text:
    Anton Pereira v. William Blau
    (2382)
    Hull, Dupont and Borden, Js.
    Argued May 9
    decision released August 7, 1984

      JohnN. Montalbano, with whom, on the brief, were James F. Early and Paul B. Whitman, for the appellant (plaintiff).

      Carl E. Celia, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the judgment of the trial court, rendered pursuant to Practice Book § 251, dismissing his action for failure to prosecute with reasonable diligence, and from the subsequent denial of his motion to open that judgment. We find no error.

The case was returned to court on June 24,1980. On September 29,1980, the court granted the defendant’s motion for nonsuit for failure of the plaintiff to comply with discovery orders. Four months later that non-suit was opened. Four months later, a second motion for nonsuit was filed for failure of the plaintiff to plead, after which the plaintiff filed a responsive pleading.

The case appeared on a jury assignment list for trial on January 26,1982. The printed legend on the assignment list indicated that counsel were required to be present and to be prepared to dispose of their cases by withdrawal, stipulation or trial, and it called specific attention to Practice Book § 251. The plaintiff’s counsel did not appear on January 26,1982. The court dismissed the action.

On May 17,1982, three days short of the four month period ordinarily permitted to open judgments, the plaintiff moved to open the judgment of dismissal. The gist of the motion, as reflected in the affidavit of his counsel, was that on June 30, 1981, the law firm representing the plaintiff, Evans, Sklarz, Feldman & Early, P.C., had dissolved and the plaintiffs case was being handled by the new, successor firm of Evans, Sklarz, Feldman & Early; that the new firm inadvertently did not file a new appearance; and that as a result “the plaintiffs counsel did not receive proper notice of the jury trial list scheduled for January, 1982 . . . .” After a hearing, the court found that counsel of record at the time of the notice of the assignment list had received that notice, and that counsel was negligent in failing to appear and prosecute the case when it was scheduled for trial. The court denied the motion to open the judgment of dismissal.

This case is governed by the principles of Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 474 A.2d 787 (1984).

The plaintiff argues that the jury trial assignment list of January 26, 1982, was not “an assignment list for final adjudication” within the meaning of Practice Book § 251 because it was not part of the dormant case program, and that he was therefore entitled to two weeks’ notice before a judgment dismissing his action could be rendered. The short answer is that an assignment list for the trial of cases, indicating that the cases must be disposed of by withdrawal, stipulation or trial, is “an assignment list for final adjudication” under Practice Book § 251. Effective caseflow management dictates no less.

There is no error.

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

       Practice Book § 251 provides as follows: “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs. At least two weeks’ notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests.”

       Counsel conceded at oral argument in this court that the successor counsel had received notice of the judgment as early as six days after it was rendered.


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Elizabeth C. Holmes v. Michael H. Holmes
    (2446)
    (2559)
    Dannehy, C.P.J., Borden and Spallone, Js.
    Argued May 9
    decision released August 7, 1984

      Paul Smith, with whom, on the brief, was Gwen B. Dreilinger, for the appellant (defendant).

      John P. Febbroriello, for the appellee (plaintiff).
   Spallone, J.

These companion matters, which were combined for hearing, are appeals in the same case and involve the rulings and orders of the trial court in a dissolution action and in connection with post-trial motions.

The trial court, following a contested hearing, dissolved the marriage of the parties; awarded custody of the minor child to the plaintiff wife, reserving reasonable rights of visitation to the defendant conditioned upon his sobriety; awarded the plaintiff all the personal property and appliances in the family home with discretion in the plaintiff to turn over any items she may wish to the defendant; ordered the defendant to turn over a car to the plaintiff; ordered the defendant to pay $75 weekly child support and $35 per week alimony until the child reached majority; and ordered the defendant to pay the plaintiffs counsel fees in the amount of $1000 at the rate of $150 per month.

After the defendant filed an appeal, the plaintiff moved for the payment by the defendant of transcript fees and for reasonable attorney’s fees to defend the appeal. After a hearing, the trial court granted the motions and ordered the defendant to pay to the plaintiff $582.17 for the transcript and $1000 towards her counsel fees. The defendant then appealed from the court’s decision involving those post-trial motions.

In the first appeal, the dissolution action, the defendant claims that the trial court erred in basing its monetary awards and orders on insufficient evidence and that in doing so the court abused its discretion; and in allowing the plaintiff to turn over personal property to the defendant at her sole discretion.

During the trial there was testimony as to the earnings and the earning capacity of the defendant including evidence of deposits into the joint checking account of the parties totaling $46,612 in 1981. The plaintiff also testified that the defendant told her he made $63,000 in 1981 and that he was capable of earning $1500 per week. The trial judge is in the best position to determine the credibility to be given the testimony. Swift & Co. v. Rexton, Inc., 187 Conn. 540, 543, 447 A.2d 9 (1982); Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1981). The trial court chose to believe the plaintiff’s evidence. The trier of the facts is free to accept or reject, in whole or in part, the evidence of either party. Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). The facts cannot be retried on appeal. Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983). Our review is limited to a determination of whether the decision made is logically correct and supported by the evidence. Frumento v. Mezzanotte, 192 Conn. 606, 617-18, 473 A.2d 1193 (1984); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 280, 471 A.2d 651 (1984). We conclude that it is.

The defendant further contends that the court erred in allowing the plaintiff to determine which articles of personal property she should turn over to the defendant. The defendant relies on Valante v. Valante, 180 Conn. 528, 532, 429 A.2d 964 (1980), where the Supreme Court rejected the trial court’s action in allowing a family relations officer to decide the division of personalty in the event the parties could not reach an agreement. “There is no authority given to a domestic relations officer to resolve differences by rendering a decision concerning property distribution. The rendering of such a judgment is a judicial function and can be accomplished only by one clothed with judicial authority.” Valante v. Valante, supra, 532-33. Such is not the case in this appeal. The plaintiff was awarded all the personalty located in the family home. This was an outright award to the plaintiff. She could then, at her discretion, return any items she wished to the defendant. She is under no obligation to return any items if she chooses not to do so. We conclude that the trial court did not abuse its discretion.

In the second appeal, the defendant claims that the court erred by awarding, without an evidentiary hearing, attorney’s fees and transcript fees in connection with this appeal. Nothing in the record indicates the nature of the hearing and what evidence, if any, was presented to the trial court. The defendant has not filed the transcript of the hearing on the motions; nor did the defendant seek under Practice Book § 3082 to have the trial court articulate its decision with regard to its award of additional counsel fees and costs of transcript. Ordinarily we do not “ ‘resort to matters extraneous to the formal record, to facts which have not been found and which are not admitted in the pleadings or exhibits which are not part of the record.’ ” Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983). References in the “statement of facts” in a brief or references to testimony, even if uncontradicated, do not constitute facts in the case. Pointina Beach Assn., Inc. v. Stella, 1 Conn. App. 341, 343, 471 A.2d 970 (1984) . Where the factual basis of the court’s decision is unclear, proper utilization of the motion for articulation serves to dispel any such ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. It remains the appellant’s responsibility to secure an adequate appellate record, and under normal circumstances a case will not be remanded to correct a deficiency the appellant should have remedied. Barnes v. Barnes 190 Conn. 491, 494, 460 A.2d 1302 (1983). Since the defendant here has failed to supply a record presenting the trial court’s rationale, as is his burden, we decline to view as clearly erroneous the trial court’s determination to award an allowance to appeal and transcript fees. Neither, under the circumstances, will we remand the decision for articulation. Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 714, 462 A.2d 1037 (1983).

The trial court’s determination that the plaintiff was entitled to the cost of the transcript and legal fees to defend the appeal must stand because the defendant, by not supplying the transcript of the hearing on the motions, has failed to complete the record. This court cannot and will not consider claims of error where the record before it is incomplete.

There is no error.

In this opinion the other judges concurred.

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


author: Borden, J.

text:
    Hilda Bencivenga v. Zoning Board of Appeals of the City of Milford et al.
    (2138)
    (2140)
    Dannehy, C.P.J., Hull and Borden, Js.
    Argued May 2
    decision released August 7, 1984

      Bruce L. Levin, for the appellant (named defendant).

      James T. Brennan, for the appellant (defendant Frank Grazioso).

      Max F. Brunswick, with whom, on the brief, was Sherman A. Zitomer, for the appellee (plaintiff).
   Borden, J.

This is a zoning case in which the defendants, the Milford zoning board of appeals (board) and Frank Grazioso, appeal from the judgment of the trial court sustaining the plaintiffs appeal to that court. We find no error, but on a ground somewhat different from that relied on by the trial court.

The plaintiff is the owner of property located at 28 Hawley Avenue, Milford. Grazioso owns and lives in property at 27 Hawley Avenue, across the street from the plaintiffs property. The zoning enforcement officer of Milford had issued a building permit to the plaintiff permitting her to repair the roof of the house on her property. Grazioso appealed the issuance of that permit to the board. On September 8,1981, the board held a hearing on Grazioso’s appeal, which Grazioso attended but which the plaintiff did not attend; and on November 10, 1981, the board overruled the officer’s action in issuing the permit, thus sustaining Grazioso’s appeal and invalidating the permit on the ground that “the property is derelict and has been abandoned.” Notice of this decision was given to the plaintiff by sending her a copy of the letter which the board sent to Grazioso’s attorney informing him of the decision.

