text:
    Stanley V. Tucker v. Neighborhood Legal Services, Inc., et al.
    (2145)
    Hull, Daly and Nigro, Js.

      Argued March 22
    decision released June 4, 1985

      Stanley V. Tucker, pro se, the appellant (plaintiff).

      Michael G. Durham, with whom, on the brief, was Janet L. Lawler, for the appellees (named defendant et al.).

      George B. Bickford, for the appellees (defendants Edgardo and Rosalie Figueroa)
   Nigro, J.

This is an appeal from the dismissal of the complaint by the Housing Session of the Superior Court. The complaint was brought under 42 U.S.C. § 1983, which authorizes civil suits for the deprivation of constitutional rights, and under 42 U.S.C. § 1988, which allows the award of attorney’s fees in § 1983 actions.

The plaintiff is the lessor of rental property in the city of Hartford. The defendants named in the complaint are Neighborhood Legal Services, Inc., a Connecticut corporation, David Pels, an attorney employed by Neighborhood Legal Services, Inc., and Edgardo and Rosalie Figueroa, tenants or former tenants of the plaintiff.

The complaint alleged that General Statutes §§ 47a-7 and 47a-4a are unconstitutional in that they confiscate private property without compensation in violation of the federal constitution and are fatally uncertain, vague and obscure. The complaint also alleged that Pels, as an employee of Neighborhood Legal Services, Inc., represented Edgardo and Rosalie Figueroa (as well as another tenant) in summary process proceedings and, by presenting defenses based on the challenged statutes, delayed eviction and deprived the plaintiff of rent. An additional count against the defendants Figueroa claimed unpaid rent.

The plaintiff sought a variety of relief in this action including a declaratory judgment, injunctions, damages, attorney’s fees, double damages and interest.

The trial court dismissed the complaint as a 42 U.S.C. § 1983 action for lack of subject matter jurisdiction because there was no state action by the defendants, and further held that the plaintiff lacked standing to challenge the state statutes. The trial court also dismissed the action against the defendants Figueroa for lack of jurisdiction over the person.

Although the plaintiff asserts that the adequacy of the allegations in the complaint should have been raised by a request to revise rather than a motion to dismiss, “[t]here appears to be no question that the requirement of ‘state action’ in a section 1983 claim is an essential jurisdictional predicate. . . . Accordingly, where state action is found lacking, the section 1983 complaint is properly dismissed for lack of subject matter jurisdiction.” (Citations omitted.) Robinson v. Bergstrom, 579 F.2d 401, 404 (7th Cir. 1978).

In a § 1983 action, where the thrust of the complaint is that the defendants have deprived the plaintiff of his constitutional right to be free from state deprivation of property without due process of law, the plaintiff must not only establish that the defendants acted under color of the challenged statutes, but also that their actions are properly attributable to the state of Connecticut. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156, 98 S. Ct. 1729, 56 L. Ed. 2d 185 (1978).

In his complaint, the plaintiff named no state officer as a defendant. There is no allegation that any of the named defendants are state officials or agencies. Even if the named legal assistance corporation and its attorney were alleged to have been governmentally funded and regulated (which was not alleged), this would not have brought these defendants under the umbrella of “state action” required for the purposes of establishing jurisdiction under § 1983. Graseck v. Mauceri, 582 F.2d 203 (2d Cir. 1978), cert. denied sub nom. Graseck v. Middlemiss, 439 U.S. 1129, 99 S. Ct. 1048, 59 L. Ed. 2d 91 (1979); Lefcourt v. Legal Aid Society, 445 F.2d 1150 (2d Cir. 1971).

The appearance of the defendant tenants and their attorney before a state court is insufficient joint action with the state to establish state action for jurisdiction under § 1983. Torres v. First State Bank of Sierra County, 588 F.2d 1322, 1326 (10th Cir. 1978). Nor can the assertion of defenses authorized under a state statute in a court proceeding sustain a conclusion of state action unless there is also some affirmative involvement on the part of the state. Shirley v. State National Bank of Connecticut, 493 F.2d 739 (2d Cir. 1974), cert. denied, 419 U.S. 1009, 95 S. Ct. 329, 42 L. Ed. 2d 284.

The trial court acted appropriately in dismissing the complaint for failure to establish subject matter jurisdiction for a § 1983 action.

As to the attack on the constitutionality of General Statutes §§ 47a-7 and 47a-4a, the trial court concluded that the plaintiff had “not alleged in his complaint any losses sustained or any real threat to his property rights. Section 47a-4a . . . permits a tenant to withhold rent but only in the event that the landlord has violated his obligation to maintain the premises in habitable condition. There is no allegation that there was any such violation which would set this statutory scheme in motion . . . .” As our Supreme Court has stated: “ ‘Persons wishing to contest, on constitutional grounds, the validity of legislation must be able to show, not only that the legislation is invalid, but also that they have sustained, or are in immediate danger of sustaining, some direct injury as the result of its enforcement .... [T]he power of courts to pass upon the constitutionality of statutes arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference; a hypothetical threat is not enough.’ ” Kuser v. Orkis, 169 Conn. 66, 74, 362 A.2d 943 (1975). We cannot presume that the plaintiff has failed to comply with the requirements of the statute and he has not alleged such. We conclude that dismissal was appropriate in this circumstance.

The trial court dismissed the action against the defendants Figueroa for lack of in personam jurisdiction. These defendants were not served with process, either personally or by abode service, or given any other form of notice authorized under our procedure to establish jurisdiction over the person. The plaintiff asserts that the trial court abused its discretion in not allowing him to amend his return date so he could continue efforts to effect service. We find no such abuse of discretion even if the trial court could allow such an amendment, since the date requested was more than two months after the date of process, which is beyond the time mandated for return of service by General Statutes § 52-48.

There is no error.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       42 U.S.C. § 1983 provides in pertinent part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

       General Statutes §§ 47a-7 sets forth the landlord’s responsibilities, and provides generally that the landlord is required to conform with building and health codes, and to maintain the premises in a fit and habitable condition.

       General Statutes § 47a-4a provides: “A rental agreement shall not permit the receipt of rent for any period during which the landlord has failed to comply with . . . section 47a-7.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    East Haddam Fishing and Game Club, Inc. v. Ruth H. Ciucias Ruth H. Ciucias v. East Haddam Fishing and Game Club, Inc.
    (3175)
    (3176)
    Dupont, C.P.J., Hull and Borden, Js.
    Submitted on briefs April 4
    decision released June 4, 1985

      Scott W. Jezek filed a brief for the appellant (defendant in the first case, plaintiff in the second case).

      Bruce W. Manternach filed a brief for the appellee (plaintiff in the first case, defendant in the second case).
   Per Curiam.

These were two actions, the plaintiff in each seeking to enjoin the other party from interfering with the use of a roadway. We refer herein to the East Haddam Fishing and Game Club, Inc., the plaintiff in the first action, as the plaintiff, and to Ruth H. Ciucias, the defendant in that action, as the defendant.

The cases were tried together before a state trial referee. The referee, Hon. Charles S. House, decided the cases together, and found that the plaintiff had established a prescriptive easement over the roadway “by the much greater weight of the evidence” and through “credible testimony.” Judgment was rendered in accordance with this finding, enjoining the defendant from interfering with the plaintiffs use of the roadway. The defendant appealed from the judgment in each case, pursuing identical claims in each appeal. We find no error.

The defendant essentially challenges the trial court’s factual findings and conclusions of law, claiming that the plaintiff had a leasehold interest in the property, thus prohibiting a finding of a prescriptive easement, and that, in any case, the evidence was insufficient to support a finding of a prescriptive easement in the plaintiff. “The [defendant] misconceives the function of this court. The trial court was presented with conflicting evidence and it is apparent that credibility was a crucial factor. We cannot retry the facts or pass upon the credibility of the witnesses.’ ” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980); Knight v. Breckheimer, 3 Conn. App. 487, 489, 489 A.2d 1066 (1985).

