author: ALVORD, J.

text:
    DAVID M. SOMERS AND ASSOCIATES, P.C. v. RUTH A. KENDALL RUTH A. KENDALL v. DAVID M. SOMERS
    (AC 30530)
    Alvord, Flynn and Lavery, Js.

      Argued April 15
    officially released August 3, 2010

      William F. Gallagher, for the appellants (plaintiff in the first case, defendant in the second case).

      Campbell D. Barrett, with whom were Jonathan P. Budlong and, on the brief, C. Michael Budlong and Jon T. Kukucka, for the appellee (defendant in the first case, plaintiff in the second case).
   Opinion

ALVORD, J.

The appellants, David M. Somers & Associates, P.C., and David M. Somers, appeal from the judgments of the trial court rendered in favor of the appellee, Ruth A. Kendall. The appellants claim that the court improperly (1) held Somers in his individual capacity hable for damages and (2) failed to apply the doctrine of judicial estoppel, We disagree and affirm the judgments of the trial court.

The following facts, found by the court, are relevant. On February 11, 1998, Kendall retained the appellants to represent her in a dissolution of marriage action against Michael Pilkington. Although it was agreed that the marriage had broken down irretrievably, and there were no children issue of the marriage, the terms of the dissolution were heavily contested, and the appellants spent a substantial amount of time and money pursuing funds allegedly held in a foreign trust for Pilkington. With “ ‘the meter . . . constantly running’ ” and the time the appellants claimed they spent on the divorce “highly exaggerated,” Kendall’s available funds to pursue the dissolution were quickly depleted. On March 25, 1999, pursuant to the appellants’ request, Kendall reluctantly executed a $425,000 open end mortgage in favor of David M. Somers & Associates, P.C., on her home in Canterbury. On September 15, 1999, within six months of this mortgage transaction and before Kendall’s divorce was finalized, Somers was disbarred. See Statewide Grievance Committee v. Somers, Superior Court, judicial district of Hartford, Docket No. CV-98-0585853-S (September 8, 1999). Kendall was forced to obtain new counsel and to expend additional sums to dissolve her marriage to Pilkington.

By a complaint filed November 28, 2000, David M. Somers & Associates, P.C., averred that Kendall had not paid the legal fees, costs and expenses due to it under the parties’ retainer agreement, sought to foreclose its interest in Kendall’s home and additionally to obtain a deficiency judgment against her. See David M. Somers & Associates, P.C. v. Kendall, Superior Court, judicial district of Hartford, Docket No. CV-00-0808233S (August 19, 2008). Kendall filed an answer and counterclaim alleging, inter alia, breach of contract. On April 9, 2001, Kendall commenced a separate action against Somers in his individual capacity that also alleged, inter alia, breach of contract. See Kendall v. Somers, Superior Court, judicial district of Hartford, Docket No. CV-01-0806814-S (August 19, 2008). In both actions, Kendall argued that (1) the fees requested by the appellants were unreasonable and inaccurate, (2) the terms of the mortgage were unfair and unreasonable, (3) the appellants failed to disclose relevant facts known to them before procuring her agreement to enter into the mortgage and (4) the appellants breached the parties’ retainer agreement by terminating their representation of her and surrendering Somers’ license to practice law. On July 19, 2004, the cases were consolidated. Following a seven day trial, the court rendered judgment on both docket numbers in favor of Kendall. The court determined, pursuant to David M. Somers & Associates, P.C. v. Busch, 283 Conn. 396, 927 A.2d 832 (2007), that the appellants had breached the parties’ retainer agreement and that Kendall was entitled to damages in the amount of any overpayment. The court found that the legal services provided to Kendall by the appellants were worth $180,000, plus $24,719 in incurred expenses, and that Kendall already had paid the appellants $273,758. Accordingly, the court concluded that Kendall was due $69,039 in damages resulting from her overpayment of legal fees, and it rendered judgment against the appellants on both docket numbers.

I

The appellants do not challenge the amount of the damages or the method used by the court to calculate the damages award. Instead, they claim that the court improperly imposed liability on Somers in his individual capacity. The appellants argue that Somers was not a party to the retainer agreement between David M. Somers & Associates, P.C., and Kendall, that the court did not find that the corporate veil had been pierced and that Kendall did not plead or prove the facts necessary to support such a finding. We disagree. Somers admitted that he was a party to the retainer agreement. Therefore, it was not necessary for Kendall to pierce the corporate veil in order to obtain a judgment against him.

“Factual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence [are] irrefutable as long as they remain in the case.” (Internal quotation marks omitted.) Kronberg v. New Hampshire Ins. Co., 69 Conn. App. 330, 333, 794 A.2d 561, cert. denied, 260 Conn. 934, 802 A.2d 88 (2002). “A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it. ... It is axiomatic that the parties are bound by their pleadings.” (Citations omitted; internal quotation marks omitted.) Mercer v. Cosley, 110 Conn. App. 283, 301, 955 A.2d 550 (2008).

In his answer to Kendall’s revised complaint, Somers admitted that he and Kendall “entered into an attorney client relationship with the signing of a retainer agreement on or about February 11, 1998.” He further admitted that he and Kendall “entered into an agreement whereby [he] expressly and/or impliedly agreed to use his best efforts to represent [Kendall] . . . .” Somers did not seek to withdraw or to modify his pleading during trial. See Practice Book § 10-60. Accordingly, he is bound by his admission, and the court’s imposition of liability against Somers in his individual capacity is proper.

II

The appellants next claim that the court improperly failed to conclude that Kendall was judicially estopped from contesting the amount of the mortgage because she submitted a financial affidavit during her divorce case that acknowledged a $250,000 mortgage on her home in Canterbury. The equitable doctrine of judicial estoppel seeks to protect the sanctity of the oath and the integrity of the judicial process by preventing the perpetration of untruths and avoiding the risk of inconsistent results. See Bates v. Long Island Railroad Co., 997 F.2d 1028, 1037-38 (2d Cir.), cert. denied, 510 U.S. 992, 114 S. Ct. 550, 126 L. Ed. 2d 452 (1993). It is unclear whether the doctrine of judicial estoppel has officially been adopted in Connecticut. See SKW Real Estate Ltd. Partnership v. Mitsubishi Motor Sales of America, Inc., 56 Conn. App. 1, 8, 741 A.2d 4 (1999), cert. denied, 252 Conn. 931,746 A.2d 793 (2000). However, we need not decide that question today.

Like all equitable remedies, judicial estoppel requires the party invoking the doctrine to do so with clean hands. See, e.g., Jacobs v. Fazzano, 59 Conn. App. 716, 730, 757 A.2d 1215 (2000) (one of the fundamental principles upon which equity jurisprudence is founded is that he who seeks equity must come to court with clean hands). In this case, the court found that the appellants obtained “Kendall’s agreement to sign the mortgage documents through fraud and duress.” The court concluded that such conduct barred the appellants from asserting, and the court from considering, the appellants’ claims of estoppel, waiver and judicial estoppel. See footnote 2 of this opinion. On appeal, the appellants do not challenge the court’s finding that they did not come to court with clean hands. Consequently, it is similarly unnecessary for us to consider the merits of the appellants’ claim in equity.

The judgments are affirmed.

In this opinion the other judges concurred.

       For clarity, we refer to David M. Somers & Associates, P.C., and David M. Somers collectively as the appellants and to Kendall by name.

       The appellants abandoned their additional claims of waiver, equitable estoppel and regarding the standard of proof for claims of fraud and duress.

       A total of 250 motions were filed in the case, including 108 filed by the appellants, and Somers testified that he performed in excess of 1000 hours of work on the case. Despite the appellants’ considerable time billed and expenditures incurred, no funds were ever recovered from the alleged foreign trust.

       The court found that “a very large portion of the [appellants’] efforts were to accumulate many hours spent on needless filing of motions to further inflate [the appellants’] fees.”

       Kendall consulted with independent counsel prior to executing the mortgage.

       Kendall’s new counsel succeeded in bringing an uncontested resolution to the matter, and the marriage was dissolved by settlement on July 28,2000.

       Kendall filed a revised complaint on March 10,2004, in Kendall v. Somers, supra, Superior Court, Docket No. CV-01-0806814-S.

       The court issued its memorandum of decision under the title of David M. Somers & Associates, P.C. v. Kendall, supra, Superior Court, Docket No. CV-00-0808233-S, and stated: “This case has been consolidated with [Kendall v. Somers, supra, Superior Court, Docket No. CV-01-0806814-SJ. The second file contains the same issues as those issues contained in the pleadings of the titled file. Therefore, this memorandum will deal with the claims of each party as to both files. . . . [T]he pleadings in the titled file fully encompass the claims of both parties. All briefs and arguments were addressed to the titled file but resolve the issues in both files.”

       In David M. Somers & Associates, P.C. v. Busch, supra, 283 Conn. 411, our Supreme Court held that unjust enrichment is the proper measure of damages to apply when a lawyer fails to perform fully services for a client as agreed under a contract because of his own disbarment.

       Although the financial affidavit does not specify who held the $250,000 mortgage, Kendall testified that it is the same mortgage at issue in the present case.

