author:
FOTI, J.
      MIHALAKOS, J.,

text:
    ROSE LAFLAMME v. JOSEPH DALLESSIO, EXECUTOR (ESTATE OF DOMINIC DALLESSIO)
    (AC 20554)
    Foti, Mihalakos and Hennessy, Js.
    Argued February 26
    officially released August 14, 2001

      Michael W. Levy, for the appellant (plaintiff).

      John P. Calabrese, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, Rose LaFlamme, appeals from the judgment rendered by the trial court following the granting of the motion for summary judgment filed by the defendant, Joseph DaUessio. On appeal, the plaintiff claims that the court (1) improperly concluded that the defendant did not owe her a duty of care based on his control of the subject premises and (2) abused its discretion by declining to rule on her request to amend the pleadings. We affirm the judgment of the trial court.

The plaintiff brought a one count complaint for neghgence against the defendant in his representative capacity as executor of the estate of Dominic DaUessio (estate). The plaintiff aUeged that she sustained injuries as a result of a fall that occurred on premises owned, possessed and controUed by the estate. On November 1, 1999, the defendant moved for summary judgment on the ground that he was not in possession and control of the premises at the time of the plaintiffs accident and, therefore, did not owe a duty of care to the plaintiff. On November 8, 1999, the plaintiff filed a request to amend her complaint by adding a second count against the defendant in his individual capacity. On January 3, 2000, the court heard oral argument on both motions. On February 10, 2000, the court issued a memorandum of decision granting the defendant’s motion for summary judgment. The court did not act on the plaintiffs request to amend.

“Our review of a trial court’s rendering of summary judgment takes place within certain defined parameters. This court has held that [o]n appeal . . . the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous. 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994). . . . Crystal Lake Clean Water Preservation Assn. v. Ellington, 53 Conn. App. 142, 147, 728 A.2d 1145, cert, denied, 250 Conn. 920, 738 A.2d 654 (1999). It is appropriate to render summary judgment only where there is no genuine issue of material fact. Summary judgment should be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In passing on the defendant’s motion for summary judgment the trial court was limited to deciding whether an issue of fact existed, but it could not try that issue if it did exist. . . . Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971).

“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Citicorp Mortgage, Inc. v. Porto, 41 Conn. App. 598, 601, 677 A.2d 10 (1996). Simply, the granting of summary judgment is appropriate only if a fair and reasonable person could conclude only one way. Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).” (Internal quotation marks omitted.) Raboin v. North American Industries, Inc., 57 Conn. App. 535, 537-38, 749 A.2d 89, cert, denied, 254 Conn. 910, 759 A.2d 505 (2000).

I

The plaintiff first claims that the court improperly rendered summary judgment because it wrongfully concluded as a matter of law on the basis of the undisputed facts that the defendant did not owe a duty of care to the plaintiff. We disagree.

“Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so.” Dean v. Hershowitz, 119 Conn. 398, 407-408, 177 A. 262 (1935). “The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). The issue of whether a duty of care is owed is normally a question of law; Pion v. Southern New England Telephone Co., 44 Conn. App. 657, 660, 691 A.2d 1107 (1997); but under some circumstances “the question of duty involves elements of both fact and law.” Raboin v. North American Industries, Inc., supra, 57 Conn. App. 538.

The defendant submitted a probate decree to the court as evidence that Mary Dallessio was in possession and control of the premises on which the plaintiff sustained her injury. Although that decree gave Mary Dallessio the use of the home, it directed her to “grant the executor, upon reasonable notice by him, reasonable access to the house for the purpose of cleaning the house and listing the house with a broker for sale.” On the basis of that evidence concerning the executor’s access to the subject property upon notice for limited purposes, the court concluded that the defendant did not owe the plaintiff a duty of care.

The plaintiff claims that a second probate decree demonstrated the existence of a genuine issue of material fact concerning the “possession and control” of the premises. The court did not discuss this second decree in its memorandum of decision, and the plaintiff did not file either a motion for articulation or a motion for rectification with respect to that issue. The plaintiff also relies on her affidavit in which she attested that Mary Dallessio was merely a tenant and that the defendant was responsible for the care and maintenance of the house. The court treated this as a bare assertion and concluded that it was insufficient to demonstrate a disputed issue of fact. Although the moving party must show the nonexistence of any material fact, an opposing party must substantiate its adverse claims by showing that there is a genuine issue of material fact along with the evidence disclosing the existence of such an issue. Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). The plaintiff has failed to do so.

The plaintiff also argues that the decedent did not specifically devise the subject premises in his will and that General Statutes § 45a-321 (a) created a duty in the defendant as a fiduciary. We need not reach the issue of whether the decedent specifically devised the subject premises in his will because we conclude that the type of duty that § 45a-321 (a) creates would still not have precluded summary judgment in this case.

Our Supreme Court has stated that “the power of possession, care and control granted to an executor under General Statutes [§ 45a-321] over real estate during the settlement of an estate is given only to protect the rights of creditors. . . . The executor’s power is in derogation of the rights of the heirs, and since it is so limited in purpose, it is properly exercised only when the exigencies of the estate so require. Where ... no allegation is made that the property is needed to meet claims against the estate, there can be no occasion to permit the exercise of the executor’s power.” (Citations omitted; internal quotation marks omitted.) Claydon v. Finizie, 7 Conn. App. 522, 526, 508 A.2d 845 (1986), quoting Brill v. Ulrey, 159 Conn. 371, 376, 269 A.2d 262 (1970). The plaintiff, therefore, cannot rely upon § 45a-321 (a) to create a duty on the part of the executor to keep the driveway on the subject premises in repair, as she alleged in her complaint. The executor had neither “possession, care and control of the decedent’s real property” nor did he owe the plaintiff a duty of care arising out of that section.

We conclude that the court properly determined that the plaintiff failed to submit evidence disclosing the existence of a genuine issue of material fact in regard to her claim that the defendant had possession and control of the premises and, therefore, owed her a duty. The court properly granted the motion for summary judgment.

II

The plaintiff next claims that the court abused its discretion in failing to rule on her pending request to amend her complaint. We disagree.

The record reflects that the plaintiff waited approximately two and one-half years after the incident and after the defendant filed his motion for summary judgment to file her request to amend. The court, in rendering summary judgment, noted that it was aware of the request but would not address it since it “was filed subsequent to the motion for summary judgment.”

“While our courts have been liberal in permitting amendments; Johnson v. Toscano, 144 Conn. 582, 587, 136 A.2d 341 (1957); this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. Cummings v. General Motors Corporation, 146 Conn. 443, 449-50, 151 A.2d 884 (1959). The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. . . . Beckman v. Jalich Homes, Inc., 190 Conn. 299, 302-303, 460 A.2d 488 (1983). Whether to allow an amendment is a matter left to the sound discretion of the trial court. This court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. ... It is the [plaintiffs] burden ... to demonstrate that the trial court clearly abused its discretion.” (Citations omitted; internal quotation marks omitted.) AirKaman, Inc. v. Groppo, 221 Conn. 751, 766-67, 607 A.2d 410 (1992).

It was well within the court’s discretion to grant or deny the plaintiffs request. The court exercised its discretion by first hearing and ruling on the defendant’s motion for summary judgment. Having granted the motion and rendered judgment, the court no longer was compelled to act on the plaintiffs request. We are not persuaded that the court abused its discretion by acting on the earlier filed motion.

The judgment is affirmed.

In this opinion HENNESSY, J., concurred.

MIHALAKOS, J.,

dissenting. I respectfully disagree with the majority and would reverse the summary judgment of the trial court. I believe that the majority, in part I of its opinion, incorrectly concludes that (1) during the settlement of an estate, an executor never has a duty pursuant to General Statutes § 45a-321 to keep in a reasonably safe condition certain real property of the estate and (2) in the present case, there is no genuine issue of material fact as to whether the executor in the present case (the defendant) owed the plaintiff a duty of care. I do agree, however, with part II of the majority opinion.

