text:
    New Haven Tobacco Company, Inc. v. Frank P. Perrelli
    (6575)
    Dupont, C. J., Stoughton and Norcott, Js.
    Argued March 9
    decision released June 6, 1989

      Randall B. Chapnick, for the appellant (plaintiff).

      Paul M. Sabetta, for the appellee (defendant).
   Dupont, C. J.

The plaintiff appeals from the judgment of the trial court invalidating as unreasonable a restrictive covenant contained in an employment contract signed by the plaintiff and the defendant. We find error.

The following facts are undisputed. In December, 1980, the plaintiff, a wholesale tobacco business, and the defendant entered into an employment contract that contained the following covenant: “Because of the importance and value of the information disclosed to the Employee, as part of the consideration for his employment, the Employee agrees that he will not directly or indirectly sell products similar to those of the Employer to any of the customers that he has dealt with or has discovered and become aware of while in the employ of the Employer for a period of twenty-four months from the termination of his employment.”

The defendant voluntarily terminated his employment relationship with the plaintiff in November, 1981. Shortly thereafter, the defendant opened his own wholesale tobacco business and sold “products similar to those of the Employer” to certain customers of the plaintiff within the twenty-four month period of the restrictive covenant.

The plaintiff subsequently brought an action against the defendant seeking money damages and injunctive relief. The trial court, Hadden, J., denied the plaintiff’s application for a temporary injunction. The plaintiff appealed to the Supreme Court, which dismissed the appeal suo motu, on the ground that an appeal taken from the denial of a temporary injunction is not taken from a final judgment.

The Supreme Court remanded the case to the trial court and, after trial, the court, Reynolds, J., rendered judgment for the defendant on the ground that the covenant interfered with the public interest. The plaintiff appealed the decision to this court, claiming that the trial court erred as a matter of law in holding that the covenant was unenforceable. Because the trial court invalidated the covenant on the ground that it restricted the public interest, without determining whether the restriction was reasonable, we found error and remanded the case to the trial court for evaluation of the covenant under the criteria set forth in Scott v. General Iron & Welding Co., 171 Conn. 132, 368 A.2d 111 (1976). New Haven Tobacco Co. v. Perrelli, 11 Conn. App. 636, 528 A.2d 865 (1987).

On remand, the trial court again invalidated the covenant concluding that it was unreasonable because it lacked a geographic limitation and because it unduly interfered with the public interest. The plaintiff has again appealed, claiming that the trial court erred in invalidating the covenant.

A covenant that restricts the activities of an employee following the termination of his employment is valid and enforceable if the restraint is reasonable. Scott v. General Iron & Welding Co., supra, 137. There are five criteria by which the reasonableness of a restrictive covenant must be evaluated: (1) the length of time the restriction is to be in effect; (2) the geographic area covered by the restriction; (3) the degree of protection afforded to the party in whose favor the covenant is made; (4) the restrictions on the employee’s ability to pursue his occupation; and (5) the extent of interference with the public’s interests. Id., 137-38. The five prong test of Scott is disjunctive, rather than conjunctive; a finding of unreasonableness in any one of the criteria is enough to render the covenant unenforceable. New Haven Tobacco Co. v. Perrelli, supra, 639 n.2.

In the present case, the trial court concluded that the restrictive covenant was unreasonable with respect to the second and fifth prongs of Scott, finding that the covenant lacked any geographic limitation and unduly interfered with the public’s interests. The trial court reasoned that because the covenant did not specify the geographic area covered by the restriction, the geographic scope of the covenant was unlimited and thus unreasonable. We disagree.

The application of a restrictive covenant must be confined to a geographic area that is reasonable in view of the particular situation. Scott v. General Iron & Welding Co., supra, 138. “A restrictive covenant which protects the employer in areas in which he does not do business or is unlikely to do business is unreasonable with respect to area.” Id.

The trial court’s conclusion that the lack of an explicit geographic limitation rendered the covenant unreasonable with respect to area misconstrues the nature and operation of the particular covenant at issue. The covenant is not an anticompetitive covenant that restricts an employee from engaging in the same business as the employer in a given geographical area and prohibits the employee from doing business with all consumers of the service located in that area. Instead, the covenant at issue imposes an antisales restriction that prevents the employee from transacting business with only a specified group of consumers, namely, the customers of the former employer.

An antisales restriction, as opposed to an anticom-petitive restriction, is by its nature limited to a definite geographic area. See Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 531, 546 A.2d 216 (1988). The geographic area affected by an antisales covenant is limited to that area in which the customers of the former employer are located, and the restriction, even within that area, applies only to those customers.

In Wiederlight, our Supreme Court specifically rejected the contention that the antisolicitation and antisales restriction at issue in that case was unreasonable as to geographic area because it lacked, as does the present covenant, an explicit geographic limitation. Id., 531-32. In that case, the employer was doing business throughout Fairfield county and in New York.

In the present case, the plaintiff’s market, and thus its protected customer list, are local and limited to the greater New Haven area. Thus, although the covenant does not contain an explicit geographic limitation, the covenant is in fact limited to a reasonable geographic area.

The trial court also concluded that the restrictive covenant was invalid and unenforceable because the covenant unreasonably interfered with the interests of the public.

In our previous opinion in this case, we set out factors for evaluating whether a restrictive employment covenant unreasonably interferes with the interests of the public. New Haven Tobacco Co. v. Perrelli, supra, 640-42. In order for such interference to be reasonable, it first must be determined that the employer is seeking to protect a legally recognized interest, and then, that the means used to achieve this end do not unreasonably deprive the public of essential goods and services. Id., 642.

In determining whether a restrictive covenant unreasonably deprives the public of essential goods and services, the reasonableness of the scope and severity of the covenant’s effect on the public and the probability of the restriction’s creating a monopoly in the area of trade must be examined. Id., 641.

In the present case, the trial court correctly recognized that the interest sought to be protected by the plaintiff, that is, its clientele, is a legally protected interest. An employer possesses a proprietary right to his customers that he is entitled to protect for a reasonable time. May v. Young, 125 Conn. 1, 7, 2 A.2d 385 (1938). The trial court concluded, however, that the covenant unreasonably interfered with the public interest because the lack of an explicit geographic limitation rendered the covenant unreasonable with respect to its scope and would permit the plaintiff to maintain a monopoly. We disagree.

The trial court reasoned that because the covenant lacked an explicit geographic limitation, an unrestricted section of the population would be prohibited from transacting business with the defendant. As we noted above, however, the covenant is, in fact, geographically limited to that area in which the customers of the plaintiff are located. Moreover, even within that geographic area, the defendant is prohibited from transacting business only with the customers of the plaintiffs wholesale tobacco business with whom he had dealt or whose identity he had discovered while he was employed by the plaintiff. The fact that the defendant is prohibited from doing business with this limited group of individuals does not support the trial court’s conclusion that an unrestricted section of the populace would be affected by the covenant.

The trial court also concluded that the lack of a geographic limitation supported an inference that the plaintiff was trying to maintain a monopoly in the wholesale tobacco business. No evidence was presented concerning the market share of either party. The record contains no support for the conclusion that the plaintiff was attempting to create or maintain a monopoly in the wholesale tobacco business. Because the covenant was reasonably limited as to geographic area, there was no basis from which the trial court could draw an inference, even if such an inference were permissible, that the plaintiff was attempting to maintain a monopoly.

Because the protection of customers is a legally recognized interest and because the covenant is not unreasonable with respect to the scope of its effect on the public interest and there is no evidence to indicate that it would permit the plaintiff to create or maintain a monopoly, we conclude that the covenant does not unreasonably interfere with the public’s interests.

In order for a covenant to be valid and enforceable, it must be reasonable with respect to all five criteria set forth in Scott v. General Iron & Welding Co., supra. Thus, we also must evaluate the reasonableness of the covenant with respect to the time limitation of the covenant, the restriction imposed on the employee’s ability to pursue his occupation and the degree of protection afforded to the employer by the covenant. We conclude that the covenant is also reasonable with respect to these criteria.

The covenant prevents the defendant from transacting business with customers of the plaintiff for a period of two years after leaving the plaintiff’s employ. Such a two year restriction is clearly reasonable. See Robert S. Weiss & Associates, Inc. v. Wiederlight, supra (two year restriction upheld); Scott v. General Iron & Welding Co., supra (five year restriction upheld); May v. Young, supra (two year restriction upheld).