       Judicial estoppel has two elements: “First, the party against whom the estoppel is asserted must have argued an inconsistent position in a prior proceeding; and second, the prior inconsistent position must have been adopted by the court in some manner.” (Internal quotation marks omitted.) Dougan v. Dougan, 114 Conn. App. 379, 390 n.14, 970 A.2d 131, cert. granted on other grounds, 292 Conn. 920, 974 A.2d 721 (2009).

       Moreover, we fail to see how judicial estoppel could apply in this situation. Kendall’s financial affidavit was submitted during the dissolution matter, which concluded by agreement in July, 2000. The affidavit was one of sixty full exhibits turned over to the court by the appellants over the seven days of this trial. The handful of questions the appellants asked about the affidavit did not elicit any evidence to suggest that the position taken by Kendall in her divorce was in any way inconsistent with her current position.


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    LEE ADAMO v. EMILIO ADAMO
    (AC 29645)
    Graendel, Alvord and West, Js.
    Argued January 12
    officially released August 3, 2010

      James H. Lee, for the appellant (defendant).

      George J. Markley, for the appellee (plaintiff).
   Opinion

WEST, J.

In this marital dissolution matter, the defendant, Emilio Adamo, appeals from the trial court’s rulings on various postjudgment motions filed by both him and the plaintiff, Lee Adamo. The defendant claims that the court (1) applied an incorrect legal standard in determining the extent of the plaintiffs liability for damage and deferred maintenance to the marital home during her court-ordered exclusive possession, (2) improperly denied his motion for contempt and (3) improperly granted the plaintiffs motion for attorney’s fees. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history provide the necessary backdrop for our resolution of the defendant’s appeal. The parties were married on May 7,1994. Prior to the marriage, the defendant owned three pieces of real estate. He owned a commercial property on Magee Avenue in Stamford, a residence in Westport and another residence in Amagansett, New York. During their marriage, the parties resided in the Westport residence. On November 26, 2001, the defendant vacated that residence. On June 4, 2003, the plaintiff commenced the dissolution action. The plaintiff filed, on August 5, 2003, a motion for exclusive use and possession of the Westport residence pendente lite. The court granted that motion on August 18, 2003.

On July 7, 2005, the court rendered judgment dissolving the parties’ marriage by way of a memorandum of decision. The parties sought an order of property distribution on the basis of the appreciation of the three pieces of real estate that the defendant had owned prior to the marriage. After the court considered the plaintiffs age, lack of assets, lack of vocational skills, health, estate, liabilities and needs in comparison with those of the defendant, it awarded her a lump sum payment of $374,705.24, equal to 35 percent of the appreciation of the properties. The court ordered the defendant to pay the plaintiff by October 7, 2005. The court also ordered that until the lump sum payment was paid in full, the plaintiff would continue to reside in the Westport residence and that the defendant would continue to pay the mortgage and taxes due on the residence. It further ordered that the plaintiff immediately would vacate the residence when the lump sum was paid in full. Also, the court incorporated by reference into the judgment the parties’ November 16, 2004 stipulation concerning personal property.

On July 20,2005, the plaintiff filed a motion for reconsideration in which she sought, inter alia, a recalculation of her lump sum payment, alleging that the court miscalculated the appreciation of the Westport residence. By memorandum of decision filed March 2, 2006, the court found that it had miscalculated the appreciation of the Westport residence and that the correct amount that the residence had appreciated was $635,000. Therefore, it ordered a recalculated lump sum payment to the plaintiff in the amount of $562,450. The plaintiff also requested that the court reconsider its order for the payment of the lump sum because it did not afford her any security to collect and gave her no funds in order to relocate from the Westport residence. The court concluded that, in the original order, it should have provided the plaintiff with an advance of moneys from the lump sum payment in order to assist in her relocating from the Westport residence. As a result, the court ordered the defendant to deposit $562,450, the entire lump sum payment, with a third party escrow agent mutually agreeable to both parties on or before March 24, 2006. The court further ordered that the plaintiff could draw money from the account for a down payment on a new residence and that upon receipt of the total funds in escrow, the plaintiff would have thirty days to relocate from the Westport residence.

Subsequent to the revised financial orders, the parties filed several postjudgment motions, their resolution forming the basis of this appeal. On May 17, 2006, the plaintiff filed a motion seeking reimbursement for the attorney’s fees she incurred pursuing her motion to reconsider the original financial orders. Then, on June 20, 2006, the plaintiff filed a motion seeking postjudgment interest pursuant to General Statutes § 37-1 on the revised financial orders from the date of the dissolution judgment. On July 3, 2006, the defendant filed a motion for contempt, alleging the plaintiffs wilful refusal to comply with the parties’ stipulation concerning the division of their personalty that was incorporated into the dissolution judgment. On July 11, 2006, the parties entered into a stipulated order so as to resolve the remaining issues concerning the disbursement of the parties’ personalty. That stipulated order provided that it represented the complete, final and satisfactory disposition of all personalty. On November 2, 2007, the defendant filed a motion for contempt for the plaintiffs wilful failure to comply with the stipulated order.

On July 10, 2006, the defendant, because of the previous motion, filed a motion for reimbursement for damages caused and maintenance deferred by the plaintiff while she resided at the Westport residence pursuant to the dissolution judgment. In that motion, the defendant requested that the court order that $100,000 of the lump sum payment be retained in escrow in order that funds would be available for the plaintiff to compensate the defendant for the alleged damages and deferred maintenance. Subsequently, the court ordered $50,000 to remain in escrow. On July 20, 2007, the defendant filed a motion seeking the disbursement of the funds in escrow in order to compensate him for the damages and deferred maintenance alleged in his July 10, 2006 motion. See footnote 2 of this opinion. Next, on September 27, 2007, the plaintiff filed a motion seeking attorney’s fees incurred in responding to the defendant’s various motions filed subsequent to the court’s entering the revised financial orders.

The court held hearings on those motions on January 25 and 29, 2008, during which testimony was heard and exhibits were entered into evidence. On January 29, 2008, the court ruled from the bench and issued written orders on the motions. The court denied the plaintiff’s May 17, 2006 motion for attorney’s fees incurred in pursuing her motion to reconsider the original financial orders. In response to the plaintiff’s June 20, 2006 motion for postjudgment interest on the revised financial orders, the court declined to order interest dating back to the dissolution judgment. The court, however, ordered statutory interest only on that portion of the $50,000 that had been held in escrow that eventually was paid to the plaintiff. Next, finding that the defendant had failed to carry his burden of proof, the court denied his July 3, 2006 and November 2, 2007 motions for contempt concerning the return of his personalty. The court, however, granted the plaintiffs motion for attorney’s fees and ordered the defendant to make a $10,000 contribution toward the plaintiffs counsel fees. Last, the court ordered $4427 to be deducted from the escrow and paid to the defendant for the damages for which, the court determined, the defendant had proven the plaintiff was liable, with the balance, plus interest, to be disbursed to the plaintiff. We address each of the defendant’s claims on appeal in turn. Further facts will be set forth as necessary.

I

The defendant first claims that the court applied an incorrect legal standard in determining the extent of the plaintiffs liability for damage and deferred maintenance to the marital home during her court-ordered exclusive possession. We disagree.

The following additional facts aid in our resolution of the defendant’s claim. The court, in its January 29, 2008 written order, concluded that the plaintiff had a duty not to wilfully damage the property. It also found that there was normal wear and tear that had occurred during the marriage that was not the responsibility of the plaintiff. The court addressed in its oral ruling the defendant’s motions regarding the alleged damage and deferred maintenance to the Westport residence but did not state the legal standard on which it determined the plaintiffs liability. The court, however, found that the plaintiff was responsible for $4427 of damage that had occurred during her exclusive possession of the Westport residence. It ordered that amount deducted from the escrow account with the remainder, plus interest, to be paid to the plaintiff. On February 15, 2008, the defendant timely filed this appeal. On March 24, 2008, the defendant filed a motion for articulation in which he requested, among other things, that the court articulate what legal standard it used to determine the plaintiffs liability. The court granted the motion and, on May 9, 2008, articulated that it “looked to housing law, at [General Statutes] § 47a-24, as instructive for damages beyond reasonable wear and tear.” On September 25, 2008, the defendant filed, with this court, a motion for permission to file a late motion for further articulation with the trial court, in which he noted that “the pertinence of [§ 47a-ll] is not readily apparent” This court granted that motion on December 10, 2008. On January 7, 2009, the trial court articulated that its previous citation to § 47a-24 was an inadvertent scrivener’s error. It went on to state that the court “looked for guidance at housing law, specifically, the case law emanating from [General Statutes] § 47a-ll, the statute on tenant’s responsibilities and landlord’s actions for the recovery of damages, as instructive regarding claims for damage that exceeded normal wear and tear.” The defendant bases his claim on that articulation.