A prescriptive easement is established by proof, by a preponderance of the evidence, of an open, visible, continuous and uninterrupted use under a claim of right. General Statutes § 47-37; Sanford v. Dimes, 3 Conn. App. 639, 640 n.1, 643, 491 A.2d 398 (1985). Conflicting evidence was presented about several of these elements, including whether the roadway was leased to the plaintiff and was therefore not used under a claim of right. The trial court found the evidence supporting the plaintiffs claim to be the more credible. Our examination of the record reveals that there was sufficient evidence to prove the elements of a prescriptive easement. The trial court’s conclusions were amply supported by the evidence and were not clearly erroneous.

There is no error.


author: Dupont, C.P. J.

text:
    City of New Haven et al. v. Freedom of Information Commission et al.
    (2206)
    Dupont, C.P.J., Hull and Borden, Js.

      Argued March 5
    decision released June 4, 1985

      Carolyn Kane, with whom, on the brief, were Frederick P. Leaf, special assistant corporation counsel, and Charles Albom, corporation counsel, for the appellants (plaintiffs).

      Constance L. Chambers, for the appellee (named defendant).

      Barbara Goren, with whom, on the brief, was John R. Williams, pro se, for the appellee (defendant John R. Williams).
   Dupont, C.P. J.

This appeal presents the question of whether, pursuant to General Statutes §§ 7-101a and 7-465, certain itemized bills for legal services submitted to the plaintiff city for representation of its municipal employees by its attorney are subject to public disclosure.

The case arose out of a denial of a request to the city of New Haven for copies of all itemized billings of the attorney hired by the city to represent the municipal employees, submitted from May 1,1980, to January 23, 1981. The denial was appealed to the freedom of information commission (hereinafter FOIC) and an order was sought to compel disclosure of the requested information. The FOIC approved the order of the hearing officer who had heard the matter. The order provided: “The respondents shall provide the complainant with copies of the billings submitted . . . from May 1,1980 to the date of the complainant’s request. The respondents may delete from the billings those portions which identify specific individuals, parties and cases. However, the respondents shall not delete the number of billing hours shown and general subject matter designations such as, but not limited to, ‘research,’ ‘interviews’ or ‘court appearance.’ ” The plaintiffs appealed that order to the trial court, pursuant to General Statutes § 4-183, and the trial court dismissed the appeal. The plaintiffs then appealed that dismissal to this court.

On appeal, the plaintiffs claim that the trial court erred (1) because the FOIC had no jurisdiction to hear the appeal from the city’s denial of access to the requested records, (2) because the requested records were exempt from disclosure under General Statutes §§ 1-19 (b) (4) or 1-19 (b) (10), and (3) because the FOIC’s denial of intervention by the municipal employees deprived those individuals of their due process rights, rendering the proceeding below constitutionally deficient.

The plaintiffs rely on the proposition that an attorney retained on behalf of an insured by an insurer has a primary responsibility to represent the interest of the insured rather than the insurer. Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 573, 316 A.2d 394 (1972); Martyn v. Donlin, 151 Conn. 402, 414, 198 A.2d 700 (1964). It is undisputed that counsel submitted and the plaintiffs have a record of itemized bills for legal services. Those itemized bills fall within the definition of public records under the Freedom of Information Act. General Statutes § l-18a (d). The FOIC has authority to entertain appeals from denials of access to public records. General Statutes § l-21i. The trial court did not err in finding that the FOIC had jurisdiction over the appeal.

The plaintiffs argue that the records are exempt from disclosure as communications privileged by the attorney-client relationship. General Statutes § 1-19 (b) (10). Exemptions to the general rule of disclosure under the Freedom of Information Act are narrowly construed and the burden of proving an exemption is shouldered by the agency claiming it. Wilson v. Freedom of Information Commission, 181 Conn. 324, 328-29, 435 A.2d 353 (1980).

The FOIC never examined the bills but rather relied on testimony to make its determination. The propriety of such a procedure is questionable where the record before this court indicates that it was conclusory language and general statements which formed the basis of the FOIC’s action. Id., 339-41. The burden of sustaining the applicability of an exemption, however, is on the plaintiffs and the record reveals that that burden was not sustained. Maher v. Freedom of Information Commission, 192 Conn. 310, 315, 472 A.2d 321 (1984).

The trial court conducted a review in camera of the billings and concluded that there was nothing in the bills to suggest that they came within the purview of the attorney-client privilege. The FOIC’s order only compels dislosure as to the number of billing hours and general subject matter designations. Questions as to where and when a client had conversations with his attorney have been found not to be within the attorney-client privilege; State v. Manning, 162 Conn. 112, 120, 291 A.2d 750 (1971); nor have questions propounded to an attorney seeking the client’s name and the capacity in which the attorney was employed been held to fall within the attorney-client privilege. Turner’s Appeal 72 Conn. 305, 318, 44 A. 310 (1899). On the basis of the record before this court, the trial court did not err in concluding that the records ordered released were not exempt because of the attorney-client privilege.

The plaintiffs also claim that the trial court erred in finding that the FOIC correctly concluded that the records were not exempt pursuant to General Statutes § 1-19 (b) (4). That section provides that “records pertaining to strategy and negotiations with respect to pending claims and litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled” are exempt from disclosure. The plaintiffs failed to submit the requested records before the FOIC for review and it is their burden to prove the applicability of the exemption. Wilson v. Freedom of Information Commission, supra, 341. The trial court, therefore, was correct in not disturbing the commission’s order to disclose the records after deleting the names of parties, individuals, and cases. Indirect disclosure of material exempted from disclosure by the commission’s order is improper; Maher v. Freedom of Information Commission, supra, 319; but here an adequate record to make that determination is lacking. Mere speculative and conclusory statements as to the impact of disclosure do not satisfy the plaintiffs burden of establishing an adequate record to show why the records are exempt.

The plaintiffs’ last claim is that the FOIC’s action in denying the motion to intervene filed by the municipal employees rendered the proceeding before the commission constitutionally deficient. The plaintiffs lack standing to assert the due process rights of their municipal employees who did not appeal the denial of their motion. The claim is not properly before this court. Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 448-49, 489 A.2d 398 (1985).

There is no error.

In this opinion the other judges concurred.

       The plaintiffs involved in this appeal are the city and town of New Haven, and the office of the controller of the city and town of New Haven.

       General Statutes § l-18a (d), provides: “(d) ‘Public records or files’ means any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.”

       General Statutes § l-21i (b) provides in pertinent part: “Any person denied the right to inspect or copy records under section 1-19 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, may appeal therefrom to the freedom of information commission, by filing a notice of appeal with said commission.”

       General Statutes § 1-19 (b) provides in pertinent part: “Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (10) records, tax returns, reports and statements exempted by federal law or state statutes or communications privileged by the attorney-client relationship . . . .”


author: Hull, J.

text:
    The English Shop v. Hartford Fire Insurance Company et al.
    (3367)
    Hull, Borden and Spallone, Js.
    Argued April 10
    decision released June 4, 1985

      Daniel P. Cavanaugh, for the appellant (plaintiff).

      James E. Kernan, with whom, on the brief, was Jeremiah M. Keefe, for the appellee (named defendant).
   Hull, J.

The plaintiff appeals from a judgment of the trial court for the named defendant in a suit to recover for water damage on the basis of a special multi-peril insurance policy issued by the named defendant, the Hartford Fire Insurance Company (Hartford). We find no error.

The plaintiff sued Hartford and the plaintiffs own insurance agent, Melvin W. Title. The case against Title was withdrawn and the plaintiff proceeded on an amended complaint against Hartford. The plaintiff claimed that the policy, as issued by Hartford, did not exclude water damage and that Hartford failed to pay it $200,000 for water damage caused by a violent wind and rain storm at its West Hartford retail clothing store on October 3, 1979. Hartford admitted the existence of the policy and its refusal to pay the claim for water damages. It further claimed, in six special defenses, essentially that the policy issued excluded water damage. By counterclaim, Hartford claimed that the parties intended that the policy should exclude coverage for flood or surface water damage and sought reformation of the policy to exclude such coverage.

