author: O’CONNELL, J.

text:
    ROBERT WARNER ET AL. v. JONATHAN J. LANCIA ET AL.
    (AC 15268)
    (AC 15507)
    O’Connell, Foti and Hennessy, Js.

      Argued December 5, 1996
    officially released August 12, 1997

      Richard E. Hayber, with whom were Vincent Simko and, on the brief, Ebrahim Dehghani, for the appellants (defendant Jeannette M. Kordiak et al.).

      Thomas W. Ude, Jr., with whom was Edward B. Winnick, for the appellees (plaintiffs).
   Opinion

O’CONNELL, J.

The defendants Jonathan Winslow and Jeannette M. Kordiak appeal from a summary judgment rendered in favor of the plaintiffs. The defendants claim that the trial court improperly (1) substituted a deceased partner’s executrix as a party defendant, (2) granted summary judgment, and (3) awarded prejudgment interest. We affirm the trial court’s judgment.

In this case, the plaintiffs sought to obtain a judgment against individual general partners of Laurel Associates. In 1991, the plaintiffs obtained a judgment against the partnership in the amount of $150,000 plus interest, based on a claim for a deposit given in connection with a real estate transaction. The defendants in the present action moved to intervene in the 1991 action against the partnership. Their motion was denied, and they did not appeal the denial.

After a property execution against the partnership was returned unsatisfied, the plaintiffs commenced the present action against the general partners of Laurel Associates, claiming that they were jointly and severally liable for the 1991 judgment against the partnership.

While this action was pending in the trial court, the defendant Steven Kordiak died, and Jeannette Kordiak was appointed executrix of his estate. Additional facts are included in the analysis of each issue.

I

SUBSTITUTION OF EXECUTRIX

The defendants first complain that the trial court improperly granted the plaintiffs’ motion to substitute Jeannette Kordiak, executrix of the estate of Steven Kordiak, as a party defendant.

The record discloses that the defendant Steven Kor-diak died on April 7, 1992, about four months after the initiation of this action. On September 14, 1992, his widow, Jeannette Kordiak, was appointed executrix of his estate. On January 28, 1994, the plaintiffs moved to substitute her, in her fiduciary capacity, as a party defendant. In their motion, the plaintiffs alleged that they had never received written notification of Steven Kordiak’s death. The trial court, Ripley, J., found that there was good cause to grant the motion and did so on February 28, 1994.

We commence our analysis by noting that this issue does not pertain to the defendant Winslow. The case against him could have proceeded regardless of whether Kordiak’s executrix was ever substituted as a party defendant. See Bundy v. Williams, 1 Root (Conn.) 543 (1793); General Statutes § 52-600. Winslow is not aggrieved by the trial court’s decision because he had no personal or legal interest that was affected. Thus, Winslow could not prevail on this claim. We will consider the claim, therefore, only insofar as it affects the defendant Jeannette Kordiak as executrix of her late husband’s estate.

Although at common law the death of a party abated an action; Barton v. New Haven, 74 Conn. 729, 730, 52 A. 403 (1902); by virtue of General Statutes § 52-599, this cause of action survives Steven Kordiak’s death. The defendant Jeannette Kordiak focuses on General Statutes § 52-599 (b), which provides that in the event of a defendant’s death, “the plaintiff, within one year after receiving written notification of the death, may apply to the court in which the action is pending, for an order to substitute the decedent’s executor or administrator in the place of the decedent . . . .” She argues that, as used in this statute, the word “may” is mandatory and, therefore, the trial court lacked authority to grant substitution after expiration of one year, even upon a finding of good cause to do so.

Kordiak bases her argument on a 1987 change in the statute. Prior to the 1987 amendment, the relevant portion of § 52-599 (b) allowed a plaintiff one year from the date of a decedent’s death to seek substitution of the fiduciary. In Dorsey v. Honeyman, 141 Conn. 397, 400, 107 A.2d 260 (1954), the Supreme Court, following a line of cases going back to 1904, held that even after expiration of the statutory time period, the trial court had discretion to order substitution upon a showing of good cause.