As a preliminary matter, we set forth the standard of review and legal principles relevant to our discussion. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case . . . .” (Internal quotation marks omitted.) Schade v. Schade, 110 Conn. App. 57, 62, 954 A.2d 846, cert. denied, 289 Conn. 945, 959 A.2d 1009 (2008). On appeal, the defendant argues that the court should have relied on General Statutes § 52-563, which concerns liability for waste by a tenant for life or years, in its determination of the plaintiffs liability. The defendant also argues that the court erred when it looked to § 47a-ll for guidance in making that determination. The plaintiff argues that the defendant raises the applicability of § 52-563 to the determination of the plaintiffs liability for damages for the first time on appeal and, therefore, that claim should not be considered. Moreover, the plaintiff contends, the court’s reliance on § 47a-ll for guidance in its determination was not an abuse of its discretion. We agree with the plaintiff.

Our rules of practice require that a party “intending to raise any question of law which may be the subject of an appeal must either state the question distinctly to the judicial authority in a written trial brief ... or state the question distinctly to the judicial authority on the record before such party’s closing argument and within sufficient time to give the opposing counsel an opportunity to discuss the question. . . .” Practice Book § 5-2. It is axiomatic that issues not properly raised before the trial court ordinarily will not be considered on appeal. Practice Book § 60-5; see also Traggis v. Shawmut Bank Connecticut, N.A., 72 Conn. App. 251, 264, 805 A.2d 105 (“we ordinarily will not review an issue that has not been properly raised before the trial court” [internal quotation marks omitted]), cert, denied, 262 Conn. 903, 810 A.2d 270 (2002); cf. State v. Scruggs, 279 Conn. 698, 718, 905 A.2d 24 (2006) (for any appellate theory to withstand scrutiny it must have been presented at trial as coherent theory to court in focused or otherwise cognizable sense).

On the basis of our review of the record, we conclude that the defendant did not raise properly the applicability of § 52-563 to the court. Nowhere is that statute referred to in any motion or brief submitted to the court, nor was it brought up during the hearing before the court by the defendant. In his reply brief, the defendant contends that in closing argument, his presentation to the court of a copy of In re Sontag, 151 B.R. 664 (Bankr. E.D.N.Y. 1993), distinctly raised to the court the issue of waste and, in turn, the applicability of § 52-563. This is so, the defendant avers, because the court, in the colloquy with the defendant’s counsel discussing that case, used the term “wasting” twice, indicating that it had read the case, and, therefore, the issue was distinctly raised. Our review of that case, the whole of the defendant’s closing argument and the transcripts of the hearing, lead us to conclude that the issue was not distinctly raised, and, therefore, we will not review that claim on appeal. See Traggis v. Shawmut Bank Connecticut, N.A., supra, 72 Conn. App. 264; see also Gilbert v. Beaver Dam Assn. of Stratford, Inc., 85 Conn. App. 663, 680, 858 A.2d 860 (2004) (“[f]or this court to . . . consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party” [internal quotation marks omitted]), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005).

First, we note that the In re Sontag court stated that under New York law, marital premises, unless otherwise stated, are held by both the husband and wife as tenants by the entirety and, when the marital relationship is terminated by divorce, the tenancy is severed and the parties become tenants in common of the property. In re Sontag, supra, 151 B.R. 668, citing McDonald v. Driscoll, 103 Misc. 2d 567, 569, 426 N.Y.S.2d 678 (1980). Moreover, under New York law, where no provision is made in a divorce decree as to the responsibility for house maintenance repairs, such duty falls on the cotenant in sole possession. Id. Nowhere in that decision does the term waste appear, nor does it make any reference to a New York statute comparable to our § 52-563. Furthermore, when the defendant’s counsel presented the court with a copy of the In re Sontag opinion, he purported that the opinion indicated that when a court orders exclusive possession of the marital home to a party, that party, unless it is otherwise ordered, has the duty to maintain the property. During his closing argument, the defendant’s counsel, on several occasions stated that the legal standard applicable to that determination was whether there was wilful neglect on the part of the plaintiff. As a result, we find no support for the defendant’s assertion that the applicability of § 52-563 was distinctly raised before the court by his submission to the court of a copy of In re Sontag during closing argument. Because, however, the defendant also claims on appeal that the court’s looking to § 47a-ll was an abuse of its discretion, this determination does not end our inquiry.

Essentially, the defendant next argues that the court incorrectly looked to § 47a-11 for guidance in determining the plaintiffs liability because it sets out the rights and duties of landlords and tenants. As a result, he continues, the parties fail to meet the statute’s definitional requirements so as to fall within its purview. First, the defendant categorizes incorrectly the court’s reliance on § 47a-ll. The court stated in its January 7, 2009 articulation that it “looked for guidance at housing law, specifically, the case law emanating from [General Statutes] § 47a-ll, the statute on tenant’s responsibilities and landlord’s actions for the recovery of damages, as instructive regarding claims for damage that exceeded normal wear and tear.” (Emphasis added.) The defendant has failed to point out, nor have we found, any precedent stating that a trial court cannot look to analogous statutory provisions when, as the parties indicated in their respective briefs, there are no statutes or cases directly on point. Cf. Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 789, 967 A.2d 1 (2009) (court looked to available authorities when parties’ briefs and its independent research revealed no case directly on point); States. Griggs, 288 Conn. 116,130 n.17,951 A.2d 531 (2008) (when research revealed no case directly on point, court looked to analogous cases); see also LaFlamme v. Dallessio, 261 Conn. 247, 256, 802 A.2d 63 (2002) (indicating that relationship that arose between executor and decedent’s surviving spouse by operation of Probate Court decrees pursuant to General Statutes § 45a-321 for use of marital home for one year term analogous to a landlord-tenant relationship).

The defendant sought reimbursement for, among other things, replenishing the heating oil, replacement light bulbs, interior and exterior painting costs, refinishing floors, gravel for the driveway, costs for landscaping and gutter cleaning, along with those items for which he was reimbursed. His counsel argued that it was the plaintiffs wilful negligence in attending to the marital home’s maintenance and upkeep while she was in exclusive possession that caused the damages. The court, after hearing testimony and admitting exhibits, found that the defendant had proven only those damages brought about by the plaintiffs wilful conduct and not those that resulted from wear and tear. On the basis of the record before us, we cannot conclude that the court abused its discretion when it articulated that it looked to § 47a-ll for guidance in resolving the defendant’s claim that the plaintiff wilfully or negligently damaged any part of the premises while she was in exclusive possession.

II

Next, the defendant claims that the court improperly denied his motion for contempt. We disagree.

“A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in failing to find that the actions or inactions of the [plaintiff] were in contempt of a court order. ... To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt.” (Internal quotation marks omitted.) Gina M. G. v. William C., 77 Conn. App. 582, 590, 823 A.2d 1274 (2003). A finding that a person is or is not in contempt of a court order depends on the facts and circumstances surrounding the conduct. The fact that an order has not been complied with fully does not dictate that a finding of contempt must enter. See Marcil v. Marcil, 4 Conn. App. 403, 405, 494 A.2d 620 (1985). “[It] is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court’s order.” (Internal quotation marks omitted.) Dowd v. Dowd, 96 Conn. App. 75, 82, 899 A.2d 76, cert. denied, 280 Conn. 907, 907 A.2d 89 (2006). It therefore is necessary, in reviewing the propriety of the court’s decision to deny the motion for contempt, that we review the factual findings of the court that led to its determination. The clearly erroneous standard is the well settled standard for reviewing a trial court’s factual findings. “A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) Legnos v. Legnos, 70 Conn. App. 349, 353 n.2, 797 A.2d 1184, cert. denied, 261 Conn. 911, 806 A.2d 48 (2002).

On the basis of our review of the record, we cannot conclude that the court’s factual findings that led to its determination were clearly erroneous. During the hearing, the defendant testified that he was allowed to enter the residence, on June 30, 2006, in anticipation of his regaining exclusive possession under the dissolution judgment in order to photograph, inter alia, the personalty in the home. On the basis of that incident, the parties, on July 11, 2006, entered into the stipulated order concerning the disbursement of the parties’ personalty. That court-ordered stipulation indicated that “[a]ll personalty in the [marital residence] (assigned to [the defendant]) which was seen on June 30, 2006 and photographed by [the defendant] will remain [in the marital residence] except for a grey, framed Sybil Nestor painting, which shall belong to [the plaintiff].” In its oral ruling, the court stated that the only evidence presented that concerned personalty was submitted by the plaintiff or consisted of photographs presented as exhibits by the defendant depicting the damage to the residence and not the photographs he had taken on June 30 cataloguing the personalty that was to remain in the marital residence. The court found that “the proof before the court did not include anything [that] was seen by [the defendant] on June 30, and photographed by him . . . .” The court determined that the defendant, therefore, had not met his burden of proof and denied the claim.