The trial court found (1) that Title was the plaintiffs agent and that he negotiated the policy with Hartford’s agent intending to duplicate an existing Aetna policy that excluded water damage coverage; (2) that the form which would have excluded such coverage was not on the binder or on the permanent policy issued by Hartford, through inadvertence or mistake; (3) that the plaintiff did not seek, nor did it get, water damage insurance from Hartford; and (4) that the policy was written by Hartford’s agent at the request of the plaintiff’s agent to duplicate the coverage of the previous Aetna policy which did not include water damage coverage.

The court found all disputed issues in the amended complaint for Hartford. The court did not specifically rule on the special defenses or on the counterclaim for reformation. In effect, the only sensible way to interpret the court’s “shorthand” judgment is to consider that it implicitly gave effect to the counterclaim when it found that, despite the lack of a water damage exclusion in the policy, such an exclusion was intended to be a part of it. We will treat the matter as if reformation had been ordered, as both parties did in their briefs and at oral argument in this court. State v. Martin, 2 Conn. App. 605, 612B, 482 A.2d 70 (1984).

The plaintiff’s first two claims of error concern the court’s refusal to make certain findings regarding the issuance of the binder and the policy. Since these claims were not raised in the trial court, we do not consider them. Practice Book § 3063; Chaplin v. Balkus, 189 Conn. 445, 447, 456 A.2d 286 (1983). The third claim of error is the reformation of the policy so as to include the missing form excluding water damage. The plaintiff admits that the form was left off of the policy through inadvertence. The plaintiff properly does not challenge the facts found by the court. This claim of error is, therefore, totally without merit. Although not so stated by the court nor subject to a request for articulation by the plaintiff, the court’s judgment rests on the firm legal foundation of the doctrine of mutual mistake. Lopinto v. Haines, 185 Conn. 527, 531, 441 A.2d 151 (1981); Patalano v. Chabot, 139 Conn. 356, 359-60, 94 A.2d 15 (1952); Home Owners’ Loan Corporation v. Stevens, 120 Conn. 6, 9-10, 179 A. 330 (1935).

The plaintiff’s fourth claim is that the court erred in refusing to find waiver or estoppel barring Hartford from reformation because it did not act promptly upon discovery of the mistake. The simple answer is that there is no factual basis in the court’s findings for such a conclusion.

There is no error.

In this opinion the other judges concurred.


text:
    William W. Marden et al. v. Jose Castillo
    (3145)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued May 7
    decision released June 4, 1985

      Edward Nusbaum, with whom was Bruce J. Corrigan, Jr., for the appellant (defendant).

      Ellen B. Lubell, for the appellees (plaintiffs).
   Per Curiam.

The defendant appeals from a judgment granting to the plaintiff title by adverse possession to a three and one-half foot strip of defendant’s land abutting the plaintiffs’ land.

The trial court made a detailed finding of facts including those found after its view of the disputed area. The court’s judgment is factually sound and correct in the application of the law.

There is no error.


text:
    Linden Shore District v. Carol C. Johnson et al.
    (3321)
    Hull, Borden and Spallone, Js.
    Argued May 9
    decision released June 11, 1985

      Carol C. Johnson, pro se, the appellant (named defendant).

      John E. Donegan, for the appellee (plaintiff).
   Per Curiam.

We have reviewed the record and have closely examined the file and briefs in this case. We find nothing to substantiate the named defendant’s claims of error.

There is no error, but the case must be remanded with direction to modify the judgment by fixing new law days.

       During the course of the appeal, we denied the plaintiffs motion to strike the brief of the named defendant, without prejudice to the right of the plaintiff to renew its motion at the time of oral argument. The plaintiff renewed its motion. We again deny it.


author: Borden, J.

text:
    Catherine Gorman v. City of Waterbury Margaret Meaney v. City of Waterbury
    (2147)
    (2148)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued March 14
    decision released June 11, 1985

      Charles L. Flynn, for the appellants (plaintiffs).

      Thomas G. Parisot, for the appellee (defendant).
   Borden, J.

These cases involve two former members of the Waterbury police department whose widows are claiming benefits under General Statutes § 7-433C. The workers’ compensation commissioner dismissed both claims and the compensation review division affirmed the commissioner’s decisions. The plaintiffs appealed. We find no error.

I

The facts as revealed by the administrative record in Appeal No. 2148 are as follows: John Meaney was a regular, uniformed police officer for the city of Waterbury. He had successfully passed a pre-employment physical examination which did not reveal any evidence of heart disease or hypertension. On May 12, 1965, while employed as a police officer by the defendant, he died as a result of a coronary occlusion. He was survived by his wife, the plaintiff in this action.

General Statutes § 7-433c, which grants heart and hypertension benefits to police and fire department members, was enacted and became effective on June 28,1971. The plaintiff sought benefits under this statute, claiming that she qualified for the benefits as a dependent of a regular police officer who died of a heart attack following a pre-employment physical examination revealing no evidence of heart disease or hypertension. The commissioner found that General Statutes § 7-433c had no retroactive effect and, accordingly, dismissed the plaintiff’s claim because her husband had died prior to the effective date of the statute. The compensation review division affirmed, concluding that the statute operates only prospectively.

We agree with the review division that the plaintiff was not entitled to § 7-433c benefits because her husband died prior to the enactment of this statute. It is well established that statutes affecting substantive rights are given prospective application only, in the absence of legislative intent to the contrary. Kusha v. Respondowski, 3 Conn. App. 570, 575, 490 A.2d 1014 (1985); State v. Millhouse, 3 Conn. App. 497, 501, 490 A.2d 517 (1985).

That this statute affected substantive rights, by establishing heart and hypertension benefits for police and fire department members, cannot seriously be disputed. The predecessor to General Statutes § 7-433c, which attempted to provide identical benefits by using a conclusive presumption, had been declared unconstitutional. Ducharme v. Putnam, 161 Conn. 135, 285 A.2d 318 (1971). The benefits were therefore unobtainable because the statute conferring the benefits was unenforceable. Bakelaar v. West Haven, 193 Conn. 59, 67 n.6, 475 A.2d 283 (1984). The legislature’s enactment of the current § 7-433c two weeks after the previous statute was deemed unconstitutional, providing the same benefits to qualifying officers as an outright bonus, obviously effected a substantive change in the law by conferring these benefits anew, in a constitutional manner. See Grover v. Manchester, 168 Conn. 84, 357 A.2d 922, appeal dismissed, 423 U.S. 805, 96 S. Ct. 14, 46 L. Ed. 2d 26 (1975). The enactment of the statute did more than merely restate rights which had existed since 1959, or set out the burden of proof for successfully establishing one’s claim to the benefits, as the plaintiff argues. The legislation clearly conferred benefits which were not, at the time of its enactment, established. Since substantive rights were affected and there is nothing in the statute indicating a legislative intent that these substantive changes have retrospective effect, the statute is to be given prospective application only. Kusha v. Respondowski, supra.

The effective date of General Statutes § 7-433c was June 28,1971. The plaintiff’s husband died from a coronary occlusion on May 12, 1965, six years prior to its enactment. The plaintiff had no right to the benefits at the time of her husband’s death. The plaintiff’s claim, therefore, was properly dismissed.

II

The facts in Appeal No. 2147, as presented by the administrative record, are as follows: Joseph Gorman was employed for many years as a regular uniformed member of the Waterbury police department. He passed a pre-employment physical examination which revealed no evidence of heart disease or hypertension. He retired on October 30, 1971, primarily due to his failing vision. He suffered from a hypertensive condition from 1967 until his death, which occurred on September 7,1972, due to heart disease. The hypertension did not have any disabling effects on Gorman during his tenure as a police officer. He was survived by his wife, the plaintiff in this action.

The plaintiff sought benefits under General Statutes § 7-433c; see footnote 1, supra; but was denied these benefits by the workers’ compensation commissioner because the death of her husband due to heart disease, which was the basis of the claim, occurred when he was no longer a police officer.

The review division affirmed the commissioner’s decision on the basis of the review division’s decision in Meaney v. Waterbury, discussed above, that § 7-433c creates substantive, not procedural, rights and has no retroactive effect. The plaintiff appealed, claiming that granting her the benefits of § 7-433c does not result in giving § 7-433c a retroactive effect. We uphold the dismissal of the plaintiffs claim on a basis different from that of the review division; Pagano v. Board of Education, 4 Conn. App. 1, 12, 492 A.2d 197 (1985); but alluded to by the commissioner.

