text:
    Guido Ottaviani et al. v. John Pechi et al.
    (6248)
    Borden, Daly and Stoughton, Js.
    Submitted on briefs September 1
    decision released October 25, 1988

      Kathleen A. Hogan and Frederic S. Ury filed a brief for the appellant (named defendant).

      Bernard Green and Bracken C. O’Neill filed a brief for the appellees (plaintiffs).
   Daly, J.

The named defendant appeals from the judgment rendered, after a trial to the court, in favor of the plaintiffs. The appeal presents the following issues for our review: (1) whether the court erred in awarding the plaintiffs prejudgment interest under General Statutes § 37-3a; (2) whether the court erred in awarding attorney’s fees to the plaintiffs; and (3) whether the court erred in disallowing the defendant’s counterclaim. We find no error.

The trial court found the following facts. On July 10, 1985, the plaintiffs, Guido and Barbara Ottaviani, entered into a contract with the defendant for the sale and purchase of the shares of stock in a retail fur establishment named Maxine Furs. The contract called for a closing date of July 19, 1985; however, the defendant delayed the closing until November 15, 1985. The defendant’s principal reason for the delay in closing was that a number of furs belonging to customers of Maxine Furs were in the possession of David Hittman, who had originally sold the business to the plaintiffs in 1984. These furs had been stored at Maxine Furs but were removed by Hittman in the spring of 1985 at the insistence of the defendant. Hittman later refused to return the furs unless he was paid the overdue storage charges on the furs. Details of the negotiations with Hittman are irrelevant to this appeal. Nevertheless, the closing between the plaintiffs and the defendant took place only after the plaintiffs agreed to reimburse the defendant for any costs incurred in replacing missing furs and for rental value if loaning a replacement fur to a customer became necessary. Under the terms of the contract, the purchase price for the shares of plaintiffs’ stock was $100,000 less certain adjustments. The defendant made a downpayment of $25,000 and was scheduled to make another $25,000 payment on December 30, 1985. The remaining adjusted balance was reflected by two promissory notes executed by the defendant in the amounts of $25,000 and $11,014.20. The two notes included language relating to the payment of costs and expenses, including attorney’s fees, incurred in the collection of the sums due. The first note was fully due and payable on December 30, 1986, and the second note on December 30, 1987.

The defendant failed to make the December 30, 1985 payment of $25,000, and the interest payments due under the promissory notes. The plaintiffs’ six count complaint sought payment of the amounts due and interest thereon, as well as attorney’s fees. The defendant counterclaimed, alleging that the agreement between the parties with respect to reimbursement for replacement or fur loan costs entitled him to set off the sum of $83,789.88 against the plaintiffs’ demand. The trial court found in favor of the plaintiffs on the complaint and the counterclaim.

The defendant’s first claim on appeal is that the trial court should not have awarded prejudgment interest on the payment of $25,000 due December 30, 1985, because his detention of the money was not wrongful.

General Statutes § 37-3a allows parties in civil actions to recover interest at the rate of 10 percent a year as damages for the detention of money. This interest, known as prejudgment interest, is assessed from the date the money became due and payable. West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 321, 541 A.2d 858 (1988). “The equitable determination of whether interest is to be recognized as a proper element of damages [in contract actions] turns in each case on whether the detention of money is wrongful under the circumstances.” Slattery v. Maykut, 176 Conn. 147, 155, 405 A.2d 76 (1978); Marcus v. Marcus, 175 Conn. 138, 146, 394 A.2d 727 (1978); see also Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn. App. 468, 478, 531 A.2d 177 (1987). The determination of whether to award interest as an element of damages lies entirely within the discretion of the trial court. Crest Plumbing & Heating Co. v. DiLoreto, supra.

We find no abuse of discretion here. The trial court found that the defendant executed the contract and was therefore under a duty to pay the plaintiffs $25,000 on December 30, 1985. As to the defendant’s claim that his failure to pay was not wrongful but instead the product of a good faith dispute, the trial court found that the defendant was not credible. It was the defendant himself who insisted, in the spring of 1985, that Hittman remove the furs from the store. Moreover, the trial court found that customer demands for the fur coats in the alleged possession of Hittman did not arise until after the sales contract was signed on November 15, 1985. Finally, the court found that the defendant sought reimbursement costs that were greatly out of proportion to the actual value of the furs being replaced. The credibility of witnesses and the weight accorded to their testimony is a matter within the trial court’s discretion. Jazlowiecki v. Cyr, 4 Conn. App. 76, 77, 492 A.2d 516 (1985); see also Piantedosi v. Floridia, 186 Conn. 275, 277, 440 A.2d 977 (1982). When the trial court’s conclusion is logically supported by subordinate facts, we will not disturb that conclusion unless it is in violation of law. See Piantedosi v. Floridia, supra. In this case, the trial court was within the scope of its discretion in discrediting the defendant’s testimony and in awarding prejudgment interest.