The majority misconstrues Claydon v. Finizie, 7 Conn. App. 522, 508 A.2d 845 (1986), and, as a result, construes § 45a-321 too narrowly, so much so that the intent of the legislature, as is indicated by the clear and unambiguous text of that section, has been unduly subordinated, if not ignored altogether. Section 45a-321 (a) provides in relevant part: “The fiduciary of a decedent’s estate shall, during settlement, have the possession, care and control of the decedent’s real property . . . unless such real property has been specifically devised or directions have been given by the decedent’s will which are inconsistent with this section . . . .” (Emphasis added.) Despite the text of that statute, the majority concludes that (1) an executor has possession, care and control over real property only if that property is needed to meet claims against the estate, (2) therefore, the defendant did not have possession, care or control of 83 Cambridge Drive and (3) for the foregoing reasons, the defendant did not have a duty to keep the driveway of 83 Cambridge Drive in a reasonably safe condition. I respectfully disagree with those conclusions and believe that Claydon v. Finizie, supra, 522, does not control and that its predecessor, O’Connor v. Chiascione, 130 Conn. 304, 33 A.2d 336 (1943), along with § 45a-321 and the text of the Probate Court order, requires that the summary judgment be reversed.

In O’Connor v. Chiascione, supra, 130 Conn. 306, our Supreme Court ultimately concluded that an administrator of an estate “can make no lease which will run beyond the settlement of the estate” because (1) “the right of possession and control is in [an administrator] only as a fiduciary for those interested in the estate” and (2) that right “cease [s] at the settlement of the estate . . . .” Although that conclusion is not relevant to the present case, the reasoning employed by our Supreme Court is. In contemplating the right of possession and control, our Supreme Court stated that “[o]n the death of the [decedent], title to [the decedent’s] real estate at once passes to his heirs, subject to being defeated should it be necessary for the administration of the estate that it be sold by order of the court, and subject to the right of the administrator [or executor] to have ‘possession, care and control’ of it during the settlement of the estate, unless the probate court shall otherwise order.” (Emphasis added.) Id. Although “the right of possession and control is in [an administrator (or an executor)] only as a fiduciary for those interested in the estate”; id.; the text quoted from O’Connor indicates that an executor can have possession, care and control of real property of an estate even if the property is not needed to meet claims against the estate, i.e., even if there is no occasion to permit the exercise of the executor’s power See also General Statutes § 45a-321 (a). Relying solely on Claydon v. Finizie, supra, 7 Conn. App. 522, the majority mistakenly concludes otherwise.

In Claydon v. Finizie, supra, 7 Conn. App. 526-27, this court concluded that an administrator of an estate did not have standing to seek a partition and sale of certain real property of the estate because the administrator had not alleged that the proceeds from the proposed partition and sale were needed to satisfy debts of the estate. In so doing, this court stated: “Where, as in the instant case, no allegation is made that the property is needed to meet claims against the estate, there can be no occasion to permit the exercise of the executor’s power.” (Emphasis added; internal quotation marks omitted.) Id., 526. In the present case, if the defendant had been maintaining the driveway at 83 Cambridge Drive in a reasonably safe condition, he would not have been acting in derogation of the right of an heir, especially considering that the decedent’s widow, who was living in the house on that property, was not named in the decedent’s will as the beneficiary of that property. Hence, the defendant would not have been exercising his power. See footnote 3. Consequently, I believe that Claydon does not control the present case. Instead, the clear and unambiguous text of § 45a-321 controls and, conveniently, the result it prescribes does not conflict with O’Connor.

Generally, an executor has possession, care and control of the decedent’s real property during settlement of the estate unless one of the following three conditions is satisfied: (1) such real property has been specifically devised; (2) directions are given in the decedent’s will that are inconsistent with § 45a-321; or (3) a court orders the executor to surrender possession and control of such real property to the heirs or devisees, or orders distribution of such real property dming settlement of the estate. See General Statutes § 45a-321 (a). Thus, in the present case, the decedent’s will must be examined to determine whether the first or second condition is satisfied.

The decedent’s will is simple and consists of an exordium followed by three paragraphs of instructions. In the exordium, the decedent declared, inter alia, that he was of lawful age, of sound mind, memory and judgment. The first paragraph directs the executor to pay the funeral expenses, taxes and debts, and the second paragraph consists solely of burial instructions. The third and final paragraph, which is most pertinent, provides: “All the rest, residue and remainder of my estate, both real and personal, of whatever kind and nature, wherever situated, of which I shall die seized or possessed, or to which I might in any manner be entitled to at the time of my death, I give, devise and bequeath, in equal shares, to my sister, Mary DeLuco, currently residing in the Town of East Hartford, Connecticut, my brother Joseph Dallessio, currently residing in the Town of Windsor, Connecticut and my brother, Carmen Dallessio, currently residing in the Town of Wethersfield, Connecticut.”

The decedent’s will clearly does not contain directions that are inconsistent with § 45a-321 (a). It also does not contain a specific devise. A brief analysis concerning the latter conclusion is warranted, however.

“The fundamental distinction between general and specific legacies is that the former may be satisfied out of the general assets of the testator’s estate without regard to any particular fund, thing, or things, while the latter are gifts of particular specified things, or of the proceeds of the sale of such things, or of a specific fund or a defined portion thereof. In the case of the former, there is no intent on the part of the testator to make a specific disposition of particular assets of his estate as such; in the latter case, the intent is that the attempted donation shall be satisfied by the delivery of specific property forming a part of the estate, and so described as to be identified as the subject of the gift, and in no other way.” (Internal quotation marks omitted.) Burnham v. Hayford, 141 Conn. 96, 102, 104 A.2d 217 (1954); see also Rosenfeld v. Frank, 208 Conn. 562, 572, 546 A.2d 236 (1988).

In the present case, the residuary clause merely directed the executor to divide the residue of the decedent’s estate into three equal shares and distribute one share to each of three beneficiaries. There is no indication in this clause, or in the remainder of the will, that the testator (the decedent) intended to make a specific disposition of particular assets of his estate. Accordingly, I believe that the property at 83 Cambridge Drive was not specifically devised.

The third condition is not satisfied unless the record discloses that a court ordered (1) the executor to surrender possession and control of 83 Cambridge Drive to heirs or devisees of the decedent’s estate or (2) distribution of that property during settlement of the decedent’s estate. See General Statutes § 45a-321 (a). The record does not disclose that a court ordered distributton of 83 Cambridge Drive. Thus, I focus my analysis on the former possibility.

The majority, after consulting § 45a-321 (a), appears to conclude that, on January 21,1997, the Probate Court ordered the defendant to surrender possession and control of 83 Cambridge Drive and that this order establishes, as a matter of law, that the defendant did not owe the plaintiff a duty of care. As discussed previously, § 45a-321 (a) permits a Probate Court to order an executor to surrender possession and control of real property of the estate; however, when a Probate Court issues an order of this type, the possession and control must be surrendered to heirs or devisees. See General Statutes § 45a-321 (a). The decedent’s will discloses, however, that the decedent’s widow is neither an heir nor a devisee of 83 Cambridge Drive. As I explain below, I believe instead that the Probate Court issued the January 21, 1997 order pursuant to § 45a-321 (b).

Section 45a-321 (b) provides that “[t]he family of the decedent shall be allowed to remain in the dwelling house occupied by him at the time of his death, and may occupy such land and buildings connected therewith as the court considers necessary for their convenience and comfort until the same is sold, distributed or otherwise disposed of according to law.” The affidavits in the present case indicate that, prior to the death of the decedent, the decedent and his widow lived on the property at 83 Cambridge Drive. One of the affidavits also indicates that the decedent’s widow was living at 83 Cambridge Drive on June 19, 1997, which is the date that the plaintiff allegedly sustained injury while walking on the driveway of that premise. When considered in the context of a premises liability action, the relationship that arose between the decedent’s widow and the defendant as a result of the Probate Court’s order appears to be analogous to that which exists between a tenant and a landlord. Thus, I believe that the appropriate resolution of this appeal must consider and apply the principles of landlord and tenant law and premises liability.

“[A]s a matter of common law, although landlords owe a duty of reasonable care as to those parts of the property over which they have retained control, landlords generally ‘[do] not have a duty to keep in repair any portion of the premises leased to and in the exclusive possession and control’ of the tenant.” Gore v. People's Savings Bank, 235 Conn. 360, 374, 665 A.2d 1341 (1995). In other words, “[t]he generally accepted rule imposing liability on a landlord is that it is the duty of a landlord to use reasonable care to keep in reasonably safe condition the parts of the building over which he reserves control.” Dinnan v. Jozwiakowski, 156 Conn. 432, 434, 242 A.2d 747 (1968); see also General Statutes § 47a-7 (a) (3).

“Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances.” Dinnan v. Jozwiakowski, supra, 156 Conn. 434. “The word ‘control’ has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee. . . . Unless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant, and it becomes a question of fact and is a matter of intention in the light of all the significant and attendant facts which bear on the issue.” (Citations omitted.) Panaroni v. Johnson, 158 Conn. 92, 98, 256 A.2d 246 (1969).

In the present case, there is, of course, no lease. Instead, the Probate Court order created the relationship between the decedent’s widow and the defendant. In that order, the Probate Court did not definitively express whether the defendant retained control over the driveway at 83 Cambridge Drive. See footnote 5. Consequently, whether the defendant retained control of the driveway is a question of fact and should be considered in the light of all the significant and attendant facts that bear on the issue. Cf. id. It necessarily follows that whether the defendant owed the plaintiff a duty of care is a question of fact. See Dinnan v. Jozwiakowski, supra, 156 Conn. 434. With this conclusion in mind, I consider the propriety of the trial court’s decision granting the defendant’s motion for summary judgment.

“The standards governing [this court’s] review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381 [now § 17-46].” (Citations omitted; internal quotation marks omitted.) Rivera v. Double A Transportation, Inc., 248 Conn. 21, 24, 727 A.2d 204 (1999).

The two affidavits submitted by the plaintiff in opposition to the defendant’s motion for summary judgment provide an evidentiary foundation that demonstrates that a genuine issue of material fact exists as to whether the defendant owed her a duty of care. The decedent’s widow, in her affidavit, states, “It was my understanding with Joseph DaUessio [the executor] that he was responsible for aU exterior maintenance, including lawn care, snow removal and whatever was necessary on the outside of the house.” The plaintiff, in her affidavit, states, “Joseph DaUessio [the executor] was observed by me to have inspected the exterior of the premises shortly after Dominic DaUessio’s [the decedent’s] death. . . . One time during the early winter, 1997, there was necessary plumbing work done and Joseph DaUessio [the executor] paid for the same.” When viewed in the Ught most favorable to the plaintiff, those two affidavits establish that the defendant had control over the property at 83 Cambridge Drive, including the driveway. Cf. Panaroni v. Johnson, supra, 158 Conn. 99 (“making of repairs by the landlord, in and of itself, may denote a retention of control or may be an indicia of limited, temporary or fuU control”). Accordingly, I beüeve that the trial court improperly concluded that the affidavits were insufficient to support a finding that the defendant owed the plaintiff a duty of care. Because that conclusion was the sole basis of the trial court’s decision to grant the motion for summary judgment, and the defendant, on appeal, has not presented to this court an alternate ground for affirming the judgment, I would reverse the judgment of the trial court.

Accordingly, I respectfully dissent as to part I of the majority opinion.

       The second decree, dated April 1, 1997, granted the defendant executor access to the house “to clean and otherwise ready the house for sale.” It does not appear that the court considered that decree as having divested Mary Dallessio’s exclusive use of the property in any way.

       General Statutes § 45a-321 (a) provides: “The fiduciary of a decedent’s estate shall, during settlement, have the possession, care and control of the decedent’s real property, and all the products and income of such real property during such time shall vest in the fiduciary as personal property, unless such real property has been specifically devised or directions have been given by the decedent’s will which are inconsistent with this section; but the court may order surrender of the possession and control of such real property to the heirs or devisees, or may, during settlement, order distribution of such real property.”

       From the outset, I note that the plaintiff, in this negligence action, is seeking to recover from the decedent’s estate and has properly sued the defendant since the defendant, as executor, is the representative of the decedent’s estate. Cf. General Statutes § 52-599 (a) (“cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person”).

       I note, for clarity, that the defendant, as the executor, serves as the fiduciary for the decedent’s estate. See Hall v. Schoenwetter, 239 Conn. 553, 559, 686 A.2d 980 (1996).

       Our Supreme Court and this court have referred to an act by an executor that is in derogation of the rights of the heirs as an exercise of the executor’s power. See, e.g., Brill v. Ulrey, 159 Conn. 371, 376, 269 A.2d 262 (1970); Claydon v. Finizie, supra, 7 Conn. App. 526.

       General Statutes § 45a-321 (a) provides: “The fiduciary of a decedent’s estate shall, during settlement, have the possession, care and control of the decedent’s real property, and all the products and income of such real property during such time shall vest in the fiduciary as personal property, unless such real property has been specifically devised or directions have been given by the decedent’s will which are inconsistent with this section; but the court may order surrender of the possession and control of such real property to the heirs or devisees, or may, during settlement, order distribution of such real properly.”

       On January 21, 1997, the Probate Court rendered the following order: “The petitioner, Mary V. Dallessio [the decedent’s widow], shall have the use of the family car and marital home [the property at 83 Cambridge Drive] for one year from the date of death. The Executor shall maintain insurance of the car and shall fill the oil tank for the house using the assets of the estate. During this time, Mary V. Dallessio shall grant the Executor, upon reasonable notice by him, reasonable access to the house for purposes of cleaning the house and listing the house with a broker for sale.”

       It is important to note that it is undisputed that the decedent died on October 8,1996. The plaintiff alleges in her complaint that her injury occurred on June 19, 1997, which is within one year of the decedent’s death.

       General Statutes § 47a-7 (a) provides in relevant part: “A landlord shall ... (3) keep all common areas of the premises in a clean and safe condition . . . .”

       I do not question that the January 21, 1997 order may be relevant and admissible at a trial, should one occur. I am wary, however, of the role that order played in the majority's analysis.


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    MOEY SEGAL v. LEONOR MIDVIDY SEGAL
    (AC 19485)
    Landau, Schaller and O’Connell, Js.
    Argued January 8
    officially released August 14, 2001

      William C. Franklin, for the appellant-appellee (plaintiff).

      Brian McCormick, for the appellee-appellant (defendant).
   Opinion

O’CONNELL, J.

This is the plaintiffs appeal and the defendant’s cross appeal from a supplemental judgment in a partition action between a former husband and wife who were divorced by virtue of a Nevada state court decree. Their Connecticut property, which they owned jointly with rights of survivorship, was sold at a partition sale, and the issue before us involves the division of the sale proceeds. We affirm the judgment of the trial court on the appeal and on the cross appeal.

The plaintiff (former husband) claims that the court improperly (1) presumed that in the first instance the net proceeds should be divided on a fifty-fifty basis, (2) failed to find that the plaintiff had rebutted the fifty-fifty presumption and (3) abused its discretion by awarding the defendant (former wife) money for the plaintiffs alleged breach of certain agreements. In her cross appeal, the defendant claims that the court improperly failed (1) to give full faith and credit to the Nevada judgment and (2) to award her all of the sale proceeds on the basis of the equities of the case.

The following facts and procedural history are necessary for disposition of these appeals. During their marriage, the parties purchased property in Goshen for $400,000. Their marriage was dissolved in 1988 in Nevada with a divorce decree that ratified and approved the parties’ postnuptial agreements. Those agreements provided that the parties would continue to hold title to the Goshen property as joint tenants, and that the plaintiff would pay all taxes, utilities and general maintenance fees until it was sold.

In 1992, the plaintiff ceased making payments to the defendant under the agreements and, in 1995, filed the present action in Connecticut seeking partition of the property. The defendant filed a counterclaim seeking the same remedy. On September 15, 1998, the court rendered judgment of partition by sale, which resulted in a sale of the property for $500,000 with the proceeds being paid into court. Neither party appealed from the partition judgment, but each filed a motion for a determination of the interests and equities of the parties in the sale proceeds.

The defendant thereafter instituted proceedings in Nevada seeking to declare the postnuptial agreements void or, in the alternative, to be awarded damages for the plaintiffs breach of those agreements. In August, 1998, the Nevada court denied the defendant’s request to declare the agreements void but rendered judgment for her in the amount of $2.7 million for the plaintiffs breach of the agreements. The defendant filed the Nevada judgment in the Connecticut Superior Court pursuant to the Uniform Enforcement of Foreign Judgments Act, General Statutes §§ 52-604 to 52-609.