As to the remaining criteria, the protection of an employer’s interest in his customers through the use of similar covenants restricting an employee from entry into the employ of or selling to or soliciting an employer’s customers, has been held reasonable with respect to both the degree of protection afforded an employer and the restriction placed on an employee’s pursuit of his or her occupation. See Robert S. Weiss & Associates, Inc. v. Wiederlight, supra; May v. Young, supra.

Because the restrictive employment covenant at issue is reasonable with respect to the five Scott criteria, and thus valid and enforceable, we conclude that the plaintiff is entitled to enforcement of the covenant and that the trial court erred in rendering judgment for the defendant.

There is error, the judgment is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiff subsequently revised its complaint to eliminate the claim for injunctive relief.

       The fact that the restrictive employment covenant at issue is an anti-sales covenant, rather than an antisolicitation covenant, does not automatically render it unenforceable. Although, as we noted in our previous opinion in this case, an antisales covenant, which prohibits an employee from transacting business with customers of the former employer, imposes a greater burden on the public interest than an antisolicitation covenant, which prohibits only the solicitation of such customers, an antisales covenant may be valid if it is reasonable with respect to the five criteria of Scott v. General Iron & Welding Co., 171 Conn. 132, 137-38, 368 A.2d 111 (1976). New Haven Tobacco Co. v. Perrelli, 11 Conn. App. 636, 639-40, 528 A.2d 865 (1987). In May v. Young, 125 Conn. 1, 2 A.2d 385 (1938), a restrictive covenant was held valid despite the fact that it prevented the employee from entering into the employ of any client of the former employer. Similarly, in Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 546 A.2d 216 (1988), the covenant that was held valid prohibited the employee from soliciting or selling to customers of the plaintiff employer.


source: Caselaw Access Project

author: Jacobson, J.

license: Public Domain

text:
    Russell C. Arpaia et al. v. A. Lawrence Corrone et al.
    (6273)
    Dupont, C. J., Stoughton and Jacobson, Js.
    Argued February 8
    decision released June 6, 1989

      Max F. Brunswick, for the appellants (defendants).

      James M. O’Connor, for the appellees (plaintiffs).
   Jacobson, J.

This is a summary process action in which the defendants appeal from the judgment, rendered after a trial to the court, awarding possession to the plaintiff landlords. They claim that the trial court erred (1) in denying their motion to dismiss and (2) in concluding that the parties had orally agreed to a month-to-month lease and that the lease had terminated by lapse of time. We find error.

The plaintiffs’ complaint alleged that the parties had orally agreed to a month-to-month lease and that the lease term had expired. The summons and complaint set the return date as January 29, 1987, and were returned to court on January 27, 1987.

Before the trial began, the defendants moved to dismiss the action pursuant to Practice Book § 142, arguing that the return of process was not made in conformance with the requirements of General Statutes § 47a-23a. The trial court denied the defendants’ motion without explanation.

Following a brief trial, the court found that the parties had agreed to a month-to-month lease and that the lease had expired. The court awarded possession of the premises to the plaintiffs. This appeal followed.

We hold that the trial court erred in denying the motion to dismiss because the late return of process rendered the action subject to dismissal upon timely motion by the defendants. The summons and complaint were returned to court two days prior to the return day; they should have been returned “at least three days before the return day.”

In Bergin v. Bergin, 3 Conn. App. 566, 490 A.2d 543, cert. denied, 196 Conn. 806, 404 A.2d 903 (1985), this court held that a late return of process, in an appeal from a Probate Court, rendered the appeal subject to dismissal. “ ‘Where return of service is not timely . . . the courts have uniformly held that the defect cannot be cured by amendment. Safford v. Morris Metal Products Co., 99 Conn. 372, 121 A. 885 (1923); Deni-son v. Crafts, 74 Conn. 38, 49 A. 351 (1901); LaMothe v. Gordon, 15 Conn. Sup. 504 (1948). The rationale of this proposition appears to be that once the date for return has passed there is nothing before the court which can be amended.’ William J. Petzold, Inc. v. Commissioner of Revenue Services, 39 Conn. Sup. 247, 249, 476 A.2d 1094 (1984).” Id., 569; see also 1 E. Stephenson, Connecticut Civil Procedure (2d Ed.) § 35, p. 139 and n.622. The late return of process renders the action voidable and, if the defendants choose not to waive the jurisdictional defect of a late return, the trial court must dismiss the action. Id.

“[I]t is the actual return of the writ to the court which really puts the action before the court and empowers the court to proceed, even prior to return day.” 1 E. Stephenson, supra, § 21, p. 67. Thus, although a defendant in a civil action may consent to the jurisdiction of the court, the court may not proceed with the action until the return of process is made to the court. See, e.g., Algonquin Gas Transmission Co. v. Becker, 25 Conn. Sup. 448, 206 A.2d 846 (1952); annot., 82 A.L.R.2d 664.

The failure to meet the statutory requirement for the return of process rendered the case subject to dismissal. The defendants timely filed a motion to dismiss and the trial court erred in not dismissing the action. Because we hold that the trial court erred in denying the defendants’ motion to dismiss, it is unnecessary to examine the defendants’ remaining claim of error.

There is error, the judgment is set aside and the case is remanded with direction to render judgment dismissing the action.

In this opinion the other judges concurred.

       Practice Book § 142 provides: “motion to dismiss. Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. Except in summary process matters, the motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the court otherwise directs.”

       General Statutes § 47a-23a specifies the procedure for filing a complaint in summary process actions, following service on the occupants of a notice to quit possession of the premises. It states that “[sjuch complaint may be made returnable six days, inclusive, after service upon the defendant and shall be returned to court at least three days before the return day.” General Statutes § 47a-23a (a).


author: Dupont, C. J.,

text:
    ASL Associates v. Zoning Commission of the Town of Marlborough
    (7000)
    Dupont, C. J., Norcott and Foti, Js.
    Argued January 10
    decision released June 6, 1989

      Joel M. Fain, with whom was Joseph P. Capossela, for the plaintiff.

      Eugene Scalise, Jr., for the defendant.
   Dupont, C. J.,

At the joint request of the parties, the trial court granted a motion for reservation upon stipulated facts to have this court resolve questions concerning the construction of Article Seven (A) (7) of the regulations of the defendant Marlborough zoning commission. The article requires that a holder of a special permit obtain a building permit and commence construction within nine months of the issuance of the permit or the special permit becomes void.

The questions reserved to this court are (1) does the pendency of an appeal challenging the validity of a special permit stay the running of the nine month period provided for in Article Seven (A) (7) of the Marlborough zoning regulations, and (2) does the commencement of construction and the filing of a complete and satisfactory application for a building permit within the nine month period provided for in Article Seven (A) (7) satisfy the requirements of that provision? We conclude that the allegations of the plaintiffs complaint and the facts contained in the stipulation of the parties do not indicate that there is an actual controversy between the parties and, therefore, we decline to answer the reserved questions.

The stipulated facts are that on November 26,1985, the plaintiff applied to the defendant zoning commission for a zone change, a special permit and a site plan to allow the construction of sixty-four condominium units in Marlborough. On June 5,1986, the defendant voted to approve the application. An appeal of the zoning approval was commenced in Superior Court on July 1, 1986, and was dismissed on August 25, 1986. Subsequently, the plaintiffs in that case filed a petition for certification with this court, which was granted in January, 1987. On January 5,1988, this court affirmed the decision of the Superior Court dismissing the appeal.

The special permit approved by the defendant was issued to the plaintiff on September 2,1986. On June 1, 1987, one day before the expiration of nine months from the date of the issuance of the special permit, the plaintiff filed an application for a building permit with the town of Marlborough. On June 29, 1987, after review of the application, including consultation with the town’s engineer, attorney, and planning coordinator, as well as with the department of environmental protection, the defendant’s building inspector issued a building permit to the plaintiff. Thus, although the plaintiff applied for a building permit within the nine month period provided by Article Seven (A) (7), the building permit was not issued until after the nine month period had expired.

The plaintiff subsequently brought this action in January, 1988, seeking declaratory and injunctive relief. Specifically, the plaintiffs complaint seeks a declaratory judgment declaring that the pendency of an appeal from the granting of a special permit stays the running of the nine month period referred to in Article Seven (A) (7) of the Marlborough zoning regulations. In addition, the plaintiff seeks a judgment declaring that, when all the requirements for the issuance of a building permit have been met within the nine month period set forth in Article Seven (A) (7), but the town has failed to issue the permit within the nine month period, the special permit remains valid. The plaintiffs complaint also requests a temporary and permanent injunction to prevent the defendant from taking any action to declare the special permit void.