The defendant’s next claim is that the trial court erred in awarding $5500 in attorney’s fees to the plaintiffs. Both promissory notes contained language authorizing the recovery of costs and expenses, including attorney’s fees. In Guaranty Bank & Trust Co. v. Dowling, 4 Conn. App. 376, 494 A.2d 1216, cert. denied, 197 Conn. 808, 499 A.2d 58 (1985), we reiterated that, when the terms of a promissory note provide for the payment of attorney’s fees, they are recoverable. Id., 386. An award of attorney’s fees under such a clause requires an evidentiary showing of reasonableness. Bizzoco v. Chinitz, 193 Conn. 304, 310, 476 A.2d 572 (1984); Appliances, Inc. v. Yost, 186 Conn. 673, 680, 443 A.2d 486 (1982); Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 245-46, 440 A.2d 306 (1982); Crest Plumbing & Heating Co. v. DiLoreto, supra, 480. Moreover, the award is to be based on several considerations, and not just the actual fee incurred. Crest Plumbing & Heating Co. v. DiLoreto, supra.

The plaintiffs submitted an affidavit claiming total legal fees in the amount of $22,972.92. The defendant argues that, because this amount was never allocated to the separate claims, the trial court had no evidence before it on which it could make a determination of the attorney’s fees due under the promissory notes only. We disagree. “ ‘[C]ourts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorney’s fees.’ Bizzoco v. Chinitz, [supra, 310].” Guaranty Bank & Trust Co. v. Dowling, supra, 386. In this case, the trial court was in a position to evaluate the issues presented and determine what proportion of the requested attorney’s fees should be allocated to the promissory notes. The record was sufficient to support the award made by the trial court.

The defendant’s final claim of error concerns the trial court’s disallowance of his counterclaim. The counterclaim essentially alleged that, because of the reimbursement agreement between the parties, the defendant was entitled to set off against the plaintiffs’ demand all amounts expended to replace missing furs, including the rental value of furs loaned to customers. The trial court found that the defendant failed to sustain his burden of proof on the counterclaim. We find no error.

“ 'On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . [W]here the' legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the 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); Cookson v. Cookson, 201 Conn. 229, 242-43, 514 A.2d 323 (1986).” Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 256-57, 524 A.2d 610 (1987).

As previously discussed, the trial court found that the defendant was not a credible witness and that his highly inflated claims for reimbursement arose in a suspicious manner. The facts found by the trial court support its decision to disallow the defendant’s counterclaim. Our review of the record indicates that the trial court’s decision was supported by the evidence and was not clearly erroneous.

There is no error.

In this opinion the other judges concurred.

       Pechi is the only defendant who has appealed; accordingly, as used in this opinion, the term defendant refers solely to Pechi.

       This figure represents the amount claimed by the defendant for reimbursement due him for replacing and loaning furs to customers whose furs were claimed to be missing.


source: Caselaw Access Project

author: Stoughton, J.

license: Public Domain

text:
    Stanley L. Lacey v. Richard D. Williams et al.
    (6441)
    Daly, Stoughton and Foti, Js.
    Argued September 20
    decision released October 25, 1988

      Alan R. Spirer, with whom, on the brief, was Karan Spirer, for the appellants (defendants).

      Kevin A. Fusco, for the appellee (plaintiff).
   Stoughton, J.

The defendants have appealed from a judgment confirming an arbitration award. The defendants claim that the court erred in granting the application to confirm the award in that (1) the arbitration proceedings and award include claims under the Connecticut Unfair Trade Practices Act (CUTPA) which claims were outside the submission and not subject to arbitration, (2) the inclusion of CUTPA claims in arbitration proceedings contravenes the public policy of the state, and (3) the arbitration proceedings and award include claims that are subject only to the jurisdiction of the courts. The defendants also claim that the court erred in failing to dismiss the plaintiff’s application to confirm the award or, in the alternative, to transfer the application to the judicial district in which the defendants had first filed their application to vacate the award. We find no error.

On March 12, 1984, the parties, all of New Canaan, entered into a contract under the terms of which the defendants agreed to construct a house in New Canaan for the plaintiff and the plaintiff agreed to pay the defendants $262,700. The contract provided that “[a]ny controversy or claim arising out of or relating to this contract, or the breach thereof, together with the legal and other costs thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association . . . .” A rider to the contract provided that “[a]ll claims or disputes arising out of this Contract or the breach thereof shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then pertaining, unless the parties mutually agree otherwise.”

A dispute arose and on May 22, 1987, the plaintiff submitted a demand for arbitration. The nature of the dispute was given as follows: “Presence of serious, substantial and persistent structural defects in claimant’s home which was constructed by Contempra Homes; Contempra Homes failure to repair and correct said defects; Contempra Homes violation of Connecticut’s Unfair Trade Practices Act (General Statutes § 42-110a et seq.).” The plaintiff claimed $75,000, punitive damages and attorney’s fees. An arbitrator heard the proofs and claims of the parties and awarded the plaintiff $46,535.13 in full and final settlement of all claims submitted to arbitration.

On August 4, 1987, the defendants filed an application to vacate the award in the Superior Court in the judicial district of Fairfield at Bridgeport. On August 12, 1987, before he had received notice of the defendants’ application, the plaintiff applied to the Superior Court in the judicial district of Stamford-Norwalk at Stamford to confirm the award. The defendants moved to dismiss the plaintiff’s application because of their prior pending application or, in the alternative, to transfer the plaintiff’s application to the Superior Court at Bridgeport. The plaintiff objected because an earlier hearing date had been assigned in Stamford and because the proper venue under General Statutes § 52-418 (a) is Stamford, the judicial district where the parties resided. The record does not disclose the disposition made of the defendants’ motion, but on September 29, 1987, the court rendered judgment for the plaintiff confirming the award.