The net proceeds of the partition sale, after subtracting committee fees and expenses, were $496,411.54, 50 percent of which is $248,205.77. The court rendered a supplemental judgment awarding the plaintiff $159,422.58, representing 50 percent of the net proceeds, minus $88,783.19 for property related expenses paid by the defendant, which the court found should have been paid by the plaintiff. The defendant was awarded $336,988.96, representing her one-half interest plus reimbursement of her expenses. The plaintiff appealed from the supplemental judgment, and the defendant cross appealed. Additional facts are included in the discussion of individual issues.

I

PLAINTIFF’S APPEAL

The plaintiff first contends that the court improperly relied on a nonexistent rebuttable presumption that a spouse who purchases property with his separate funds and takes title jointly intends to make a gift of a one-half interest in the property to his spouse.

Before the court can determine the distribution of sale proceeds, it must first determine the legal interests of the parties in the property. The court relied on the principle recited in Hackett v. Hackett, 42 Conn. Sup. 36, 598 A.2d 1112 (1990), affd, 26 Conn. App. 149, 598 A.2d 1103 (1991), cert, denied, 221 Conn. 905, 600 A.2d 1359 (1992). In Hackett, the court stated that it is established in Connecticut and numerous other jurisdictions that have considered the question that “where one spouse purchases property entirely with his or her funds and takes title in the names of both spouses jointly, a rebuttable presumption arises that a gift was intended to the other spouse of a one-half interest in the property.” (Internal quotation marks omitted.) Id., 41; see Osborne v. Osborne, 384 Mass. 591, 602, 428 N.E.2d 810 (1981); Oldham v. Oldham, 58 R.I. 268, 275, 192 A. 758 (1937); Sundín v. Klein] 221 Va. 232, 236-37, 269 S.E.2d 787 (1980), cert, denied sub nom. Cross v. Sundín, 452 U.S. 911, 101 S. Ct. 3043, 69 L. Ed. 2d 414 (1981); 3 J. Pomeroy, Equity Jurisprudence (4th Ed. 1918) § 1039, p. 2354.

The plaintiff argues that the fifty-fifty presumption regarding partition is not good law in Connecticut because a partition action is equitable in nature; Gaer Bros., Inc. v. Mott, 147 Conn. 411, 415, 161 A.2d 782 (1960); and that the claims of the parties as to their interests in the property must be considered in connection with the distribution of the proceeds of the sale. “Although each party was the owner of an undivided one-half interest in the property, it does not follow that he or she will necessarily be entitled to equal shares of the moneys obtained from the sale. Equities must be considered and, if established, must be liquidated before distribution is ordered.” Levay v. Levay, 137 Conn. 92, 96, 75 A.2d 400 (1950). Those authorities, however, should not be construed to mean that the fifty-fifty presumption does not exist, but only that the law starts with that presumption, which then may be rebutted by the evidence. The court found that the plaintiff failed to overcome the presumption. He offered no evidence that the parties ever intended that if the Connecticut property was sold, the proceeds would be divided other than equally. In fact, the evidence shows to the contrary. The parties’ postnuptial agreements expressly provided for an equal division.

In Vesce v. Lee, 185 Conn. 328, 336, 441 A.2d 556 (1981), our Supreme Court recognized that unless there is an express agreement between the parties, there is a rebuttable presumption that payments made by one party, after the other party vacates the premises, continue to accrue for the benefit of both parties. The Vesce court held that the presumption had not been overcome in that case and that the plaintiff would share the proceeds equally with the defendant despite the fact that the party in possession — the defendant — had borne the expenses for maintenance, improvements and mortgage payments. Id., 337-38.

Both Hackett and Vesce are distinguishable from the case before us. In the present case, there were two express, written postnuptial agreements that the plaintiff would pay all of the expenses of the Connecticut property until it was sold. Accordingly, any sums that the defendant paid were in discharge of obligations that the plaintiff had agreed to assume. Under those circumstances, the court properly deducted those amounts from the plaintiffs share of the sale proceeds and added them to the defendant’s share.

We affirm the judgment of the trial court on the plaintiffs appeal.

II

DEFENDANT’S CROSS APPEAL

The defendant claims that in addition to receiving half of the net proceeds, as the owner of an undivided one-half interest, she should be awarded the entire remainder of the proceeds on the basis of equitable claims against the plaintiffs one-half interest. She bases her equitable claims on (1) reimbursement of all expenses she paid relating to the property and (2) partial satisfaction of the 1998 Nevada money judgment rendered against the plaintiff for his failure to honor his contractual obligations to pay spousal support pursuant to the postnuptial agreements.

The court expressly determined that it “[did] not believe that an attempt to resolve all the issues between these parties would be a wise exercise of its equitable powers in this partition action.” The court declined to attempt to settle wide-ranging domestic disputes, running the gamut of custody, visitation and support, within the confines of this partition action. The court properly declined to become involved in the plethora of equitable issues that were enmeshed in the Nevada litigation. The court found that “[the parties’] equitable claims arise out of an extended, tortious, multistate postdissolution saga.” The court, therefore, limited the exercise of its equitable powers to settling the relations between the parties only insofar as they related to their interests, legal and equitable, in the property that was the subject of the partition sale. We agree with the court that while it must take the equities of the parties into consideration, it is proper to limit the equities to those directly related to the property that is the subject of the partition action. This partition action should not be converted into a family relations matter.

The remaining issue is the effect of the Nevada judgment on the court’s decision. Because that is an issue of law, our review is plenary. State v. Morascini, 62 Conn. App. 758, 761, 772 A.2d 703, cert, denied, 256 Conn. 921, 774 A.2d 141 (2001). The defendant initially argues that the Nevada judgment was entitled to full faith and credit pursuant to the constitution of the United States, article four, § l.

“Under the full faith and credit clause of the constitution of the United States (article 4 § 1) and its implementing statute (62 Stat. 947, 28 U.S.C. § 1738), the judicial proceedings of a state must be given full faith and credit in every other state. The judgment rendered in one state is entitled to full faith and credit only if it is a final judgment, and the judgment is final only if it is not subject to modification in the state in which it was rendered. Barber v. Barber, 323 U.S. 77, 65 S. Ct. 137, 89 L. Ed. 82 [1944]; Sistare v. Sistare, 218 U.S. 1, 30 S. Ct. 682, 54 L. Ed. 905 [1910].” (Internal quotation marks omitted.) Krueger v. Krueger, 179 Conn. 488, 490, 427 A.2d 400 (1980).

The question here is whether the Nevada judgment was final and not subject to modification in that state. The record discloses that when the Connecticut court rendered its decision in the present case, the parties’ appeals to the Supreme Court of Nevada were pending. Because the result of the Nevada Supreme Court appeals could not be predicted, it was impossible for the Connecticut court to state that Nevada’s judgment was final. The Nevada Supreme Court may modify that judgment. Accordingly, we conclude that the Nevada judgment was not entitled to full faith and credit because it was not final and was subj ect to modification.

We next consider the effect of the Uniform Enforcement of Foreign Judgments Act. General Statutes § 52-606 of that act provides that if an appeal of a foreign judgment is pending or if a stay of execution has been granted, the Connecticut court shall stay the enforcement of the foreign judgment. The defendant argues that under the Nevada rules of court, there was no stay in effect. That is irrelevant because our statute does not allow the foreign judgment to become enforceable if (1) there is a stay or (2) if an appeal is taken. The statute refers to appeals and stays in the disjunctive, not the conjunctive, so that the fact that an appeal was pending was sufficient reason for the court not to give effect to the Nevada judgment under the uniform enforcement statute. Accordingly, we conclude that the uniform enforcement statute does not affect our decision.

The defendant filed a judgment lien on the property on the basis of the Nevada judgment and the uniform enforcement statute, and released it on the order of the trial court. The defendant claims that the lien was transferred from the property to the sale proceeds. In view of our conclusion that the Nevada judgment was not enforceable, the judgment lien on which it was based was valueless. We affirm the judgment of the trial court on the defendant’s cross appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the parties variously have referred to themselves, as did the Nevada court, as tenants in common, tenants by the entirety (a type of tenancy not recognized in Connecticut) and joint tenants with rights of survivorship, it is apparent that they held title to the property as joint tenants with rights of survivorship.