The plaintiff appealed to the trial court on several grounds, one of which was in essence that she was not given due notice of the September 8,1981 meeting of the board. The case was presented to the trial court on the basis of the record returned to the court by the board and the briefs of the parties. No evidence was submitted.

The court found, on the basis of statements contained in the briefs, that the date of the hearing was published in the Milford Citizen, but that no copy of that notice was included in the record returned to the court. The court also found that the board had given Grazioso notice, by letter, of the date, time and place of the hearing, but that no such letter was sent to the plaintiff. On the basis of discovery material, which consisted of an answer to an interrogatory put to the plaintiff by Grazioso and which was contained in the court file, the court further found that the plaintiff was informed by the zoning enforcement officer that the permit was valid and that she did not have to be present at the hearing. The court concluded, on the basis of what it perceived as the differing treatment afforded Grazioso and the plaintiff as to notice of the hearing, that the plaintiff was not given “due notice” of the hearing under General Statutes § 8-7.

We agree with the defendants that the court erred by considering the discovery material and thus by basing a finding on that material. Since no evidence was introduced under General Statutes § 8-8, the court was confined to the record before the board, of which the discovery material was not a part. We sustain the judgment of the trial court, nonetheless, on a different and more fundamental theory, which we are free, of course, to do. State v. Beckenbach, 1 Conn. App. 669, 673 n.4, 476 A.2d 591 (1984).

It is axiomatic that due notice to interested parties of a hearing to be held by a zoning board is necessary to its jurisdiction. General Statutes § 8-7; Cavallaro v. Durham, 190 Conn. 746, 747, 462 A.2d 1042 (1983). The plaintiff, as the owner of the property which was the subject of the hearing, was an interested party. This record is bereft of any notice of the hearing given by the board to the plaintiff.

General Statutes § 8-8 required the board “to return either the original papers acted upon by it and constituting the record of the case appealed from, or certified copies thereof.” This “require[d] the board to file in the trial court all of the record which is necessary to enable it to pass upon the propriety of the board’s action.” Cohen v. Board of Appeals on Zoning, 139 Conn. 450, 453, 94 A.2d 793 (1953). Where a ground of appeal to the court by the property owner is the lack of due notice of the hearing before the zoning board, that notice must be included in the board’s return of the record. Any indication of such notice here is conspicuous by its absence.

There is no error.

In this opinion the other judges concurred.

       These appeals were originally filed in the Appellate Session of the Superior Court. Public Acts, Spec. Sess., June, 1983, No 83-29, § 3 (c). At the time these appeals were taken, litigants in zoning cases had an unfettered right to appeal to that court. Public Acts 1981, No. 81-416, § 3. Such appeals are now subject to a grant of certification by this court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 13.

       General Statutes § 8-7 provides, as to an appeal from a decision of a zoning enforcement officer, in pertinent part: “Said [zoning] board [of appeals] shall . . . hear such appeal and give due notice thereof to the parties.”

       General Statutes § 8-8 permits the introduction of evidence in a zoning appeal if the transcript is incomplete or if the court deems it necessary for the equitable disposition of the appeal.

       We note that the return of the record before the board does not even contain the notice of the hearing purportedly published in the Milford Citizen. It was equally improper for the court, in view of the way in which the case was presented to it, to take cognizance of that purported notice.


text:
    Chester Babiarz et al. v. Hartford Special, Inc., et al.
    (2595)
    Dannehy, C.P.J., Hull and Borden, Js.
    Argued April 10
    decision released August 14, 1984

      Bruce G. MacDermid, for the appellants-cross appellees (defendants).

      Robert F. McWeeny, for the appellees and cross appellant (plaintiffs).
   Borden, J.

The plaintiffs are ninety-six employees of the defendant, Hartford Special, Inc., who are either retired or eligible to retire. The defendant adopted a plan of complete liquidation under which certain retirement benefits, consisting of life and health insurance coverage, would be terminated. The plaintiffs sued to enjoin the termination of those benefits and for damages, and obtained an ex parte attachment of real estate of the defendant in the amount of $1,000,000. Thereafter, the plaintiffs moved, pursuant to General Statutes § 52-278k, to increase the amount of the attachment to $4,402,256.03 and to garnishee certain banks. The defendant moved, pursuant to General Statutes § 52-278e, to dissolve or, in the alternative, to reduce the attachment. After a hearing, the trial court granted the plaintiffs’ motion and increased the amount of the attachment to $3,250,000 and denied the defendant’s motion to dissolve, except that it granted that motion to the extent of eliminating the claim of one of the plaintiffs, George Palifka, from the attachment. The defendant appealed from the actions of the court in increasing the attachment and denying its motion to dissolve; and Palifka cross appealed from the action of the court in eliminating his claim from the security of the attachment.

I

We first consider the extent to which the actions of the trial court are appealable final judgments. The defendant’s appeal is two-pronged. It appeals from the order increasing the plaintiffs’ attachment from $1,000,000 to $3,250,000, and from the order denying its motion to dissolve the attachment.

The order increasing the attachment was issued in response to the plaintiffs’ motion filed under General Statutes § 52-278k. See footnote 2, supra. The granting of a motion to increase an attachment under General Statutes § 52-278k is not an appealable final judgment because it is not within those orders listed as “final judgments] for purposes of appeal” under General Statutes § 52-2781 (a). See City National Bank v. Davis, 181 Conn. 42, 45-46, 434 A.2d 310 (1980). Thus, the defendant’s appeal from the order granting the plaintiffs’ motion to increase the attachment must be dismissed. Id.

The order denying the defendant’s motion to dissolve the attachment, but at the same time granting it to the extent of eliminating Palifka’s claim, is a final judgment for purposes of appeal. General Statutes § 52-2781 (2); Common Condominium Assns., Inc. v. Common Associates, 192 Conn. 150, 152-53, 470 A.2d 699 (1984); City National Bank v. Davis, supra. Thus, the defendant’s appeal from the denial of its motion to dissolve and Palifka’s cross appeal from the granting of the motion to dissolve as to him are properly before us.

II

The gist of the plaintiffs’ complaint is that the defendant promised them life and health insurance coverage as retirement benefits and that, in reliance on and in consideration of those promises, they continued their employment with the defendant. The court found the following facts in support of its determination of probable cause to sustain the validity of the plaintiffs’ claims. Of the plaintiffs, forty-four had worked for the defendant for more than thirty years and all but three had worked for the defendant for at least six years. All of the plaintiffs believed the defendant to be a good place to work. Although their wages were a bit low for the area, their benefit package was excellent, as a result of which all of the plaintiffs stayed with the defendant or returned to it after layoffs. In 1942, the defendant instituted a group retirement plan which consisted solely of a pension. In 1960, it improved the plan by providing continuation of major medical insurance coverage for retired employees. Subsequently, the defendant improved the plan further by adding Medicare reimbursement, partial payment of the premium for life insurance provided just prior to retirement, and certain CMS and Blue Cross medical insurance coverage for retirees and their spouses. Beginning in 1967, the pension program offered two options: a reduced pension amount for the joint lives of the retiree and his spouse; or a larger amount for the life of the retiree, but not less than ten years, with the remainder of the ten year payments going to a deceased retiree’s surviving spouse. Many retirees chose the second option because of the life insurance portion of the benefit package. The defendant had promised the plaintiffs that these life and health insurance benefits would continue for retirees. The defendant’s normal retirement age for its employees was sixty-five. The defendant promised its employees that, upon their reaching that age and becoming eligible for Medicare, their Blue Cross would terminate and the defendant would reimburse them for the cost of Medicare. Although the pension program is fully funded, the life and health insurance program is unfimded. The cost of funding the life and health insurance program for the plaintiffs is $3,105,078.40. Until the defendant ceased operations in February, 1983, its management intended to continue the program for all retirees for their lifetimes. It now plans to terminate all retirement benefits for the plaintiffs except for the pension program. It has made a partial distribution of assets to its shareholders and plans to do the same with its remaining assets.

The court found that the defendant had created in the plaintiffs reasonable expectations of receiving the promised benefits, which expectations were entitled to protection. See, e.g., Bird v. Connecticut Power Co., 144 Conn. 456, 463, 133 A.2d 894 (1957). Except with respect to Palifka, the court rejected the argument of the defendants that the claim of the plaintiffs was preempted by provisions of the federal Employee Retirement Income Security Act of 1974 (ERISA); 29 U.S.C. § 1001 et seq. The court concluded that Palifka’s claim was preempted by ERISA.

A

We first reiterate here the limited role of the trial court in deciding the motions before it, and our even more limited role in reviewing its actions. We do so because the parties have presented this appeal and cross appeal as if our scope of review, at least with respect to the legal issues, is plenary, which it clearly is not.