The defendants claim that the court erred in failing to dismiss the plaintiff’s application because of the pendency of the defendants’ application to vacate or, in the alternative, in failing to transfer the plaintiffs application to the Superior Court at Bridgeport. We agree with the plaintiff that under General Statutes § 52-418 (a) the proper venue for an application concerning arbitration is the Superior Court in the judicial district in which one of the parties resides. The parties to the arbitration resided in New Canaan which is in the judicial district of Stamford-Norwalk.

The first three of the defendants’ claims of error attack the judgment confirming the award on the ground that the award includes claims made under CUTPA. We note initially that the defendants did not object to arbitration and they participated in the proceedings. They did not seek an immediate judicial determination of arbitrability pursuant to General Statutes § 52-415. See New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 414, 544 A.2d 186 (1988). If the parties mutually agree to submit their dispute to arbitration, the resulting award is not reviewable for errors of law or fact. Id., 415. While it is true that the plaintiff alleged that the defendants had violated CUTPA and sought punitive damages, nowhere is it shown in the record that the arbitrator even considered CUTPA, much less that he made an award under it. The burden rests on the party attacking the award to produce sufficient evidence to invalidate it. Schwarzschild v. Martin, 191 Conn. 316, 327, 464 A.2d 774 (1983).

The submission to arbitration was unrestricted and encompassed all claims or disputes arising out of the contract. Judicial review of unrestricted submissions is limited to a comparison between the submission and the award to see whether the award conforms to the submission. New Haven v. AFSCME, Council 15, Local 530, supra, 415-16. The award clearly conforms to the submission here. The plaintiff claimed $75,000 in damages and was awarded $46,535.15. We cannot presume that the arbitrator based any part of the award on a CUTPA violation.

The defendants did not introduce the record of the arbitration proceedings in the trial court and failed to prove that a CUTPA claim was considered. See Schwarzschild v. Martin, supra, 326. “The burden rests upon the appellant to show that there was error in the judgment from which the appeal is taken, and that includes the preparation of a proper record.” Id.

We will not address the defendants’ arguments that only a court may hear the CUTPA claim and that it was a violation of public policy for an arbitrator to hear such a claim. There is simply nothing in the record to demonstrate that any CUTPA claim was heard, or that an award was made on such a claim. We will not decide such a question in the abstract. It is the duty of the appellant to present a record that is adequate for review of the questions he desires to raise. Practice Book § 4061; Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn. App. 468, 479, 531 A.2d 177 (1987).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-418 provides: “vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.
      “(b) If an award is vacated and the time within which the award is required to be rendered has not expired, the court or judge may direct a rehearing by the arbitrators.”

       The defendants also failed to move for modification or correction of the award pursuant to General Statutes § 52-419.


author: Per Curiam.

text:
    Karl Paul Vossbrinck v. Town of Monroe et al.
    (6100)
    Spallone, Norcott and Foti, Js.
    Submitted on briefs September 1
    decision released October 11, 1988

      Karl Paul Vossbrinck, pro se, the appellant (plaintiff), filed a brief.

      Christopher J. Lynch filed a brief for the appellees (defendants).
   Per Curiam.

There is no error.


text:
    Lillian Bourque et al. v. Adele DiChiara et al.
    (6219)
    Spallone, Daly and Norcott, Js.
    Argued September 20
    decision released October 11, 1988

      John F. Slane, Jr., with whom, on the brief, was Francis X. Lennon, Jr., for the appellant (defendant Stella Paklos).

      Rocco R. P. Perna, for the appellees (plaintiffs).
   Per Curiam.

The defendant Stella Paklos is appealing from the judgment rendered by the trial court upon the report of the attorney trial referee.

In this action, the trial court found facts, drew legal conclusions and rendered judgment where there was a material variance between the. pleadings and the proof. The plaintiff alleged that a deed was signed “under undue influence,” because of a “confidential relationship,” because of “coaxing” and as a consequence of “fradulent misrepresentation.” The court found that the deed was never signed and that the alleged grantor was “completely lacking in mental capacity” (emphasis added) to execute a deed.

The variance between the pleadings and the proof was material and no amended complaint conforming the allegations to the proof was filed. A party may not recover on a theory or cause of action not pleaded. See, e.g., Reciprocal Exchange v. Altherm, Inc., 142 Conn. 545, 551, 115 A.2d 460 (1955); Spitz v. Abrams, 128 Conn. 121, 123, 20 A.2d 616 (1941); Collins v. Erdmann, 122 Conn. 626, 632, 191 A. 521 (1937); Francis v. Hollauer, 1 Conn. App. 693, 696-97, 475 A.2d 326 (1984).

There is error, the judgment is set aside and a new trial is ordered.


text:
    Carl D. Guarco v. William Curtis, Jr., et al.
    (6360)
    Dupont, C. J., Borden and Spallone, Js.
    Submitted on briefs September 13
    decision released October 11, 1988

      Thomas P. Griffen filed a brief for the appellant (plaintiff).