       There were two postnuptial agreements; the first was in June, 1988, and there was an amendment in September of that same year.

       In our analysis of the plaintiffs appeal in part I, we held that the defendant was entitled to reimbursement of those expenses. No additional discussion is required here.

       In fact, the case is not merely multistate but is multinational. The plaintiff is a resident of the Bahamas, the defendant is a resident of Canada, the divorce and money judgments occurred in Nevada, and the partitioned real estate is in Connecticut.

       The constitution of the United States, article four, § 1, provides in relevant part: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. . . .”

       The defendant’s withdrawal of her Nevada Supreme Court appeal is irrelevant because it was accomplished after the court decision here and also because the plaintiffs appeal remained pending in Nevada.

       General Statutes § 52-606 (a) provides in relevant part: “If the judgment debtor shows the court that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for (he satisfaction of the judgment required by the state in which it was rendered. . . .”


author: LAVERY, C. J.

text:
    GORDON MANNWEILER ET AL. v. CHARLES E. LAFLAMME ET AL.
    (AC 20166)
    Lavery, C. J., and Schaller and Hennessy, Js.
    Argued February 22
    officially released August 14, 2001

      Vincent T. McManus, Jr., for the appellants (defendants).

      Edward G. Fitzpatrick, the appellees (plaintiffs).
   Opinion

LAVERY, C. J.

The defendants, Charles E. LaFlamme, Robert S. LaFlamme and David Apicella, appeal from the judgment in favor of the plaintiffs, Gordon B. Mannweiler, Arminda P. Murtha and William Boies, after a remand to the trial court to consider the defendants’ special defense relating to the Marketable Title Act (act), General Statutes § 47-33b et seq. The trial court found that the act did not apply and rendered judgment in favor of the plaintiffs. We affirm the judgment of the trial court.

In Mannweiler v. LaFlamme, 46 Conn. App. 525, 526-34, 700 A.2d 57, cert, denied, 243 Conn. 934, 702 A.2d 641 (1997) (Mannweiler I), this court summarized the facts as follows. “In 1927, the J. H. Whittemore Company (Whittemore) recorded a subdivision map of a tract of land known as the Hop Brook Development (Hop Brook) in the Naugatuck land records. Hop Brook consisted of six sections that were divided into fifty-two lots that were delineated on the subdivision map. . . . All the parties to this action are owners of property in the development and derive their title from Whittemore, who was the common grantor. In May, 1991, the defendants received approval from the Naugatuck planning and zoning commission to resubdivide their property and to construct two houses, in addition to the house that presently exists, on their lot.

“The plaintiffs instituted this action seeking injunctive and declaratory relief to prevent the defendants from constructing the two additional dwellings on their resubdivided parcel. The plaintiffs claim that Whittemore had created, by restrictive covenant, a uniform plan of development, or common scheme. The plaintiffs contend that this common scheme limits any development within Hop Brook to one residential dwelling per lot, as it is shown on the map to which all subsequent conveyances were subject.

“The defendants took title to lots one, two, five and a portion of lot three, section E, of Hop Brook in June, 1989. The defendants accepted title subject to the following language: ‘Possible conditions and restriction as set forth in two Warranty Deeds from J. H. Whittemore Company to Louis A. Dibble dated September 30, 1927 and July 15,1930 recorded respectively in Vol. 78 Pages 41 and 642 of the deed from J. H. Whittemore Company to Louis A. Dibble dated September 26, Land Records, as supplemented by a Warranty Deed between those parties dated September 26, 1946 recorded December 7, 1946 in Vol. 97, Page 493 of the Naugatuck Land Records.’ The defendants have erected one single-family dwelling on lot one, section E, of the subdivision.

“The plaintiffs claim that the construction of additional dwellings on lot one of section E is in violation of the mutual restrictive covenants as set forth in deeds to their lots, and those of their predecessors in title. The plaintiffs sought a temporary injunction to prevent the construction of the additional dwellings. The temporary injunction was granted by the trial court. The trial court, however, subsequently denied the plaintiffs’ request for a permanent injunction.”

In Mannweiler I, this court concluded that the initial deeds conveying Hop Brook properties specifically restricted the number of houses that could be built on each lot. This court also determined that the substantial uniformity coupled with other evidence of the grantor’s intent evidenced that the restrictions were binding on all those who derived title either directly or indirectly from the grantor and that the grantor, having established a common scheme, could not subsequently revoke those restrictions. Therefore, the provisions in subsequent deeds that reserved the right to revoke the restriction on subdivision, and the provisions in other subsequent deeds that purported to revoke those restrictions as to section E; see footnote 3; were invalid.

We remanded the case to the trial court to consider the defendants’ special defense that they were entitled to judgment in this case pursuant to the provisions of the act, which they claimed required the plaintiffs to preserve their interest in enforcing the restriction by filing a notice in the defendants’ chain of title within the forty-year period specified by the act. See General Statutes § 47-33f. The trial court found that the special defense of the act did not apply and rendered judgment for the plaintiffs. The defendants now bring this appeal.

We note, as a preliminary matter, that the only issue that was remanded to the trial court was the defendants’ claim that “the plaintiffs’ interest in the right to enforce the restriction against resubdivision of the subject property has been rendered null and void by operation of law under the [act].” Mannweiler I, supra, 46 Conn. App. 544. On a remand to the trial court for a specific ruling, the trial court may consider only the subject of the remand. See Humphrey v. Gerard, 84 Conn. 216, 79 A. 57 (1911). In Mannweiler I, we stated that “the defendants claim, as an alternate ground for affirmance, that the plaintiffs’ interest in the right to enforce the restriction against resubdivision of the subject property has been rendered null and void by operation of law under the Marketable Title Act. Specifically, they argue that the act obligates the plaintiffs to record in the defendants’ chain of title a notice setting forth the nature of their claim. In the absence of such a notice, they contend, the plaintiffs’ interest in the defendants’ land is nonexistent. As noted earlier, the trial court did not rule on that claim, which was raised as a special defense. Although that ground was raised as an alternate ground for sustaining the judgment, we believe that it is better left to the trial court to determine. We therefore decline to review this claim.” (Internal quotation marks omitted.) Mannweiler I, supra, 544. This court then remanded the case to the trial court “to consider the defendants’ special defense relating to the Marketable Title Act.” Id.

The trial court must follow the specific direction of our remand. See Halpern v. Board of Education, 231 Conn. 308, 311, 649 A.2d 534 (1994). The only issue, therefore, that the trial court could have considered, and the only one that we will consider, is whether the plaintiffs, all of whom are grantees taking title from a common grantor as part of a common scheme or plan of development, are precluded from enforcing the restrictive covenants against other grantees by operation of the act. All other claims and issues argued by the parties or decided by the trial court were not part of the remand and we do not consider them. See Patron v. Konover, 43 Conn. App. 645, 649 n.3, 685 A.2d 1133 (1996), cert, denied, 240 Conn. 911, 690 A.2d 400 (1997).

The defendants argue that, pursuant to General Statutes §§ 47-33b through 47-33Z, they hold marketable title to section E of Hop Brook. Specifically, the defendants argue that the act extinguishes the subdivision restrictions on section E because there was no notice preserving the restrictions, which were contained in the original deeds of conveyance to the plaintiffs’ predecessors in interest. The defendants make this argument pursuant to General Statutes § 47-33d, which provides that “a general reference . . . to . . . use restrictions . . . are not sufficient to preserve them, unless specific identification is made therein of a recorded title transaction which creates the . . . use restriction or other interest . . . .” The plaintiffs argue, to the contrary, that the 1989 deed of conveyance to the defendants provided them with actual notice of the covenants and restrictions that were found in the plaintiffs’ chain of title and therefore there was no requirement to record an additional notice pursuant to the act. We agree with the plaintiffs.

On the basis of this court’s determinations in Mannweiler I that the provision in a 1937 conveyance authorizing the revocation of the restrictions and the provision in a 1946 deed to the defendants’ predecessors in interest that purported to revoke all covenants on section E were null and void, the trial court found that the defendants took title subject to those defects because the defendants’ marketable record title could not extinguish defects that were created in the statutory root of title.