General Statutes § 7-433c is a bonus or special compensation statute. Revoir v. New Britain, 2 Conn. App. 255, 260, 477 A.2d 161 (1984). Benefits are to be paid under the statute if “a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability . . . (Footnote added.) See footnote 1, supra. The plaintiff argues, in effect, that to qualify for benefits under the statute, only the condition of hypertension or heart disease need be suffered while on duty or off duty by a regular member of a police department. Under this argument, the employee’s death or disability resulting from hypertension or heart disease need not occur while he is employed as a regular police officer, but can occur after termination of that employment.

A fair reading of the statute, however, reveals that both the condition of hypertension or heart disease and the death or disability resulting from such a condition must be suffered while the individual was on or off duty as a regular member of a police or fire department. If this were not so, municipalities would in effect be bound by evidence submitted by a claimant that the death or disability, occurring years after employment as a police officer had terminated, was traceable to the hypertension or heart disease suffered during the officer’s years of service, without the municipality having any opportunity to challenge the claim that the death or disability was in fact traceable to the officer’s years of service. Even though the statute was enacted to provide an outright bonus for certain police and fire department employees, who need not prove that the initial heart disease or hypertension was causally connected to their employment; Revoir v. New Britain, supra; we cannot conclude that the legislature intended to place the municipalities in such a hands-tied position.

“Statutes should be considered as a whole, reconciling their separate parts so that a reasonable overall interpretation is achieved.” Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 438, 489 A.2d 398 (1985). The statute provides benefits to qualified police and fire department members because these individuals are more susceptible to the types of ailments denoted. Revoir v. New Britain, supra. It is intended to place these employees in the same compensation position as those who are injured in the line of duty. Middletown v. Local 1073, 1 Conn. App. 58, 61, 467 A.2d 1258 (1983). Unlike a police officer on active status, the plaintiff’s husband could not have been injured in the line of duty because he was retired, and the statute could not have intended to grant benefits to him as if he had been so injured. The statute contemplates that a recipient of its benefits be an active, not retired, member of a paid municipal police or fire department or the dependent of such an active member.

The plaintiffs husband did not meet the eligibility requirements of the statute. He suffered hypertension while he was a regular member of a paid municipal police department, fulfilling part of the statutory requirements. He did not, however, die or suffer any disability from the hypertensive condition while so employed, as the statute further requires. Under these facts, the plaintiff’s husband was not entitled to benefits under General Statutes § 7-433c, and the plaintiff’s claim must fail.

There is no error in either appeal.

In this opinion the other judges concurred.

       General Statutes § 7-433c provides: “In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.”

       These appeals were originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       The plaintiff claims that the predecessor to General Statutes § 7-433c previously entitled her to its benefits and that since § 7-433c was enacted solely to rectify the constitutional defects in that predecessor statute, she is entitled to the benefits conferred under § 7-433c. This claim is without merit for two reasons. First, the source of the predecessor statute’s unconstitutionality was its use of a conclusive presumption. The amendment adding the conclusive presumption was passed in 1969, four years after the plaintiff’s husband’s death. Since that amendment also did not have retroactive effect; see Nagle v. Wood, 178 Conn. 180, 187, 423 A.2d 875 (1979); the plaintiff was not entitled to benefits by reason of the conclusive presumption at the time of her husband’s death and so cannot claim “through” that amendment. Second, the legislature, in enacting § 7-433c, did not provide a bonus for those who might otherwise have been entitled to the benefits under the predecessor statute, but who could not obtain its benefits after it was declared unconstitutional. Without a clear legislative mandate, the statute cannot be construed to confer benefits on those who are not identified in the statute. Furthermore, the plaintiff’s claim that she has been entitled to these benefits since 1959 seems spurious since her husband died in 1965 and she did not file a claim for benefits until 1978. We agree with the defendant that the mere institution of a claim under § 7-433c after its enactment does not entitle the plaintiff to its benefits.

       The statute also provides that no proof or record of such a physical examination is required if the successful passage of the examination was required, at the time of employment, as a condition for employment.

       We note that the plaintiffs husband retired due to failing vision and not due to a disability caused by heart disease or hypertension.


author: L. Dorsey, J.

text:
    Myles E. Covey et al. v. Donald W. Willson et al.
    (2885)
    Dupont, C.P.J., Spallone and L. Dorsey, Js.
    Argued March 29
    decision released June 11, 1985

      Walter A. Twaehtman, Jr., for the appellants (plaintiffs).

      Homer G. Scoville, for the appellants (defendants).
   L. Dorsey, J.

This appeal arose from an action for equitable relief and to recover for damage allegedly caused by the defendants’ breach of a contract for the sale and purchase of a business interest, and an agreement not to compete. The trial referee rendered judgment for the defendants as to the alleged breach of the covenant not to compete and for the plaintiffs as to the breach of the agreement not to solicit business, also contained in the covenant, but awarded only nominal damages to the plaintiffs as a result of that breach. The plaintiffs appeal the court’s decision as to both aspects of the judgment.

The plaintiffs, Myles E. Covey and Norma S. Covey, owned one half of the interest in a business known as C & W Manufacturing Company, Inc. (C & W). The defendants, Donald W. Willson and Eleanor M. Willson owned the other one half interest. C & W specialized in the manufacture and sale of precision parts and components for the aircraft, missile, electronic, medical and gyro industries involving, basically, metal fabricating processes where stock metals were machined in finished or partially finished products.

Some disagreement between the parties having arisen, in April, 1979, the plaintiffs agreed to buy and the defendants agreed to sell their interest in certain real estate and the one half interest in C & W. In consideration, the plaintiffs paid to the defendants $300,000, agreed to hold them harmless from liability on two mortgages aggregating $269,000 and assigned certain life insurance policies, including the cash surrender value of the policies.

Ancillary to the sale of the business and after extensive negotiations, the plaintiffs and the defendants entered into a “Covenant Not to Compete” which was incorporated into the contract of sale. By the terms of this covenant, the Coveys agreed to pay to the Will-sons $180,000, payable $600 per week for a term of six years, in consideration for the Willsons’ agreement not to compete with C & W. In addition to the covenant not to compete and for no stated additional consideration, the Willsons agreed not to solicit any business from any account, customer or client included in a list of about fifty businesses.

The critical issues in the case arise out of the defendants’ subsequent acquisition and operation of part of a business formerly operated by Merit Tool and Die Company (Merit). Merit was founded in 1929 by William Geigl as a machine shop. The J.M. Ney Company (Ney) since 1888 has been marketing a device known as “The Ney Surveyor” a proprietory product which is used by the dental profession in the construction of dental bridgework. Beginning in the early 1940’s, the “Surveyor” was modified and improved by the joint efforts of Geigl and of Ney’s employees, and Giegl, doing business as Merit, was the sole supplier of the “Surveyor” parts, the dies for casting the aluminum parts and the special tooling necessary for its production. In early 1980, Geigl decided to retire and offered to sell his entire business to Donald Willson, a long time friend. Willson declined to purchase the entire business but did buy the tooling, drawings and dies for the manufacture of the “Surveyor.” Some of the tooling referred to is over 100 years old and is usable only for the special purpose of producing the “Surveyor.” Geigl sold the rest of his machinery and tools to others. Willson changed the name of the enterprise to Willson Manufacturing of Connecticut, Inc., and has continued to manufacture one product only, “The Ney Surveyor,” which it supplies to one company only, the J.M. Ney Company. The plaintiffs claim that the operation of Willson Manufacturing of Connecticut, Inc., violates the provision of the “Covenant Not to Compete,” thereby entitling them to equitable relief and damages. The trial court made certain findings and conclusions from which the plaintiffs appeal. The trial court found specificially “that the defendants, in manufacturing ‘The Ney Surveyor’ are not engaged in business which is ‘competitive’ with that of C & W.”