It is true that in deciding prejudgment remedy motions the trial court “must evaluate the arguments and evidence produced by both parties”; Augeri v. C. F. Wooding, Co., 173 Conn. 426, 429, 378 A.2d 538 (1977); and that the showing of a clear, factually and legally simple defense, such as infancy or the statute of limitations, may be enough to show a lack of probable cause for the validity of a plaintiffs claim. Id. That evaluation, however, falls far short of an authoritative determination of the merits of those arguments and that evidence, and does not require the trial court, in a case such as this, to make a full and final decision on such factually and legally complex issues as were raised by the defendant’s claim under ERISA. In ruling on the defendant’s motion to dissolve, the court was doing no more than “determining] probable success by weighing probabilities.” Three S. Development Co. v. Santore, 193 Conn. 174, 176, 474 A.2d 795 (1984). This process “does not demand that a belief be correct or more likely true than false.” Id., 175. Such a proceeding “is not contemplated to be a full scale trial on the merits”; id.; it does not lead to a “final decision” in any sense; Augeri v. C. F. Wooding Co., supra; and it vests the court “with broad discretion which is not to be overruled in the absence of clear error.” Three S. Development Co. v. Santore, supra. Moreover, this circumscribed and limited weighing process applies not only to the factual but to the legal issues. Augeri v. C. F. Wooding Co., supra.

Our role in reviewing the decision of a trial court on a prejudgment remedy motion is even more limited. It is “very circumscribed. It is not to duplicate the trial court’s weighingprocess, but rather to determine whether its conclusion was reasonable. Tn the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses.’ ” Three S. Development Co. v. Santore, supra, 176. Thus, we do not decide whether the legal conclusions reached by the trial court were correct or erroneous. We review the legal conclusions of the trial court only to the limited extent of determining “whether its conclusion^] [were] reasonable.” Id. This can only mean that if review of the record indicates that the trial court reached legal conclusions which have a reasonable basis, those conclusions must stand, even though a plenary review of them might well yield a different result. Any more complete process would lead us into the trap of determining the ultimate correctness of legal conclusions which the trial court has decided are only probably correct, and doing so on the basis of facts which the trial court has decided are only probably true, but which it has not found to be proven by a preponderance of the evidence. See id.

B

With this limited standard in mind, we turn to the defendant’s claims of error on the appeal. We hold that the conclusion of the court had a reasonable basis and that the court did not commit clear error.

The defendant’s principal argument is that the claims of the plaintiffs, which are based on the common law, are preempted by ERISA. The court concluded that except with respect to Palifka these claims come within an exception to ERISA’s broad preemption clause. Without deciding whether the court was correct in this determination, we find that its conclusion is supported by a reasonable basis.

In view of our very limited scope of review, and the very limited use to which our decision on such a review can be put, even with respect to the legal claims in this particular case, it would serve little purpose to state at any length the propositions of law which can be seen as reasonably supporting the conclusion of the trial court. Suffice it to say that ERISA provides that its preemption clause; 29 U.S.C. § 1144 (a); “shall not apply with respect to any cause of action which arose, or any act or omission which occurred, before January 1, 1975.” (Emphasis added.) 29 U.S.C. § 1144 (b) (1). The court found, in addition to the findings articulated above, that all the plaintiffs other than Palifka had either retired or had completed one full year of service before January 1, 1975, and that the hiring contract for all those plaintiffs included the retirement benefits claimed by the plaintiffs. On the basis of these facts, the court concluded that the claims of those plaintiffs were not preempted by ERISA because they are based on acts committed before January 1, 1975; namely, either their retirement with the benefits in place before that date, or the acquisition before that date of those benefits as part of their hiring contract.

We are aware of the broad language of the ERISA preemption clause and of the broad reach which it has been held to have. See, e.g., Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S. Ct. 2890, 77 L. Ed. 2d 490 (1983); Lafferty v. Solar Turbines International, 666 F.2d 408 (9th Cir. 1982); Dependahl v. Falstaff Brewing Corporation, 653 F.2d 1208 (8th Cir.), cert. denied, 454 U.S. 968, 102 S. Ct. 512, 70 L. Ed. 2d 384 (1981); Delta Air Lines, Inc. v. Kramarsky, 650 F.2d 1287 (2d Cir. 1981); Winer v. Edison Bros. Stores Pension Plan, 593 F.2d 307 (8th Cir. 1979). We are also aware, as some commentators have critically noted, “that courts have often defined the scope of preemption more narrowly where preemption may create what appear to be undesirable regulatory lacunae or supersede state law in fields traditionally left to state governance.” Hutchinson If shin, “Federal Preemption of State Law Under the Employee Retirement Income Security Act of 1974,” 46 U. Chi. L. Rev. 23, 24 (1978).

Whether a particular set of facts, relied on as a basis of a claim, comes within the exception to preemption for acts committed before January 1,1975, is not a simple question. The defendant cites a number of cases which point strongly in the direction of preemption and away from the exception, on the basis of which it might well ultimately prevail. See, e.g., Lafferty v. Solar Turbines International, supra; Winer v. Edison Bros. Stores Pension Plan, supra; Azzaro v. Harnett, 414 F. Sup. 473 (S.D.N.Y. 1976), aff'd, 553 F.2d 93 (2d Cir.), cert. denied, 434 U.S. 824, 98 S. Ct. 71, 54 L. Ed. 2d 82 (1977).

There is other authority, however, which supplies a reasonable basis for the court’s conclusion. “The phrase ‘act or omission’ in [29 U.S.C. § 1144 (b) (1)] apparently refers to those significant facts which give rise to a claim but which fall short of establishing a cause of action.” Winer v. Edison Bros. Stores Pension Plan, supra, 313. When a course of conduct “on which a benefit plan’s potential liability is based straddles the effective date of ERISA” the exception to preemption for an act committed before January 1,1975, “was apparently intended to permit courts to apply state law, even if the cause of action accrued after January 1, 1975, in cases where that result most fairly accomodates the interests of all affected parties—the beneficiaries, participants and fiduciaries of and contributors to ERISA trusts.” Bacon v. Wong, 445 F. Sup. 1189, 1192 (N.D. Cal. 1978); see also Coward v. Colgate-Palmolive Co., 686 F.2d 1230 (7th Cir. 1982), cert. denied, 460 U.S. 1070, 103 S. Ct. 1526, 75 L. Ed. 2d 948 (1983); but see Dependahl v. Falstaff Brewing Corporation, supra; Shaw v. International Assn. of Machinists & Aerospace Workers Pension Plan, 563 F. Sup. 653 (C.D. Cal. 1983). We cannot find clear error in the conclusion of the trial court.

The defendants also argue that there was not sufficient evidence upon which the court could find a contract embracing the retirement benefits claimed by the plaintiffs; that the court erred in admitting two computer-generated documents, in violation of the standards enunciated in American Oil Co. v. Valenti, 179 Conn. 349, 426 A.2d 305 (1979); and that there was insufficient evidence to support the court’s finding that the plaintiffs were entitled to an attachment in the specific amount of $3,250,000. We disagree.

The hearing lasted over a period of five days, and generated numerous exhibits. There was sufficient evidence for the court to form “a bona fide belief in the existence of the facts essential under the law for the [plaintiffs’] action . . . .” (Emphasis in original.) Three S. Development Co. v. Santore, supra, 175. It was not necessary for the court to find that those facts were more likely true than false. Id. Our review of the record persuades us that the court was justified in finding, for prejudgment remedy purposes, a contract embracing the retirement benefits at issue here.

The computer-generated documents were printouts of the present cost of the health and life insurance coverage for the plaintiffs. There was evidence of the cost of purchasing comparable coverage for the plaintiffs and of the actuarial assumptions used in making the calculations. There was also evidence, from a witness “with some degree of computer expertise, who [had] sufficient knowledge to be examined and cross-examined about the functioning of the computer”; American Oil Co. v. Valenti, supra, 359; about the reliability of the computer program used to generate the documents. “In light of our limited role on review of such matters”; Three S. Development Co. v. Santore, supra, 179; we find no clear error in the evidentiaryrulings.

The court specifically found that the estimated present cost of the retirement benefits is $3,105,078.40; and ordered a prejudgment remedy in the amount of $3,250,000. Although the precise path to the figure of $3,105,078.40 does not appear in the memorandum of decision, the defendant did not move for further articulation. See Pointina Beach Assn., Inc. v. Stella, 1 Conn. App. 341, 471 A.2d 970 (1984). Moreover, the defendant conceded in oral argument that there was evidence that this figure represents the present cost of the health insurance only, and that there was also evidence of an additional 1.4 million dollars as the cost of the life insurance. The plaintiffs point to evidence introduced by them that the total cost of the health and life insurance is $4,402,256.03, and to evidence introduced by the defendant to the effect that the present cost of the health insurance for the plaintiffs is from 57 percent to 85 percent of the plaintiffs’ figures. On either theory, we cannot find clear error in the ultimate figure of $3,250,000. If the $3,105,078.40 represents the cost of the health insurance only, the defendant cannot complain of the court’s failure to add to it the cost of the life insurance. If that figure represents, instead, the total of $4,402,256.03 proposed by the plaintiff but discounted by the court by some percentage based on the defendant’s evidence, the court was entitled to do so for prejudgment remedy purposes, in view of the general rule that damages need not be established with precision but only on the basis of evidence yielding a fair and reasonable estimate. Spera v. Audiotape Corporation, 1 Conn. App. 629, 633, 474 A.2d 481 (1984). In either event, the court was also entitled to estimate, as it apparently did, the amount of prejudgment interest and thus arrive at a rounded off figure of $3,250,000 for the amount of the attachment securing the plaintiffs’ potential judgment.