      Robert E. Beach, Jr., and Beverly Johns filed a brief for the appellees (defendants).
   Per Curiam.

In this action for wrongful dispossession arising out of negligence, and for alleged violations of the plaintiffs civil rights, the plaintiff appeals from the judgment for the defendants rendered upon separate jury verdicts on the four counts of the complaint submitted to the jury. The defendants raised three separate special defenses: (1) the plaintiff negligently caused his own losses by failing to correct the defective conditions on his property; (2) the individual defendants were entitled to governmental immunity because they acted pursuant to discretionary duties; and (3) the individual defendants’ actions in the performance of their duties were in good faith and in accordance with law. No interrogatories were submitted to the jury.

The plaintiff raises two claims of error: (1) the evidence indicates that one of the individual defendants was negligent as a matter of law; and (2) the trial court committed plain error in its instructions to the jury concerning the issue of the negligence of the individual defendants. Under these circumstances, the general verdict rule applies to preclude review of the plaintiff’s claims, because the verdicts could reasonably have been rendered on any one or all of the special defenses, which we must assume the jury found in favor of the defendants. Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987).

There is no error.

       The first count claimed negligence against the four individual defendants, who were officials of the city of Hartford. The second, against the city, sought indemnity pursuant to General Statutes § 7-465 for the damages claimed to arise under the first count. The third count, also against the four individual defendants, was based on 42 U.S.C. § 1983. The fourth count sought indemnity from the city, pursuant to General Statutes § 7-465, for the damages claimed to have been incurred under the third count.


text:
    Nutmeg Concrete, Inc. v. James E. Dwyer, Inc.
    (6367)
    Borden, Norcott and Foti, Js.
    Submitted on briefs September 20
    decision released October 11, 1988

      John M. Zullo filed a brief for the appellant (plaintiff).

      Robert E. Grant filed a brief for the appellee (defendant).
   Per Curiam.

There is no error.


text:
    Dorothy E. Jackson, Administratrix (Estate of Raymond E. Jackson), et al. v. I. David Marder
    (6574)
    Borden, Daly and Foti, Js.
    Submitted on briefs September 20
    decision released October 11, 1988

      Otto P. Witt filed a brief for the appellant (plaintiff).

      Robert J. Cathcart filed a brief for the appellee (defendant).
   Per Curiam.

We have fully reviewed the claims of error as presented by the plaintiff, and the defendant’s responses thereto. This review persuades us that the trial court did not err in dismissing the plaintiff’s complaint.

There is no error.


text:
    Fred Baker v. Helene Baker
    (6589)
    Spallone, Daly and Stoughton, Js.
    Submitted on briefs September 20
    decision released October 11, 1988

      John P. Febbroriello filed a brief for the appellant (plaintiff).

      Robert M. Shields, Jr., and Wesley W. Horton filed a brief for the appellant (defendant).
   Per Curiam.

There is no error.


text:
    Barbara Sherwood v. Paul J. Sherwood
    (6503)
    Spallone, Daly and Stoughton, Js.
    Submitted on briefs September 20
    decision released October 11, 1988

      I. David Marder filed a brief for the appellant (defendant).

      Richard Goodman filed a brief for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Ann V. Foote v. Stephen L. Foote
    (6382)
    Spallone, Norcott and Foti, Js.
    Submitted on briefs September 20
    decision released October 11, 1988

      Paul L. Bollo filed a brief for the appellant (defendant).

      Sheldon A. Rosenbaum filed a brief for the appellee (plaintiff).
   Per Curiam.

There is no error.


text:
    Patricia Puglio v. Americo Paniccia et al.
    (6408)
    Dupont, C. J., Stoughton and Norcott, Js.
    Submitted on briefs September 20
    decision released October 11, 1988

      Salvatore A. Maresca, Jr., filed a brief for the appellant (defendant).

      Patricia A. Puglio, pro se, the appellee (plaintiff), filed a brief.
   Per Curiam.

This is an appeal by the defendants from a judgment for the plaintiff. The defendants claim that the court erred in overruling objections to testimony and in denying their motion for judgment for failure of the plaintiff to produce expert testimony. We find no error.

When error is claimed in rulings such as those complained of, the brief or appendix must include the pertinent motion, if it does not appear in the printed record; the question; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; the ruling; and any exception. Practice Book § 4065 (d) (3). This rule has not been complied with and we will not consider the claims asserted. Henry v. Klein, 15 Conn. App. 496, 500, 545 A.2d 575 (1988).

There is no error.


author: Daly, J.

text:
    Celia Yarbrough v. George Demirjian
    (6311)
    Spallone, Daly and Stoughton, Js.
    Argued September 20
    decision released November 1, 1988

      Alfred J. Onorato, with whom, on the brief, was Vincent J. Dooley, for the appellant (defendant).

      Jean M. D'Aquila, with whom, on the brief, was Michael J. Gustafson, for the appellee (plaintiff).
   Daly, J.

The plaintiff instituted a summary process action to recover possession of her residence which the defendant had been occupying. The defendant appeals from a judgment rendered in favor of the plaintiff. The dispositive issue is whether the trial court erred in concluding that an oral lease existed between the parties. We find no error.