Pursuant to the act, “any person who has an unbroken record chain of title to an interest in land for a period of forty years, plus any additional period of time necessary to trace the title back to the latest connecting title instrument of earlier record (which is the ‘root of title’ under the act) has a ‘marketable record title’ subject only to those pre-root of title matters that are excepted under the statute or are caused to reappear in the latest forty year record chain of title. Mizla v. Depalo, 183 Conn. 59, 64, 438 A.2d 820 (1981).” (Internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven, 254 Conn. 502, 536, 757 A.2d 1103 (2000); see General Statutes § 47-33c.

The act “declares null and void any interest in real property not specifically described in the deed to the property which it purports to affect, unless within a forty year period, a notice specifically reciting the claimed interest is placed on the land records in the affected land’s chain of title.” Schulz v. Syvertsen, 219 Conn. 81, 84, 591 A.2d 804 (1991). “ ‘The ultimate purpose of all the Marketable Title Acts is to simplify land title transactions through making it possible to determine marketability by limited title searches over some reasonable period of the immediate past and thus avoid the necessity of examining the record back into distant time for each new transaction.’ ” Mizla v. Depalo, supra, 183 Conn. 64 n.9, quoting P. Basye, Clearing Land Titles (2d Ed. 1970) § 172, p. 368.

Here, the plaintiffs’ interest in enforcing the restrictions on section E of Hop Brook was not nullified because the warranty deeds containing the covenants and restrictions were specifically described in the defendants’ deed to section E. The 1989 deed of conveyance to the defendants states specifically: “2. Possible conditions and restriction as set forth in two Warranty Deeds from J. H. Whittemore Company to Louis A. Dibble dated September 30, 1927 and July 15, 1930 recorded respectively in Vol. 78, Pages 41 and 642 of the Naugatuck Land Records, and conditions and restrictions as set forth in the deed from J. H. Whittemore Company to Louis A. Dibble dated September 26, 1946 and recorded September 26, 1946 in Vol. 97, page 377 of the Naugatuck Land Records, as supplemented by War ranty Deed between those parties dated September 26,1946 recorded December 7,1946 in Vol. 97, Page 493 of the Naugatuck Land Records.” The defendants’ own expert conceded that the reference in the defendants’ deed to “possible conditions and restriction” is a specific reference. Thus, the defendants were put on notice in their own chain of title that the original grantor had placed certain covenants and restrictions on the land and that these covenants and restrictions run with the land in favor of all the lots in the subdivision, including the lot on which the defendants want to build multiple buildings. See Hamilton v. Nutt, 34 Conn. 501, 509-10 (1868) (when deed recorded on land records, law presumes that every interested person has knowledge of deed and its contents); see also Clean Corp. v. Foston, 33 Conn. App. 197, 202, 634 A.2d 1200 (1993) (purchaser has actual notice if he knows facts sufficient to put reasonable person on inquiry that, if prosecuted -with reasonable diligence, would certainly lead to discovery of conflicting claim).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47-33b provides in relevant part: “(a) ‘Marketable record title’ means a title of record which operates to extinguish such interests and claims, existing prior to the effective date of the root of title . . .

       On appeal, the defendants also raise additional issues pursuant to the act as well as a claim that the trial court improperly failed to find that the action of the plaintiffs was barred by the provisions of the applicable statute of limitations. We will not consider claims outside of the remand that pertain to the plaintiffs’ special defense of the act.

       In addition, in September, 1946, Whittemore conveyed to Dibble, the defendants’ predecessor in title, the remaining land of section E not previously conveyed to Dibble. This land consisted of the remaining portions of lots one, five and three, as well as all of lot four. The deed conveying this property contained the following language: “In accordance with and to the extent that power to do so has heretofore been reserved by the Grantor, all covenants and restrictions applicable to lands within said Section E heretofore purchased by the Grantee from the Grantor are hereby revoked. In place thereof, and as applicable to all premises located within said Section E, whether heretofore or hereunder acquired, the said Grantee, his heirs and assigns, by the acceptance of this deed, assents and agrees that the premises within said Section E heretofore acquired by the Grantee shall be subject to the following covenants and restrictions: 1. All said premises shall be occupied and used by the Grantee, his heirs and assigns, for private residential purposes only and not otherwise, and there shall at no time be erected or maintained thereon anything except private residences, each for the use of one family only, which private residences shall each cost, exclusive of land, not less than $15,000.00, together with the necessary outbuildings thereto, and except such outbuildings as may be desired by the Grantee, his heirs and assigns, for use in connection with the occupancy of a private residence located within said Section. No private residence shall be erected or maintained on a lot having a street frontage of less than 100 feet or a total area of less than 15,000 square feet. 2. Said premises may be re-subdivided into building lots of dimensions other than those shown on said Map, provided, however, that no lot shall have a street frontage of less than 100 feet nor a total area of less than 15,000 square feet. On any such lot, or on the original lots if not re-subdivided, no house or outbuildings, including garage, stable, or any other structure, or anypartorportion thereof, including porches, steps, porte cochere, bay windows, and any and all projections therefrom, shall be at any time erected or placed nearer to the front or sidewalk lines of any such lot than forty feet, nor nearer to the side line of any such lot than twenty feet or, where such lot sides upon a street, nearer than forty feet to such side or sidewalk line. 3. Each and all the foregoing covenants and restrictions are for the mutual benefit of all persons who have derived or who shall derive title, directly or indirectly, from the Grantor to any lot or lots shown on the Map herein before referred to, and shall run with the land in favor of all lots shown on said Map, and any breach or threatened breach of any one or more or all of the covenants and restrictions aforesaid may be enjoined upon the application of the Grantor, its successors and assigns, or any person or persons who have derived or shall derive title, directly or indirectly, from the Grantor to any lot or lots shown on said Map.”

       General Statutes § 47-33f provides in relevant part: “Notice of claim filed within forty-year period, (a) Any person claiming an interest of any kind in land may preserve and keep effective that interest by recording, during the forty-year period immediately following the effective date of the root of title of the person whose record title would otherwise be marketable, a notice in writing, duly verified by oath, setting forth the nature of the claim. . . .”

       The defendants also claim that the trial court improperly (1) found defects in the title that exist because provisions in the root of title were void, (2) applied a doctrine of common scheme and development that gave effect to events and transactions outside the plaintiffs’ chain of title, (3) failed to require that the plaintiffs file a notice to preserve their claim and (4) failed to find that the actions of the plaintiffs to enforce a private restriction were barred by the statute of limitations. We decline to review any issues outside the scope of the remand. See also footnote 2.

       We note that although the plaintiffs did not expressly raise as an alternate ground for affirmance the argument that the 1989 deed provided the defendants with adequate notice of the restrictions, they made this argument in their brief, and the defendants had an opportunity to respond to this argument. Given the fact that neither party would be prejudiced by our doing so, we treat this argument as if it had been properly raised as an alternate ground for affirmance. See Practice Book § 63-4. We further note that even though the trial court did not rule on this issue we will consider, in the interests of judicial economy, whether, as a matter of law, the trial court’s judgment can be sustained on this alternate ground. See Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 702-703, 694 A.2d 788 (1997). In this regard, we note that the question of whether the defendants had notice of the restriction as set forth in their deed presents a question of law. See Hamilton v. Nutt, 34 Conn. 501, 510 (1868).


author: DALY, J.

text:
    ALPHONSE T. DUBREUIL ET AL. v. OTTO P. WITT ET AL.
    (AC 18526)
    Landau, Mihalakos and Daly, Js.
    Argued January 25
    officially released August 14, 2001

      Otto P. Witt, with whom, on the brief, was Duane Totten, for the appellants (defendants).

      Robert G. Skelton filed a brief for the appellees (plaintiffs).
   Opinion

DALY, J.

In this legal malpractice case, the defendants, Otto P. Witt and Witt and Associates, P.C., appeal from the judgment, rendered after a trial to the court, awarding damages to the plaintiffs, Alphonse T. Dubreuil and Marilyn Dubreuil. On appeal, Witt claims that (1) the trial court improperly denied his motion for a default in which he alleged that the plaintiffs had failed to comply with requests for production and to answer interrogatories, (2) the court abused its discretion in that it violated his due process rights by precluding him from presenting a defense and by limiting his cross-examination of Alphonse T. Dubreuil, (3) there was insufficient evidence to support the court’s rendering of judgment against Witt and Associates, P.C., (4) the court improperly found that legal malpractice had occurred even though the plaintiffs did not present expert testimony to that effect and (5) the court improperly awarded damages. We agree with Witt’s second claim and, on that basis, reverse the judgment of the trial court and remand the case for a new trial.