Ill

We now turn to Palifka’s argument on his cross appeal that the court erred in excluding his claim from the security of the attachment. We agree.

The effective date of ERISA’s preemption clause is January 1, 1975. 29 U.S.C. § 1144 (a). The theory of the trial court supporting the prejudgment remedy for the plaintiffs other than Paiifka is that their claims were not preempted by ERISA because before that date they had either retired with their benefits in place or had acquired retirement benefits by virtue of their hiring contract. That theory, as we have noted, supplies a reasonable basis for the court’s award of the attachment. That theory must apply, however, to all who come within its terms, unless there is some other legal or factual basis for a different determination as to any individual plaintiff.

The court treated Palifka’s claim differently from those of the other plaintiffs because he had not completed one full year of service before January 1,1975. We see nothing in either ERISA or the evidence that supports such a distinction, nor does the defendant point to any such statutory provision or evidence. We emphasize that our previous conclusion that the court’s theory concerning preemption is not clear error does not mean that it is correct or should serve as a guide for the ultimate decision in this case. We conclude, however, that absent some justification for the exclusion of Paiifka on the basis of his having worked for the defendant for less than one year prior to January 1, 1975, it was clear error for the court to exclude him from the protection of the attachment.

It is clear, however, that the evidence from which the court arrived at the attachment figure of $3,250,000 was calculated by reference to all of the plaintiffs, including Palifka. It is not necessary, therefore, that the amount of the prejudgment remedy be increased to reflect Palifka’s participation in it; nor does he request that that be done.

The appeal of the defendant from the granting of the plaintiffs’ motion to increase the attachment is dismissed.

There is no error on the defendant’s appeal from the denial of its motion to dissolve the attachment.

There is error on the cross appeal, the judgment granting the defendant’s motion to dissolve the attachment as to the plaintiff George Palifka is set aside and the case is remanded with direction to render judgment denying the defendant’s motion.

In this opinion the other judges concurred.

       There are also three individual defendants who are directors of the corporate defendant. Although this appeal purports to have been taken by all the defendants, the prejudgment remedy at issue in this case does not run against the individuals. Thus, their interests are not involved in this appeal, and we refer in this opinion to Hartford Special, Inc., as the defendant.

       The plaintiffs’ motion recites that it was made pursuant to General Statutes § 52-278h, but that section simply provides in general terms that the provisions governing prejudgment remedies apply to an application for such a remedy at any time after the suit is brought. We read the plaintiffs’ motion as a motion to modify the prejudgment remedy under General Statutes § 52-278k, which is the only section of the statutes providing for a motion to increase an attachment already in place.

       It is true that General Statutes § 52-2781 (a) (2) makes appealable an “order . . . granting . . . a motion to . . . modify a prejudgment remedy under section 52-278e . . . .” The plaintiffs’motion here was not such a motion, however, because General Statutes § 52-278e contemplates only a motion to modify filed by a defendant. Common Condominium Assns., Inc. v. Common Associates, 192 Conn. 150, 152-53, 470 A.2d 699 (1984).


author: Hull, J.

text:
    David D. Nauss, Trustee, et al. v. Alexander H. Pinkes, Health Director Barbara Esposito, Trustee v. John W. Phillips et al.
    (2302)
    (2878)
    Hull, Dupont and Borden, Js.

      Argued April 17
    decision released August 14, 1984

      James T. Brennan, for the appellant (successor plaintiff in the first case, plaintiff in the second case).

      Gail S. KotowsJci, with whom, on the brief, were Edmund L. Pantani and Philip N. Costello, Jr., for the appellee (defendant in the first case).

      Philip N. Costello, Jr., for the appellees (defendants in the second case).
   Hull, J.

These two cases, which were tried separately, were combined on appeal since both arise from the same factual matrix.

The underlying facts are undisputed. In the spring of 1971, David D. Nauss as trustee, the Old 79 Realty Co., Inc., and Brookside Realty, Inc., sought a special exception permit from the planning and zoning commission of the town of Madison for the construction of twenty-four multiple-family garden apartment units on a parcel of land located at 100 Bradley Road in Madison. On April 1, 1971, the commission denied the application for a special exception on the sole ground that the applicants had not received requisite written approval of the proposed sewage disposal system from the town health director, physician Alexander H. Pinkes, the defendant in the first action, who had refused to issue such a writing.

On April 13, 1971, Nauss instituted a suit against Pinkes seeking a writ of mandamus ordering him to issue a written statement approving the plaintiffs’ sewage disposal facilities at the proposed garden apartments site. On June 10,1971, at the time of trial before Dannehy, J., the parties entered into an oral stipulation which was approved by and made a judgment of the court.

At the hearing, the town acted through its town counsel who was authorized to enter into the agreement with Nauss on behalf of the town and its health director. Pinkes was also present. The judgment rendered pursuant to the stipulation provided as follows:

“That the Defendant issue a writing approving the subsurface sewage disposal systems of the Plaintiffs in accordance with Section 4.1.6.1.9 of the Planning and Zoning Regulations of the Town of Madison in accordance with the plans previously filed with the Planning and Zoning Commission of said Town of Madison;

“That prior to October 10,1971, the Plaintiffs, their agents, successors or assigns shall not cause any excavation of the earth on the premises shown on said plans, but prior to said date of October 10,1971, may remove trees, brush, shrubs; stockpile or store fill on said premises; grade said premises; and remove or demolish an existing dwelling house shown on the plans as submitted, all in a manner so as not to interfere with the pond or waters thereof as shown on said plans;

“That the Defendant or his successor in office or his agents may conduct baseline water tests of the waters of said pond on the premises of the Plaintiffs shown on the aforesaid plans prior to October 10, 1971.”

During the four month period, tests were conducted under the supervision of Pinkes. On October 4, 1971, Pinkes resigned as health director of the town of Madison. Neither Pinkes nor any of his successors as health director ever issued the writing in accordance with the judgment of the court. No further effort was made by Nauss to obtain a special exception for the property.

Nauss’ plans concerning the property appeared to be abandoned. In 1978, Nauss transferred the property to Barbara Esposito, as trustee for a group of four persons. The transfer included an assignment of the judgment. Although Esposito did not thereafter make an application to the commission for a special exception, her representatives indicated frequently from the time of purchase that the owners wanted to get the approval letter so that they could proceed with the planned project. All other attempts at reviving the matter were rebuffed by the various town officials involved, on the basis of the advice of the town counsel that the owners would have to start all over again on such an application.

On January 30, 1981, Esposito filed with the court an application for enforcement of the Nauss judgment and for the addition as a party defendant of Ross Sayers, a physician who was then health director of the town. Esposito sought to have Pinkes and Sayers held in contempt for failure to issue the written approval.

At the same time as the application for enforcement of the 1971 Nauss judgment was brought, Esposito brought two other actions: (1) Esposito v. Phillips, which is the second case involved in this appeal; and (2) Esposito v. Madison, Superior Court in the judicial district of New Haven, No. 190242, which is a suit for damages against certain town officials arising out of the same factual background, and which is still pending in the Superior Court.

The case of Nauss v. Pinkes was heard by the court, M. Hennessey, J., and a memorandum of decision was filed on October 27,1981. The court held that the contempt order could only be predicated on the proposition that the act sought to be performed by the public official was ministerial in nature. The court concluded that this issue was not before the court in 1971 or in the case under consideration. Therefore, it found that the present proceedings were not the appropriate forum to hear the Nauss complaint. The court denied the application for enforcement of the judgment and the application to name Sayers, the successor health director of the town, as a party defendant.

Esposito, in Nauss’ name, appealed from the judgment of the court, claiming the single issue as to whether the assignee of the 1971 judgment against a public official, rendered on a stipulated judgment in a mandamus action, may enforce the judgment against the official’s successor by an application for enforcement of the judgment in 1981. The plaintiffs claimed that a mandamus must be obeyed and that a judgment is enforceable for twenty years. The defendants claim that the judgment of June 21, 1971, is not a mandamus order; that if it is a mandamus order, it is unenforceable against a public officer who has a duty to exercise discretionary powers; and that enforcement of the 1971 judgment is barred by laches.