The 1987 amendment, Public Acts 1987, No. 87-237 (b) (P.A. 87-237), changed the one year starting date from the date of death to one year from receipt of written notice of death by the plaintiff. Although Kordiak presented several arguments as to why she believes the legislature made the change, her arguments are bereft of any supporting citation to legislative history. In Schoolhouse Corp. v. Wood, 43 Conn. App. 586, 684 A.2d 1191 (1996), cert. denied, 240 Conn. 913, 691 A.2d 1079 (1997), this court considered a late motion for substitution of a fiduciary in a case arising subsequent to P.A. 87-237 and followed a “good cause” standard. Although this was a tacit recognition that P.A. 87-237 did not change the existing law, whether a change had been made was not the focus of the Schoolhouse Corp. decision. In order that there be no uncertainty in the law, we undertake such an analysis at this time.

We are furnished no reason to believe that when the legislature enacted P.A. 87-237 (b), it intended to change anything other than the starting date of the one year period. This construction is consistent with the presumption that an amendatory act does not change the existing law further than is expressly declared or necessarily implied. Doe v. Institute of Living, Inc., 175 Conn. 49, 63, 392 A.2d 491 (1978). Furthermore, when the legislature amends a statute, it is presumed that it was aware of long-standing judicial decisions interpreting former versions of the statute. Faraday v. Dube, 175 Conn. 438, 443, 399 A.2d 1262 (1978). Thus, we presume that the 1987 legislature was aware that the courts had construed this statute to allow trial courts discretion to permit late substitution of fiduciaries upon a showing of good cause.

Accordingly, we are not persuaded that the 1987 amendment to § 52-599 (b) was intended to abolish the long-standing judicial discretion to allow substitution of a fiduciary, at any time, upon a showing of good cause.

We turn now to the question of whether, under the circumstances of this case, the trial court properly determined that there was good cause to permit substitution of Kordiak as a party defendant. “Good cause is defined as a substantial reason amounting in law to a legal excuse for failing to perform an act required by law [and] [l]egally sufficient ground or reason.” (Internal quotation marks omitted.) Schoolhouse Corp. v. Wood, supra, 43 Conn. App. 591. In other applications, the Supreme Court has held that “the trial court is to exercise broad discretion in determining whether good cause exists in a given case.” Berry v. Loiseau, 223 Conn. 786, 800, 614 A.2d 414 (1992); Rokus v. Bridgeport, 191 Conn. 62, 72, 463 A.2d 252 (1983); Clemens v. Hams, 120 Conn. 111, 113-14, 179 A. 334 (1935). Thus, we analyze this claim to determine if the trial court abused its broad discretion in allowing substitution of the executrix.

“Judicial discretion is always a legal discretion, exercised according to the recognized principles of equity. . . . The action of the trial court is not to be disturbed unless it abused its legal discretion, and [i]n determining this the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted). DiPalma v. Wiesen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972). The trial court’s discretion “should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 575, 620 A.2d 118 (1993).

The record here discloses that on February 9, 1993, the plaintiffs filed a request for leave to file a substitute complaint, in which they intended to effect a substitution of the executrix for her deceased husband. Although this was an incorrect pleading to achieve the intended result, the defendants did not object and, in fact, shortly thereafter, they filed a request to amend in which they sought to add an additional special defense. Their request was purportedly filed by “the defendants Steven Kordiak and Jonathan Winslow.” Although the authority of Kordiak’s counsel had expired with his death, the same counsel continued to act as if he had authority to defend the case long after Steven Kordiak’s death and long prior to the filing of an appearance on behalf of the executrix. This conduct caused the plaintiffs to believe that defense counsel had authority to act for the executrix and were defending the case on her behalf. The plaintiffs reasonably believed that, as a result of their February 9, 1993 request to file a substitute complaint, the substitution had in fact occurred.

Kordiak does not claim any prejudice from the late substitution of February 28, 1994, because she responded to the request to leave to file a substitute complaint in 1993. We recognize that although the absence of prejudice without more may not constitute good cause; General Accident Ins. Co. v. McGee, 33 Conn. App. 626, 637 A.2d 792 (1994); it may be taken into consideration.