On appeal, the defendant claims that there was evidence before the court concerning one item of personalty—a framed Willem de Kooning poster—and, therefore, the court’s ruling as to that item was clearly erroneous. The defendant refers to the transcript of the hearing to support his contention that he photographed this item during his June 30 visit to the residence and that the photograph was submitted to the court as a full exhibit. Initially, we note that it was admitted into evidence during a portion of the hearing when several photographs were submitted by the defendant that showed the damage to the residence that he alleged. Moreover, that exchange, during which a photograph was submitted into evidence, was the sum total of testimony concerning that photograph. The defendant never testified that the exhibit depicted his personalty that was the subject of his motion, that it was missing or, if it was missing, that the plaintiff had wilfully taken it or refused to return it to him. See Lehan v. Lehan, 118 Conn. App. 685, 985 A.2d 378 (2010) (trial court determines whether violation of court order was wilful or excused by good faith dispute or misunderstanding when rendering judgment of contempt). Therefore, we conclude that the court did not abuse its discretion in failing to find that the plaintiff was in contempt of a court order.

m

Last, the defendant claims that the court improperly granted the plaintiffs motion for attorney’s fees. We disagree.

The plaintiffs September 27, 2007 motion sought attorney’s fees incurred as a result of the defendant’s postjudgment motions that are the subject of this appeal. Specifically, the plaintiff sought fees expended in response to the motions that concerned the alleged damage to the marital residence and the $50,000 of her lump sum payment that remained in escrow. The court, in its oral decision, ordered the defendant to pay $10,000 toward the plaintiffs attorney’s fees, finding the defendant’s “continued refusal to return the lion’s share of the escrow to have been unreasonable . . . and held [the plaintiff] to an unfair standard.” In his March 24, 2008 motion for articulation, the defendant requested that the court articulate on what statutory grounds it relied in making its award of attorney’s fees. The court, in granting the motion, articulated that it relied on General Statutes § 46b-62. On appeal, the defendant argues essentially that because the plaintiff had ample liquid funds as a result of the financial orders, she was financially able to pay her own attorney’s fees; therefore, the court abused its discretion in granting the motion. Moreover, he contends that the court made no finding that an award of fees was necessary in order to avoid undermining the financial orders and that there is nothing in the record to support such a finding. We disagree.

Section 46b-62 vests in the trial court the discretion to award attorney’s fees. “Our Supreme Court has included within the definition of attorney’s fees allowable under § 46b-62 certain costs of litigation, including expert witness fees. . . . The criteria to be considered in determining whether an award of attorney’s fees is appropriate [are set forth in General Statutes § 46b-82 and] include the age, health, station, occupation, amount and sources of income, vocational skills, employability [and] estate and needs of each of the parties .... We review the court’s awarding of attorney’s fees under the abuse of discretion standard. . . . The ultimate issue in our review, therefore, is whether the court reasonably could have concluded as it did.” (Citation omitted; internal quotation marks omitted.) Rozsa v. Rozsa, 117 Conn. App. 1, 18, 977 A.2d 722 (2009). “Courts ordinarily award counsel fees in divorce cases so that a party . . . may not be deprived of [his or] her rights because of lack of funds. . . . Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so. ... An exception to th[is] rule . . . is that an award of attorney’s fees is justified even where both parties are financially able to pay their own fees if the failure to make an award would undermine [the court’s] prior financial orders . . . .” (Internal quotation marks omitted.) Lopiano v. Lopiano, 247 Conn. 356, 378, 752 A.2d 1000 (1998). In Bornemann v. Bornemann, 245 Conn. 508, 542, 752 A.2d 978 (1998), our Supreme Court specifically held that “such findings do not have to be explicit as long as the record would support a finding that the party to whom the award of attorney’s fees is made lacks sufficient liquid assets with which to pay his or her attorney’s fees or that the failure to award such fees would undermine the court’s other financial orders.” Bee v. Bee, 79 Conn. App. 783, 791, 831 A.2d 833, cert. denied, 266 Conn. 932, 837 A.2d 805 (2003).

Here, on the basis of our review of the entire record, it is clear that the record supports a finding that failure to award attorney’s fees to the plaintiff would have undermined the court’s financial orders. The court’s financial orders were based on the appreciation during the term of the marriage of the three properties the defendant owned prior to the marriage. Although the court declined to find fault with either party for the breakdown of the marriage, it considered the plaintiffs age of sixty-three at the time of dissolution, her lack of assets, her lack of vocational skill, her health, estate, liabilities and needs in comparison to the defendant’s in fashioning its financial orders. Moreover, the court expressly found that the defendant, in seeking to keep $50,000 of the lump sum payment he owed the plaintiff in escrow for alleged damages to the marital home during her exclusive possession, was both unreasonable and unfair to the plaintiff. In other words, the underlying conduct of the defendant that led to the plaintiffs motion for attorney’s fees undermined the court’s financial orders.

In sum, the court reasonably could have concluded that the failure to award the plaintiff $10,000 in legal fees would have undermined the court’s other financial orders, which essentially sought to achieve a fair distribution of the appreciation in the property. See id., 792. Moreover, such a distribution was entirely reasonable in light of the court’s findings regarding the parties’ relative skills, employability and earning capacities. Consequently, the award of attorney’s fees did not constitute an abuse of the court’s discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court found that the appreciation of the Westport property was $98,086.49, the appreciation on the Amagansett property was $635,000 and the appreciation on the Stamford property was $337,500. Therefore, it found that the total appreciation on all three properties was $1,070,586.40.

       In the motion, the defendant alleged damages in the amount of $94,850 on the basis of a court-ordered inspection by a contractor, a landscaper and a painter.

       It is clear that the court determined the damages to be the cost of repairs submitted by the defendant with no consideration of diminution in value. We note, however, that under Connecticut law, “[d]amage to real estate is measured by the diminution in value to the [owner’s] property caused by the tortious acts .... Diminution in value may be determined by the cost of repairs, so long as the cost does not exceed the former value of the property and the repairs do not enhance the value higher than it was prior to the damage.” (Emphasis added; internal quotation marks omitted.) Schlichting v. Cotter, 109 Conn. App. 361, 371 n.9, 952 A.2d 73, cert. denied, 289 Conn. 944, 959 A.2d 1009 (2008); 2 D. Pope, Connecticut Actions and Remedies, Tort Law (1993) § 26:04, p. 26-6. Because neither party has raised a claim with respect to the court’s method of determining the damages, we need not consider this issue.

       The court found that the defendant had proven damages that amounted to $4427 for a broken window, water damage to a floor that resulted from that broken window and the cost of cleaning marble and stone tiles of melted wax.

       General Statutes § 52-563 provides: “Any person who, having no greater interest in real property than an estate for years, or for life, created by the act of the parlies and not by the act of the law, commits waste upon the premises, beyond what tenants for years or life created by operation of law may do, shall be liable to the parly injured in an action on this section, unless he was expressly authorized, by the contract under which the interest is created, to do the acts complained of.”

       General Statutes § 47a-ll provides in relevant part,: “A tenant shall . . . (f) not wilfully or negligently destroy, deface, damage, impair or remove any part of the premises or permit any other person to do so . . . .”

       At the hearing on the defendant’s motion for contempt, the following exchange discussing a photograph being entered into evidence as a full exhibit took place:
      “[The Defendant’s Counsel]: And did you take that picture?
      “[The Defendant]: Yes, I did.
      “[The Defendant’s Counsel]: And did you take it at about the same time as the other pictures?
      “[The Defendant]: No. I took that prior to me taking over the house. 1 was allowed to go out to the house and take pictures.
      “[The Defendant’s Counsel]: That was on June 30?
      “[The Defendant]: Yes, when I went there. That’s right, June 30.
      “[The Defendant’s Counsel]: Who was the artist?
      “[The Defendant]: [de Kooning], Willem [de Kooning].
      “The Court: Not one of my favorites, but I have heard of him.
      “[The Plaintiffs Counsel]: No objection.
      “[The Defendant’s Counsel]: I’ll offer it, Your Honor.
      “The Court: Thank you.”

       We note that the record does not indicate the exhibit number assigned to that photograph admitted during the exchange set out in footnote 7 of this opinion. Although the defendant purports that exhibit to have been admitted as “defendant’s exhibit RRR,” our review of the record shows that exhibit described as a “Photo-Painting.” That exhibit appears to depict a framed poster from the Guild Hall Museum, Easthampton, New York, portraying a replica of an artwork.

       General Statutes § 46b-62 provides in relevant part: “In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . . .”

       The court noted that the plaintiff was, at the time of the dissolution, working twelve to fifteen hours per week in sales at a store and earning $15 an hour.

       The court found that at the time of the dissolution, the plaintiff was being treated for depression and anxiety.


author: BISHOP, J.

text:
    NOEL SCHENKEL v. RICHARD CHEVROLET, INC., ET AL.
    (AC 30603)
    Bishop, Gruendel and Harper, Js.

      Argued April 5
    officially released August 3, 2010

      Elycia D. Solimene, for the appellant (named defendant).

      Keith E. Marquis, for the appellee (plaintiff).
   Opinion

BISHOP, J.

The defendant Richard Chevrolet, Inc., appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner), awarding the plaintiff, Noel Schenkel, temporary total disability benefits, in addition to interest and attorney’s fees on the basis of the defendant’s unreasonable delay in the payment of the benefits. On appeal, the defendant claims that the award did not comply with the requirements of General Statutes § 31-315. We affirm the decision of the board.

This case derives from a compensable back injuiy sustained by the plaintiff on June 16, 2000. The plaintiff was awarded permanent partial disability benefits for this iryury on February 25, 2003. The plaintiff also had sought total disability benefits at that time, which the commissioner denied.