Practice Book § 390 governs the issuance of declaratory judgments and provides: “The court will not render declaratory judgments upon the complaint of any person . . . (b) unless there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties . . . .” The provisions of Practice Book § 390 (b) thus require that an action for declaratory judgment be employed only where there is a justiciable controversy. Liebeskind v. Waterbury, 142 Conn. 155, 158, 112 A.2d 208 (1955). The § 390 (b) requirement of an actual controversy is one of subject matter jurisdiction. See Kiszkiel v. Gwiazda, 174 Conn. 176, 180-81, 383 A.2d 1348 (1978); St. John’s Roman Catholic Church Corporation v. Darien, 149 Conn. 712, 716-17, 184 A.2d 42 (1962); Liebeskind v. Waterbury, supra, 159.

Section 390 (b) requires a sufficient practical need for the determination of the question in dispute. Kiszkiel v. Gwiazda, supra, 181. “The complaint must state facts sufficient to set forth a cause of action entitling the plaintiff to a declaratory judgment. 1 Anderson, Declaratory Judgments (2d Ed.) § 257. To state a cause of action for such relief, facts showing the existence of a substantial controversy or uncertainty of legal relations that requires settlement between the parties must be alleged. Ordinarily, there should be an assertion in the pleadings by one party of a legal relation or status or right in which he has a definite interest, together with an assertion of the denial of it by the other party, thus setting forth a substantial dispute. Id. § 258.” Lipson v. Bennett, 148 Conn. 385, 389, 171 A.2d 83 (1961); see also Trubek v. Ullman, 147 Conn. 633, 635, 165 A.2d 158, cert. denied, 367 U.S. 907, 81 S. Ct. 1917, 6 L. Ed. 2d 1249 (1960).

If a reservation is sought, and the underlying cause of action is a declaratory judgment, the question for the reviewing court is whether the resolution of the question or questions asked would or could lead to a final decision, namely a declaratory judgment. Barr v. First Taxing District, 147 Conn. 221, 223-24, 158 A.2d 740 (1960); Liebeskind v. Waterbury, supra; Norwalk Teachers’ Assn. v. Board of Education, 138 Conn. 269, 272-73, 83 A.2d 482 (1951). In those instances in which the questions reserved cannot be answered because the facts that were the subject of the stipulation are inadequate to furnish a basis for the underlying cause of action, this court should refuse to answer them. See State v. Doe, 149 Conn. 216, 178 A.2d 271 (1962).

In the present case, the plaintiffs complaint fails to allege an actual controversy. The plaintiff obtained a building permit issued pursuant to the special permit and began the site work for the condominium project in the fall of 1986. There is no allegation that the defendant has taken, or even has threatened to take, action to declare the special permit void or to rescind the building permit. The plaintiffs sole allegation relating to the defendant’s actions is as follows: “If the Zoning Commission takes action to declare the permit void, the plaintiff will be irreparably injured thereby.” (Emphasis added.) The plaintiff’s anticipating that the defendant will take action to deprive him of rights connected with the issuance of the special permit is insufficient to allege an actual controversy between the parties as required by Practice Book § 390 (b).

The fact that the issue of subject matter jurisdiction was not raised by either party in the trial court or this court is of no consequence. “The parties to an action cannot confer subject matter jurisdiction on the court by their consent, silence, waiver or private agreement.” Arseniadis v. Arseniadis, 2 Conn. App. 239, 242, 477 A.2d 152 (1984); see also Gianetti v. Norwalk Hospital, 211 Conn. 51, 557 A.2d 1249 (1989). The facts to which the parties stipulated and the allegations of the complaint are not sufficient for us to conclude that the trial court had jurisdiction to render a declaratory judgment.

Even in the absence of Practice Book § 390 (b) requirements, we would decline to answer the reserved questions, pursuant to our discretionary authority to decline to exercise such jurisdiction. See State v. Sanabria, 192 Conn. 671, 683, 474 A.2d 760 (1984). This discretionary power is based on the prudent concerns set forth in Practice Book rule § 4147. Id., 684-85.

Practice Book § 4147 provides in relevant part: “The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action.” The plaintiff in the present case has requested a judicial interpretation of a regulation, despite the fact that there is no allegation that the defendant has yet applied or threatened to apply the regulation to the plaintiffs detriment. In fact, the defendant issued a building permit to the plaintiff after an action for injunctive relief seeking to prevent the defendant from issuing that permit was brought, but before the trial court in that action denied the injunctive relief. See footnote 3, supra. Thus, the building permit was issued notwithstanding the pen-dency of an action to prevent the issuance of the permit. The defendant is, in effect, now asking this court to “readjudicate” its prior avowal of the plaintiff’s right to the permit, and another court’s decision that denied the relief of the prevention of the issue of that permit.

Where the parties in a case were parties to an earlier action in which the same issue was the subject of a final judgment, it is difficult to understand how there could remain a justiciable or real controversy between the parties. Cf. Redmond v. Matthies, 149 Conn. 423, 180 A.2d 639 (1962). The question presented in the prior action, as well as in this action, was whether the town could issue a building permit to the plaintiff. The plaintiff and the defendant were parties to that action, and cannot impose their wish upon this court to have the same issue determined once again by way of this declaratory judgment action.

In the absence of an actual, ripe controversy between the parties it would not be “in the interest of simplicity, directness and economy of judicial action” to answer the reserved questions concerning Article Seven (A) (7) of the Marlborough zoning regulations. See State v. Zack, 198 Conn. 168, 502 A.2d 896 (1985). “Whether a case comes to us by way of reservation or after a final judgment, the rule is the same. We do not give advisory opinions . . . Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987).

For the foregoing reasons, we do not answer the reserved questions. No costs will be taxed to any party.

In this opinion the other judges concurred.

       Practice Book § 4147 provides in pertinent part: “A reservation shall be taken ... to the appellate court from those cases in which an appeal could have been taken directly . . . to the appellate court . . . had judgment been rendered. . . .
      “All questions for advice shall be specific and shall be phrased so as to require a Yes or a No answer.
      “The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are , . . reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action.”

       Article Seven (A) (7) of the Marlborough zoning regulations provides as follows: “Construction or operation shall commence, and a building permit issued where required, within nine (9) months from date of issuance of the Special Permit or the Special Permit becomes void. A notice shall be recorded on the land record that the Special Permit is void.”

       Some of the plaintiffs in that case brought a separate action on June 4, 1987, seeking to enjoin the defendant from issuing a building permit to the present plaintiff. The plaintiff was named a party defendant in that action. When the injunction was denied on July 24,1987, the building permit had already been issued on June 29, 1987.

       The building permit was valid as of January, 1988. See footnote 3, supra. The record does not indicate that any notice was placed on the land records invalidating the special permit. See Article Seven (A) (7) of the Marlborough zoning regulations.

       Both parties have urged this court to answer the questions reserved, claiming that an actual controversy exists.


author: Foti, J.

text:
    Edward M. Kenney et al. v. Planning and Zoning Board of the Town of Greenwich et al.

    (6197)
    Dupont, C. J., Spallone and Foti, Js.
    Argued April 13
    decision released June 6, 1989

      Eugene J. Riccio, with whom, on the brief, were Mark R. Carta, Kari Pedersen and Catherine Rinaldi, for the appellants (plaintiffs).

      Robert P. Dolian, with whom, on the brief, were Charles K. Campbell and Joseph N. Varón, for the appellees (defendants Daniel and Janet Barber).

       Reversed, 20 Conn. App. 136, A.2d (1989).

   Foti, J.

Pursuant to General Statutes (Rev. to 1985) § 8-8 (b) and the Supreme Court’s decisions in Simko v. Zoning Board of Appeals, 205 Conn. 413, 533 A.2d 879 (1987) (Simko I), and Simko v. Zoning Board of Appeals, 206 Conn. 374, 538 A.2d 202 (1988) (Simko II), the trial court dismissed the plaintiffs’ appeal. The trial court determined that the plaintiffs’ failure to name as a necessary party, cite and serve the clerk of the municipality deprived the court of subject matter jurisdiction. All other necessary parties, including the chairman of the board, were found to have been properly named, cited and served.

During the pendency of the plaintiffs’ appeal from the trial court’s dismissal of their case, the General Assembly amended § 8-8 (b) and enacted a validating act; Public Acts 1988, No. 88-79; to save certain zoning appeals, brought within a designated grace period, from dismissal on Simko grounds. Relying on the validating act, the plaintiffs filed a motion to open, which was denied by the trial court on the ground that the town clerk was not physically served with copies of the appeal. The plaintiffs appeal from the trial court’s denial of their motion to open.