The trial court found the following facts. The parties had been close friends for a number of years. On June 27,1980, the parties executed a bond for deed providing for the sale of premises owned by the plaintiff in Middletown. The purchase price was $70,000; the defendant paid $39,000 as a downpayment, leaving a balance of $31,000 due at the time of the transfer of title. The bond for deed provided that the closing would take place on or before January 1,1982. The closing, however, never occurred. After execution of the bond for deed, the plaintiff returned to Texas and her two children occupied the premises from June, 1980, to November, 1983. During that time, the plaintiffs children paid the mortgage, interest and taxes on the property in lieu of paying rent. The defendant moved onto the premises in November, 1983, pursuant to an oral agreement with the plaintiff. During his possession of the premises, the defendant also paid the mortgage, interest and taxes.

On December 10,1986, the defendant was served with a notice to quit possession. In his special defenses to the action, the defendant maintained that he had entered the premises pursuant to the bond for deed, thereby precluding a summary process action under General Statutes § 47a-2. In addition, the defendant argued that the summary process action was barred due to the pendency of his suit against the plaintiff for specific performance of the bond for deed. This argument relies on the principle that two suits should not be brought for the determination of a matter between the same parties when that determination can be properly and effectually made in one suit. See Cahill v. Cahill, 76 Conn. 542, 548, 57 A. 284 (1904).

The trial court’s finding that the defendant’s occupancy of the premises was pursuant to an oral lease, rather than under the bond for deed, is dispositive of this appeal.

“Where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... ” Davis v. Naugatuck, 15 Conn. App. 185, 188, 543 A.2d 785 (1988); see also Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). Our review of the record indicates that the trial court’s determination that a landlord-tenant relationship existed between the parties is sufficiently supported by the evidence and is not clearly erroneous. Accordingly, the trial court did not err in rendering judgment for the plaintiff.

Because the relationship between the parties was one of landlord and tenant, the plaintiff was correct to bring a summary process action to recover possession of the premises. Scinto v. Bridgeport Cash & Carry, Inc., 38 Conn. Sup. 514, 516, 452 A.2d 940 (1980). Summary process is aimed at deciding the simple question of who is entitled to possession. Urban v. Prims, 35 Conn. Sup. 233, 236, 406 A.2d 11 (1979). In seeking specific performance of the bond for deed, the defendant claims that he has an enforceable right to the title to the premises. The two suits clearly did not seek a determination of the same issue.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 47a-2 provides in pertinent part: “[T]he following arrangements are not governed by this chapter and sections . . . 47a-23 to 47a-23b ... (2) occupancy under a contract of sale of a dwelling unit or the property of which such unit is a part, if the occupant is the purchaser or a person who succeeds to his interest . . . .”


author: Borden, J.

text:
    Land Enterprises, Inc. v. Constance Dorman et al.
    (6234)
    Dupont, C. J., Borden and Foti, Js.
    Argued September 14
    decision released November 1, 1988

      David A. Reif for the appellants (Mordecai Lipkis et al.).

      Donna Nelson Heller, for the appellee (plaintiff).

      Edward B. Winnick, with whom, on the brief, were Roberta J. Lichtenstein and Terence S. Hawkins, for the appellees (defendants).
   Borden, J.

This appeal arises out of a partition action concerning property located at 2 Church Street, New Haven, known as the Malley Building. The appellants, Mordechai Lipkis and Ceasar’s Bazaar Limited Partnership (hereinafter referred to as the purchasers), are the successors in interest of Manhattan Lofts, Inc. (Manhattan), the successful bidder at the partition sale ordered by the trial court, DeMayo, J. The purchasers subsequently moved for a reduction in the purchase price based on claimed changes and damage to the property occurring subsequent to the execution of the sale. The dispositive issue is whether the court erred by making factual findings without affording the purchasers an evidentiary hearing on their motion. Under the circumstances of this case, we find error.

The critical procedural steps were as follows. The plaintiff’s complaint sought a partition of the property. The defendants are various co-owners of the property and other parties with interests therein. On July 2, 1985, the court rendered a judgment ordering a partition by sale. The auction was held on November 18, 1985, at which Manhattan was the successful bidder at a price of $4,015,000. On that date, the court-appointed committee and Manhattan entered a bond for deed. Paragraph three of the bond for deed stated that “the premises are being sold ‘as is’ without warranties, either expressed or implied, as to the condition of the premises or the use to which they may be put, and on ‘Buyers’ own information and knowledge and not upon any representations or comments, either oral or written, made by the ‘Seller.’ ” (Emphasis in original.) The bond for deed called for a closing within thirty days of the approval of the sale by the court. The court approved the sale on December 18, 1985. Pursuant to various motions and stipulations, the closing was not held until December 18, 1986. On December 15, 1986, however, Manhattan filed a motion for reduction in the purchase price, claiming that, subsequent to the execution of the bond for deed, the property was damaged in several significant respects, rendering it in an other than “as is” condition as required by the bond for deed of November 18, 1985.

This motion came before the court on February 9, 1987, when the parties agreed that the committee could distribute the proceeds of the sale except for $400,000, which would be held in escrow by the committee subject to the court’s determination of the purchasers’ motion. At that proceeding, the court ordered the purchasers to file their brief by February 17, 1987, and ordered the other parties to file their briefs by February 24,1987. The court then stated: “And at that time, when the court receives that — I take it you all — you will want to be heard as well?”