Some time later, the plaintiff asserted that his condition had deteriorated such that he was now totally disabled and that he needed additional medical treatment. The plaintiff also sought interest and attorney’s fees for the claimed undue delay in treatment and payment of benefits. The defendant filed a motion to dismiss the plaintiffs claims, arguing that the issue of whether the plaintiff was totally disabled had been litigated previously and, therefore, was barred by the doctrines of collateral estoppel and res judicata.

Following a formal hearing conducted in two parts on May 8 and June 13, 2007, the commissioner denied the defendant’s motion to dismiss. On the basis of the testimony and evidence presented, the commissioner found that the plaintiffs condition had “deteriorated significantly since the last decision hearing in this matter,” that the plaintiffs symptoms had increased and that the resultant medical treatment was reasonable and necessary. The commissioner found the plaintiff to be disabled permanently and totally as of August 15, 2006. The commissioner also concluded that the defendant unreasonably had contested and delayed the payment of benefits and, consequently, awarded attorney’s fees and interest to the plaintiff.

Thereafter, the defendant appealed from the commissioner’s decision to the board. There, the defendant argued that it was not given adequate notice that the plaintiff was seeking temporary total disability benefits, the plaintiffs claim for total disability benefits was barred by res judicata and the evidence did not support the award. The board affirmed the decision of the commissioner, finding that the defendant had notice that the plaintiff was seeking benefits for total incapacity and reimbursement for expenses for medical treatment, and that the commissioner had properly imposed sanctions on the defendant for undue delay in the payment of those benefits. The board also concluded that the plaintiffs claims were not barred by res judicata because there had been a change in the plaintiffs condition. Therefore, the board reasoned, the benefits that the plaintiff was seeking were based not on his condition in 2003, but on his condition subsequent to that time. Last, the board concluded that the commissioner’s award was supported by the evidence adduced at the formal hearing. This appeal followed.

The defendant appears to claim on appeal that the commissioner failed to comply with § 31-315 in three ways: by modifying part of the 2003 findings beyond the request of either party; by modifying part of the 2003 findings without proper notice and by failing to open or to modify any prior findings as formally required under § 31-315. We are unpersuaded.

“As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. ... It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and [the] board.” (Internal quotation marks omitted.) Marandino v. Prometheus Pharmacy, 294 Conn. 564, 572, 986 A.2d 1023 (2010).

“Section 31-315 allows the commission to modify an award in three situations. First, modification is permitted where the incapacity of an injured employee has increased, decreased or ceased, or . . . the measure of dependence on account of which the compensation is paid has changed. . . . Second, the award may be modified when changed conditions of fact have arisen which necessitate a change of [the award]. . . . Third, [t]he commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. . . . The final clause of § 31-315 allows the commission to retain jurisdiction over claims during the entire compensable period.” (Citations omitted; internal quotation marks omitted.) Marone v. Waterbury, 244 Conn. 1, 16-17, 707 A.2d 725 (1998). In other words, “[p]ursuant to § 31-315, a workers’ compensation award is always limited to a claimant’s current condition and [is] always subject to later modification upon the request of either party ... if the complainant’s condition changes. . . . Consequently, the commissioner, in any given case, may issue multiple findings and awards throughout the period of compensability, with each award fixing the claimant’s benefits as of the formal hearing date on the basis of the claimant’s then existing condition.” (Citation omitted; internal quotation marks omitted.) Hunt v. Naugatuck, 273 Conn. 97, 103-104, 868 A.2d 54 (2005).

Here, although the hearing notices do not cite specifically to § 31-315, they clearly indicate that the plaintiff was seeking benefits for total incapacity, reimbursement for medical treatment and interest and attorney’s fees for undue delay in the payment of benefits. It was clearly stated at the hearings that the plaintiffs claim for total incapacity benefits was based on the worsening of his condition since the 2003 award. Because the authority of the commissioner to modify awards derives from § 31-315, the defendant had to have known that that statute was necessarily implicated by the plaintiffs claim. See Marandino v. Prometheus Pharmacy, supra, 294 Conn. 585-86 (failure to file formal motion to modify not fatal to claim for total incapacity benefits when record reflects parties knew claim equivalent to motion to modify). The commissioner specifically found that the plaintiffs condition had deteriorated significantly since the 2003 award and that he was totally disabled as of August 15, 2006. Thus, in accordance with § 31-315, the commissioner found that the incapacity of the plaintiff had increased and changed the award to reflect the plaintiffs condition as of August 15, 2006. Accordingly, we conclude that the commissioner fully complied with the mandates of § 31-315.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       Utica Mutual Insurance Company, the workers’ compensation liability insurer for Richard Chevrolet, Inc., also is a defendant. For convenience, however, we refer in this opinion to Richard Chevrolet, Inc., as the defendant.

       General Statutes § 31-315 provides: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter or any transfer of liability for a claim to the Second Injury Fund under the provisions of section 31-349 shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party or, in the case of a transfer under section 31-349, upon request of the custodian of the Second Injury Fund, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify ajudgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.”

       In Marandino v. Prometheus Pharmacy, supra, 294 Conn. 564, which was decided after the briefing in this case, the majority and the concurrence appear to make a distinction between a change in medical condition and a deterioration of medical circumstances naturally flowing from that condition. Because that distinction has not been urged on us by either of the parties in this case, we need not address it in order to resolve the issues actually presented on appeal.


author: PETERS, J.

text:
    ESTATE OF STEPHEN E. OWENS
      v. CTRE, LLC
    (AC 31401)
    Harper, Alvord and Peters, Js.

      Argued May 21
    officially released August 3, 2010

      Karl Fleischmann, for the appellants (named plaintiff et al.).

      Robert J. Piscitelli, for the appellee (defendant).

       Our review of the pleadings discloses that prior to the Probate Court’s appointment of an executor of the decedent’s estate, this action initially was filed as Estate of Stephen E. Owens. Lewis R. Labbadia, executor of the estate of Stephen E. Owens, filed in the trial court a motion to be added as a party plaintiff shortly after he had been appointed. The court thereafter granted the motion and the parties and the court thereafter referred to Labbadia in his capacity as executor of the estate as the plaintiff. We do likewise for purposes of this opinion. See, e.g., Isaac v. Mount Sinai Hospital, 3 Conn. App. 598, 600, 490 A.2d 1024 (estate is not a legal entity and can neither sue nor be sued), cert. denied, 196 Conn. 807,494 A.2d 904 (1985).

   Opinion

PETERS, J.

The principal issue in this action for breach of contract is whether a commercial tenant waived its right to enforce a provision in its lease warranting that “a permanent certificate of occupancy or equivalent certificate has been or prior to Tenant’s occupancy will be issued covering the Building and permitting the use of the Premises for such purpose.” It is undisputed that, because of preexisting zoning violations on the premises, the landlord could not obtain such a certificate at the time the lease was signed. It is equally undisputed that, because of changes in its professional needs, the tenant never conducted business at the leased premises. The trial court concluded that the tenant nonetheless established, in other ways, that it had been an occupant of the leasehold and therefore was entitled to terminate the lease because of the landlord’s breach of warranty. The landlord’s successor in interest has appealed. We affirm the judgment of the court.

The plaintiff, Lewis R. Labbadia, executor of the estate of Stephen E. Owens, brought an action for unpaid rents allegedly due pursuant to a commercial lease between the decedent and the defendant, CTRE, LLC, doing business as Prudential CT Realty, for premises at 21 East Main Street in Mystic. The defendant filed both a denial and a counterclaim for breach of warranty to recover the amount of its rental payments and other related expenses. After a court trial, the court rendered judgment in favor of the defendant on the complaint and on its counterclaim in the amount of $171,833.33. The plaintiff has appealed.

The underlying facts are undisputed. On November 29, 2004, Owens entered into a five year commercial lease with the defendant for part of the premises at 21 East Main Street in Mystic, a section of the town of Stonington. The stipulated annual rent was $43,200, payable in monthly installments of $3600.

The lease contained three provisions that are relevant to the present controversy. Paragraph 5.1 stated that the defendant would use the premises as a real estate brokerage and for related uses incidental or accessory thereto. That paragraph also provided that “a permanent certificate of occupancy or equivalent certificate has been or prior to Tenant’s occupancy will be issued covering the Building and permitting the use of the Premises for such purpose.” Further, paragraph 18 warranted that the building “is zoned to permit the full and complete operation of a real estate business office” and stated that the lease “shall be voidable at the Tenant’s option if the Landlord cannot warrant the above.”

Within a year of the signing of the lease, the defendant decided that it no longer needed the rented space. Because of the absence of a certificate of zoning compliance, the defendant was unsuccessful in its effort to sublease the property. Consequently, in two letters dated June 20 and August 16, 2007, the defendant notified Owens of its intention to rescind the lease because of his breach of warranty. The defendant’s own application to obtain such a certificate subsequently was denied by the Stonington zoning enforcement officer on August 24, 2007. Although site plan approval is a prerequisite to a zoning permit in Stonington, the plaintiff did not obtain site plan approval for use of the property as a real estate brokerage until August 19,2008.