The case of Esposito v. Phillips, was brought by complaint dated January 29, 1981, and returnable March 3, 1981, seeking a mandamus requiring Phillips, the then first selectman of the town, and a host of other town officials, commissions and commissioners to issue various permits, writings and rulings necessary for the construction of the garden apartment project. Paragraph two of the prayer for relief sought an order directing Ross Sayers, the health director, to issue the writing required by the 1971 judgment. Paragraph three of the prayer for relief sought an order directing the planning and zoning commission to issue a special exemption permit in accordance with Nauss’ 1971 submission. The defendants filed a special defense that the plaintiff and her predecessors had failed to exhaust their administrative remedies concerning the various permits and approvals requested, to which the plaintiff replied that it was unnecessary and would have been frivolous to make such applications since, she alleged, she had been advised by the town counsel that it would be necessary to “start from scratch.”

The trial court, Fracasse, J., filed its memorandum of decision on June 13,1983. The court went over the same ground as the court in Nauss v. Pinkes, finding that no request for the written approval of the health director was ever made after the 1971 judgment, nor was any building permit requested. The court then expanded on the earlier decision and made the following additional pertinent findings: (1) there were no regulated inland wetlands in Madison in 1971, but a portion of the property is now mapped as inland wetlands; (2) in 1974, the inland wetlands commission started regulating certain activities including the deposit into and removal of material from mapped inland wetlands; (3) between June 10, 1971, and the transfer of title to Esposito in 1978, no one developed the property, the only work having been done being the removal of some trees and the attempted removal of a house from the property; (4) after June 10, 1971, the Nauss interests developed another piece of property instead of 100 Bradley Road; (5) the plaintiff, Esposito, claimed the right to develop the property in accordance with the earlier application for a special exception permit; (6) in September, 1979, the town notified an agent of Esposito that the predecessors had “abandoned their project and accordingly no permit was issued by [Planning],” that the court’s judgment of 1971 was “moot,” and that Esposito “must start from scratch in connection with any proposed project involving approval of a proposed sanitary system since the conditions of the project may have changed.”

In October, 1980, the town notified the agent of Esposito that “the zoning approval granted to the [predecessor] has long since lapsed under zoning regulations because they did not proceed with the project within the required two year period nor did they request any extensions of time . . . .”

Section 4.5 of the planning regulations has remained unchanged from the date of the application to the present, except that it is presently designated as § 4.6. It provides as follows: “Lapse Provision. Approval of the application shall mean approval conditioned upon completion of the proposed improvements in accordance with plans as approved within a period of two years after such approval is granted, and said approval and any permit issued shall become null and void in the event of failure to complete the proposed improvement in accordance with plans as approved within such two year period. One extension of such two year period, for an additional period not to exceed one year, may be granted by the Commission for sufficient cause shown.”

The court denied each claim for relief, concluding as follows: (1) mandamus requires that the plaintiff have a clear legal right to the relief sought; (2) its allowance is governed by equitable principles; (3) mandamus will be denied where, by reason of events occurring subsequent to the commencement of the proceedings or because of lapse of time, the relief sought would be nugatory or unavailing; (4) Esposito failed to prove a clear legal right to any of the relief requested; (5) if the special exception permit was approved in 1971, the lapse provisions of the regulations rendered such approval null and void; (6) if the application for a special exception was not approved, there is no right to have it enforced; (7) the 1971 judgment did not create a right to the special exception permit in Esposito and her predecessor exempt from the lapse provision and the general statutes and local regulations concerning planning; and (8) Esposito’s predecessor failed to pursue his rights in a timely and reasonable manner.

Most significantly, the court finally concluded as follows: “Twelve years [have] elapsed since entry of said judgment. During said time new laws and regulations relating to waste disposal, inland wetlands and standards of construction have been enacted; state and municipal agencies have been created to apply and enforce said laws and regulations. Population, water needs and incidence of water pollution currently in the Town are some facts which municipal agencies may wish to consider in deciding whether or not to approve today an application for special exception permit to build garden apartments on the property.

“All claims to order the issuance of the approval of said application for special exception permit have been decided by said judgment of June 10,1971. This action for writ of mandamus is not the remedy to enforce the writ of mandamus ordered in 1971. The issues presented in this action are academic.”

The plaintiff, in her brief, claims that the trial court erred: (1) in failing to find a clear legal right to mandamus as to the various defendants; (2) in its application of the lapse regulations; (3) in concluding that later changes in the law made the 1971 judgment academic; and (4) in its refusal to hear evidence of the parties’ intent in regard to the 1971 stipulation.

The defendant in this appeal relied on the trial court’s finding of the lack of a clear legal right to mandamus and the rendering of the matter academic by changed regulations since the 1971 judgment.

I

NAUSS v. PINKES

We conclude that the court was in error in two regards. First, the court erred in holding that the 1971 judgment left open the question of whether the requested writing was a ministerial or discretionary act. The stipulated judgment on its face was a consent judgment that an order in the nature of mandamus, although not so designated, be rendered against Pinkes. Thereafter, there was no question left in this regard. Second, the court was in error in not admitting Sayers as a necessary, and indeed indispensable, party. As Pinkes had lost the power to issue such a letter ten years earlier, Sayers was the only person at the time of the trial who was authorized to issue such a letter.

Since we conclude on both records that both cases are barred by the doctrine of laches, however, the court’s errors in the case are harmless errors.

In addition, the court’s judgment should be sustained on the basis of mootness. The plaintiff, Esposito, conceded in her brief that “as to [the written approval] the trial court is practically correct since if the plaintiff does have to start all over in the permit process, then the writing approving of the 1971 plans is not of much practical significance since the project would almost certainly be redesigned because of the Inland Wetlands and Water Course Act.”

II

ESPOSITO v. PHILLIPS

We find no error in the trial court’s principal conclusions (1) that the plaintiff failed to prove a clear legal right to the relief sought; McAllister v. Nichols, 193 Conn. 168, 171, 474 A.2d 792 (1984); Bahramian v. Papandrea, 184 Conn. 1, 3, 440 A.2d 777 (1981); (2) that mandamus will be denied where, by reason of events occurring subsequent to the commencement of the proceedings, or because of lapse of time, the relief sought would be nugatory or unavailing; Pape v. McKinney, 170 Conn. 588, 595-96, 368 A.2d 28 (1976); (3) that if the special exception permit was approved de facto in 1971, it was barred by the lapse statute; (4) that if the special exception was not approved in 1971, there was no permit to be enforced in a mandamus action; (5) that the 1971 action created no rights in the owners exempting them from compliance with changed planning statutes and regulations; (6) that Nauss did not pursue his rights in a timely and reasonable manner; and (7) that changed conditions must be considered before such a permit may be granted twelve years later.

III

Laches As A Bar To Enforcement Of Both Judgments

We conclude that, on both records, laches is a bar to the relief sought in Nauss v. Pinkes, and is an additional basis on which the court’s decision in Esposito v. Phillips should be sustained.

“Laches consists of two elements. First, there must have been an inexcusable delay, and, second, that delay must have prejudiced the defendant. Bozzi v. Bozzi, 177 Conn. 232, 239, 413 A.2d 834 (1979); Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685, 116 A.2d 906 (1955); Kievman v. Grevers, 122 Conn. 406, 411, 189 A. 609 (1937). Moreover, the mere lapse of time does not constitute laches unless it results in prejudice to the defendant, that the defendant is led to change his position with respect to the matter in question. Bozzi v. Bozzi, supra.” Brock v. Cavanaugh, 1 Conn. App. 138, 140, 468 A.2d 1242 (1984).

The Connecticut Supreme Court considered the question of laches in relation to enforcement of the judgment in Weil v. Poulsen, 142 Conn. 213, 112 A.2d 890 (1955). In that case, the plaintiff sought an injunction to require the defendant to make payments due under a separation agreement and also sought damages to collect on a money judgment rendered in 1935. In upholding the trial court’s conclusion that the injunctive aspect of the case was barred by laches, the court stated: “It is true that at common law an action on a judgment may be maintained at any time within twenty years from the date of the judgment. Barber v. International Co., 74 Conn. 652, 656, 51 A. 857 [1902]. The court’s conclusion of laches, however, was directed primarily at the claim for injunctive relief. A conclusion that a delay of nearly fifteen years in asking for this type of relief constituted laches is not unreasonable, and therefore it is not erroneous.” Weil v. Poulsen, supra, 217.

“The interpretation of a judgment may involve the circumstances surrounding the making of the judgment.” Garguilo v. Moore, 156 Conn. 359, 365, 242 A.2d 716, citing Christiano v. Christiano, 131 Conn. 589, 592, 41 A.2d 779, (1945). In the unusual circumstances of this case, it is vital to consider on the record what the parties contemplated in the 1971 stipulated judgment.

Nauss filed the application for the special exception permit in 1970. On March 19, 1971, the commission wrote the developer that the matter had been tabled so that the developer could make seven suggested changes in the proposal. On April 1,1971, the commission denied the plaintiffs’ application on the sole ground that the approval of the local health director was not submitted pursuant to item three of the letter of March 19,1971. At the time the stipulated judgment was rendered, all parties were adequately represented.