At that point the following colloquy took place:

“Mr. Winnick [counsel for various of the owners]: And I think if Your Honor reaches the question on the facts [Mr. Reif] would have the obligation of producing evidence for the court.
“The Court: . . . Now just so we don’t misunderstand anything. Are the parties expecting to be heard regardless of what the court does with the briefs or do you want to be heard only if I get by the first hurdle?
“Mr. Reif: Well, I think it’s probably a factual basis that has to be laid either way before Your Honor reaches a determination on the briefs. I think that in addition to the legal position there are some underlying facts which will have to be heard one way or the other as to . . . .
“The Court: Well, your brief will outline — will have to outline some of the factual basis for liability.
“Mr. Reif: That’s understood, Your Honor, but I assume that some of those factual issues will probably be put in dispute and therefore there’s going to have to be a record laid as to those factual issues, regardless of whether Your Honor would ever reach the issue of what amount should be offset. The legal issue of whether anything should be offset requires a factual
“The Court: Let’s take that issue first. Is that the one you want to be heard on? Do you expect to be heard on?
“Mr. Reif: That’s one that I would hope to be heard on, yes.
“The Court: All right. So then the briefs are merely preliminary to a hearing either way?
“Mr. Reif: That’s right. That’s how I would view it, Your Honor.”

After the briefs were filed, the case next came before the court, for oral argument, on April 27,1987. At the outset of this proceeding, the purchasers’ counsel stated: “As I understand the scope of today, the question is whether, assuming that the plaintiff were about to prove a set of facts falling within the realm and allegations of the complaint — would it have established at that point a legally sufficient claim as to either of the two issues which have been raised. Of those two issues, the primary issue is the question of what is meant by ‘as is’ in connection with the sale of the property.”

Thereafter, the court held oral argument on the purchasers’ motion. At the end of that argument, the court stated “I just wanted to sum up. I think there are three possibilities as I see them. I think I can take three positions here. I can decide the motion in its entirety or I can grant it in its entirety. I can break it down and find that I can decide part of it on whether I have an evidentiary hearing or I can decide I can’t do anything without an evidentiary hearing.” Counsel for the purchasers responded: “I think that is right. I respectfully submit the most likely of those is the fourth because we clearly have a difference of testimony as to whether there was a representation that the material would be removed, and it seems to me we clearly have a set of different factual interpretations as to what Mr. Tyler [counsel for Manhattan] meant when he said that Mr. Lipkis was agreeing that — to take over as a caretaker, a term that was used to provide maintenance which is a term that was used but not to do capital replacement which is a term that was used.”

Thereafter, the court rendered a written memorandum of decision addressing the two categories of damages claimed by the purchasers: (1) $269,300 in expenses incurred in removing certain personalty from the premises and in removing the adhesive material from the floor where carpeting was removed; and (2) approximately $100,000 incurred in making certain necessary repairs to the building, namely, the repair of holes in the floors, roof and columns, and electrical and elevator repairs. With respect to the first category, the court made a number of factual findings, including a finding that the carpeting was personalty, not a fixture, and a finding that the purchasers were looking to the purchaser of the carpeting, not to the sellers, for the removal of the carpeting. The court concluded from “this factual background” that there was no legal basis to charge any owner or the committee with responsibility for the damages claimed. The court also made a number of factual findings with respect to the second category of claimed damages, including the finding that, by stipulation on January 13,1986, Lipkis became not only the caretaker of the building but “was considered the owner in all but the legal sense.” The court concluded that, assuming the alleged defects existed, the purchasers either accepted them as part of the structure of the building as of November 18,1985, or were responsible for them because they occurred while Lipkis was in control of the building. Finally, the court concluded that the purchasers were estopped from raising both categories of claims. This conclusion was based on the court’s findings that the purchasers, in securing extensions of the closing date, had implicitly represented to the sellers that they would pay the full purchase price, and that the sellers relied thereon to their detriment by waiving defaults by the purchasers. The court denied the purchasers’ motion, and rendered a supplemental judgment accordingly. This appeal followed.

The purchasers’ principal claim is that the trial court erred by making critical factual determinations without affording them an evidentiary hearing. We agree, and we find this issue to be dispositive.

We first address, however, two procedural claims that the sellers argue bar consideration of the purchasers’ principal claim. These are (1) that the purchasers cannot complain of a lack of an evidentiary hearing on their claims because, had they considered such a hearing to be necessary, the proper course would have been to institute a separate civil action, and (2) that the purchasers did not preserve this claim for appeal by noting an exception or by raising it with sufficient clarity in the trial court. We disagree.

A partition action is equitable in nature. See Gaer Bros., Inc. v. Mott, 147 Conn. 411, 415, 161 A.2d 782 (1960). General Statutes § 52-495 provides for partition of property, owned by more than one person, by “[c]ourts having jurisdiction of actions for equitable relief”; General Statutes § 52-500 (a) provides for the sale of such property pursuant to “[ajny court of equitable jurisdiction”; and General Statutes § 52-502 (a) provides that the court “may make any order necessary to protect the rights of all parties in interest and to carry the sale into effect.” Once a judgment of partition by sale has been rendered, the “[ejquities between the parties not involved in that judgment are to be determined by a supplemental judgment after the land has been sold and the proceeds paid into court.” Neumann v. Neumann, 134 Conn. 176, 178, 55 A.2d 916 (1947). These principles provide more than ample authority to support the purchasers’ motion for a reduction of the purchase price within the confines of the partition action. Furthermore, this was an eminently sensible procedure, because it conserved judicial resources by avoiding delay and multiplicity of litigation.