The dispositive issue in this appeal is whether Public Acts 1988, No. 88-79 validates a zoning appeal in which the town clerk was neither cited nor actually served with copies of the appeal. We conclude that it does.

This case is controlled by Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 547 A.2d 528 (1988), in which the Supreme Court examined the validating act and its purposes. Under Capalbo, four conditions must be satisfied in order to save an otherwise invalid appeal: “(1) it must have been taken on or after October 1,1985; (2) it must have been taken prior to December 1, 1987; (3) a ‘final judgment’ must not have been rendered prior to the effective date of the act (April 20,1988); and (4) the appeal must be otherwise valid except that the appellant failed to name the clerk of the municipality as a party to the appeal.” Id., 485; see also Aitken v. Zoning Board of Appeals, 18 Conn. App. 195, 200, 557 A.2d 1265 (1989). This case readily meets the first three requirements of this test. The factual situation presented, however, raises questions as to the fourth condition.

In analyzing what is an “otherwise valid” appeal under the validating act, the Capalbo court adopted a “functional approach.” Applying the functional approach to various factual situations, the Supreme Court and this court have found the validating act broad enough to save numerous zoning appeals with Simko-type defects. See, e.g., Ilvento v. Frattali, 210 Conn. 432, 433-34, 555 A.2d 985 (1989) (appeal validated where plaintiff failed to name the chairman or clerk of commission as a necessary party but cited the chairman of the commission for purposes of directing service); Capalbo v. Planning & Zoning Board of Appeals, supra (appeal validated where town clerk received a copy of appeal but was neither cited as a party nor named for the purpose of directing proper service); Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 543 A.2d 1339 (1988) (appeal validated where town clerk was not named as party but the citation directed the sheriff to serve both town clerk and chairman of the board); see also Aitken v. Zoning Board of Appeals, supra. “It is now abundantly clear that when the legislature enacted Public Acts 1988, No. 88-79, it ‘clearly expressed an intention that appeals from the decisions of planning and zoning commissions be heard and decided on their merits and not be invalidated for technical defects in service.’ Ilvento v. Frattali, supra, 434.” Aitken v. Zoning Board of Appeals, supra, 203.

We conclude that the validating act and subsequent decisions interpreting that act are broad enough to encompass the present factual circumstances. The service in this case was, therefore, legally sufficient “to ensure that the commission received adequate notice of the [plaintiffs’] appeal.” Ilvento v. Frattali, supra, 434.

There is error, the judgment is set aside and the case is remanded to the trial court for further proceedings.

In this opinion the other judges concurred.

       Public Acts 1988, No. 88-79, enacted April 20,1988, supplemented General Statutes § 8-8 by adding: “Sec. 3. (a) Any appeal of a decision of a zoning commission, planning commission, planning and zoning commission or zoning board of appeals taken on or after October 1, 1985 and prior to December 1, 1987 in which a final judgment has not been entered prior to the effective date of this act, otherwise valid except that the party taking such appeal failed to name the clerk of the municipality as a party to the appeal in the appeal citation, is validated.”

       Although the defendants are correct that the present case is factually distinguishable from Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 488, 547 A.2d 528 (1988), we find this case to be substantively indistinguishable. In Capalbo, the Supreme Court framed the issue as being whether the plaintiffs’ appeal was “ ‘otherwise valid’ except for failing to name the town clerk, when the town clerk was neither named nor served?” In that case, the town clerk was served with a copy of the appeal but was not cited as a party. Id., 485. The court emphasized that actual delivery of an appeal to a party without direction in the citation to serve that party is of no legal effect. Despite that legal deficiency, however, the court determined that service was legally sufficient under the validating act. In the present case, the town clerk was neither cited nor served. In light of the court’s reasoning in Capalbo, we are convinced that in enacting the validating act; see footnote 1, supra; the legislature intended to save the present appeal.


author: Dupont, C. J.

text:
    Holly Holody v. First National Supermarkets, Inc.
    (7199)
    Dupont, C. J., O’Connell and Fon, Js.
    Argued April 13
    decision released June 6, 1989

      Christopher M. Reeves, with whom was Andrew H. Sharp, for the appellant (defendant).

      Michael E. Wolf, for the appellee (plaintiff).
   Dupont, C. J.

The defendant appeals from a judgment rendered by the trial court upon the jury’s verdict for the plaintiff. The defendant claims that the trial court erred in denying its motions for a directed ver-diet, to set aside the verdict and for judgment notwithstanding the verdict.

The defendant’s claim can be resolved by determining the sole issue of whether the jury could reasonably have found that the plaintiffs injuries were proximately caused by a breach of the duty of care owed to the plaintiff, a business invitee, by the defendant, its servants, agents and employees in that the defendant “caused, allowed and maintained the storage of . . . juice bottles to be placed in a dangerous position.”

The plaintiff claims that this allegation does not require proof that the defendant had actual or constructive notice of the position of the bottles but that she need prove only that the defendant was negligent in creating the condition, namely, a particular display in which bottles were placed in a dangerous position.

By contrast, the defendant argues that without any direct evidence to indicate how long the alleged unsafe condition had existed prior to the injuries sustained by the plaintiff, the defendant could not be found to have had constructive notice of the condition, and, therefore, the jury could not have found the defendant liable.

The jury could reasonably have found that the plaintiff entered the Edwards Food Warehouse owned by the defendant to purchase groceries. The plaintiff intended to select a bottle of grapefruit juice from a display. The juice was displayed in cardboard boxes, stacked three boxes high, with their tops removed and a portion of the front of the boxes cut away. The plaintiff testified that she did not believe she could remove a bottle of grapefruit juice from the uppermost box because a bar ran horizontally across the front of the uppermost box near the top. She also testified that the box below the uppermost box, the middle box, was not full when she approached the juice display. Lastly, she testified that the cardboard dividers that separated the bottles of juice in the boxes had been removed. The plaintiff attempted to remove a bottle of juice from the middle box at which point five of the six bottles in the uppermost box fell, striking the plaintiff on the back of the head and causing her injury.

A safety engineer testified that the modifications to the boxes, namely, the removal of the tops, the cutting away of a portion of the front of the boxes and the removal of the cardboard dividers, would cause the display to have no lateral rigidity at the top of the boxes and, if the bottles were removed from the middle box, while a box with bottles was stored on top, the entire three tier structure of boxes would be weakened.

As a result of the incident, the plaintiff sustained soft tissue injuries including permanent partial disabilities of 10 percent of her lumbar spine and cervical spine. She was out of work from September 6,1984, through November 5, 1984, and thereafter worked half days through December 6,1984. She incurred medical bills of approximately $4000.

At the close of the trial, the defendant moved for a directed verdict, a prerequisite to a motion for judgment notwithstanding the verdict. Practice Book § 321. The trial court granted the motion for a directed verdict with respect to other allegations of the complaint, leaving the plaintiffs allegation that the defendant’s negligence consisted of placing the juice bottles in a dangerous position. The jury returned a verdict of $56,000 for the plaintiff, reduced from $70,000 attributable to the plaintiff’s 20 percent contributory negligence. The defendant moved for judgment notwithstanding the verdict and moved to set aside the verdict. The court denied these motions and rendered judgment for the plaintiff.

The defendant claims that there was no evidence that the defendant had constructive notice of the dangerous and unsafe manner in which the juice was displayed. The plaintiff does not dispute the lack of such evidence but claims that none was necessary in order to sustain the verdict in her favor.

In determining whether the trial court erred in denying the defendant’s motions, “the evidence presented must be considered in the light most favorable to the plaintiffs. Herb v. Kerr, 190 Conn. 136, 140, 459 A.2d 521 (1983); Magnon v. Glickman, 185 Conn. 234, 237-38, 440 A.2d 909 (1981); see Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 326-27, 505 A.2d 25 (1986).” Schwarz v. Waterbury Public Market, Inc., 6 Conn. App. 429, 431-32, 505 A.2d 1272 (1986).

This case does not depend on whether there were facts before the jury from which it could have inferred that the defendant had constructive notice of a defect. See DeLorenzo v. Great Atlantic & Pacific Tea Co., 4 Conn. App. 560, 562-63, 495 A.2d 1106 (1985). Instead, the concern is whether the plaintiff produced evidence from which the jury could infer and reasonably believe, in the exercise of common sense, that it was more probable than not that the defendant, without any intervening action by others, had placed juice bottles in a dangerous position, and that this placement was the proximate cause of the plaintiff’s injuries. See Frankovitch v. Burton, 185 Conn. 14, 23-24, 440 A.2d 254 (1981). This case does not involve the common situation of whether a foreign substance that allegedly caused injuries had existed on the floor of a defendant’s commercial premises for a length of time sufficient to charge a defendant with constructive notice of its existence. See, e.g., Schwarz v. Waterbury Public Market, Inc., supra.