The plaintiffs claim the trial court erred in its interpretation of the term “competitive business” as that term is employed in paragraph five of the purchase agreement. It is their claim that a “competitive business” is any business which is competitive. The use of that term in paragraph five is not restricted, they contend, to being competitive with the plaintiffs or with C & W. In other words, it is the plaintiffs’ contention that by following legal principles relating to contract language construction, the words “competitive business” mean that the defendants could be in breach of their agreement if they serve in certain enumerated capacities in “a business which is engaged in the same or similar manufacturing business as C & W.” See Leonard Concrete Pipe Co. v. C. W. Blakeslee & Sons, Inc., 178 Conn. 594, 598-99, 424 A.2d 277 (1979); Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 407, 365 A.2d 1086 (1976); Cocco v. Cocco, 166 Conn. 37, 41, 347 A.2d 72 (1974); Smedley Co. v. Employers Mutual Liability Ins. Co., 143 Conn. 510, 515, 123 A.2d 755 (1956); Thompson Optical Institute v. Thompson, 119 Or. 252, 259, 237 P. 965 (1925); 54 Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices § 571; see also 1 A.L.R.3d 782. The trial court directly addressed this issue in its memorandum of decision. In support of its finding that the defendants in manufacturing “The Ney Surveyor” are not engaged in business which is “competitive” with that of C & W, the court said: “The plaintiff Covey testified that in his opinion, the Willsons were in a competitive business ‘because metal is being fabricated’ although he knows of no other violation of the covenant not to compete, has ‘never considered making “The Ney Surveyor” ’ or talked to the Ney Company or sought its business. Significantly, he testified that he knows of no loss his company sustained from any competition by the defendants and doesn’t think he has lost anything as a result of the defendants being in business.”

The trial court correctly interpreted the significant terms of the agreement. That court concluded that, while the potential for competition between the two companies exists, the plaintiffs failed to prove that such competition has existed or presently exists and that the plaintiffs failed to prove the defendants breached their covenant not to compete. Competition involves more than conducting a similar business or utilizing a similar process of manufacturing. As the Connecticut Supreme Court noted in Anthony Augliera, Inc. v. Loughlin, 149 Conn. 478, 485, 181 A.2d 596 (1962), “[competition has been defined as ‘the effort of two or more parties to secure the custom of a third party by the offer of the most favorable terms.’ Webster’s Third New International Dictionary; see Russellville Canning Co. v. American Can Co., 87 F. Sup. 484, 499 (W.D. Ark.)”

A second issue here involved arises out of the plaintiffs’ claim that the defendants breached their agreement not to solicit any business “from any account, customer, or client previously served by the CORPORATION” (C & W) as shown on a certain schedule or list. The J.M. Ney Co. is included in that list of about fifty names. The trial court found that Willson, as an officer and director first of the Merit Company and, after the change of name, of Willson Manufacturing Company, Inc., did solicit from the Ney Company the business of manufacturing “The Ney Surveyor.” It concluded, however, that although the plaintiffs did prove that the defendants, by soliciting for the Ney business, have breached their agreement not to solicit business from a company listed on the proscribed list, they did not prove that they thereby sustained any actual damages and, therefore, were entitled to recover only nominal damages. The trial court, in its memorandum of decision commented on the evidence as follows: “The plaintiff Covey never considered making “The Ney Surveyor,” never sought the business from Ney and doesn’t think that the plaintiffs have lost anything as a result of the defendants being in business.”

We reject the plaintiff’s claim that the trial court should have viewed paragraph five as containing two interdependent restrictive covenants, collectively expressing the parties’ intent and that a violation of either would constitute a complete breach of the whole of paragraph five. The trial court analyzed the language of the paragraph and compared the words of the covenant not to compete with the words which formed the agreement not to solicit as therein contained.

In the light of the court’s finding of a breach of the agreement not to solicit, and its finding that no actual damages were proved, the court correctly concluded that the plaintiffs should recover nominal damages for the technical legal injury. Riccio v. Abate, 176 Conn. 415, 418-19, 407 A.2d 1005 (1979); Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 409, 365 A.2d 1086 (1976); Dimmock v. New London, 157 Conn. 9, 16, 245 A.2d 569 (1968).

There is no error.

In this opinion the other judges concurred.

       C & W was added as a party plaintiff before trial.

       The pertinent portions of the covenant not to compete and the agreement not to solicit provide: “5. COVENANT NOT TO COMPETE. For a period of six (6) years from the date of closing, the SELLER shall not directly or indirectly enter into a competitive business either as a sole proprietor, stockholder, partner or as an agent, servant or employee of a business which is engaged in the same or similar manufacturing business as the CORPORATION within the States of New York, New Jersey, Pennsylvania and all of the New England States. In consideration for the covenant not to compete the SELLER, Donald W. Willson, shall be paid THIRTY THOUSAND ($30,000.00) DOLLARS per year for six (6) years on a weekly basis. In addition to the covenant not to compete, the SELLER hereby argees not to solicit any business whether as a sole proprietor, stockholder, partner, or as an agent, servant or employee of a business which is engaged in the same or similar manufacturing business as the CORPORATION from any account, customer or client previously serviced by the CORPORATION as shown on the customer list set out in Schedule C within the States of New York, New Jersey, Pennsylvania and all of the New England States.


text:
    Frank Hastings v. Richard Cromie
    (3428)
    Hull, Spallone and Daly, Js.
    Argued May 14
    decision released June 11, 1985

      Edward Morelli, for the appellant (plaintiff).

      Constance L. Epstein, for the appellee (defendant).
   Per Curiam.

A thorough review of the record, transcripts and briefs fails to disclose any basis to support the plaintiffs claims of error.

There is no error.


text:
    R & R of Connecticut, Inc. v. Mary Lee Stiegler
    (3387)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued April 10
    decision released June 11, 1985

      Walter B. Schatz, for the appellant (defendant).

      Howard Scheinblum, for the appellee (plaintiff).
   Hull, J.

This case involves the narrow issue of whether a tenant’s late notice of intention to renew a lease of commercial property should be excused on equitable principles. The plaintiff tenant sought an injunction to prohibit the defendant landlord from terminating the lease. The defendant, in her counterclaim, sought a declaratory judgment that the lease would expire on December 31,1984, because of the plaintiff’s failure to exercise its option to extend the lease. The defendant appeals from the judgment of the trial court, A. Aronson, J., that the option to extend the lease has been properly exercised. We find error.

The plaintiff is a tenant of premises located at 172 Washington Street, Hartford, where it operates a supermarket. On June 13,1979, the defendant leased the premises to Pedro Ortiz. On January 27,1981, Ortiz assigned the lease to the plaintiff. The term of the lease was for five years and six months, from June 15,1979, to December 31,1984. Paragraph six of the lease gave the tenant an option to renew the lease for an additional five-year period which could only be exercised by sending written notice to the landlord at least twelve months prior to December 31, 1984, the termination date of the lease. Paragraph twenty-eight of the lease contained a right of first refusal giving the tenant the right to purchase the property first if the landlord received an offer to buy it.

On January 26, 1984, the defendant notified the plaintiff, in writing, that the lease would terminate on its expiration date of December 31, 1984, because of the plaintiff’s failure to exercise the renewal option. On February 6, 1984, counsel for the plaintiff wrote to the defendant’s agent advising him that Attorney Arnold E. Bayer, who died on December 14,1983, had been the attorney for the plaintiff, and stating: “I believe it was probably his intention to send a letter of the clients’ intention to renew under the terms of said lease.” The letter said the plaintiff wanted to exercise the option and asked the defendant for a reconsideration of the notice of termination. On March 23, 1983, the defendant had entered into an agreement to sell the premises for $425,000 to McDonald’s Corporation for a McDonald’s restaurant. The defendant’s appraiser testified at trial that the fair market value of the property was only $225,000. The defendant was required to deliver the premises to the purchaser “free and clear of all tenancies and parties in possession.” The purchase agreement contained no performance date but was dependent on the purchaser being able to close title when it purchased adjoining premises from another party and secured necessary zoning approval and other governmental permits. The plaintiff, upon notice of this agreement on February 24,1984, did not exercise its right of first refusal on the property.

The court found the McDonald’s offer to be a bona fide offer but that in reality it was an option to purchase under certain conditions of benefit to the optionee. It concluded that the loss to the landlord was speculative. It further found that the plaintiff had invested $40,000 and borrowed $390,000 from the small business administration to equip the supermarket. The removal of the fixtures and freezers and loss of business would cost the plaintiff $50,000. Further, there is no suitable location in the area for the plaintiff to relocate its neighborhood type store.