The following facts and procedural history are relevant to the resolution of the defendants’ appeal. In 1992, the plaintiffs, on behalf of A. Dubreuil and Sons, Inc. (corporation), retained Witt to represent the corporation, in a chapter 11 bankruptcy matter. During the course of Witt’s representation, the plaintiff informed Witt that Deedy Construction Company (Deedy), a subcontractor, had brought an action against both the corporation and the plaintiffs individually to recover payments allegedly due and owing for demolition work that Deedy had performed on behalf of the corporation.

On June 22, 1994, Witt failed to appear, or did not timely appear, at a pretrial conference regarding Deedy’s action against the plaintiffs. As a result, a default was entered against the plaintiffs. The pretrial conference was rescheduled for August 22, 1994. Witt failed to attend, or did not appear timely at, the rescheduled conference, and a judgment of default was rendered against the plaintiffs. Witt filed a motion to open the judgment of nonsuit that subsequently was rendered against the plaintiffs. The court denied the motion on February 6, 1995. The plaintiffs claim that they then paid $32,500 in damages to Deedy in exchange for a full release.

The plaintiffs then brought an action against Witt, claiming that Witt had committed negligence and violated the Rules of Professional Conduct. In their amended complaint, the plaintiffs did not allege that they had paid any money to Deedy. The court rendered judgment against both defendants. The court requested that the plaintiffs submit an affidavit of debt and, on the basis of the plaintiffs’ affidavits, awarded damages in the amount of $53,130. Additional facts will be discussed where pertinent to the issues raised.

I

We first turn to Witt’s claim that the court abused its discretion in denying his motion for a default in which he alleged that the plaintiffs had failed to answer interrogatories and to comply with requests for production. We disagree.

The following additional facts are relevant to our resolution of the defendants’ claim. In April, 1997, Witt served the plaintiffs with interrogatories and requests for production. After the plaintiffs failed to respond to the requests, in September, 1997, Witt filed a motion for an order of compliance pursuant to Practice Book § 231, now § 13-14, requesting that a nonsuit enter against the plaintiffs, and that the court order compliance and award attorney’s fees. When Witt still had not received answers to either the interrogatories or the requests for production, he filed another motion for an order of compliance. On April 3, 1998, the corut awarded attorney’s fees to Witt for the cost of filing the motion and ruled that a nonsuit would enter against the plaintiffs unless there was compliance within two weeks.

During the first day of trial, the court ordered the plaintiffs to comply fully with Witt’s discovery requests by the end of the next day. On the second day of trial, Witt made a motion for a default, claiming that the plaintiffs still had failed to comply with the prior day’s order. The court concluded that the plaintiffs had complied with the discovery order and denied Witt’s motion for a default.

On appeal, we review a court’s decision whether to issue sanctions pursuant to Practice Book § 231, now § 13-14, under an abuse of discretion standard. Nelson v. Housing Authority, 63 Conn. App. 113, 117, 774 A.2d 1025 (2001). “In reviewing a claim that this discretion has been abused the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. . . . [T]he ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Connecticut National Bank v. Investors Capital Corp., 29 Conn. App. 48, 54-55, cert, denied, 224 Conn. 902, 615 A.2d 1044 (1992).

In denying Witt’s motion for a default, the court had the benefit of having before it Witt’s interrogatories and requests for production, and the plaintiffs’ responses. After reviewing the plaintiffs’ responses, the court found that there had been compliance with the discovery requests. On the basis of the record before us, and giving every reasonable presumption in favor of the court’s decision, as we must, we conclude that the court did not abuse its discretion in denying Witt’s motion for a default.

II

As our resolution of the following issue effectively decides this appeal, we now address the claim that the court abused its discretion in limiting the extent of Witt’s cross-examination of the plaintiff and thereby violated Witt’s due process rights to present witnesses and to offer evidence.

The following additional facts are relevant to our resolution of Witt’s claim. On the second day of trial, the plaintiff testified. It is the cross-examination of the plaintiff that forms the basis of Witt’s claim.

“In the context of a civil case, our Supreme Court, in accepting a common law right to cross-examination, stated [t]he right of cross-examination is not a privilege but [is] an absolute right . . . .” (Internal quotation marks omitted.) Close, Jensen & Miller, P.C. v. Lomangino, 51 Conn. App. 576, 580-81, 722 A.2d 1224, cert, denied, 248 Conn. 905, 731 A.2d 306 (1999), quoting Gordon v. Indusco Management Corp., 164 Conn. 262, 271, 320 A.2d 811 (1973). “It is only after the right of cross-examination has been substantially and fairly exercised that the allowance of cross-examination becomes discretionary with the trial court.” Gordon v. Indusco Management Corp., supra, 271.

Our standard of review of a claim that the court improperly limited the cross-examination of a witness is one of abuse of discretion. Robert M. Elliott, P.C. v. Stuart, 53 Conn. App. 333, 341, 730 A.2d 1176, cert, denied, 249 Conn. 928, 733 A.2d 848 (1999). “[I]n . . . matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed. . . . The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination of a witness, generally rests within the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Close, Jensen & Miller, P.C. v. Lomangino, supra, 51 Conn. App. 581. “Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) Id., 582.

“In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992). “Although it is axiomatic that the scope of cross-examination generally rests within the discretion of the trial court, [t]he denial of all meaningful cross-examination into a legitimate area of inquiry” constitutes an abuse of discretion. (Internal quotation marks omitted.) Id.

It is well settled that the scope of the cross-examination of a witness is limited by the scope of the direct examination unless there is an attack on the credibility of that witness. Grievance Committee v. Dacey, 154 Conn. 129, 150, 222 A.2d 339 (1966), appeal dismissed, 386 U.S. 683, 87 S. Ct. 1325, 18 L. Ed. 2d 404 (1967). The evidence elicited during direct examination delineates the scope of cross-examination. New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 94-95, 709 A.2d 14 (1998). Further, “[a] question [on cross-examination] is within the scope of the direct examination if it is intended to rebut, impeach, modify or explain any of the [witness’] direct testimony . . . .” (Internal quotation marks omitted.) Wright v. Hutt, 50 Conn. App. 439, 455, 718 A.2d 969, cert, denied, 247 Conn. 939, 723 A.2d 320 (1998). “A party who initiates discussion of an issue, whether on direct or cross-examination, is said to have ‘opened the door’ to inquiry by the opposing party, and cannot later object when the opposing party so questions the witness.” New London Federal Savings Bank v. Tucciarone, supra, 95.

After thoroughly reviewing the record in this case, we conclude that the court abused its discretion by precluding Witt from cross-examining the plaintiff about the nature of the parties’ legal relationship and the damages that the plaintiffs allegedly incurred.

In this legal malpractice action, the plaintiffs were required to establish “(1) the existence of an attorney-client relationship; (2) the attorney’s wrongful act or omission; (3) causation; and (4) damages.” Mayer v. Biafore, Florek & O'Neill, 245 Conn. 88, 92, 713 A.2d 1267 (1998). Accordingly, at issue in the trial was the relationship between the plaintiffs and Witt, Witt’s alleged lapse in his representation of the plaintiffs, whether Witt’s alleged inaction caused damages to the plaintiffs and the damages allegedly suffered.

On direct examination, the plaintiff testified about the circumstances surrounding Deedy’s action against the corporation for nonpayment. The plaintiff then stated that, in his capacity as president of the corporation, he had retained Witt to represent the corporation in a bankruptcy matter. The plaintiff stated that on several occasions he spoke with Witt about the Deedy situation and that Witt told him that it would be taken care of. Further, the plaintiff detailed that Deedy had filed a lien against his personal residence and commenced a foreclosure action against him personally, and that he had to pay $32,500 in damages to Deedy.