The jury could reasonably have found from the evidence submitted to it that the proximate cause of the plaintiffs injuries was the failure of the defendant to display the juice bottles in a safe manner.

The defendant also urges that this court remand the case with an order that a remittitur be entered because the jury’s award was excessive. The verdict reflected the jury’s assessment of damages and must be sustained as long as it does not shock the sense of justice. Herb v. Kerr, supra, 139. It does not.

There is no error.

In this opinion the other judges concurred.


author: Stoughton, J.

text:
    Anita Pettengill et al. v. Dennis Pettengill
    (7449)
    Borden, Stoughton and Norcott, Js.
    Argued April 19
    decision released June 6, 1989

      Geoffrey S. Brandner, for the appellants (plaintiffs).

      Paul E. Pollock, with whom, on the brief, was Thomas P. Parrino, for the appellee (defendant).
   Stoughton, J.

The plaintiffs appeal from a summary-judgment rendered in favor of the defendant. We find no error.

The minor plaintiff brought this action by her stepmother against her father, alleging that she was injured through the negligence of the defendant. The child’s stepmother joined the action as a plaintiff alleging that she had incurred medical and other expenses due to the negligence of her husband. The defendant denied that he was negligent and set up parental immunity as a special defense. After the pleadings had been closed, the defendant moved for summary judgment and his motion was granted. This appeal followed.

Summary judgment is appropriate once the pleadings have been closed if there is no genuine issue as to any material fact to be determined and if the moving party is entitled to judgment as a matter of law. Practice Book § 384. .

The allegations of the complaint were assumed by the trial court to be true for the purposes of summary judgment. See Yanow v. Teal Industries, Inc., 178 Conn. 262, 265, 422 A.2d 311 (1979). In their complaint, the plaintiffs alleged that while the defendant was mowing his lawn with a tractor mower, he placed the minor plaintiff on the housing of the mower or allowed her to be there, and that the child was injured when the defendant turned and caused her to fall off the machine. The plaintiffs claim that the defendant was negligent in allowing his daughter to ride on the mower when he knew or should have known that it was unsafe and dangerous to do so, in failing to control the mower, and in allowing his daughter to ride on the mower with nothing to keep her from falling off.

The parental immunity doctrine bars an unemanci-pated minor from suing his or her parent for injuries caused by the negligence of that parent. Dubay v. Irish, 207 Conn. 518, 523, 542 A.2d 711 (1988 ).

The plaintiffs urge this court to abrogate the parental immunity doctrine as a defense in this case, because the defendant employed a dangerous instrument and caused injury to his daughter by an act of malfeasance.

Our Supreme Court very recently has declined to abrogate the doctrine of parental immunity in cases involving allegations of parental discretion with regard to the care, supervision and instruction of a child based solely upon the existence of liability insurance, holding that courts should not unnecessarily involve themselves in the day-to-day exercise of parental discretion regarding the upbringing and care of children. Dubay v. Irish, supra, 527. It necessarily follows that the doctrine has continued validity in a case such as this one. It is not our function to overrule established Supreme Court precedent. State v. Summerville, 13 Conn. App. 175, 181, 535 A.2d 818 (1988). The result in this case is controlled by Dubay v. Irish, supra, and the reasoning and authorities cited therein.

There is no error.

In this opinion the other judges concurred.


text:
    Harris Calorific Sales Company v. Manifold Systems, Inc.
    (6921)
    Dupont, C. J., Stoughton and Jacobson, Js.

      Argued February 16
    decision released June 6, 1989

      Mark E. Lowell, for the appellant (defendant).

      Debra J. Zappone, with whom, on the brief, was Joseph F. Keefe, for the appellee (plaintiff).
   Jacobson, J.

The defendant appeals from the judgment of the trial court ordering it to pay the plaintiff a specified amount under a contract between the parties. The defendant claims that the trial court erred (1) in concluding that an agreement made by the parties on September 11, 1984, had modified an earlier contract executed by them on December 10, 1982, (2) in finding that the plaintiff had received the defendant’s consent, as required in the earlier agreement, to transact business with a customer with whom the plaintiff was prohibited to deal under the terms of a noncompe-tition clause in the earlier agreement, (3) in awarding interest to the plaintiff after finding that the defendant had wrongfully withheld payment due the plaintiff under the contract, and (4) in denying the defendant’s two postjudgment motions for special findings. We find no error.

The plaintiff is in the business of selling welding supplies, and the defendant manufactures manifolds intended for the distribution of gas. About 1980, two individuals, David McQuay and Leonard Johnson, formed Manifold Systems, Inc., each retaining a one half interest in the corporation. On December 10,1982, they signed an agreement whereby McQuay, doing business as the plaintiff, Harris Calorific Sales Co., Inc., sold his interest in the corporation to the defendant. The agreement contained a clause prohibiting the plaintiff from competing with the defendant for three years without its written consent. The purchase price of the buyout was $38,400; the defendant was to pay the plaintiff a set amount upon signing the agreement and the remainder was to be paid in quarterly installments. Additionally, after each of three years following the date of the agreement, the plaintiff was to receive 25 percent of the annual gross sales by Manifold Systems, Inc., “to the General Electric facility presently located in Lynn, Massachusetts,” less the set figure of $8300.

McQuay asserted that, in 1984, he was contacted by a purchasing agent from General Electric who inquired about purchasing certain equipment. The defendant had had no prior dealings with this purchasing agent. Because the defendant manufactured the equipment that General Electric sought, McQuay contacted Johnson about a potential sale. Following a series of negotiations, the parties signed an agreement on September 11, 1984. The plaintiff was to receive $7641, 25 percent of the total invoiced to the General Electric Company by the defendant, in exchange for turning over to the defendant the purchase orders it had received from General Electric.

The defendant filled the orders and received full payment from General Electric. Despite demands from the plaintiff, the defendant refused to pay, and the plaintiff instituted this action.

The defendant, in its answer, alleged four special defenses. It maintained (1) that the plaintiff already had been paid for the purchase orders under the terms of the buyout agreement, (2) that the later written agreement was void because the defendant signed it under extreme duress, concerned that General Electric would cease doing business with it if the plaintiff and defendant “were to come into conflict over the order,” (3) that the plaintiffs procurement of the purchase orders violated the noncompetition clause in the earlier agreement, and (4) that the later agreement lacked consideration because the defendant already was entitled to the orders under the terms of the earlier agreement. The defendant also counterclaimed, claiming damages for the plaintiff’s breach of the noncompe-tition clause in the earlier agreement, and for damages resulting from the parties’ duress-induced agreement.

The trial court found that the later agreement was valid and that the defendant had signed it without duress. It further found that the parties intended the later agreement to modify the earlier agreement; alternatively, it found that the later agreement constituted a sufficient written consent by the defendant, as required in the earlier agreement, for the plaintiff to have transacted business with the customer. After finding the defendant’s withholding of the amount due to the plaintiff wrongful, it awarded the plaintiff interest, as well as damages. This appeal followed.

The defendant’s first claim of error challenges the trial court’s finding that the later agreement modified the earlier one. As an appellate court, our review of trial court decisions is limited to determining whether their legal conclusions are legally and logically correct, supported by facts set out in the memorandum of decision. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). If the factual basis of the court’s decision is challenged, our review includes determining “whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Id. Reviewed within these well established bounds, we find the trial court’s decision that the later agreement modified the earlier one was not erroneous.

“ ‘Whether a contract exists is a question of fact for the court to determine.’ Randolph Construction Co. v. Kings East Corporation, 165 Conn. 269, 277, 334 A.2d 464 (1973); Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 408, 499 A.2d 64 (1985) [rev’d on other grounds, 202 Conn. 190, 520 A.2d 208 (1987)]. Parties may alter any term of an existing contract by entering into a subsequent contract. Mutual promises qualify as sufficient consideration for a binding contract. Gordon v. Indusco Management Corporation, 164 Conn. 262, 267-68, 320 A.2d 811 (1973); Taft Realty Corporations. Yorkhaven Enterprises, Inc., 146 Conn. 338, 342, 150 A.2d 597 (1959). ‘For a valid modification, there must be mutual assent to the meaning and conditions of the modification and the parties “must assent to the same thing in the same sense ... if they are to vary the contract in any way.” ’ Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 402, 365 A.2d 1086 (1976). ‘The meaning to be given subsequent agreements, therefore, depends on the intention of the parties. As intention is an inference of fact, “the conclusion is not reviewable unless it was one which the trier could not reasonably make.” ’ (Citations omitted.) Id., 402-403.” Manzin v. United Bank & Trust Co., 6 Conn. App. 513, 516, 506 A.2d 169 (1986).