The court succinctly stated the issue to be whether a tenant can exercise late an option to renew a lease, by claiming that his attorney would have properly exercised the option for the tenant, but for the attorney’s untimely death, and that equitable considerations will prevent a forfeiture of the lease. The court concluded that Bayer’s death, the large monetary loss to be suffered by the plaintiff, the speculative loss which the landlord might incur, and the customer loss from the neighborhood community justified equitable relief for the plaintiff.

The law in Connecticut on this issue is well settled. In F. B. Fountain Co. v. Stein, 97 Conn. 619, 118 A. 47 (1922), the plaintiff tenant was four days late in meeting a thirty day notice requirement for renewal of its lease, with the defendant landlord. The lease was for five years with a privilege of four five year renewals. The tenant had occupied the premises for twenty years prior to the time when it failed to give timely notice of intent to renew the lease. Both the tenant and its sublessees had erected buildings and made improvements on the site. The Supreme Court found error in the trial court’s denial of equitable relief because of the court’s exclusion of evidence of the value of good will of the plaintiff’s business in this location. In so doing, the court stated the rule as follows: “We think the better rule to be that in cases of wilful or gross negligence in failing to fulfil a condition precedent of a lease, equity will never relieve. But in case of mere neglect in fulfilling a condition precedent of a lease, which does not fall within accident or mistake, equity will relieve when the delay has been slight, the loss to the lessor small, and when not to grant relief would result in such hardship to the tenant as to make it unconscionable to enforce literally the condition precedent of the lease.” Id., 626-27.

The case of Xanthakey v. Hayes, 107 Conn. 459, 140 A. 808 (1928), strongly reaffirmed the F. B. Fountain Co. doctrine, in upholding the granting of an injunction ordering the landlord to execute a renewal of the lease despite untimely notice. The lease was for ten years with a five year extension on sixty days notice before the termination of the lease. Proper notice would have been on December 31, 1926. The tenants gave notice on January 3, 1927. The first day of neglect of notice was a holiday, the second a Sunday, and on the following day, Monday, notice was given. The trial court found that without the renewal of the lease the tenants would lose about $4000 in improvements together with a substantial loss of good will to their business, that the lack of notice was due to mere forgetfulness, and that the landlord suffered no damages from the three day delay. The court then found that case “peculiarly one for the interposition of equity to prevent the consummation of unconscionable hardship to the plaintiffs.” Id., 476.

In Galvin v. Simons, 128 Conn. 616, 25 A.2d 64 (1942), the Supreme Court ruled for the tenants who were awarded an injunction ordering the landlord to renew a lease. The lease ran from October 10, 1938, to April 30,1941, with a right of renewal for one year based on ninety days notice before its expiration. The landlord told the tenants that she would record the lease but she did not do so. The tenants lost their copy of the lease and were under the impression that the right to renew could be exercised within sixty days of the expiration of the lease. The tenants had spent $500 on improvements and it would cost $100 to move. In finding that the trial court did not abuse its discretion in finding the notice sufficient, the Supreme Court noted (1) that there was no hint of loss to the lessor from the tenants’ use of the property for another year; (2) that no space was available in Cheshire for the tenants’ purposes; and (3) that thirteen days delay was a small percentage of the notice required.

The defendant argues that the rule of F. B. Fountain Co. v. Stein, supra, has been limited to three types of cases: (1) F. B. Fountain Co. v. Stein, supra, where the forfeiture of the buildings and improvements would unjustly enrich the landlord; (2) Xanthakey v. Hayes, supra, where the delay was very slight; and (3) Galvin v. Simons, supra, where the landlord misrepresented that she would record the lease. The plaintiff claims that the facts of this case bring it within the rules enunciated in these cases.

The plaintiff claims: (1) that the delay was slight, pointing out that in F. B. Fountain Co. the tenant was thirty-seven days late on a thirty day notice and in Galvin the notice was thirteen days late on a ninety day renewal period; (2) that the plaintiffs delay was not wilful since the trial court found that the tenant may have been neglectful or forgetful but this was excused because of Bayer’s death; and (3) that the plaintiff would suffer severe hardship if the lease were not renewed.

An analysis of the F. B. Fountain Co. criteria which must be met before equity will grant relief in cases such as this one reveals error in the court’s judgment.

(1) Whether the failure to give notice was mere neglect or gross or wilful negligence: “As a general rule a party will not be given relief against a mistake induced by his own culpable negligence. . . . But the rule is not inflexible and in many cases relief may be granted although the mistake was not unmixed with some element of negligence, particularly where the other party has been in no way prejudiced.” F. B. Fountain Co. v. Stein, supra, 626, quoting 21 Corpus Juris, Equity § 64, p. 88; see also Geremia v. Boyarsky, 107 Conn. 387, 391, 140 A. 749 (1928); Petterson v. Weinstock, 106 Conn. 436, 445, 138 A. 433 (1927). The court, in finding Bayer’s death to be justification for equitable intervention, found only that the tenant “may have been forgetful or neglectful” in giving notice.

The court’s finding fails to state whether the plaintiff’s failure to give notice amounted to wilful or gross negligence which would not allow equitable relief or was merely neglect which would permit such relief under F. B. Fountain Co. The plaintiff’s attorney’s statement that he believed it was probably Bayer’s intention to send a renewal letter is completely devoid of any probative value. Sanctioning the acceptance of such “evidence” would open the courtroom door to myriad statements of interested lawyers favorable to their clients and lacking any factual basis.

(2) Whether or not the delay has been slight: The court made no specific finding in this regard but its reliance on F. B. Fountain Co. in granting relief makes such a finding implicit in the court’s judgment. By comparison with F. B. Fountain Co. (four days late on a thirty day notice), XanthaJcey (three days late on a sixty day notice), and Galvin (thirteen days late on a sixty day notice, applying a percentage factor) we conclude that the delay was slight.

(3) Whether the loss to the lessor is small: The propriety of considering the possible loss to the landlord of a more advantageous use of its property was not challenged in the trial court or in this court. Since such evidence is immaterial to the question involved in this case we do not consider the issue of error in the court’s rejection of the evidence concerning the McDonald’s agreement as “speculative.” It was error for the court to consider the evidence in any event. The application of the F. B. Fountain Co. rule requires that the landlord be prejudiced by a change in position during the period between the time when notice was due and the time when it was given. In other words, the delay itself must have caused the loss. See American Houses, Inc. v. Schneider, 211 F.2d 881 (3d Cir. 1954); Dugan v. Haige, 54 So. 2d 201 (Fla. 1951); J. N. A. Realty Corporation v. Cross Bay Chelsea, Inc., 42 N.Y.2d 392, 366 N.E.2d 1313, 397 N.Y.S.2d 958 (1977); Sy Jack Realty Co. v. Pergament Syosset Corporation, 27 N.Y.2d 449, 267 N.E.2d 462, 318 N.Y.S.2d 720 (1971); Jones v. Gianferante, 305 N.Y. 135, 111 N.E.2d 419 (1953). “[Wjhere an option is contained in a lease or other contract involving an estate in land, some courts of equity, especially in recent years, have tended to treat the offer as not automatically lapsing on expiration of the option period, as for instance, in case of renewal of a long term lease, where to do so would involve substantial forfeiture and the lessor has not materially changed his position in reliance on the optionee’s failure to exercise his option within the stated time. [F. B.] Fountain [Co.] v. Stein, [supra]; Xanthakey v. Hayes, [supra]; Ammar v. Cohen, 96 W. Va. 550, 123 SE 582 [1924].” 1 Williston, Contracts (3d Ed. Jaeger) § 76, pp. 248-49 n.4.

We do not reach the ultimate question of possible unconscionability if the plaintiff is not granted a renewal of the lease since a new trial is necessary to make a finding on the missing element of the F. B. Fountain Co. criteria, that is, the degree of the plaintiff’s negligence in failing to give notice. If the court finds this necessary predicate to relief in the plaintiff’s favor it will then be in a position to determine the ultimate equitable question involved.