That all of the parties contemplated immediate issuance of the written approval is abundantly clear from the judgment itself. After ordering the defendant Pinkes to issue the writing, the judgment provided for a moratorium on excavation and interference with the pond on the property until October 10, 1971, so that Pinkes could conduct tests of the water in the pond. Were it not obviously the intent of the judgment that the letter be issued forthwith, there would be no need to provide for such a delay. Finally, any doubt in this regard is removed in a portion of the written stipulation of June 10, 1971, not included in the stipulated judgment, which provided that the plaintiffs “may apply for a building permit” for the construction of the apartments, subject again to the same moratorium.

It should be stressed that this is no ordinary judgment sought to be barred by laches. It is a specific agreement that a public official be ordered to perform a particular act. There must be read into the judgment the expectation that the act will be done within the time frame envisioned by the parties. In as dynamic and evolutionary a field of law and public policy as planning, zoning, and environmental concerns, regulations and attitudes of the public and governmental officials are in a constant state of flux. The plaintiff in both cases has failed to breath life, Phoenix-like, into the 1971 judgment which had long been dead although not properly interred.

We find that under the circumstances there was an unreasonable delay in seeking to enforce the judgment. This delay resulted in prejudice to all of the defendants in both cases since changed conditions and regulations make the enforcement of the judgment at this time impractical and inequitable.

There is no error on either appeal.

In this opinion the other judges concurred.

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

       Hereinafter, except when otherwise specified, a reference to Nauss is a reference to Nauss and the two realty companies.

       Esposito sought to be substituted as a party plaintiff. On the record before us, there is no indication that this was acted on.

       No request was ever made to Sayers for such approval.

       In addition to Phillips, the individuals include four other selectmen of Madison, health director Ross Sayers, the town engineer, the town building inspector, the inland wetlands commission, the planning and zoning commission, the water pollution control board, the chairman of the inland wetlands commission, the chairman of the planning and zoning commission and the chairman of the water pollution control authority.

       No satisfactory reason was adduced at oral argument before this court as to why these two cases involving essentially the same issues, with some additional claims in this second action, were not tried together, thus avoiding two separate trials and two separate appeals.

       The trial court’s judgment must be affirmed, although there was error, because the same result is required by law. See A & H Corporation v. Bridgeport, 180 Conn. 435, 443, 430 A.2d 25 (1980). It does not appear that laches was an issue specifically addressed at trial. Although, ordinarily, we will not consider issues not raised at trial; Practice Book § 3063; both parties in this case briefed the issue and it appears to us to be important controlling law dispositive of this appeal. See Riccio v. Abate, 176 Conn. 415, 418 n.1, 407 A.2d 1005 (1979); Scott v. General Iron & Welding Co., 171 Conn. 132, 139, 368 A.2d 111 (1976).

       We find error in the court’s refusal to hear evidence of the circumstances surrounding the 1971 judgment. Garguilo v. Moore, 156 Conn. 359, 365, 242 A.2d 716 (1968). We find this, however, to be harmless error since the undisputed facts clearly establish that such an inquiry would not have benefitted Esposito.

       The issuance of a mandamus is within the sound discretion of the court and inexcusable or inequitable delay may be a ground for refusing it. Sullivan v. Morgan, 155 Conn. 630, 635, 236 A.2d 906 (1967); Silberman v. McLaughlin, 129 Conn. 273, 278-79, 27 A.2d 634 (1942).


author: Per Curiam.

text:
    Sorteberg Controls Corporation v. Magda U. Field
    (2853)
    Dannehy, C.P.J., Hull and Dupont, Js.
    Argued May 3
    decision released August 14, 1984

      James L. Gartland, with whom, on the brief, was Carey B. Reilly, for the appellant (plaintiff).

      Reuben S. Midler, for the appellee (defendant).
   Per Curiam.

The plaintiff, Sorteberg Controls Corporation, appeals from a judgment for the defendant, Magda U. Field, in an action on a four count complaint seeking damages and injunctive relief based on trespass, intentional nuisance, negligent nuisance and breach of a settlement agreement. The court dismissed counts one, two and three of the complaint and rendered judgment in favor of the defendant on count four which alleged intentional nuisance. It is from the judgment on count four that the plaintiff appeals, claiming error in the court’s findings of fact and in its failure to grant the relief requested. There is no error.

In April, 1974, the defendant began construction of a building and an adjacent parking lot on her property. In connection with that construction, the defendant began to fill in a slope which ran downhill into the plaintiff’s adjoining property. During the month of April, the plaintiff noticed that some of this fill had entered its land. Subsequently, a letter was sent to the defendant requesting the removal of the fill. The defendant agreed to do this. Later, however, the plaintiff barred access to its property so that the defendant could not complete the removal. Eventually, in August, 1974, the plaintiff brought an action against the defendant which was settled by way of an agreement and a general release from all claims for relief and damages sustained prior to January 31, 1979, the date of the settlement agreement.

Subsequently, pursuant to the settlement agreement, the plaintiff began to remove the fill from its property and the defendant attempted to begin work so as to prevent erosion of the slope. The plaintiff hindered the defendant’s progress, however, by refusing to allow the defendant access to its property. Shortly thereafter, the plaintiff instituted a second action, which is the subject of this appeal, seeking, primarily, mandatory injunctive relief in the form of an order requiring the defendant to remove the debris from the plaintiff’s land and to build a wall to prevent further erosion.

Pursuant to the defendant’s motion under Practice Book § 302, counts one, two and three of the complaint as amended were dismissed by the trial court on February 6, 1981, for failure to present a prima facie case. The trial continued on count four and judgment was rendered on October 8,1982, in the defendant’s favor. The plaintiff appealed from that judgment.

I

With regard to the dismissal of counts one and two, the plaintiff neither appealed the dismissal immediately, nor did it reserve its right, under Practice Book § 3001, to appeal from the court’s judgment dismissing those counts. In fact, in its jurisdictional statement, the plaintiff indicates that it appeals only from the judgment of October 8,1982, which was rendered for the defendant on count four alone. Thus, by failing to appeal from the order of February 6, 1981, which granted the motion to dismiss as to counts one, two and three, the plaintiff’s claims of error as to the dismissal of counts one and two have not been properly presented to this court and will not be considered.

II

As to the claims of error regarding count four of the complaint, the record demonstrates that although there was disputed evidence, there clearly was sufficient evidence to support the court’s findings of fact given our “clearly erroneous” standard of review. This court has stated it will “not permit the plaintiffs . . . a second bite of the apple regarding the factual determinations of the trial court.” Preisner v. Illman, 1 Conn. App. 264, 268, 470 A.2d 1237 (1984), quoting Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983); see Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Zolan, Bernstein, Dworken & Klein v. Milone, 1 Conn. App. 43, 46-47, 467 A.2d 938 (1983).

Further, given the findings of fact of the court, the legal conclusions of the court concerning count four are sufficiently supported by the evidence. Pandolphe’s Auto Parts, Inc. v. Manchester, supra.

There is no error.

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

       Count three of the complaint is not involved in the present appeal as the plaintiff only claims error concerning counts one, two and four.

       In its brief, the plaintiff argues that the defendant’s failure to move to dismiss the appeal of counts one and two constitutes a waiver of that pleading irregularity. While that would be the case, pursuant to Practice Book § 3110, if the plaintiff had properly appealed the dismissal of counts one and two, the plaintiff’s failure properly to appeal that dismissal makes such a motion unnecessary on the defendant’s part. Thus, there can be no waiver since there is no appeal.


text:
    Judith Ehrenkranz v. Joseph H. Ehrenkranz
    (2445)
    Hull, Dupont and Borden, Js.
    Argued May 9
    decision released August 14, 1984

      Wesley W. Horton, with whom, on the brief, was Arthur E. Balbirer, for the appellant (defendant).

      J. Daniel Sagarin, with whom, on the brief, were Sheila K. Rosenstein and RiaD. Simon, for the appellee (plaintiff).
   Hull, J.

The plaintiff and the defendant, who is a rabbi employed by Congregation Agudath Sholom, an orthodox synagogue in Stamford, were married on June 15, 1952. In June, 1981, the wife instituted this dissolution action and, after extensive discovery proceedings, the action was tried before Hon. Irving Levine, state trial referee, who, on November 15,1982, rendered a judgment of dissolution and made awards concerning alimony, property distribution and attorney’s fees. The parties’ four children were beyond the age of majority and, thus, are not involved in the proceedings.

On this appeal, the husband claims that the court abused its discretion when it made its financial orders, including the award of attorney’s fees.

The defendant does not contest the court’s finding that his conduct caused the breakdown of the marriage. He stresses the fact that the court accepted both parties’ financial claims so that there is no dispute about the underlying financial considerations involved. The defendant simply claims that, in arriving at its decision, the court made a serious error in computation which, under the circumstances of this case, amounted to an abuse of discretion. We agree.

The court cited its consideration of relevant case law and the criteria in General Statutes §§ 46b-81 (c) and 46b-82. It then made the following orders material to this appeal: (1) the plaintiff was awarded the defendant’s one half interest in the family home, valued by the court at between $160,000, the value claimed by the wife, and $180,000, the value claimed by the husband; (2) the $112,000 mortgage on the house was to be paid by the defendant within one year, later modified by the court to two years; (3) the plaintiff was awarded $2500 per month periodic alimony; (4) the defendant was awarded a condominium owned by him; and (5) other valuable assets of the parties were specifically allocated between the parties.