The sellers’ argument that the purchasers failed to preserve their claim for appeal is equally unavailing. The fact that the purchasers failed to take a talismanic “exception” to the court’s procedure is of no moment. The rules of practice require a formal exception in only two circumstances: (1) on an evidentiary ruling; Practice Book § 288; and (2) on a jury instruction not otherwise covered by a proper request to charge. Practice Book § 315.

Thus, the only requirement the purchasers had to fulfill in order to preserve their claim for appeal was that the claim was “distinctly raised at the trial or arose subsequent to the trial.” Practice Book § 4185. The record is clear that the purchasers claimed throughout the proceedings on their motion that they were entitled to an evidentiary hearing regarding any disputed factual issues. Indeed, even at the end of the oral argument on their motion, when the court suggested several procedural possibilities, one of which did not involve an evidentiary hearing, the purchasers claimed that such a hearing was required because of disputed factual issues. Thus, the purchasers’ claim was “distinctly raised at the trial,” within the meaning of Practice Book § 4185.

We return, therefore, to the purchasers’ principal claim, namely, the lack of an evidentiary hearing to resolve factual disputes underlying their motion for reduction in the purchase price. We conclude that, under the circumstances of this case, the court erred by making factual determinations in the absence of the requested evidentiary hearing.

It is clear that the parties contemplated a procedure whereby the court would assume the truth of the facts claimed to be provable by the purchasers and would rule on the legal sufficiency of the purchasers’ claims, as if ruling on a motion to strike. See Practice Book § 152 (1). The purchasers, at least, did not contemplate and did not submit to a procedure whereby the court would find controverted facts without an evidentiary hearing.

It is fundamental that when issues of fact are disputed, due process requires an evidentiary hearing, with the opportunity to present evidence and cross-examine witnesses. Nelson v. Nelson, 13 Conn. App. 355, 367, 536 A.2d 985 (1988); Lampasona v. Jacobs, 7 Conn. App. 639, 642-43, 509 A.2d 1075 (1986). Here, the court made a number of critical factual findings based only on the briefs of the parties, supplemented by its own knowledge of the file derived from its continued handling of the case from its inception. Among those critical factual findings were that the carpeting was personalty, that the purchasers were not looking to the sellers for removal of the carpeting, that the purchasers either accepted the claimed defects or were responsible for them by virtue of Lipkis’ control of the building after January 13,1986, that the stipulation of that date meant Lipkis was thereafter to be treated as the owner of the property, and that the purchasers were estopped from asserting their claims. Our review of the record persuades us that these factual issues, among others, were vigorously disputed by the purchasers, and that they were prepared to offer evidence in connection therewith. The court’s decision impermissibly cut that process short.

We recognize that the court, in a laudable attempt to save judicial resources, attempted to fashion a procedure which would, if possible, obviate the necessity for an evidentiary hearing. Under the circumstances here, however, that simply was not possible. We also recognize that Judge DeMayo also laudably attempted to maintain continuity and to avoid delay by retaining the case even after he left the judicial district of New Haven, and that in deciding the purchasers’ motion he employed the knowledge of the case that he had acquired in that process. We do not question that, under such circumstances, he was entitled to employ much of that knowledge. Where factual disputes remained that were relevant to the motion before the court, however, it was error to resolve those disputes without affording the purchasers an evidentiary hearing on their claims.

There is error, the supplemental judgment is set aside and the case is remanded for an evidentiary hearing on the motion for a reduction in the purchase price.

In this opinion the other judges concurred.

       The actual movant was Manhattan, the original successful bidder. The purchasers were subsequently substituted both as movants of the motion for reduction in purchase price and as purchasers of the property. We refer herein to the purchasers as the movants, and to the plaintiff and the defendants as the sellers.

       Although the transcript of the tape recording of the proceedings identifies this speaker as “Mr. Beatty,” who was the committee, the purchasers point out, and the committee and the other parties do not dispute, that it was actually Mr. Reif, the purchasers’ counsel, who was speaking. This also is apparent from the substance of the colloquy.

       Despite the incorrect designation of “plaintiff” and “complaint,” it is apparent that the attorney was referring to the movants and to the motion before the court.

       The case was handled from its inception to its conclusion by Judge DeMayo, who took the case with him even after he left the judicial district of New Haven, where it had originally been filed.


author: Norcott, J.

text:
    Cromwell Commons Associates v. Kazimierz Koziura et al.
    (6431)
    Stoughton, Norcott and Foti, Js.
    Argued September 20
    decision released November 1, 1988

      Thomas F. Brown, with whom, on the brief, was David Bohonnon, for the appellants (defendants).

      Michael J. Auger, for the appellee (plaintiff).
   Norcott, J.