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

In this opinion the other judges concurred.


text:
    State of Connecticut v. Russell Manfredi
    (4170)
    (4171)
    Dupont, C.P.J., Hull, Spallone and Daly, Js.
    Argued May 28
    decision released May 28, 1985

      J. Charles Mokriski, for the appellant (Post-Newsweek Stations of Connecticut, Inc.).

      Ralph G. Elliot, for the appellant (The Hartford Courant).

      William J. Gallitto, for the appellee (defendant).

      Kathleen B. Martin, for the appellees (defendant’s minor children).

      James A. Armentano filed a brief for Margaret B. and William T. Jones, temporary guardians of the minor children.

      Herbert G. Appleton, assistant state’s attorney, for the state.

       This opinion was released from the bench following argument.

   Per Curiam.

On the basis of the record presented to us, we conclude that the trial court erred in granting the closure order without holding an evidentiary hearing in accordance with the procedure and principles enunciated in State v. Couture, 37 Conn. Sup. 705, 435 A.2d 369 (1981). Accordingly, the order of the trial court is set aside and the matter is remanded to the trial court for further proceedings.


text:
    Commissioner of Revenue Services v. Estate of Daphne Culpeper
    (3318)
    Borden, Spallone and Daly, Js.
    Argued April 12
    decision released June 11, 1985

      Robert A. Fuller, for the appellants (intervenors Kalman Nulman and Joseph Weill).

      John M. Dunham, for the appellee (plaintiff).
   Per Curiam.

The commissioner of revenue services appealed to the Superior Court from an order and decree of the Norwalk Probate Court finding that no succession tax was due to the state of Connecticut from the estate of Daphne Culpeper (estate). In his reasons of appeal, the commissioner stated that the decedent left the residue of her estate to an alleged charitable foundation to be formed after her death. Inasmuch as the charitable foundation was not structured within five years after her death as required by General Statutes § 12-347, the commissioner claimed that the estate is liable for succession taxes in an amount exceeding one million dollars.

Kalman Nulman and Joseph Weill (the applicants), are former co-executors of the estate, who were removed because of their alleged failure timely to form the charitable foundation. They sought to intervene in the appeal to the Superior Court, claiming that they may be personally responsible for any succession tax which may be recovered against the estate. From the trial court’s denial of their motion to intervene, they have appealed to this court.

Subsequent to oral argument of this appeal, we learned that the Superior Court case in which the applicants sought to intervene has been withdrawn. Therefore, the applicant’s appeal is moot. See Jones v. Ricker, 172 Conn. 572, 375 A.2d 1034 (1977).

The appeal is dismissed.

       The commissioner’s withdrawal was filed on May 2,1985, in Commissioner of Revenue Services v. Estate of Daphne Culpeper, Superior Court, Judicial District of Stamford-Norwalk, No. 83 0064 322S.


text:
    Carl J. Caputo v. Alexander O’Bryant
    (3200)
    Dupont, C.P.J., Borden and Cioffi, Js.
    Argued May 17
    decision released June 18, 1985

      Alexander O'Bryant, pro se, the appellant (defendant).

      Peter L. Truébner and George A. Reilly filed a brief for the appellee (plaintiff).
   Per Curiam.

We have carefully reviewed the claims of error of the defendant in this case and find them to be without merit.

There is no error.


text:
    State of Connecticut v. Thomas Capozziello
    (3358)
    Borden, Spallone and Daly, Js.
    Argued May 7
    decision released June 18, 1985

      Daniel V. Presnick, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gary Nicholson, assistant state’s attorney, for the appellee (plaintiff).
   Per Curiam.

The defendant pleaded guilty to larceny in the first degree by receiving stolen property in violation of General Statutes § 53a-122 (a) (2) after plea negotiations. After canvassing the defendant, the trial court accepted the plea of guilty under the Alford doctrine, and continued the case for sentencing. Before sentencing, through new counsel the defendant moved to withdraw the plea of guilty, claiming various infirmities in the trial court’s acceptance of that plea. The trial court denied the motion and sentenced the defendant. From judgment following that denial, the defendant has appealed to this court.

After reviewing the record and transcript in this matter, we find no basis on which to disturb the judgment of the trial court.

There is no error.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).


text:
    Town of East Lyme v. David Waddington et al.
    (2529)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued March 5
    decision released June 18, 1985

      EdwardB. O'Connell, with whom, on the brief, was Laura K. Ray, for the appellant (plaintiff).

      Gilbert Shasha, for the appellees (defendants).
   Borden, J.

The plaintiff town brought this action for an injunction to restrain the defendants from serving beer at a restaurant they own in the town. Two other proceedings which shape the configuration of the case preceded this action, as more fully set forth below. The trial court denied the request for an injunction. The plaintiff appealed from that judgment. We find error.

The facts are not disputed. The defendants’ restaurant is located in a commercially zoned district of the town. The restaurant is within 1500 feet of the Morton House, an establishment which includes sleeping accomodations and an eating place which serves alcoholic beverages, pursuant to a permit issued by the state.

The defendant Patricia Waddington, as co-owner with the defendant David Waddington of the restaurant in question, applied in 1983 to the liquor control commission of the department of liquor control for a permit to sell beer at the restaurant. The application required certification by the local zoning authority that the zoning ordinances allow the sale of alcoholic liquor under the type of permit for which application was being made. The defendants obtained this certification from the town zoning enforcement officer. The zoning commission disagreed with the officer’s certification, believing that the zoning regulations prohibited the sale of liquor at these premises. The zoning commission appealed the officer’s action to the zoning board of appeals, naming the officer as the sole defendant in the appeal. David Waddington spoke at the public hearing on that appeal, but was not made a party to the appeal. The board found that zoning regulations §§ 13.18.1 through 13.18.6 proscribed the issuance of a liquor permit for the defendants’ restaurant because it was within 1500 feet of the Morton House, and sustained the commission’s appeal on April 26, 1983. No notice of this decision, other than the formal notice published in the legal advertisements section of the New London Day, was given to the defendants. The decision of the board was not appealed to the Superior Court. The officer sent a copy of the board’s decision to the department of liquor control to aid in its decision on the defendants’ liquor permit application.

Meanwhile, on April 12, 1983, the department held a hearing on the defendants’ application, at which the officer testified as to his interpretation of the local zoning ordinances and notified the department that his certification of the defendants’ application was being challenged before the zoning board of appeals. The department approved the application on May 12,1983. In its decision, the department acknowledged the board’s decision but declined to deny the application on the basis of that decision, noting the ambiguity of the regulations in question and the department’s desire to act consistently with its decisions in the past where the officer’s interpretation of the same regulations had not been challenged. The department issued the permit with the caveat that the defendants had to surrender the permit if the town or the board successfully appealed its issuance. Notice of this decision was sent to the defendants, the officer and the board, but not to the town. No appeal was taken from the decision of the department. The defendants commenced to serve beer at their restaurant pursuant to the permit.

The town instituted this action, seeking to enjoin the serving of beer at the defendants’ restaurant. See General Statutes § 8-12. Prior to the institution of the action, the applicable zoning regulations were amended. The trial court denied the injunctive relief, finding that the language of the zoning regulation as it existed at the time of the application was too ambiguous to interpret, and that the granting of the permit by the department of liquor control was conclusive and binding on all the parties. The plaintiff appealed.

I

Before reaching the heart of the issues on appeal, we first deal with preliminary matters raised by the parties regarding the effect of the administrative actions which preceded this suit. The plaintiff essentially makes two arguments: (1) that the failure of the defendants to appeal the board’s decision collaterally estops them from defending on a basis contrary to that decision; and (2) that they are, therefore, bound by the decision of the board. These arguments have no merit.