The trial court addressed four issues in its memorandum of decision. It held that (1) the defendant’s failure to occupy the premises as a real estate office did not operate as a waiver of the defendant’s right to enforce Owens’ breach of warranty, (2) Owens’ failure to obtain a certificate of occupancy or a certificate of zoning compliance was a breach of his obligations under the lease, (3) because of Owens’ breach, the plaintiff was not entitled to recover unpaid rentals for the remainder of the rental term and (4) the defendant sustained its burden of proof in its claim for return of its rental payments in its amended counterclaim and proved its right to damages of $171,833.33.

In reaching these conclusions, the court relied on the unchallenged and uncontradicted testimony of two Stonington zoning enforcement officers, Wayne Greene and Joseph M. Larkin. They described at length the zoning implications of the contemplated use of the first floor of the main building at 21 East Main Street as a real estate brokerage. The court found credible their testimony that a history of zoning violations on the property and the absence of a zoning permit for its currently contemplated use would have precluded the issuance of the certificate of zoning compliance that was required by the lease.

The plaintiffs appeal raises four issues. He maintains that the trial court improperly (1) determined that the defendant had not waived Owens’ obligation to obtain a certificate of occupancy, (2) relied on evidence of irrelevant zoning violations, (3) failed to assign dispositive weight to a letter from the Stonington town planner and (4) failed to find that the plaintiff had proven his claim for damages. We are not persuaded.

I

OCCUPATION OF THE PREMISES

The plaintiffs principal claim on appeal, as it was at trial, is that Owens never became obligated to obtain a certificate of occupancy for use of the leasehold premises as a real estate office because the defendant never occupied the premises. He emphasizes that the defendant never installed telephones or desks on the premises and did not conduct its real estate business there. We agree with the plaintiff that, in the absence of a dispute about the underlying facts, he is entitled to plenary review of this claim of law. Connecticut Light & Power Co. v. Lighthouse Landings, Inc., 279 Conn. 90, 109, 900 A.2d 1242 (2006). We are not, however, persuaded of the merits of his claim.

In its determination that the defendant had become an occupant of the property, the court relied on the Black’s Law Dictionary definitions of “occupancy” as the “period or term during which one owns, rents or otherwise occupies property,” and of “occupant” as “[o]ne who has possessory rights in, or control over, certain property or premises.” See Black’s Law Dictionary (8th Ed. 2004). It held that the defendant met the definition of occupant because, “[following the signing of the lease agreement the defendant took possession of and began to occupy the premises. The defendant was given the keys and began to make improvements, which improvements were authorized by the lease agreement. [The defendant’s] chief financial officer . . . testified that the defendant hired planners and construction crews to take control of the space and [to] fit it for operation. The defendant purchased furniture and signs for the office and began demolition work. Most importantly, the defendant paid and the plaintiff accepted rent for the premises.” The period of rental payments, the court earlier had observed, was two and one-half years.

The plaintiff takes issue with the court’s holding on two grounds. He maintains that the court improperly (1) relied on and applied the Black’s Law Dictionary definition of occupancy to the facts of record and (2) failed to assign dispositive weight to two letters in which the defendant’s counsel had informed Owens that, “because of other business opportunities . . . [the defendant] never occupied the premises” and wanted “to rescind the lease.”

Criticizing the trial court’s reliance on Black’s Law Dictionary, the plaintiff complains that the dictionary takes “too loose” a view of the meaning of occupancy. He has not, however, cited any more authoritative source on which we should rely. Our courts regularly have relied on a law dictionary to ascertain the meaning of otherwise undefined terms. Like the trial court, we do not finding illuminating the examples of “occupancy” that the plaintiff proffers as paradigmatic. The plaintiffs references to the meaning of “occupancy” in military contexts, in the regulation of restaurant crowds or the management of public lavatories have no bearing on the issues in this case.

Specifically, we agree with the trial court that the defendant’s failure to use the leased premises for the anticipated professional purpose does not outweigh the significance of its exercise of control over the premises through its possession of the keys thereto, its expenditure of funds to ready the property for use as a place of business and its payment of the stipulated rent even after its business needs changed. Further, when the defendant’s professional needs changed, it conducted its affairs in a manner consistent with that of an occupant by investing its own resources to search for a subtenant for the leased property.

The two 2007 letters from the defendant’s counsel to Owens do not require a different conclusion. Although these letters refer to a change in the defendant’s business plans, each also contains a demand for rescission of the defendant’s lease because of Owens’ breach of warranty and a concurrent demand for repayment of past rent. Read in their entirety, these letters are not inconsistent with the defendant’s present claims.

More important, however, although the trial court early in its memorandum of decision acknowledged the plaintiffs claim that these letters manifested an “anticipatory repudiation of the lease [that] constitutes a breach of the lease,” the court’s opinion did not thereafter address this claim on its merits. The plaintiff has not rectified this gap in the record, either by filing a motion for articulation; see Practice Book § 66-5; or by filing a motion for reargument. See Practice Book § 66-2. “Because the plaintiff has failed to establish through an adequate record that the court incorrectly applied the law or could not reasonably have concluded as it did, we decline to review this claim.” de Repentigny v. de Repentigny, 121 Conn. App. 451, 459, 995 A.2d 117 (2010).

II

EVIDENCE OF ZONING VIOLATIONS

The plaintiffs second contention on appeal is that the trial court improperly concluded that Owens’ failure to obtain a certificate of occupancy or a certificate of zoning compliance for the leased property was a breach of his contractual obligations to the defendant. The plaintiff contends that the court improperly relied on evidence presented by two Stonington zoning enforcement officers because that testimony described zoning violations that had occurred prior to the present leasehold and that related to premises other than the leased premises. We are not persuaded.

At the outset, we note that Greene, the former Stonington zoning enforcement officer, and Larkin, his successor as Stonington enforcement officer, testified at length, and without objection, about Owens’ history of zoning violations in failing to obtain zoning permits when he changed the uses of the two buildings located at 21 East Main Street and about the relevance of that history to the issuance of a certificate of occupancy for the defendant’s leasehold. Having failed to challenge the admissibility of this evidence on the record, it ill behooves the plaintiff on appeal to criticize the trial court’s reliance thereon.

A

To counter the difficulty created by this record, the plaintiff quotes a statement from A & M Towing & Recovery, Inc. v. Guay, 282 Conn. 434, 452, 923 A.2d 628 (2007), in which our Supreme Court discounted the significance of a town’s decision not to issue a certificate of occupancy to “another building the plaintiff owned that shared the same parcel of land as the building rented to the defendants.” Although this statement, on its face, supports the plaintiffs argument that, as a matter of law, the trial court should not have considered evidence of zoning violations unrelated to the property leased to the defendant, it must be read in context. In A & M Towing & Recovery, Inc., the Supreme Court was asked to decide whether the public policy of protection of public health and safety authorized a judicial extension to commercial property of a statutory requirement for a certificate of occupancy for residential housing. Id., 444. The court declined to so hold. Id., 451. In coming to this conclusion, the court noted the absence of alleged safety concerns in the case before it. Id., 452. In that connection, the court observed that the denial of a certificate of occupancy on other property owned by the defendant was not probative because that denial, likewise, had not been based on safety concerns. Id. Nothing in the Supreme Court’s decision suggests that it was addressing the authority of local zoning officers to enforce local zoning regulations.

B

Relying on the uncontested testimony presented by the Stonington zoning officers in this case, the trial court held that Owens would not have been able to obtain a certificate of occupancy for the leasehold in 2004, when he executed the lease agreement, and that this inability established his material breach of the terms of his lease. The plaintiff protests that, in coming to this conclusion, the court improperly relied on a history of past zoning violations and on zoning violations at a carriage house that was not part of the defendant’s leasehold. We disagree.

The plaintiff has not challenged the accuracy of the zoning officers’ extensive testimony at trial that, under Stonington zoning regulations, past zoning violations and present zoning violations with respect to a building not subject to the leasehold were relevant to the issuance of a certificate of occupancy for the leasehold. See Stonington Zoning Regs., § 8.2.3. More important, he has not challenged their testimony that, under the zoning regulations, the defendant’s occupation of the leased premises as a real estate office was a change in its use that required a new zoning permit and a certificate of occupancy regardless of zoning violations elsewhere on the Owens property. See id., § 8.2.2. On this record, the plaintiff cannot prevail on his claim that the court improperly concluded that Owens’ failure to obtain the required certification in 2004 was a breach of his warranty to the defendant.

We are equally unpersuaded by the plaintiffs argument, in his reply brief, that “the lease was not conditioned upon the landlord obtaining a certificate of occupancy; rather, the landlord’s obligation to obtain the certificate was conditioned on the tenant taking occupancy.” This claim is premised on the plaintiffs earlier argument that the defendant never became an occupant of the leased premises. We remain unpersuaded of the merits of this contention.