The trial court properly examined the totality of the circumstances, which showed that a proper motion to substitute the executrix had not been filed principally because the defendants’ counsel had proceeded to defend the case for more than one and one-half years after the last date on which they could have been acting for the decedent. Because the defendants had not objected to the plaintiffs’ request for leave to file a substitute complaint, albeit an improper pleading to achieve the intended result, the plaintiffs reasonably believed that the executrix had become a party. By granting the later and proper motion, the trial court merely clarified that the parties had proceeded as if the substitution had occurred when the defendants did not object to the naming of the executrix as a defendant in the substitute complaint.

We conclude that, in the circumstances of this case, the trial court could reasonably have found that there was good cause to grant the plaintiffs’ motion to substitute the executrix of Steven Kordiak’s estate as a party defendant.

II

SUMMARY JUDGMENT

The trial court rendered summary judgment for the plaintiffs in the amount of $247,814.84, which included prejudgment interest from July 26,1991, the date of the partnership judgment, to September 15, 1995, the date of the judgment in the present action. Summary judgment is a method of resolving litigation when “pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Scrapckansky v. Plainfield, 226 Conn. 446, 450, 627 A.2d 1329 (1993). “In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather, to determine whether any such issues exist.” Cortes v. Cotton, 31 Conn. App. 569, 575, 626 A.2d 1306 (1993). “[I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Johnson v. Meehan, 225 Conn. 528, 535, 626 A.2d 244 (1993). “Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . .” (Internal quotation marks omitted.) Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990).

In this case, the defendants’ special defenses raised issues of law and questions of fact that had not been previously litigated in the action against the partnership. In their summary judgment motion, the plaintiffs claimed that the defendants were bound by the factual findings made in the partnership suit, and therefore, in this case, they need prove only that the defendants were partners in Laurel Associates.

The defendants objected to the motion for summary judgment on due process grounds, arguing that the judgment against the partnership could not bind them because they were not parties in the partnership litigation. The defendants also contended that, because the partnership agreement required majority consent for a transaction that exceeded $5000 and such consent was lacking, that the transaction underlying the partnership judgment was in violation of the partnership agreement and could not bind them.

The trial court held that if “the defendants are found to be partners of Laurel Associates for purposes of the judgment debt, then summary judgment should be entered in favor of the plaintiffs as a matter of law.” The theory of the trial court’s ruling was that, once a judgment; was rendered against the partnership, the plaintiffs need prove in a subsequent suit against individual partners only that they were general partners at the relevant times of the 1991 lawsuit. The defendants do not dispute that they were general partners at all relevant times.

A

Collateral Estoppel

The defendants focus on the liability of the partnership itself and attempt to relitigate the issues determined in the prior action. The plaintiffs rely on Dayco Corp. v. Fred T. Roberts & Co., 192 Conn. 497, 472 A.2d 780 (1984). In Dayco Corp., an arbitration proceeding was instituted against a partnership only; the two individual partners were not named in the proceeding, and only one of them participated in it. Id., 501. When the arbitration award against the partnership was confirmed by the Supreme Court and remained unsatisfied by the partnership, Dayco Coiporation instituted suit to enforce the judgment against each partner. Id., 504. The Supreme Court held that “[w]hen the arbitration award was reduced to judgment the joint obligation of the parties was conclusively established.” Id., 504. To hold otherwise would allow the partners to escape liability for the partnership debt in violation of General Statutes § 34-53.

Dayco Corp. is directly on point. See also 14th RMA Partners v. Reale, 100 F.3d 278 (2d Cir. 1996). The unappealed judgment against the partnership in July of 1991 conclusively established the partnership liability to the plaintiffs. Despite the Supreme Court’s reasoning in Dayco Corp., the defendants argue that they should be able to relitigate the issues decided in the first case because of the doctrine of privity. The fallacy in this argument arises from the doctrine of collateral estoppel, as applied to persons in privity with parties to the original judgment.

“Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . . The doctrine of collateral estoppel is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate.” (Citations omitted; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991). “Collateral estoppel may be invoked against a party to a prior adverse proceeding or against those in privity with that party.” (Emphasis added.) Id., 303. The transcript of oral argument on the summary judgment motion contains a concession that the defendants are in privity with the partnership.