“ ‘Collateral estoppel is that aspect of the doctrine of res judicata which serves to estop the relitigation by parties and their privies of any right, fact or legal matter which is put in issue and has been once determined by a valid and final judgment of a court of competent jurisdiction.’ State v. Wilson, 180 Conn. 481, 485, 429 A.2d 931 (1981). The party or his privy against whom collateral estoppel is asserted, therefore, must have been given a full and fair opportunity to litigate in a prior proceeding the issue sought to be precluded in the subsequent proceeding. Brockett v. Jensen, 154 Conn. 328, 338, 225 A.2d 190 (1966).” P. X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 161-62, 454 A.2d 1258 (1983). The doctrine also applies to issues litigated in administrative proceedings. Wade’s Dairy, Inc. v. Fairfield, 181 Conn. 556, 559 n.7, 436 A.2d 24 (1980). The defendants in this ca^e were not named as parties in the appeal to the board. The parties to that appeal were the zoning commission and the officer. Since the defendants were not privies to either of these parties, their interests were neither protected nor litigated in that proceeding which challenged the certification by the officer. The doctrine of collateral estoppel, therefore, does not preclude them from raising these issues now.

Nor are the defendants bound by the board’s interpretation of the zoning regulations, even though they failed to appeal from the board’s decision. The defendants were not required to appeal from that decision because they had already obtained the relief sought. Within the time for appeal, the department of liquor control issued them their permit. Having obtained from the department the relief they sought, there was no reason for them to appeal from the board’s decision. “To do so would have availed them nothing. ‘The law does not require the doing of a useless thing.’ Corsino v. Grover, [148 Conn. 299, 308, 170 A.2d 267 (1961)].” Greenwich v. Liquor Control Commission, 191 Conn. 528, 542, 469 A.2d 382 (1983).

The defendants similarly argue that the decision of the department of liquor control is binding on the plaintiff because the plaintiff had the right to appeal from the issuance of the liquor permit and did not. Therefore, the defendants claim that collateral estoppel bars the plaintiff from challenging the department’s decision in this action. This argument is also without merit.

The plaintiff was not a party to the department’s proceeding. Although the issuance of the license by the department was conditioned on the failure of the plaintiff or the board successfully to appeal the department’s decision, the plaintiff was never given notice of the department’s decision. The mere naming of the plaintiff in the decision is not enough to hold the plaintiff to that decision. Not being a party to the department’s proceeding, the plaintiff was not collaterally estopped by it. Indeed, the plaintiff was not entitled to take a direct appeal from the department’s decision. General Statutes § 30-60 (“any applicant for a permit ... or any permittee whose permit is revoked or suspended ... or any ten residents who have filed a remonstrance pursuant to the provisions of § 30-39 and who are aggrieved . . . may appeal . . . .”); Bendell v. Johnson, 153 Conn. 48, 50, 212 A.2d 199 (1965) (“There is no direct appeal allowed from the action by the commission in granting, suspending or revoking permits except by applicants and permittees.”); Newington v. Mazzoccoli, 133 Conn. 146, 153, 48 A.2d 729 (1946). The plaintiff could, however, properly seek injunctive relief from the department’s decision which, in the plaintiff’s view, violated local zoning regulations; General Statutes § 8-12; Newington v. Mazzoccoli, supra, 156; as the plaintiff did in this case.

Since the defendants were not bound by the board’s interpretation of the zoning regulations, and the plaintiff was not bound by the department’s interpretation, the trial court was required to make a conclusive determination of the legal situation in which the parties found themselves. In doing so, however, the court erred.

II

The regulation controlling at the time of the defendants’ application was § 13.18.1, which provided in pertinent part: “[N]o building or premises shall be used, erected or altered which is arranged, intended or designed to be used as . . . [a] Restaurant, Cafe, Grill, or Tavern serving Alcoholic Liquor or Alcoholic Beverages (as defined in the Liquor Control Act) if any part of said building or premises is situated on any part of a lot within 1500' radius in any direction of any lot upon which is located a building or premises used for the purposes of a Restaurant, Cafe, Grill, or Tavern serving alcoholic liquor or alcoholic beverages.” The issue which the parties ultimately placed before the court was the proper interpretation of this language. More precisely, the major issue presented by this language was whether the parenthetical statement, “as defined in the Liquor Control Act,” modified only the phrase, “Alcoholic Liquor or Alcoholic Beverages,” modified only the phrase, “Restaurant, Cafe, Grill, or Tavern,” or modified both.

The regulation was subsequently amended, however, to provide in pertinent part: “[N]o building or premises shall be used, erected or altered which is arranged, intended or designed to be used . . . [f]or the sale of alcoholic liquor or alcoholic beverages for consumption on the premises if any part of said building or premises is situated on any part of a lot within [a] 1500 feet radius in any direction of any lot upon which is located a building or premises used for the purposes of selling alcoholic liquor or alcoholic beverages for consumption on the premises.” There is no reference to the Liquor Control Act in the new regulation and the ambiguous language has been deleted.

There is no dispute that the Morton House sells liquor for consumption on the premises and is controlled by the regulation as amended. Nor is there a dispute that the defendants’ restaurant, which sells liquor for consumption on the premises, is within 1500 feet of the Morton House. Under the current regulation, therefore, the defendants are clearly prohibited from selling liquor in their establishment.

With certain exceptions not applicable here, “the zoning law or regulation in effect at the time of the decision of a court is controlling as opposed to that in effect when the proceedings were instituted or when the administrative agency entered its decision upon the application.” (Footnote omitted.)McCallum v. Inland Wetlands Commission, 196 Conn. 218, 223, 492 A.2d 508 (1985); Johnson v. Zoning Board of Appeals, 2 Conn. App. 24, 27, 475 A.2d 339 (1984). Zoning disputes should not be settled on the basis of regulations which no longer exist. Johnson v. Zoning Board of Appeals, supra, 26. The policy behind this is a practical one: to do substantial justice while avoiding the necessity of protracted retrials which will ultimately have the same result. McCallum v. Inland Wetlands Commission, supra, 224.

We must apply these principles to the facts of this case, although the parties urge us to interpret the language of the former regulation. We cannot obstruct the plan developed for the community in question by implementing out-of-date regulations. “Since the original regulations are no longer of any force, our determination of their effect and validity would be futile . . . . ” Id., 223. The current regulation is not ambiguous in effecting its purpose of controlling the distance between liquor outlets such as those involved here. Under its terms, the defendants are plainly prohibited from selling liquor in their restaurant.

We, therefore, need not reach the issue of the ambiguity of the preexisting regulation, as did the trial court. Nor is it necessary for us to decide whether the trial court correctly concluded that the department’s issuance of the permit was binding on the parties, since that issuance was based on the department’s interpretation of the now defunct regulation.

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

In this opinion the other judges concurred.

       Although Patricia Waddington was the only applicant, she co-owned the restaurant with David Waddington. The decision on the liquor permit application affected them both as owners of the restaurant. They are both named as defendants to this action and, for convenience and because of the practical effect of the issuance of the liquor permit, we refer to the application plurally, as the defendants’ application.

       We note, however, that the trial court erred in concluding that the preexisting regulation was “too ambiguous to make a determination of what it means.” Construction of zoning regulations is a regular function of the courts. See, e.g., Pascale v. Board of Zoning Appeals, 150 Conn. 113, 116, 186 A.2d 377 (1962). The full panoply of principles of statutory construction are available to aid in the construction of local ordinances. Manchester v. Manchester Police Union, 3 Conn. App. 1, 6, 484 A.2d 455 (1984); see Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 489 A.2d 398 (1985). While this regulation may have been less than a model of artful drafting, it was not so murky that the principles of interpretation could not make sense of it. See Hutchison v. Board of Zoning Appeals, 140 Conn. 381, 385, 100 A.2d 839 (1953).


text:
    Rosalie Hatcher, Executrix (Estate of Clinton M. Hatcher) v. The Bullard Company et al.
    (3302)
    Dupont, C.P.J., Borden and S. Freedman, Js.
    Argued May 17
    decision released June 18, 1985

      David J. Elliott, with whom, on the brief, were Joseph A. Moniz, John A. Danaher III and Catherine Glaze, legal intern, for the appellant (plaintiff).

      Robert J.- Cooney, with whom was Thomas W. Witherington, for the appellees (defendants).
   Per Curiam.

This case is controlled by Mingachos v. CBS, Inc., 196 Conn. 91, 491 A.2d 368 (1985), and Greene v. Metals Selling Corporation, 3 Conn. App. 40, 484 A.2d 478 (1984).

There is no error.