C

Alternatively, the plaintiff maintains that the trial court improperly failed to find that Owens satisfied his obligation to obtain a certificate of occupancy by obtaining a letter from Keith A. Byrnes, the Stonington town planner, dated July 10,2007, that stated “continuation of the present office and residential uses is permitted at [21 East Main Street]. These uses are permitted in the DB-5 Zone, have been operating at the site for decades and are conforming regarding parking.” Furthermore, the plaintiff decries the trial court’s failure to assign dispositive weight to the planning and zoning commission’s subsequent decision, more than a year later, on August 19, 2008, to grant the plaintiffs application for site plan approval. We are not persuaded.

The trial court addressed the relationship between a letter describing permitted uses of the leased premises and the certificate of occupancy required by the lease only indirectly, when it recited with approval the relevant testimony offered by zoning enforcement officer Larkin. In response to a question about the requirements for expanding an office use for a real estate brokerage, Larkin stated: “It’s a permitted use but it needs site plan approval from the planning and zoning commission before I can issue a zoning permit for that change.” The court then noted, without further comment, the considerable passage of time between the negotiation of the lease requiring the imminent procurement of a certificate of occupancy and the actual site plan approval in 2008.

This record does not support the plaintiffs claim of an automatic equivalence between a letter indicating the likelihood of site plan approval and a certificate of occupancy. See Holt v. Zoning Board of Appeals, 114 Conn. App. 13, 26-27, 968 A.2d 946 (2009) (advisory letter not final determination of zoning issue). Indeed, the plaintiff has offered no justification for Owens’ delay or his own delay in pursuing the prescribed requisites for obtaining a certificate of occupancy. If further elaboration might have clarified the plaintiffs claim or the court’s response thereto, we again note that he could have filed a motion for articulation. See Practice Book § 66-5.

In conclusion, we are persuaded that the court properly construed the lease between the parties to require Owens to obtain a certificate of occupancy at the time of the execution of the lease or shortly thereafter. We likewise conclude that the court properly held that Owens’ contractual obligation was not waived by the defendant’s subsequent decision not to operate the contemplated real estate agency at the site because the defendant engaged in other conduct that substantiated its occupancy of the premises. Finally, we hold that the court properly relied on the testimony of two Stoning-ton zoning enforcement officials to establish that, in breach of Owens’ warranty to the defendant, he did not obtain and could not immediately have obtained a certificate of occupancy for the premises that he leased to the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs appeal has not challenged the court’s calculation of the damages to which the defendant was entitled.

       Owens died shortly thereafter and the present litigation is being pursued by the executor of his estate.

       The plaintiff did not challenge the admissibility of this evidence at trial.

       In light of our resolution of the first three claims in favor of the defendant, we do not reach the plaintiffs fourth claim of error.

       The plaintiff has not cited any evidence of record that anyone other than the defendant had keys to the premises during the defendant’s leasehold.

       In this calendar year alone, our Supreme Court consulted Black’s Law Dictionary to ascertain the definition of “public corporation”; Lopa v. Brinker International, Inc., 296 Conn. 426, 432, 994 A.2d 1265 (2010); of “immediate”; Harris v. Bradley Memorial Hospital & Health Center, 296 Conn. 315, 339, 994 A.2d 153 (2010); of “houseguest”; Allstate Ins. Co. v. Palumbo, 296 Conn. 253, 257, 994 A.2d 174 (2010); and of “financial responsibility”; Rodrigues v. Testa, 296 Conn. 1, 12, 993 A.2d 955 (2010).

       Section 8.2.2 of the Stonington zoning regulations requires that a zoning permit be obtained “[b]efore undertaking any site improvement work changing the use ... of any structure ... or changing the use of any premises.”

       Section 8.2.S of the Stonington zoning regulations, entitled Certificate of Zoning Compliance, provides in relevant part: “It shall be unlawful to use any building, structure, premises or part thereof, hereafter created or erected, or change the use of a structure until a Certificate of Zoning Compliance shall have been issued showing that such building, structure or premises, or part thereof, and the proposed use thereof, are in conformity with the provisions of these Regulations. ...”

       See footnote 7 of this opinion.

       In light of these conclusions, we need not address the plaintiffs claim that he established his claim, as Owens’ successor in interest, to recover unpaid rents for the remainder of the leasehold term from the defendant.


author: FLYNN, C. J.

text:
    CHRISTINE UMSTEADT v. G. R. REALTY, TRUSTEE FOR RONALD ZOARSKI ET AL.
    (AC 30870)
    Flynn, C. J., and DiPentima and Sullivan, Js.

      Argued February 16
    officially released August 3, 2010

      Kenneth J. Mulvey, Jr., with whom, on the brief, was Francis J. Drumrn III, for the appellants (defendants).

      Gary G. Cooper, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

FLYNN, C. J.

The defendants, G. R. Realty, trustee for Ronald Zoarski and Gerald Zoarski, and Ronald Zoarski and Gerald Zoarski, appeal from the judgment of the trial court denying their motion to set aside the jury verdict in favor of the plaintiff, Christine Umsteadt. On appeal, the defendants claim that the court improperly: (1) failed to deliver their requested jury charge in accordance with the principles of Kraus v. Newton, 211 Conn. 191, 558 A.2d 240 (1989), although the evidence supported the instruction; (2) instructed the jury on constructive notice without a proper evidentiary foundation for such a charge; (3) instructed the jury that in determining whether the defendants had constructive notice of the dangerous condition, its consideration of the length of time the condition existed was permissive rather than mandatory; and (4) instructed the jury that the sidewalk where the plaintiffs injury occurred was a public sidewalk and that the plaintiff was an invitee of the defendants despite the absence of evidence of these facts. We agree with the defendants that the court should have given the jury an instruction based on the holding of Kraus. We, therefore, reverse the judgment of the trial court.

The record contains the following relevant facts and procedural history. On February 6, 2004, at approximately 3 p.m., the plaintiff left her place of employment in West Haven and drove to Campbell Avenue in West Haven for an appointment with her accountant. There was no accumulation of ice or snow on her car when she left her workplace. The plaintiff described the weather during her drive as “overcast, misty, kind of misting.” She believed that “there was weather earlier” but could not remember if it had rained or snowed, only that she had left home for work early that day in anticipation of poor driving conditions.

Due to the busy nature of Campbell Avenue and the accumulated snow on the street, parking was limited. Upon arriving at her accountant’s office, the plaintiff parked on the opposite side of the street from the office and proceeded to walk across the street. The plaintiff noticed that the nearby intersection of Noble Street and Campbell Avenue was flooded, as was the driveway abutting her accountant’s office. Because of these conditions, the plaintiff decided to enter the sidewalk in front of the defendants’ building at 128-130 Campbell Avenue by walking between two parked cars where there was a depression in the snow. The area in front of 128-130 Campbell Avenue contains a sidewalk and, between the sidewalk and the street, an area covered with grass. The depressed area of snow through which the plaintiff walked was on this grassy area. The plaintiff testified that when she went to step with her right foot onto the sidewalk, her foot gave way causing her to fall. After falling, the plaintiff observed that the area into which she had stepped was “a puddle” that contained “accumulated ice or snow” and that there was no sand or salt on that portion of the sidewalk. She testified that she told the paramedics who came to assist her that she “fell on the ice on the sidewalk.” The paramedic’s report, entered into evidence by the plaintiff, indicated that there was “snow/slush” on the sidewalk and that the plaintiff was lying in a puddle of slush. As a result of her fall, the plaintiff suffered a fractured right ankle that required surgery.

Gerald R. Zoarski (Zoarski), the father of Ronald Zoarski and Gerald Zoarski, performed the maintenance work at 128-130 Campbell Avenue at the time of the plaintiffs fall. Prior to February 6, 2004, Zoarski made an arrangement with one of the tenants of the property to shovel snow and ice from the sidewalk in front of the building in the morning before the tenant left for work. Zoarski was at the property on a daily basis, and he would inspect the property, removing any snow or ice that remained on the sidewalk after the tenant had left for work. On the morning of February 6, 2004, Zoarski inspected the sidewalk in front of the property and did not find any snow or ice on the sidewalk.

On the afternoon of February 6, 2004, one of the tenants of 128-130 Campbell Avenue, Joan Lipford, called Zoarski and told him that someone had fallen on the sidewalk in front of the property. Zoarski proceeded to the property, arriving at approximately 4:30 p.m. He testified that his inspection of the sidewalk in the area where the plaintiff had fallen revealed no ice or snow and that the sidewalk was wet but did not contain any puddles of water. Lipford testified that she saw the plaintiff fall. She further testified that February 6, 2004, “was cold and rainy” and that when the plaintiff fell, there was a light rain.

The plaintiff entered into evidence National Oceanic and Atmospheric Administration climatological records for January and February, 2004. The records revealed that on February 6, 2004, the weather at various times between approximately 7 a.m. and approximately 4 p.m. included light snow, freezing rain, heavy rain, light rain and mist. The temperature at 7 a.m. was 28 degrees Fahrenheit; at 10 a.m. it was 32 degrees Fahrenheit; at 1 p.m. it was 33 degrees Fahrenheit; and at 4 p.m. it was 35 degrees Fahrenheit.