The defendants contend that they were not in privity with the partnership, and, therefore, the doctrine of collateral estoppel does not apply to them. We do not agree. It is axiomatic that, as general partners, the defendants are deemed to be in privity with the partnership. The defendants here focus on the judgment against the partnership because that judgment established their liability. The defendants were aware of the 1991 action because they attempted to intervene therein as individuals. When they failed to appeal the denial of their motion to intervene in the 1991 action against the partnership, they were deemed to have accepted the judgment of the court. As individuals, the partners had no interest separate from their interest as general partners.

Furthermore, the defendants had the ability, as general partners, to control partnership affairs, including control of the litigation that resulted in the prior judgment. The defendants, in this case, were served with process in the prior action and it was their decision to leave the defense of that action to another partner until shortly before trial. At that point, these defendants became actively involved in the litigation and selected replacement counsel—the same counsel who represented them in the trial of the case now before this court. Their interests were, thus, properly represented in the action against the partnership.

The defendants stress that they were in disagreement with another general partner about the conduct of partnership affairs. An intra-partnership dispute of this nature has no bearing on their liability to third parties.

We conclude that the defendants had a full and fair opportunity to litigate all issues in the prior action against the partnership. The trial court properly found that the defendants had raised no material issues of fact disputing the judgment that had been rendered against the partnership.

B

Due Process

The defendants next contend that rendition of summary judgment deprived them of due process of law. The defendants do not dispute the validity of the judgment against the partnership. Their attorney fully and adequately litigated that case. As we explained in part IIA of this opinion, the defendants in the present case were aware of the 1991 action and actually were involved in the litigation to a great extent.

The defendants rely on cases from other jurisdictions that they argue support their claim that, in partnership litigation, two trials of the same issues are mandated. These cases are inapposite. Some of them hold that the property of an individual partner may not be executed on unless the defendant was named as a defendant in the partnership action. See, e.g., Duncan, Inc. v. Head, 519 So. 2d 1305, 1307 (Ala. 1988); Ryan's Furniture Exchange, Inc. v. McNarr, 120 Fla. 109, 162 So. 483 (1935). In the present case, by contrast, the plaintiffs are not seeking to execute on the original judgment in which only the partnership was a named defendant.

Some of the other cases that the defendants cite allow a second trial to challenge the partnership’s liability because of defects in the first action. Prado North Residences, Ltd. v. Prado North Condominium Assn., Inc., 477 So. 2d 396 (Ala. 1985) (first suit in Georgia, defendants were residents of Alabama); Detrio v. United States, 264 F.2d 658 (5th Cir. 1959) (partner was completely unaware of action against partnership). None of those considerations are present in the appeal now before this court.

la Dayco Corp. v. Fred T. Roberts & Co., supra, 192 Conn. 504, the Supreme Court held that a plaintiff may not levy on the property of individual partners on the basis of the judgment obtained against the partnership. If the judgment against the partnership remained unsatisfied, however, the Supreme Court concluded that it was appropriate to institute suit against individual partners to hold them liable for the judgment against the partnership. That is precisely the procedure followed by the plaintiffs in the present case.

The United States District Court, hearing a case implicating Connecticut partnership law, concluded that due process is not offended by holding a general partner liable for a judgment debt of the partnership even though the partner was not named in the underlying action. Switzer v. National Housing Partnership, Ltd., 641 F. Sup. 150, 155-56 (D. Conn. 1986). A partner may not challenge the judgment against the partnership as it applies to him simply because he was not named in the suit. Id.

We conclude that rendition of summary judgment did not deprive the defendants of due process of law.

Ill

PREJUDGMENT INTEREST

The defendants complain that the trial court improperly awarded prejudgment interest in computing the judgment in the present case. They base their argument on the faulty premise that the underlying judgment against the partnership did not impose liability on them. Earlier in this opinion we determined that the defendants’ liability was established in the prior partnership judgment. Accordingly, the trial court correctly awarded prejudgment interest for the period between the date of the partnership judgment and the date of the judgment in the present case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Jonathan J. Lancia, Winslow and Kordiak, executor of the estate of Steven Kordiak, an original defendant who died during the pendency of the action. Lancia was defaulted for failure to appear in the trial court and did not participate in this appeal. Winslow and Kordiak filed separate appeals, which were consolidated by this court. Practice Book § 4004 (b). We refer in this opinion to Winslow and Kordiak as the defendants.

