Stamford.

A collective bargaining agreement dated July 1,1987, presently exists between Local 786 and the city of Stamford. The agreement contains provisions requiring that at least fifty persons be assigned to work each shift. At least forty-one of the fifty persons assigned to each shift must be on the floor. The city used overtime to meet the forty-one on the floor requirement until December, 1990, when it met the fifty assigned per shift provision by hiring the nine individual plaintiffs as probationary firefighters. The city budgeted the new positions for its 1990-91 fiscal year.

In preparing the city’s 1991-92 budget, Serrani, facing a $1.8 million deficit precipitated by an unanticipated decline in state revenues, a decline in interest income and an unanticipated increase in insurance costs, eliminated the nine probationary firefighter positions. Serrani considered the layoffs a last resort and ordered them only after reducing the budget of every other office within his control. The nine probationary firefighters were notified that they would be laid off as of April 19, 1991.

Local 786 filed a grievance with the fire chief, who denied it. The union then appealed to the fire commission, which upheld the appeal. Despite the fact that the appeal of Local 786 was upheld, the defendants refused to rescind the layoff notices. As a result, the union filed an unfair labor practice complaint with the state labor board and an action in the Superior Court seeking (1) a temporary and permanent injunction requiring the defendants to maintain the status quo prior to the layoffs, (2) wages and other benefits lost as a result of the layoffs and (3) attorney’s fees. The trial court denied the plaintiffs’ application for a temporary injunction after a full evidentiary hearing, and this appeal followed.

General Statutes § 31-115 sets forth five facts that the trial court must find to exist before it may grant injunctive relief in a labor dispute. Each is a necessary prerequisite to injunctive relief. If any of the factual predicates are not established, the court cannot grant injunctive relief.

Because it is dispositive of this appeal, we turn first to the plaintiffs’ claim that the trial court improperly found that the plaintiffs failed to establish a substantial probability that they would suffer irreparable harm from the denial of their application for a temporary injunction. In challenging this finding, the plaintiffs attack both the court’s factual determinations and its application of the “substantial probability” standard.

Before granting injunctive relief in a labor dispute, the court must find, inter alia, that the moving party will suffer “substantial and irreparable injury” in the event that injunctive relief is denied. General Statutes § 31-115 (b). Our courts have consistently applied a “substantial probability” standard to the issue of irreparable harm in cases involving injunctive relief outside the labor context. See Karls v. Alexandra Realty Corporation, 179 Conn. 390, 402, 426 A.2d 784 (1980); Silitschanu v. Groesbeck, 12 Conn. App. 57, 65, 529 A.2d 732 (1987), aff’d, 208 Conn. 312, 543 A.2d 737 (1988). The plaintiffs offer no reason to apply a different standard in labor cases, and we decline to do so here. The trial court properly required the plaintiffs to establish a substantial probability that irreparable harm would result from the denial of their application.

We turn next to the plaintiffs’ factually based claims. The plaintiffs dispute the trial court’s findings that neither (1) the risk to the health, safety and welfare of the firefighters, nor (2) the risk to the citizens of Stamford, nor (3) the deterioration in the relationship between the union, its membership and management, nor (4) the city’s unilateral action in contravention of accepted grievance procedures constituted substantial irreparable harm that required granting their application for a temporary injunction. These are issues of fact. The trial court’s findings of fact are subject to reversal only if they are clearly erroneous. Kleinman v. Marshall, 192 Conn. 479, 483, 472 A.2d 772 (1984).

“Nothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony.” Morgan v. Hill, 139 Conn. 159, 161, 90 A.2d 641 (1952); Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 621, 495 A.2d 1006 (1985). It is not our function, nor are we permitted, to pass on the credibility of the witnesses who testified before the trial court. Kelman v. McDonald, 24 Conn. App. 398, 401, 588 A.2d 667 (1991). Because the trial court is the sole arbiter of the credibility of witnesses, “it is privileged to adopt whatever testimony [it] reasonably believes to be credible.” (Internal quotation marks omitted.) Id.

In reviewing the trial judge’s factual findings, we give the evidence the most favorable reasonable construction in support of the judgment. Gorra Realty, Inc., v. Jetmore, 200 Conn. 151, 160, 510 A.2d 440 (1986); Kelman v. McDonald, supra. Where the factual basis of the trial court’s decision is attacked, we are called on to “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.” Duksa v. Middletown, 192 Conn. 191, 205, 472 A.2d 1 (1984). It is not our function to examine the record to determine whether the trier of fact could have reached a different conclusion. Rodriguez v. New Haven, 183 Conn. 473, 477, 439 A.2d 421 (1981); Biggs v. Warden, 26 Conn. App. 52, 56, 597 A.2d 839 (1991). We are not permitted on appeal to reject a factual finding merely because we, as a reviewing court, might disagree with the conclusion or might have reached a different result had we been sitting as the trier of fact. Lupien v. Lupien, 192 Conn. 443, 446, 472 A.2d 18 (1984). The trier’s determination of fact will be disturbed only in the clearest of circumstances, where it could not reasonably have reached such a conclusion. D’Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 180, 455 A.2d 833 (1983); see also Biggs v. Warden, supra, 55-56.

A finding that a substantial probability of irreparable harm exists requires a two part analysis: (1) whether there is a substantial probability that the alleged harm will result; and (2) whether the harm, if it occurs, will be irreparable. The trial court found that the plaintiffs failed to establish a substantial probability that any of the alleged harm would result from the denial of their application. The court stated, in its oral decision on the application for a temporary injunction, that only “unsubstantiated generalized fears and concerns have been expressed concerning the risk of harm that may befall a firefighter." It further noted that the plaintiffs presented “no historical evidence of experiences involving incidents in the past and no prediction of what type of dangerous events are likely to occur in the future.” Our review of the transcript of the proceedings and of the whole record indicates that these factual determinations are adequately supported by the record and thus are not clearly erroneous. In light of these findings, the trial court’s determination that the plaintiffs failed to show a substantial probability of irreparable harm in the event their application was denied was not clearly erroneous.

The trial court properly required the plaintiffs to establish a substantial probability that irreparable harm would result from the denial of their application. Further, its finding that the plaintiffs failed to sustain their burden of establishing a substantial probability of irreparable harm is not clearly erroneous. Because a finding of a substantial probability of irreparable harm is a necessary prerequisite to injunctive relief, the trial court properly denied their application for a preliminary injunction. In light of this conclusion, we need not consider the plaintiffs’ remaining claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       The individual plaintiffs are David Bocchetta, David Davis, John Edwards, Richard Labati, David Lenotti, Erwin Osorio, James Randall and William Wood.

       Article VIII, § 2 (d) of the agreement provides: “The minimum manpower assigned to each Group shall be at least fifty (50) men including Officers and the minimum manpower allowed on each Group shall be forty-one (41) men including Officers.”

       General Statutes § 31-115 provides in pertinent part: “No court shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute . . . except after a finding of facts by the court, to the effect: (a) The unlawful acts have been threatened and will be committed by a person or persons unless such person or persons are restrained therefrom . . . (b) that substantial and irreparable injury to the complainant or his property will follow; (c) that as to each item of relief granted greater injury would be inflicted upon the complainant by the denial of relief than would be inflicted upon the defendants by the granting of relief; (d) that the complainant has no adequate remedy at law; and (e) that the public officers charged with the duty to protect the complainant's property are unable or unwilling to furnish adequate protection.”