Given these principles, our question becomes, on appeal, whether the evidence presented to the trial court supported that court’s conclusion that the newer agreement modified the earlier one. The evidence presented to the court primarily consisted of testimony of the two individuals mainly responsible for executing the two agreements, McQuay and Johnson. The court chose as more credible the testimony of McQuay, and accepted McQuay’s reconstruction of the facts to find that the agreement was valid and not signed under duress. Nothing advanced by the defendant compels us to conclude that the trial court’s assessment of the law regarding the modification of contracts, or the facts upon which its conclusions rest, was erroneous.

The defendant asserts that the second agreement failed for lack of consideration. It argues that the plaintiff received a benefit from the 1984 agreement that it was, under the 1982 contract, either obligated to convey to the defendant or to decline to accept in the first instance. We disagree. Although contracts modifying earlier ones must be supported by new consideration; State National Bank v. Dick, 164 Conn. 523, 529, 325 A.2d 235 (1973); Gordon v. Indusco Management Corporation, supra, 267; mutual promises are sufficient consideration to bind parties to a modification. Gordon v. Indusco Management Corporation supra, 267-68. We find no evidence that would lead us to conclude that the trial court’s assessment of the parties’ agreements could not have supported its conclusion. The plaintiff promised to negotiate and secure orders on behalf of the defendant in return for a percentage of the total amount invoiced to the customer. These promises constituted sufficient consideration for the 1984 agreement.

The trial court’s decision finding that the initial contract was modified by a subsequent agreement is not erroneous. The defendant, therefore, is liable under the valid, later agreement, and it is unnecessary for us to review the defendant’s second claim of error, namely, that the trial court erred in finding that the defendant consented to the plaintiff’s actions in conducting business with the customer.

The third claim of error advanced by the defendant concerns the court’s award of interest to the plaintiff. The essence of the defendant’s argument is that awards of interest under General Statutes § 37-3a are permitted only when there is no legitimate dispute and payment is wrongfully withheld. The defendant asserts that, in this case, the defendant’s reliance on the non-competition term in the earlier agreement was reasonable and provided a sufficient basis for a court to decide that an award of interest was not warranted. We disagree.

“ ‘ “Whether interest is a proper element of damages is primarily an equitable determination and is a matter which lies within the discretion of the trial court.” State v. Stengel, 192 Conn. 484, 487, 472 A.2d 350 (1984); Perl v. Case, 3 Conn. App. 111, 116, 485 A.2d 1331 (1985).’ Guaranty Bank & Trust Co. v. Dowling, 4 Conn. App. 376, 386, 494 A.2d 1216 (1985). Interest may be awarded at the statutory rate from the time the money becomes due. . . . The court’s decision to award interest is subject to reversal only upon a showing of an abuse of discretion.” (Citations omitted.) Simonetti v. Lovermi, 15 Conn. App. 722, 727, 546 A.2d 331 (1988).

We disagree with the defendant’s contention that an award of interest is not appropriate whenever there is a legitimate dispute concerning the construction of a contract. Certainly, in instances in which both parties concede a sum is due and owing under a contract, it may not be an abuse of discretion for the court to award interest; see, e.g., Simonetti v. Lovermi, supra, 727-28; Perl v. Case, supra, 117; however, “ ‘ “[t]he determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than through the application of any arbitrary rule.” Bernhard v. Rochester German Ins. Co., 79 Conn. 388, 398, 65 A. 134 [1906]. The real question in each case is whether the detention of the money is or is not wrongful under the circumstances.’ Cecio Bros, Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374 [1971]; Wells Laundry & Linen Supply Co. v. Acme Fast Freight, Inc., 138 Conn. 458, 463, 85 A.2d 907 [1952]; Campbell v. Rockefeller, 134 Conn. 585, 591, 59 A.2d 524 [1948], Basically, the question is whether the interests of justice require the allowance of interest as damages for the loss of use of money.” (Citations omitted.) Bertozzi v. McCarthy, 164 Conn. 463, 466-67, 323 A.2d 553 (1973). We conclude it was not an abuse of discretion by the trial court to find that an award of interest was warranted.

The defendant’s final claim is that the trial court erred in denying the defendant’s motion for special findings of fact following the court’s decision. The defendant’s argument is twofold. Because General Statutes § 52-226 provides that the court “shall” make findings of fact upon the written motion of a party, the defendant claims that the court lacked the authority to deny the motion, and further claims that Practice Book § 334 suggests that the court’s decision that the later agreement modified the earlier one, made without being advanced as an argument by the parties, is deserving of a motion for a special finding.

We conclude that this claim is not properly before the court on appeal. “A party whose motion for a special finding under General Statutes § 52-226 has been denied may not assign that denial as error. Davis v. P. Gambardella & Son Cheese Corporation, 147 Conn. 365, 367 n.1, 161 A.2d 3 (1960).” Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 50, 492 A.2d 223 (1985); see also Tower v. Camp, 103 Conn. 41, 45, 130 A. 86 (1925). The proper procedure for presenting an adequate factual record for appeal is to move the trial court for articulation under Practice Book § 4051, and, if the court denies the motion, to seek review of that decision by an appellate court pursuant to Practice Book § 4054. The defendant followed this procedure. The trial court denied its motion for articulation and this court denied its motion for review. This' argument has already received adequate review.

There is no error.

In this opinion the other judges concurred.

       A portion of this clause stated that “[i]n that [the plaintiff] sells regulators . . . which could have application to [Manifold Systems’] manifolds, [Manifold Systems] shall notify [the plaintiff] from time to time of [its] customers and [the plaintiff] shall be bound ... to refrain from selling regulators to those customers. [The plaintiff] shall be at liberty to sell regulators only to parties other than [Manifold Systems’] customers.”

       General Statutes § 37-3a provides in relevant part that “interest at the rate of ten percent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable . . . .”

       General Statutes § 52-226 provides in pertinent part: “In any trial to the court, except a trial at a small claims session, the court shall find, upon written motion of either party made within fourteen days after the entry of judgment, the facts upon which its judgment is founded, and make the finding a part of the record.”
      The defendant’s motion requested the trial court to answer the following questions:
      “1. Whether the General Electric facility in Lynn, Massachusetts was within the penumbra of protected customers included in the noncompetition clause of the December, 1982 agreement between the parties.
      “2. If the finding in No. 1 is affirmative; that General Electric at Lynn, Massachusetts was a protected customer, then what was the consideration given by the Plaintiff to the Defendant under the September, 1984 agreement.”

       Practice Book § 334 provides in relevant part: “[The special findings of fact required by Sec. 327] should contain only facts material to the issues tried. When any fact upon which final judgment is founded is simply a bare conclusion of law from more detailed and subordinate facts, as, for instance, in cases of constructive fraud, the finding, if a special one be requested, must specially set forth the subordinate facts from which, as such conclusion of law, the court finds the principal fact. In such cases the finding should be such as distinctly to show any conclusion of law thus drawn.”

       The defendant argues that the trial court’s legal conclusion, that the later agreement modified the earlier one, could not have been made because the plaintiff did not specifically argue at trial that a modification had occurred. Once again, what the parties intended to accomplish when they made their 1984 agreement is an inference of fact, a question for the trier. Our review of the transcript reveals an adequate basis for the trial court to conclude as it did.

       Practice Book § 4051 provides in relevant part: “A motion for rectification or articulation shall be filed in triplicate with the chief clerk of the supreme court and forwarded by such clerk to the trial judge. The trial judge shall file the ruling on the motion with the chief clerk of the supreme court.
      “Any motion seeking corrections in the transcript or the trial court record which depend on proof of matters not of record or seeking an articulation or further articulation of the decision of the trial court shall be determined by the judge of the trial court whence the appeal is taken or the reservation is made.”

       Practice Book § 4054 provides in relevant part: “Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Sec. 4051 may make a written motion for review to the supreme court, to be filed with the chief clerk of the supreme court, and the supreme court may, upon such a motion, direct any action it deems proper.”


author: Borden, J.

text:
    Gary V. Sink et al. v. Meadow Wood Country Estates, Inc.
    (7026)
    Bokden, Daly and Jacobson, Js.
    Argued February 28
    decision released June 6, 1989

      James M. O’Connor, with whom was Dominic J. Caciopoli, for the appellants (plaintiffs).