The court then made the following award which is the nub of this appeal: “The remaining assets, shown in [the defendant’s] financial affidavit, dated October 25, 1982, are awarded to him. However, since all his assets, including those hereinbefore awarded, total $669,848 and his liabilities total $467,968.50, one half of the balance of $231,879.50, namely $115,939.75 is awarded to the plaintiff as additional lump sum alimony, and shall be payable in five equal annual installments of $23,188 each, beginning January 1, 1983.”

In reaching its decision, the court specifically relied on the defendant’s financial summary dated October 28,1982. The defendant, in his postjudgment motion to reargue, to open or clarify, which resulted in a further hearing, and in his appeal in this court, claims that his net worth, as found by the court, was $231,879.50 including as an asset 100 percent of the value of the family home and, as a liability, the $110,600 45678mortgage on the house. The court erred, the defendant claims, in awarding the house free of the mortgage to the plaintiff, and then awarding the plaintiff one half of his net worth or $115,939.75, without subtracting the $180,000 value of the house from his net worth. The result, he claims, is that with the award of the $180,000 house and $115,939.75 in lump sum alimony, the plaintiff is awarded $295,939.75, which is $64,060.25 more than his net worth. Thus, the defendant claims that this is one of the infrequent dissolution cases in which the trial court has abused its discretion.

“ ‘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. Gallo v. Gallo, 184 Conn. 36, 50, 440 A.2d 782 (1981).’ McGuinness v. McGuinness, 185 Conn. 7, 13, 440 A.2d 804 (1981). ‘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, such as demeanor and attitude of the parties at the hearing. See, e.g., Corbin v. Corbin, 179 Conn. 622, 624, 427 A.2d 432 (1980); Fucci v. Fucci, 179 Conn. 174, 180-81, 425 A.2d 592 (1979); Jacobsen v. Jacobsen, 177 Conn. 259, 262-63, 413 A.2d 854 (1979).’ McGuinness v. McGuinness, supra. This appeal presents one of the rare cases in which the trial court abused its broad discretion by misapplying the law and by making crucial findings which were not reasonably supported by the facts.” McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274 (1982). The test is whether the court could reasonably conclude as it did; Koizim v. Koizim, 181 Conn. 492, 497, 435 A.2d 1030 (1980); indulging every presumption in its favor. Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 835 (1975). “ ‘A trial court’s conclusions are not erroneous unless they violate law, logic, or reason or are inconsistent with the subordinate facts in the finding.’ Kaplan & Jellinghaus v. Newfield Yacht Sales, Inc., 179 Conn. 290, 292, 426 A.2d 278 (1979).” Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 167, 475 A.2d 310 (1984); see Zolan, Bernstein, Dworkin & Klein v. Milone, 1 Conn. App. 43, 47, 467 A.2d 938 (1983).

We are fully cognizant of the reluctance of appellate courts in Connecticut to disturb the discretionary findings of the trial court in dissolution cases. This case is a typical one in this regard. Delay and uncertainty create hardship for all concerned, more frequently for the recipient of the disputed award. Mounting attorney’s fees cut into the eventual award. The tragic stress of a dissolution battle is exacerbated by a retrial.

Reluctance to reverse the trial court’s exercise of discretion, however, should not mean that the door is entirely closed to successful appeals in dissolution cases. Limited appellate review in dissolution cases must not be a mere shibboleth on the basis of which the appellate court makes such review a nullity. “We have consistently refused to disturb awards of alimony. . . . This practice does not establish the proposition that such an award should never be disturbed, but rather that it should be disturbed only under the clearest circumstances.” (Citations omitted.) Shrager v. Shrager, supra, 486-87.

The defendant’s claim that he is left with a minus net worth must be weighed in view of the facts that the payment of the five annual installments of lump sum alimony was not to start until January 1, 1983, and that he was left with substantial income producing assets.

The court, at the hearing on November 24, 1982, without admitting an error in the computation, carefully explained its reasoning as follows: “The Court: But let me make it plain, I was impressed with Rabbi Ehrenkranz’s financial ability all through the trial. I think he has excellent ability, and part of what went into my thinking was that he has more ability to earn or to make money than Mrs. Ehrenkranz, who, as far as the Court is concerned, isn’t equipped to do very much except run a lingerie store or something which she would have to develop at this point. That is one of the elements which went into my thinking. I’m not going to decide all of them.

“I should also tell you that I meant them to end up with disproportionate amounts. I did not intend an equal division at any point. I thought that was plain from my opinion where I did enter, I did use one of the elements which the statute lists and that is fault and which was, again, a portion of my thinking together with all of the other matters which went into the decision and I used the figures which were submitted to me by Rabbi Ehrenkranz as to his gross worth and his net worth, those, I took those figures. Perhaps I shouldn’t have mentioned them because I used them only as a starting point. That was all that it was because I felt that Mrs. Ehrenkranz was entitled to lump sum cash payments so that she would have something to maneuver with, but in arriving at the opinion, I left Rabbi Ehrenkranz with all of the income producing investments, which is significant because it gives him that income and I thought with his financial ability he would be able to handle this very, very well.

“I realize that he has been deprived of a lot of assets, but this is a dissolution and it was meant to be a division of those assets. So that when I said that he had given her $699,848 worth of assets, I did include the house which I gave her. However, as I said, his net worth, which I arrived at, is a starting point as to what to decide to give her by way of further lump sum alimony. . . . [T]hey come to a very substantial amount of money which he’s left with. Of course, there he’s left with those and he has the income from them and that I felt he could use to make some of the payments. So that I meant her, when I arrived at the $115,000 figure, it was a figure that I felt was equitable under all the circumstances and was not meant to be one half of anything. It was simply meant to be $115,000 and I used that figure to gauge it. So that the Court will make no change in that award.” (Footnotes added.)

Although the court stated that the $115,000 figure was not meant to be half of anything, the actual award was “one-half of the balance of $231,879.50, namely $115,939.75 . . . .” The conclusion that odd dollars and cents were not intended to be one half of any particular sum violates reason and is inconsistent with the subordinate facts in the finding. It is a plainly erroneous conclusion.

In our view of the case, it is not necessary to decide whether the total award fell within the reasonable parameters of the court’s discretion. An examination of the entire record, however, gives strong reason to conclude that it would so fall.

There is, however, an overriding consideration. The underpinning of the decision is not sound. Such a decision must be based on logic applied to facts correctly-interpreted. The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other. A decision that accidentally falls within allowable limits of discretion because of a computation error by the court cannot be allowed to stand. To stretch the concept of limited appellate review in this case in order to find no error because the amount awarded may have been fair, would require this court to usurp the fact finding function of the trial court.

Each party is entitled to overall financial orders which reflect the court’s discretion and are based upon the facts elicited and the statutory criteria.

The defendant also appeals from an award of $7500 in attorney’s fees to the plaintiff. The plaintiff has $15,000 in liquid assets. The award of $2500 per month and the five year, $23,188 per year lump sum alimony award has been stayed by the defendant’s appeal. The award does not have to be paid until November 1,1985. “Whether a spouse has ‘ample liquid funds’ with which to pay counsel fees; see Koizim v. Koizim, 181 Conn. 492, 501, 435 A.2d 1030 (1980); can only be determined by examining the total financial resources of the parties in light of the statutory criteria.” Venuti v. Venuti, 185 Conn. 156, 163, 440 A.2d 878 (1981). The record indicates that the trial court did not abuse its discretion in its award of counsel fees to the plaintiff. See Howat v. Howat, 1 Conn. App. 400, 408, 472 A.2d 799 (1984).

Whether a new trial will prove to be a Pyrrhic victory for the defendant remains to be seen.

There is error in part, the judgment is set aside as to the award of alimony and the division of property and the case is remanded for a rehearing on those issues in accordance with this opinion.

In this opinion the other judges concurred.