The defendants, Wieslaw and Kazimierz Koziura, appeal from the trial court’s denial of their respective motions to open and vacate a judgment rendered on January 22, 1987, and to vacate a judgment lien filed on January 26,1987. The defendants alleged in their motions that the judgment and lien, which were based on a stipulation by the parties, were obtained by the fraudulent acts of the plaintiff and its representatives.

The facts underlying the stipulated judgment are undisputed. On January 16,1985, the plaintiff, a limited partnership, entered into a lease agreement with Alexandra’s Fashions, Ltd., for premises located at Cromwell Commons Shopping Center. The lease was for a period of five years and required monthly rental payments of $2275. The terms of the lease were personally guaranteed by the defendant Wieslaw Koziura. Due to failing business, Alexandra’s Fashions vacated the premises on October 31,1985. The monthly rental payments under the lease agreement were current at that time.

On January 27, 1986, the plaintiff commenced suit against the defendants for breach of the lease agreement and filed an application for a prejudgment remedy, requesting attachment and garnishment of the defendants’ property in the amount of $150,00o. One year later, on January 22, 1987, the court rendered judgment in accordance with a stipulation by the parties that awarded the plaintiff $50,000, secured by a lien on the property of Kazimierz Koziura. On January 26,1987, the plaintiff filed a certificate of judgment lien against the property. When the plaintiff did not receive the payments due, it brought a foreclosure action against the property securing the judgment.

On August 27, 1987, seven months after the stipulated judgment was rendered, the defendant Wieslaw Koziura filed a motion to open and vacate the judgment, and, on September 4, 1987, the defendant Kazimierz Koziura filed a motion to vacate the judgment lien. Both defendants claimed that the judgment should be opened because it had been obtained by fraud.

In support of this position, the defendant Wieslaw Koziura alleged that the plaintiff had transferred its ownership interest in the shopping center and had assigned all its leases to Colonial Cromwell Commons in October of 1985. He attached as exhibits copies of a warranty deed and an assignment of leases signed by two of the plaintiffs general partners, one of whom had allegedly signed the affidavit in support of the request for the prejudgment remedy filed in January of 1986. The defendants claimed that the commencement of the action against them by the plaintiff more than two months after it had sold the property constituted fraud.

On the day on which it heard oral argument, the court denied both motions. In response to the defendants’ motion for articulation, the trial court issued a memorandum of decision stating that the motions were denied because (1) the defendants did not file their motions to open within four months of judgment as required by Practice Book § 326, and (2) the defendants were represented by counsel throughout the lawsuit and their counsel executed the stipulation of judgment.

On appeal from this decision, the defendants claim that the trial court erred in refusing to open and vacate the judgment or to vacate the lien on the basis of fraud. They argue, in the alternative, that the court erred in failing to assign the matter for a full evidentiary hearing. The plaintiff contends that the court’s denial of the motions to open and vacate was correct because the defendants did not satisfy the requirements for opening a judgment based on fraud. We disagree.

“It is a well-established general rule that even a judgment rendered by the court upon the consent of the parties, which is in the nature of a contract to which the court has given its approval, can subsequently be opened without the assent of the parties if it is shown that the stipulation, and hence the judgment, was obtained by fraud .... The power of the court to vacate a judgment for fraud is regarded as inherent and independent of statutory provisions authorizing the opening of judgments; hence judgments obtained by fraud may be attacked at any time.” (Citations omitted.) Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980). “Although the law will intervene to insure that substantial justice is done where fraud has been perpetrated, the frequency and extent of this intervention must be tempered by a sometimes conflicting adjudicative proposition that mandates the ultimate conclusion of all legal controversy. Thus, the setting aside of a judgment on the basis of fraud ‘will only be granted if the [movant] is not barred by any of the following restrictions: (1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence . . . in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will be different.’ ” Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384 (1983), quoting Varley v. Varley, 180 Conn. 1, 4, 428 A.2d 317 (1980); Grayson v. Grayson, 4 Conn. App. 275, 286-87, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987).

The trial court’s memorandum of decision does not reflect any consideration of these factors. The existence of fraud for purposes of opening and vacating a judgment is a question of fact. See Jucker v. Jucker, supra, 679; Jackson v. Jackson, 2 Conn. App. 179, 195, 478 A.2d 1026, cert. denied, 194 Conn. 805, 478 A.2d 710 (1984). Generally, when a court’s exercise of discretion depends on disputed factual issues, due process requires a hearing to provide the parties with an opportunity to present evidence and to cross-examine adverse witnesses. Nelson v. Nelson, 13 Conn. App. 355, 367, 536 A.2d 985 (1988). The record reveals that the defendants sought to present evidence to demonstrate the existence of fraud, and that the trial court on several occasions commented on the need to schedule the matter for an evidentiary hearing. The court, however, although characterizing the issues raised by the arguments of counsel as “a murky mess,” held no further hearing.

Under the circumstances of this case, relying on the four month requirement of Practice Book § 326 was error. The trial court should have held an evidentiary hearing to determine whether any of the restrictions set out in Varley, supra, barred the defendants from opening the judgment on the basis of fraud.

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.

       Kazimierz Koziura, father of Wieslaw Koziura, was named as a defendant because the plaintiff alleged that Wieslaw transferred his interest in a mortgage to his father to avoid the plaintiffs debt, and that the father also held title to certain real property in trust for his son.