      Edward J. Dolan, for the appellee (defendant).
   Borden, J.

The defendant appeals from the judgment of the trial court ordering the defendant to perform its contract with the plaintiffs by conveying a subdivision lot. The defendant claims that the trial court erred (1) in ordering specific performance when there was no evidence that the plaintiffs were ready, willing and able to perform, (2) in finding that an order of the zoning enforcement officer of the town of Westbrook did not constitute a stop work order, (3) in finding that the subject parcel of property was still in existence even though the original subdivision approval had expired, (4) in impermissibly modifying the contract by ordering the defendant to convey a lot 8000 square feet larger than the lot described in the original contract, and (5) in denying the defendant’s special defenses. We find no error.

The trial court found the following facts. In 1982, the plaintiffs entered into a written agreement to purchase a subdivision lot, designated lot No. 8, from the defendant for $23,000. The lot was situated in a residential subdivision called Meadow Wood Country Estates, which had been approved by the Westbrook planning commission. The subdivision was under construction at the time the contract was executed. The lot consisted of approximately 91,000 square feet and fronted on a proposed road to be known as Kenrose Terrace Road.

Under the terms of the agreement, the plaintiffs paid a deposit of $500 upon execution of the agreement and agreed to pay an additional $6200 upon the completion of Kenrose Terrace Road, but not prior to April 1,1983. The remainder of the purchase price, $16,300, was to be financed by the seller by virtue of a five year purchase money mortgage. The closing was to be on or before April 1, 1983.

The agreement stipulated that if the buyers failed to make any of the scheduled payments, they would forfeit as liquidated damages all claims to the premises and would forfeit all money paid under the contract. The contract explicitly reserved in each party the right, inter alia, to enforce specific performance of the contract.

The parties did not close on or before April 1, 1983, because the defendant had not completed Kenrose Terrace Road. On August 23, 1983, the parties agreed in writing to extend the closing date to October 31,1983. On that date, the parties agreed to extend the date to October 31, 1984, and, on October 12, 1984, they agreed to extend it to October 31, 1985. Each extension agreement provided for a closing on an alternative date, namely, the date of completion of Kenrose Terrace Road. Each extension also provided that the road was to be completed on or before the new closing date in order for the underlying contract to remain in full force; otherwise the buyer would be remitted any deposit money paid. The extension agreements did not provide for the rescission, revocation or termination of the underlying contract.

On June 20,1983, the Westbrook zoning enforcement officer issued an order that the construction company that was building the roads in the subdivision cease and desist from removing any further topsoil from the development without securing the required special exception from the Westbrook zoning commission. The officer, by another letter, dated August 25,1983, ciar-ified his order by stating that the cease and desist order pertained only to the removal of topsoil from the subdivision without a permit and did not constitute a stop work order on the subdivision site in any other respect. The defendant ceased its topsoil removal operations, but did not seek to resolve the problem for over a year.

On December 14,1984, the Westbrook planning commission notified the defendant that the approval of the Meadow Wood Country Estates subdivision had expired on October 15, 1984, at the end of the statutory five year completion period for subdivisions provided by General Statutes § 8-26c. As a result, the defendant was required to halt work on the development and to reapply for subdivision approval under somewhat different standards and criteria than had applied in 1979, when the original subdivision had been approved.

The defendant’s new application for subdivision approval redrew several lot boundaries, including those of lot No. 8. The exterior boundaries of the subdivision were redrawn because the original survey of the defendant’s entire plot, upon which the earlier subdivision map had been based, had erroneously included some small parcels of land that the defendant did not own. The new lot No. 8 is situated in approximately the same location, and is approximately 8000 square feet larger than the original lot No. 8, but has somewhat less road frontage than the original lot No. 8. On August 12, 1985, the planning commission approved the resubmitted subdivision plan.

In the fall of 1985, the plaintiffs demanded that the defendant perform the contract. The defendant refused. On October 30,1985, one day prior to the expiration of the final contract extension, the plaintiffs initiated this lawsuit, seeking specific performance and damages. After a trial to the court, a judgment of specific performance was rendered in favor of the plaintiffs. This appeal followed.

I

The defendant first claims that there was no evidence to support the trial court’s factual finding that the plaintiffs were ready, willing and able to perform the contract, and that the trial court therefore erred in ordering specific performance. We disagree.

In an action for specific performance, it is the plaintiffs’ burden to prove that they were ready, willing and able at all times to purchase the property. Frumento v. Mezzanotte, 192 Conn. 606, 615, 473 A.2d 1193 (1984). The defendant argues that the plaintiffs failed to show that they were prepared to perform. In support of this argument, the defendant quotes a single passage from the transcript that indicates that on October 30,1985, the plaintiffs were not willing to perform until the defendant built the road. This fact is of no assistance to the defendant, because the trial court found that the completion of Kenrose Terrace Road by the defendant was a condition precedent to the plaintiffs’ duty to perform. The plaintiffs’ unwillingness to perform does not make the remedy of specific perform-anee unavailable to them where their unwillingness is the result of the defendant’s failure to fulfill a condition precedent to the plaintiffs’ performance. 5A A. Corbin, Contracts (1964) § 1175, pp. 308-309.

II

The defendant next claims that the trial court erred in finding that the order of the zoning enforcement officer did not constitute a stop work order. This claim challenges the factual basis of the trial court’s decision, and our review is limited to determining “whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); see Harris Calorific Sales Co. v. Manifold Systems, Inc., 18 Conn. App. 559, 563, 559 A.2d 241 (1989).

Far from being clearly erroneous, the trial court’s factual finding that the defendant was not precluded from completing Kenrose Terrace Road by the officer’s order is amply supported by the record. The trial court found that the order characterized by the defendant as a “stop work order” in fact required no more of the defendant than that it cease removing topsoil from the construction site without having first obtained the proper permits. A second letter from the zoning enforcement officer emphasized this precise point. The trial court found that the defendant could have continued excavating the bed for Kenrose Terrace Road either by storing the topsoil on a vacant lot on the site or by obtaining the proper permits for removing the topsoil from the site. The trial court also found that the defendant’s failure to follow either course of action was due solely to the defendant’s lack of due diligence in performing the contract. These findings are supported by the evidence and logically support the court’s conclusion that the zoning order did not halt the work on the roads in the subdivision.

Ill

The defendant claims that the trial court erred in finding that the expiration of the original subdivision permit did not relieve the defendant of its contractual duties. We disagree.

The defendant argues that, because the original subdivision permit — and with it the legal existence of lot No. 8 — had expired October 15, 1984, the defendant’s duty to convey the original lot No. 8 was excused by the doctrine of impossibility. “The concepts of impossibility or impracticability of performance have been recognized in various decisions of [our Supreme Court].” West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 313, 514 A.2d 734 (1986). These doctrines represent an exception to the traditional principle that contracts should be enforced as written, “in recognition of the fact that certain conditions cannot be met because of unforeseen occurrences. Cf. Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 413, 538 A.2d 219 (1988). A party claiming that a supervening event or contingency has prevented, and thus excused, a promised performance must demonstrate that: (1) the event made the performance impracticable; (2) the nonoccurrence of the event was a basic assumption on which the contract was made; (3) the impracticability resulted without the fault of the party seeking to be excused; and (4) the party has not assumed a greater obligation than the law imposes. 2 Restatement (Second), Contracts § 261; E. Farnsworth, Contracts (1982) § 9.6, p. 678.” Dills v. Enfield, 210 Conn. 705, 717, 557 A.2d 517 (1989). The third prong of this test is dispositive of the defendant’s argument.

The trial court found that the defendant, because of its lack of diligence, failed to complete the subdivision within the five year period provided in General Statutes § 8-26c. Thus, the defendant’s fault in failing to complete the subdivision on time renders the doctrines of impossibility or impracticability inapplicable to this case. Dills v. Enfield, supra; West Haven Sound Development Corporation v. West Haven, supra.

IV

The defendant next argues that the trial court erred in granting specific performance because the defendant had rescinded the contract and because the court’s order compelled the defendant to convey a lot 8000 square feet larger than the lot described in the original contract. We are not persuaded by either of these arguments.