Because the plaintiff testified on direct examination that he had retained Witt to represent the corporation, Witt was entitled to question him on cross-examination about the nature and extent of their legal relationship and representation. Several times during cross-examination, Witt attempted, to no avail, to ask questions regarding that legal relationship. The court sustained the plaintiffs’ objections to questions involving the plaintiffs’ retainer of Witt as an attorney on the ground of lack of relevance and stated that Witt was “bound by what the affidavit [that he had filed] says.” Witt also asked the plaintiff whether another attorney represented the corporation when Deedy first filed its action in an attempt to cast doubt on the plaintiffs credibility, to which the court responded that “[Witt] can’t ask anything in the world about credibility.”

The plaintiff further testified on direct examination about the corporation’s contract with Deedy as well as the Deedy action against the corporation and the plaintiffs personally. When Witt attempted to question the plaintiff about the contract with Deedy and the subsequent action, the court sustained the plaintiffs’ objection and responded, “[y]ou are not entitled to cross-examine about things that are not relevant to the case. ... I read the complaint. Ask questions regarding the complaint, that is all.” In addition, the court precluded Witt from inquiring into the issue of damages and whether the plaintiffs had paid money to Deedy. Because the plaintiff opened the door to those areas of inquiry on direct examination, however, Witt had the right to question the plaintiff further on cross-examination about the damages allegedly suffered. See Richmond v. Longo, 27 Conn. App. 30, 39, 604 A.2d 374, cert, denied, 222 Conn. 902, 606 A.2d 1328 (1992).

In this legal malpractice action, the issues of whether there was an attorney-client relationship and damages were central to the proper resolution of the case. The questions that Witt asked were relevant to and addressed the principal issues. By precluding Witt from inquiring about the legal relationship and about damages, the court improperly prohibited inquiry into a legitimate area of cross-examination. We conclude, therefore, that the court abused its discretion in failing to allow Witt to conduct a meaningful cross-examination of the plaintiff.

“[B]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result. . . . Any testimony in a case that tends of itself or in connection with other testimony to influence the result on a fact in issue is material. If the testimony would tend to affect the verdict of the [trier of fact], it meets the test of materiality.” (Internal quotation marks omitted.) Robert M. Elliott, P.C. v. Stuart, supra, 53 Conn. App. 340. Witt is entitled to relief in the form of a new trial if the court’s improper limitation of the cross-examination of the plaintiff was harmful. See Hayes v. Manchester Memorial Hospital, 38 Conn. App. 471, 475, 661 A.2d 123, cert, denied, 235 Conn. 922, 666 A.2d 1185 (1995).

After reviewing the entire record, we conclude that the court’s limitation of Witt’s cross-examination of the plaintiff affected the outcome of the trial and was not merely harmless. The only two witnesses who testified during the trial were Alphonse T. Dubreuil and Witt. Resolution of the case revolved around their testimony only. As a result of its rulings on cross-examination, however, the court prevented Witt from rebutting and analyzing the plaintiffs version of events as set forth in his direct examination. Further, the evidence excluded would have addressed two of the principal issues in the case, namely the parties’ legal relationship and the damages that the plaintiffs allegedly incurred.

When a party has been deprived of a “fair and full cross-examination of a witness upon the subjects of his examination in chief . . . [the] denial of this right is . . . prejudicial and requires reversal by this court.” (Internal quotation marks omitted.) Richmond v. Longo, supra, 27 Conn. App. 40. We conclude that the court abused its discretion in limiting Witt’s cross-examination of the plaintiff and, as a result, we are required to remand the case for a new trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

         Witt is an attorney licensed to practice law in Connecticut, and Witt and Associates, P.C., is a law firm that is organized as a corporation, of which Witt is the president. Judgment was rendered against both the corporation and Witt individually. For convenience, however, only the individual defendant, Witt, will hereinafter be mentioned.

       The plaintiff Alphonse T. Dubreuil is the president of A. Dubreuil and Sons, Inc. For convenience, we refer in this opinion to Alphonse T. Dubreuil as the plaintiff.

       Practice Book § 231, now § 13-14, provides in relevant part: “If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, or has failed to respond to requests for production ... or has failed to comply with a discovery order made pursuant to Sec. 230A [now § 13-13] ... or has failed otherwise substantially to comply with any other discovery order . . . the court may, on motion, make such order as the ends of justice require.
      “Such orders may include the following:
      “(a) The entry of a nonsuit or default against the party failing to comply .. . .”

       The following are examples of colloquies, relevant to our analysis, that occurred during Witt’s cross-examination of the plaintiff:
      “[Defendant Otto P. Witt]: Who retained me?
      “[Plaintiffs’ Counsel]: Your Honor, I will object to that question, who retained him.
      “The Court: On direct examination, [the plaintiff] testified that he retained the corporation. . . . That [exhibit one] is an affidavit of Otto Witt. [Exhibit one states that he is] an attorney for Alphonse and Marilyn Dubreuil in the above captioned matter, which is Deedy Construction versus A. Dubreuil and Sons. ... I will sustain the objection to the question. . . .
      “[Defendant Otto P. Witt]: Your Honor, the complaint alleges the man retained me. It alleges a breach of contract. I am certainly entitled to inquire about [the] circumstances of him retaining me.
      “The Court: You stated who retained you when you filed an affidavit as to—
      “[Defendant Otto P. Witt]: There is more than one matter at issue here. . . .
      “The Court: I have made my ruling. You may proceed.
      ¡i* -i* H»
      “[Defendant Otto P. Witt]: Did you ever sign a contract, A. Dubreuil and Sons, sign a contract with Aetna to do the demolition work?
      “[Plaintiffs’ Counsel]: Objection.
      “The Court: Objection sustained. That has all been done. We know that happened. Then there was a lawsuit. You represented him. What happened after that, that is what we are interested in here. . . .
      “[Defendant Otto P. Witt]: Your Honor, I am entitled to cross-examine.
      “The Court: You are not entitled to cross-examine about things that are not relevant to the case. You can cross-examine regarding issues in the case. ... I read the complaint. Ask questions regarding the complaint, that is all.
      * * *
      “[Defendant Otto P. Witt]: When [the corporation was] sued by Deedy, did you hire an attorney to represent you?
      “[Plaintiffs’ Counsel]: I object ... to the relevance. . . . The only question that is relevant is did he show up or did he get a substitute counsel.
      “The Court: I will sustain the objection. . . .
      “[Defendant Otto P. Witt]: Isn’t it a fact that you had an attorney representing you, [the corporation], when Deedy first filed this case?
      “[Plaintiffs’ Counsel]: Your Honor—
      “The Court: I will sustain the objection as not relevant.
      “[Defendant Otto P. Witt]: Your Honor, it goes to credibility.
      “The Court: You can’t ask anything in the world about credibility. You have to stick to the issues in the case. . . . The objection is sustained. Please ask your next question.
      * * *
      “[Defendant Otto P. Witt]: On direct examination, Mr. Dubreuil, you testified that you never entered into a contract yourself, it was always [the corporation], and you didn’t guarantee any contract. . . . Did you ever guarantee any debts of [the corporation]?
      “[Plaintiffs’ Counsel]: Your Honor, at this point I would like to just — if we can establish liability, then we can go onto the damages issue. . . The liability issue only revolves around one issue, two issues actually; did attorney Witt obtain substitute counsel, and did he show up for trial. . . .
      “The Court: Mr. Witt, you say in your affidavit, paragraph four, judgment was entered against Alphonse and Marilyn Dubreuil through reasonable error or neglect and not due to wilful or neglect misconduct. That you had a good defense to the action against them, but it was not pursued apparently. If you have any legitimate questions, please ask him, otherwise I will let counsel call his next witness.
      “[Defendant Otto P. Witt]: With respect to the demolition job, it is a fact, isn’t it, that you billed [Aetna] not only for the work done by Deedy but also work done by [the corporation]?
      “[Plaintiffs’ Counsel]: Your Honor—
      “The Court: Objection sustained, not relevant. I am not going to let you keep this up all day. Unless you have any relevant questions, I am going to let this witness step down and call [the plaintiffs’] next witness.
      “[Defendant Otto P. Witt]: Your Honor, it is relevant.
      “The Court: I have ruled that it is not relevant, it is all established in the other file and in the affidavit that you filed. . . . The witness may step down. You may sit down. [Attorney Skelton,] [c]all your next witness.”

       On the basis of our disposition of Witt’s claim that the court improperly limited his cross-examination of the plaintiff, we find it unnecessary to address Witt’s remaining claims.