The defendants submitted proposed jury instructions that included a charge based on the holding of Kraus v. Newton, supra, 211 Conn. 191, that, absent the existence of unusual circumstances, the defendants were entitled to wait a reasonable period of time after the end of the storm before removing ice from the sidewalk. The court did not charge the jury in accordance with the principles of Kraus, and the defendants took an exception to the court’s failure to so charge. Foliowring a verdict in which the jury found that the defendants were 55 percent negligent in causing the plaintiffs injuries, the defendants filed a motion to set aside the verdict, arguing, inter alia, that the court improperly failed to include the Kraus charge in its instructions. The court denied the motion, stating in a memorandum of decision that it “did not give the charge as requested based upon the lack of evidence of an ongoing snow or ice storm that is a predicate for such a charge.” The present appeal followed.

The defendants claim on appeal that the court improperly failed to instruct the jury in accordance with their request to charge on the principles of Kraus v. Newton, supra, 211 Conn. 191. They argue that the evidence adduced at trial, particularly the testimony of the plaintiff and Lipford, the paramedic’s report and the climatological records submitted by the plaintiff, supported the proposed instruction. The failure to give the proposed instruction, they contend, prejudiced the defendants because it deprived them of the opportunity to have “the jury consider whether their duty to the plaintiff was suspended at the time of her fall due to the continuing storm . . . .” The plaintiff argues that the court, in charging the jury on premises liability and negligence, actual and constructive notice, and that such notice must be of the specific defect alleged by the plaintiff, properly “present[ed] the principle enunciated in Kraus, that the defendant need not engage in activity to remove ice until a reasonable period of time after the conclusion of the storm.” We agree with the defendants that the jury should have been charged under the principles of Kraus.

Before addressing the defendants’ claim, which was preserved for appellate review by way of the defendants’ submission of proposed instructions and their exception to the court’s charge as delivered; see National Publishing Co. v. Hartford Fire Ins. Co., 287 Conn. 664, 666 n.2, 949 A.2d 1203 (2008); we set forth the standard of review for a challenge to the propriety of a jury instruction. “The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [W]e must determine whether the jury instructions gave the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues. . . . [I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . Moreover, [a] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.” (Internal quotation marks omitted.) Baranowski v. Safeco Ins. Co. of America, 119 Conn. App. 85, 90, 986 A.2d 334 (2010).

“It is well established that [a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. ... [A] trial court should instruct a jury on [every] issue for which there is any foundation in the evidence, even if weak or incredible. . . . The trial court has a duty not to submit any issue to the jury upon which the evidence would not support a finding. . . . Accordingly, the right to a jury instruction is limited to those theories for which there is any foundation in the evidence. . . . In determining whether any such foundation exists, [w]e must consider the evidence presented at trial in the light most favorable to supporting the [party’s] request to charge. . . . Additionally, [w]hen . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Wasko v. Farley, 108 Conn. App. 156, 169-70, 947 A.2d 978, cert. denied, 289 Conn. 922, 958 A.2d 155 (2008).

In Kraus v. Newton, supra, 211 Conn. 192, the plaintiff, a meter reader for a utility company, went to the defendant’s property to read the meter. Freezing rain, which had begun the previous evening, fell at the time. Id., 192-93. The plaintiff slipped and fell while descending the defendant’s stairs, which, along with the handrail, were covered with ice. Id., 193. During trial of the plaintiffs negligence claim, the defendant testified that “she did not place sand on the stairway, despite her knowledge of the storm, her proximity to the premises, which she rented to others, and her knowledge that a meter reader was expected” on or about the same time each month. Id. The court charged the jury in part that “the rule of law is that an owner may await the end of a freezing rain or sleet storm and a reasonable time thereafter before removing ice and snow from its outside entrance walks, platforms, and steps.” (Internal quotation marks omitted.) Id. The jury returned a verdict in favor of the defendant. Id. On appeal to the Appellate Court, the plaintiff claimed error in the trial court’s jury instruction. Id., 195. This court concluded that the “instructions were proper and consistent with the well established rule of law in other jurisdictions.” Id.

Our Supreme Court affirmed this court’s judgment. Id., 198. Noting that there was evidence from which the jury reasonably could have determined that a storm was ongoing at the time of the plaintiffs fall, the Supreme Court held: “We believe that in the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps. To require a landlord or other inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow or to spread sand or ashes while a storm continues is inexpedient and impractical. Our decision, however, does not foreclose submission to the jury, on a proper evidentiary foundation, of the factual determinations of whether a storm has ended or whether a plaintiffs injury has resulted from new ice or old ice when the effects of separate storms begin to converge.” Id., 197-98.

Having reviewed the record of the present case, we conclude that the court should have charged the jury in accordance with the principles of Kraus. The jury heard evidence submitted by both the plaintiff and the defendants concerning the weather and its effects prior to and at the time of the plaintiffs fall. The plaintiff testified that when she left work to proceed to her accountant’s office, she did not have to clear ice or snow from her car. She described the weather while she drove as “overcast, misty, kind of misting.” The plaintiff was unable, however, to remember whether it had rained or snowed earlier in the day, recalling only that she had left home early in the morning anticipating that driving conditions would be poor. She testified that she fell in “a puddle” on the sidewalk containing “accumulated ice or snow.” Lipford testified that a light rain fell at the time of the plaintiffs fall. The climatological records entered into evidence by the plaintiff detailed a number of different types of weather between 7 a.m. and 4 p.m. on the day of the plaintiffs fall, including light snow, freezing rain, heavy rain, light rain and mist. These records also showed that the temperature during this period hovered around the freezing point.

To be sure, a portion of the evidence concerning the weather and its effects was in conflict. Zoaxski testified that on the morning of February 6, 2004, he inspected the sidewalk in the area where the plaintiff fell and did not find any snow or ice. He further testified that after the plaintiff fell, he observed the same sidewalk and did not see any puddles of water. This inconsistency, however, did not mitigate against the giving of the Kraus charge. Under these circumstances, the jury was required to make “the factual determinations of whether a storm has ended . . . .” Kraus v. Newton, supra, 211 Conn. 198. Such a determination is crucial in a premises liability case alleging negligence against a landowner, as under the rule in Kraus, “absent unusual circumstances, a landowner’s duty to remedy the effects of a storm does not arise until the end of a storm and a reasonable time thereafter.” Sinert v. Olympia & York Development Co., 38 Conn. App. 844, 850, 664 A.2d 791, cert. denied, 235 Conn. 927, 667 A.2d 553 (1995). The failure to give the requested Kraus charge despite the weather evidence that had been submitted deprived the defendants of the opportunity to have the jury make a determination of whether a winter storm was ongoing at the time of the plaintiff’s fall or whether a reasonable time had passed since the storm ceased such that the defendants’ duty to clear any unsafe ice or snow from their sidewalk was operative. The failure thus prejudiced the defendants.

The plaintiff’s argument that the court’s jury instructions covered the relevant principles of Kraus, albeit in different language, is unavailing. The court charged the jury on the law of negligence, premises liability, and actual and constructive notice. The charge also stated that notice by the defendants must be of the specific defect alleged by the plaintiff. These instructions, however, are not sufficient to state the principle holding of Kraus that, absent unusual circumstances, a landowner is allowed to await the end of a winter storm, and a reasonable time thereafter, before removing ice and snow deposited by that storm. In other words, as this court has stated, the landowner’s duty to remove ice and snow does not arise until after a reasonable period has passed following the conclusion of the storm. See id., 850. This principle is not covered adequately in a charge explaining premises liability or notice, for example. It is not the same as instructing the jury that it must determine whether the defendants had actual or constructive notice of the specific defect in question in time to remedy it or to take other precautions. Given the evidentiary backdrop of the case presented to the jury, the defendants were entitled to charges, inter alia, regarding both Kraus and actual and constructive notice.

A trial court must give a requested jury instruction on any issue for which there exists “any foundation in the evidence . . . .” (Internal quotation marks omitted.) Wasko v. Farley, supra, 108 Conn. App. 169. On appeal, this court is required to view the evidence presented at trial in the light most favorable to supporting the party’s request to charge. Id., 169-70. In this case, the evidence concerning the weather preceding and contemporaneous with the plaintiffs fall provided a foundation for the defendants’ requested instruction based on Kraus.

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

In this opinion the other judges concurred.

       Because our conclusion with regard to the defendants’ first claim is dispositive of their appeal, we need not reach their additional claims.

       The property, an eight unit apartment building, is owned by the defendant G. R. Realty as trustee for the defendants Ronald Zoarski and Gerald Zoarski. Gerald R. Zoarski, the father of Ronald Zoarski and Gerald Zoarski, testified that he had an ownership interest in the property but stated that he did not “personally” own the building.

       The relevant portion of the defendants’ proposed jury instructions stated: “Absent unusual circumstances, the defendants, in fulfilling their duty to the plaintiff, were entitled to wait until a reasonable time after the end of the storm before removing ice from the outside walks. The law does not require the defendants to engage in an impractical effort with the forces that may be uncontrollable while the storm is in progress.
      “Unusual circumstances may exist only if you find that there were no other practical means of egress from the premises and that all perceptible accumulations had ceased. Absent such findings, the defendant was entitled to wait until a reasonable time after the end of the storm before removing the ice from the premises.”