More specifically, the defendant argues that when it discovered its inability to convey lot No. 8 as originally described, it allowed the contract to expire and attempted to refund the plaintiffs’ deposit. The defendant contends that by this act it absolved itself of all contractual liability to the plaintiffs by restoring the plaintiffs to the status quo ante. Cf. Mandville v. Jacobson, 122 Conn. 429, 433, 189 A. 596 (1937) (party seeking to rescind contract must restore or offer to restore the other party to its former condition as nearly as possible.) The short answer to this argument is that the defendant’s attempt to refund the plaintiffs’ $500 deposit did not restore the plaintiffs to their former position because the plaintiffs, in reliance on the defendant’s implicit promises to complete the road and to convey title to lot No. 8, refrained for three years from looking elsewhere to purchase land in a rapidly rising market.

The defendant’s argument incorrectly relies on rescission cases involving unilateral mistake. See, e.g., Milford Yacht Realty Co. v. Milford Yacht Club, Inc., 136 Conn. 544, 549, 72 A.2d 482 (1950) (unilateral mistake, while not a ground for reformation, may under certain circumstances justify the rescission of a contract); Snelling v. Merritt, 85 Conn. 83, 100, 81 A. 1039 (1911); Regional School District No. 4 v. United Pacific Ins. Co., 4 Conn. App. 175, 182, 493 A.2d 895, cert. denied, 196 Conn. 813, 494 A.2d 907 (1985) (defendant’s material error in bid was grounds for rescission where plaintiff had not relied on bid and lowest accurate bid was still open). These cases are inapposite because in the present case the claimed “mistake,” namely, the defendant’s redrawing the boundaries of lot No. 8, was a unilateral, voluntary act by the defendant that occurred after the defendant had entered into a binding agreement to convey the property. Thus, the purported mistake did not affect the parties’ original meeting of the minds. Milford Yacht Realty Co. v. Milford Yacht Club, Inc., supra, 548-49. Furthermore, the defendant discovered the mistake three years after the contract was executed, during which time the plaintiffs had relied to their detriment on the defendant’s repeated representations, implicit in the three contract extensions, that it would perform its contractual duties. Compare Regional School District No. 4 v. United Pacific Ins. Co., supra, 182-83 (defendants successfully sought to rescind contract before plaintiff had relied on erroneous bid).

Nor did the trial court abuse its discretion in ordering the defendant specifically to perform the contract by conveying title to the new lot No. 8 to the plaintiffs. “As a general rule, equity, in deciding whether to grant specific performance in enforcing a contract, will consider the fairness of an agreement in accordance with the circumstances as they existed at the time of the execution of the contract even though the property contracted to be sold becomes considerably more valuable at the time performance is due.” Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 19, 420 A.2d 1142 (1979). “In framing an order of specific performance . . . the trial court can mold it to do justice as fully as is practicable. ... If the exact performance promised is very difficult to enforce or has become impossible, unreasonably burdensome, or unlawful, the court may order a performance not identical with what was promised.” E. Farnsworth, Contracts (1982) § 12.5; 5 A. Corbin, Contracts (1964) § 1170, p. 256; see, e.g., Nelson v. Gibe, 162 Mich. 410, 127 N.W. 304 (1910) (buyer entitled to deed for what seller owned, although over two thirds of lot sold did not belong to seller).

The trial court found that the enlargement of lot No. 8 was a voluntary act of the defendant, that it left the lot substantially the same as it had been before its boundaries were drawn, and that the enlargement offered the defendant no basis for obtaining relief from its contractual undertakings. “The trial court, in balancing the equities, could rationally have concluded that any hardship on the [defendant] was attributable primarily to [its] own refusal to honor [its] contractual commitments, to [its] own unexcused breach of contract.” Kakalik v. Bernardo, 184 Conn. 386, 395-96, 439 A.2d 1016 (1981).

Y

The defendant’s final claim is that the trial court erred in failing to consider or adopt the defendant’s special defenses. Specifically, the defendant challenges the trial court’s handling of two defenses, namely, (1) the provision in General Statutes § 47-33a (b) that an agreement to extend the closing date of a contract for the sale of real estate beyond one year from the date of the original sales agreement must be recorded, and (2) the defendant’s contention that the completion of Kenrose Terrace Road before the date of closing was a condition precedent to its performance. This claim is without merit.

The trial court refused to consider the first defense, based on General Statutes § 47-33a, because none of the defendant’s four special defenses referred to that statute. At the close of the trial, the court requested that the parties file briefs on the claims of law raised at the trial. In its posttrial brief, the defendant raised General Statutes § 47-33a for the first time. On appeal, the defendant has attempted to characterize the request of the trial court for briefs as an invitation for the defendant to interpose additional special defenses. It is clear, however, that the court properly declined to consider the defendant’s belated attempt to raise General Statutes § 47-33a, because it was not properly pleaded and the plaintiffs therefore had no opportunity to rebut the defendant’s claims concerning it.

In regard to the second defense, namely, that the trial court failed to find that the completion of Kenrose Terrace Road was a condition precedent to the defendant’s performance, the court found that the completion of the road was part of the defendant’s performance under the contract and that, if any party’s performance was contingent upon completion of the road, it was that of the plaintiffs. This factual finding is reasonably supported by facts in the record and therefore we will not disturb it.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 8-26c provides in pertinent part: “(a) Any person, firm or corporation making any subdivision of land, except as provided in section 8-26g, shall complete all work in connection with such subdivision within five years after the approval of the plan for such subdivision; the commission’s endorsement of approval on the plan shall state the date on which such five-year period expires.
      “(b) In the case of a subdivision plan approved on or after October 1,1977, failure to complete all work within such five-year period shall result in automatic expiration of the approval of such plan provided the commission shall file on the land records of the town in which such subdivision is located notice of such expiration and shall state such expiration on the subdivision plan on file in the office of the town clerk of such town, and no additional lots in the subdivision shall be conveyed by the subdivider or his successor in interest as such subdivider except with approval by the commission of a new application for subdivision of the subject land. ...”

       At oral argument in this court, the defendant claimed for the first time that the plaintiffs failed to prove that they were financially able to perform the contract. It is true that “a trial court may justifiably withhold equitable relief from a buyer who, put to his proof on such an allegation, fails to satisfy his burden of demonstrating his financial ability to purchase the property.” DiBella v. Widlitz, 207 Conn. 194, 200, 541 A.2d 91 (1988). At trial the plaintiff Gary Sink testified that he was at all times ready, willing and able to perform the contract. The defendant’s only challenge to Sink’s testimony concerned the plaintiffs’ willingness — not their ability — to perform. It is clear from this record that the defendant did not raise at trial, or in its brief on appeal, the issue of the plaintiffs’ financial ability to perform. We ordinarily decide the case on the theory on which it was tried and decided in the trial court. Commissioner of Health Services v. Kadish, 17 Conn. App. 577, 580 n.4, 554 A.2d 1097 (1989). We therefore decline to consider this claim of the defendant.

       The plaintiffs offered testimony that the lot for which they had contracted to pay $23,000 in 1982 had a market value at the time of trial of $100,000.

       The acting chairman of the planning commission testified that the principal change between the subdivision regulations in effect in 1979 and those in force in 1983 was that rear lots, that is, lots with street frontage of less than 200 feet, were required to contain 150 percent of the square footage of “frontage lots” in the same subdivision. Frontage lots have a street frontage of 200 feet or greater. Lot No. 8, under both the 1979 and 1985 subdivision plans, was a frontage lot. There was no evidence that the new regulations required frontage lots to be enlarged; in fact, there was no evidence that the change in the size of lot No. 8 was compelled, directly or indirectly, by the regulatory changes.

       General Statutes § 47-33a provides: “(a) No interest in real property existing under an executory agreement for the sale of real property or for the sale of an interest in real property or under an option to purchase real property shall survive longer than one year after the date provided in the agreement for the performance of it or, if the date is not so provided, longer than eighteen months after the date on which the agreement was executed, unless the interest is extended as provided herein or unless action is commenced within the period to enforce the agreement and notice of lis pen-dens is filed as directed by section 52-325.
      “(b) The interest may be extended only by reexecution of the written agreement or by execution of a new written agreement, provided the agreement, whether reexecuted or newly executed, shall be recorded as directed by sections 47-10 and 47-17. The period provided by this section shall not otherwise be extended, whether beeause of death, disability or absence from the state or for any other reason. Upon the expiration of an interest the title to property affected by the interest shall not thereafter be considered unmarketable because of the expired interest.
      “(c) Nothing in this section shall be construed to limit or deny any legal or equitable rights a party may have under the agreement except the right to have the agreement specifically enforced.”