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

       The following is a summary showing the net worth of the defendant husband as filed in the trial court:
      Note: Certain assets are reflected at cost.
      Assets:
      1. Royee $115,000
      2. Avon 75,000
      3. Duncan 75,000
      4. Kent 18,333
      5. Essex 20,000
      6. Gateway, Vermont 15,000
      7. Lake George 4773
      8. Belvedere, Vermont 2477
      9. Bayview 35,000

        10. New Jersey, Rte 70 Associates 42,500
      11. 50 shares Basic En. Rsv. 400
      12. 1000 shares Sundance Gold 125
      13. Money market fund at Paine Webber and on deposit in Israel 16,700
      14. Silver Coins 1000
      15. Citytrust and Union Trust checking accounts 540
      16. Beneficial ownership in condominium at 180 Colonial Road, Stamford, Connecticut 90,000
      17. Sapphire stone, cost 8000
      18. Fair market value of entire home 180,000
      Gross Assets—without reflection of liabilities $699,848
      Note: The above does not include part E of the husband’s financial affidavit pertaining to retirement or pension, as ultimately the plaintiff wife will be sharing to some extent in the same because of periodic alimony payments to be made until her death or remarriage and during the lifetime of the defendant husband.
      Liabilities:
      1. Mortgage on jointly owned property of the parties at 80 Third Street, Stamford, Connecticut, apparently all in the name of the defendant husband $110,600.00
      2. Citytrust Company, two notes totaling 255,000.00
      3. Congregation loan 30,000.00
      4. Lawrence Rezak loan 15,000.00
      5. Hirsch Wolf loan 10,000.00
      6. Payment due to Citytrust Company on November 30,1982 28,500.00
      7. Pledge to Agudath Sholom 9,000.00
      8. Legal fees of the defendant husband through October 21, 1982, only 9,868.50
      Total Liabilities $467,968.50
      Recapitulation:
      Gross Assets $699,848.00
      Less Liabilities -467,968.50
      Net Worth $231,879.50

       There is an immaterial discrepancy between the court finding of a $112,000 mortgage and reliance on a net worth summary showing the mortgage to be $110,600.

       Two other decisions of the Supreme Court have found an abuse of discretion in a dissolution award. In Shrager v. Shrager, 144 Conn. 483, 487, 134 A.2d 69 (1957), the Supreme Court set aside a periodic alimony award because the trial court’s discretion had been “wrongly exercised.” In Danielson v. Danielson, 174 Conn. 427, 389 A.2d 750 (1978), the court found error in the court’s failure to provide financial arrangements in a visitation order for transporting a minor child from Connecticut, where the custodial parent who was an airline pilot lived, to California where the noncustodial parent, who made $100 a week, lived.

       The plaintiff’s attorney informed this court during oral argument that, to date, the plaintiff’s accrued fees to present and former counsel approximate $30,000.

       The defendant’s affidavit dated October 27, 1982, showed an annual gross income of $118,490; the plaintiffs showed no income.

       A factual error by the court.


author: Dannehy, C.P.J.

text:
    Maureen Merritt v. Merritt R. Merritt
    (2525)
    Dannehy, C.P.J., Hull and Dupont, Js.
    Argued June 6
    decision released August 14, 1984

      Murray J. Kessler, for the appellant (defendant).

      Diane M. Ventura, with whom, on the brief, was Susan J. Poll, for the appellee (plaintiff).
   Dannehy, C.P.J.

The defendant appealed from the judgment rendered in the dissolution of marriage action brought by the plaintiff as it relates to alimony and attorney’s fees. No objection was made to the finding that the marriage should be dissolved, or to the order awarding legal custody of a minor child to both parents and providing for visitation and support. The parties conceded in oral argument that alimony and the division of marital assets were the only issues contested at trial. A judgment was rendered on the complaint dissolving the marriage, giving the parties joint legal custody of a minor child who would continue to reside with the plaintiff, giving the defendant liberal visitation rights, ordering him to pay $75 weekly for the support of the child, ordering the plaintiff to convey all of her interest in the marital residence to the defendant, and ordering the defendant to pay lump sum alimony of $100,000 and attorney’s fees of $2000 to the plaintiff within ninety days of the judgment. The defendant was released from all claims the plaintiff might have with respect to his business and real estate at 13 Maple Avenue in Danbury. From the judgment making these awards, the defendant appeals. He argues that the award of alimony is excessive and unduly burdensome. He also argues that the order for payment of attorney’s fees is not justified by the plaintiff’s financial position. The third issue raised concerns whether the trial court erred in proceeding with trial while the defendant’s attorney was on vacation and while the attorney present was not familiar with the file.

The trial judge made detailed findings of fact, organized according to the factors listed in General Statutes §§ 46b-81 (c) and 46b-82, in which he discussed at length the testimony and his analysis of the trial. The unique opportunity which the trial judge had to observe and appraise both parties is particularly important in a case of this kind. Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984).

The pertinent parts of the record on appeal indicate that the parties were married in 1956 and had five children during the marriage, two of whom were minors at the time of the dissolution action: Mark, bom August 5, 1965, and Melissa, born September 30, 1970. The parties had separated in September, 1981, and the plaintiff filed for dissolution of marriage in July, 1982. The plaintiff finished her formal education in the eleventh grade. Her employability is limited. She works as a private duty nurse’s aide, earning $290 weekly, with a take-home pay greatly reduced by deductions for taxes, social security and medical insurance. She has applied for employment as a nurse’s aid in the Dan-bury Hospital. Her basic weekly salary there would be approximately $100 less weekly, but would provide security and certain benefits unavailable in her present employment. By the terms of the judgment she received a piano and a 1972 motor vehicle and was ordered to convey to the defendant the marital homestead valued at $75,000 and encumbered by a mortgage debt of less than $3000. The defendant also received all of the parties’ household goods and furnishings and a 1977 motor vehicle.

The record as to the defendant’s situation disclosed that he graduated from college with a degree in engineering. He owns and operates a feed business in Dan-bury. The trial court placed a value of $120,000 on this business and on the real estate on which it is conducted. His financial affidavit showed a gross salary of $187.30 weekly. After considering the testimony of the defendant’s income, the trial court found it to be obvious that his actual income exceeded that shown on his financial affidavit by far. By order of the court, the defendant received the feed business and the real estate it occupies released from any claims the plaintiff might have against the real estate or the assets of the business.

In his principal challenge to the trial court’s award of alimony, the defendant contends that the trial court abused its discretion in awarding lump sum alimony in the amount of $100,000 to be paid within ninety days. We disagree.

The trial judge made detailed findings on each factor listed in General Statutes §§ 46b-81 and 46b-82. It is well settled that a judgment awarding alimony which is supported by findings necessary to sustain it will not be set aside unless those findings are clearly erroneous. See Barnes v. Barnes, 190 Conn. 491, 460 A.2d 1302 (1983); Kaplan v. Kaplan, 186 Conn. 387, 441 A.2d 629 (1982).

The circumstances here called not only for the exercise of sound discretion but also for some creativity in arriving at a fair and reasonable financial settlement. The record plainly indicates that the trial judge carefully considered all the mandatory and discretionary factors, and there is ample evidence to support his extended findings. There is no evidence that the trial judge considered any impermissible factors in deciding to award lump sum alimony of $100,000 payable within ninety days to the plaintiff.

The defendant also argues that the trial court erred in awarding attorney’s fees to the plaintiff. The statutory authority for such an award is-found at General Statutes § 46b-62. The order for payment of attorney’s fees under General Statutes § 46b-62 requires consideration of the financial resources of both parties and the criteria set forth in General Statutes § 46b-82. Burton v. Burton, 189 Conn. 129, 141-42, 454 A.2d 1282 (1983). This latter statute lists the criteria to be considered by the court in awarding alimony.

The defendant’s contention is that by reason of the award of lump sum alimony in the amount of $100,000, the plaintiff has ample liquid funds with which to pay her attorney’s fees. See Koizim v. Koizim, 181 Conn. 492, 500-501, 435 A.2d 1030 (1980). The availability of cash as a result of other financial orders in the case is not an absolute standard for denying an award of attorney’s fees. Otherwise, it might undermine the purpose in making the other financial awards. Anderson v. Anderson, 191 Conn. 46, 59, 463 A.2d 578 (1983); Howat v. Howat, 1 Conn. App. 400, 408, 472 A.2d 799 (1984). Under the circumstances of this case, there was no abuse of discretion in ordering the payment of the plaintiffs attorney’s fees.

We pause briefly at the claim that the trial court erred in proceeding to trial when the defendant’s attorney was on vacation and while the attorney present was not familiar with the file. It suffices to say that a trial judge need not look too kindly upon failure to appear for a scheduled trial. Thode v. Thode, 190 Conn. 694, 697, 462 A.2d 4 (1983). Here, at the time originally set for trial, the case was continued because counsel for the defendant was hospitalized. The parties were advised at that time that the case would go forward when it was next assigned “no matter what.” The plaintiff and her attorney were present on the day assigned for trial. The attorney who signed the answer and cross complaint appeared with the defendant. Whether to postpone the commencement of the trial again while counsel was on holiday was a matter for the sound discretion of the trial judge. The record does not disclose actual prejudice to the plaintiff, nor is there anything to indicate hardship. Clearly, in these circumstances, there was no abuse of discretion.

There is no error.

In this opinion the other judges concurred.

       The defendant filed an answer admitting all of the allegations of the complaint and containing a cross complaint for dissolution of the marriage on the grounds of irretrievable breakdown and intolerable cruelty. Prom all that appears, the cross complaint was dismissed.

       There is some question whether this issue was sufficiently preserved for our review. Neither the transcript nor the record indicate that a motion for continuance was made. Rather, counsel appearing with the defendant reported to the court that he was not familiar with the file and that the defendant’s counsel was on vacation. We have, nevertheless, reviewed the record upon this issue to determine whether the trial court’s decision to proceed with trial as scheduled was an abuse of discretion.