       The plaintiffs are Robert Warner, James Warner, Vernon Warner and Peter Panaroni.

       General Statutes § 52-600 provides: “If there are two or more plaintiffs or defendants in any action, one or more of whom die before final judgment, and the cause of action survives to or against the others, the action shall not abate by reason of the death. After the death is noted on the record, the action shall proceed.”

       General Statutes § 52-599 provides in relevant part: “(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.
      “(b) A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent. If a party plaintiff dies, his executor or administrator may enter within six months of the plaintiff’s death or at any time prior to the action commencing trial and prosecute the action in the same manner as his testator or intestate might have done if he had lived. If a party defendant dies, the plaintiff, unthin one year after receiving written notification of the defendant’s death, may apply to the court in which the action is pending for an order to substitute the decedent’s executor o-r administrator in the place of the decedent,, and, upon due service and return of the order, the action may proceed. ...” (Emphasis added.)

        Hatch v. Boucher, 77 Conn. 347, 350, 59 A. 422 (1904).

       The plaintiffs requested leave to file the substitute complaint “for the reason that the death of the defendant, Steve Kordiak, and the appointment of Jeannette M. Kordiak, as executrix of the Estate of Stephen M. Kordiak, makes said filing and substitution necessary at this time.”

       General Statutes § 34-53 provides in relevant part: “[A]ll partners are liable: (A) Jointly and severally for everything chargeable to the partnership under sections 34-51 and 34-52; (B) jointly for all other debts and obligations of the partnership . . . .”

       Excerpt from transcript of January 23, 1995, before Hadden, J. ‘The Court: Well the partners are [in privity] to the partnership. ‘[Defendant’s Counsel]: Yes, Your Honor.”

       The defendants, on behalf of the partnership, did not appeal the judgment against the partnership.


source: Caselaw Access Project

author: FOTI, J. O’CONNELL, J.,

license: Public Domain

text:
    DONALD B. CRANDALL ET AL. v. LUCY BARKER GOULD ET AL.
    (AC 16103)
    O’Connell, Foti and Lavery, Js.
    Argued March 18
    officially released August 12, 1997

      John C. Levanti, for the appellants (plaintiffs).

      Edward B. O'Connell, with whom, on the brief, was Mary E. Driscoll, for the appellees (defendants).
   Opinion

FOTI, J.

The plaintiffs appeal from the judgment of the trial court, rendered in accordance with the report of the attorney trial referee, determining that they did not prove their claim for an easement by prescription and, therefore, were not entitled to equitable relief. On appeal, the plaintiffs claim that the trial court improperly determined (1) that the plaintiffs were bound by the 1960 injunction issued by the Court of Common Pleas and, therefore, could not acquire an easement by prescription, (2) that the plaintiffs could not have a claim of right to establish a prescriptive easement, and (3) that a showing of irreparable harm is necessary to issue injunctive relief where the facts establish interference with the right to use a right-of-way. We reverse the judgment of the trial court.

The attorney referee found the following facts. The plaintiffs, Donald B. Crandall and Anna Crandall, own property located at 283 River Road in the town of Ston-ington. The defendants, Lucy Barker Gould and William S. Keegan, own property, including a roadway, that abuts the property owned by the plaintiffs.

A fence was constructed along the roadway in 1960. In 1960, in the case Maggs v. Crandall, Court of Common Pleas, Docket No. 16945 (November 22,1960), the defendants’ predecessors in title obtained a permanent injunction against Donald Crandall, a plaintiff in this action, enjoining him, his servants and agents “from interfering with the [defendants’ predecessor’s] use and enjoyment of said right-of-way and also from interfering with the [defendants’ predecessor’s] construction and maintenance of a substantial legal fence or wall.”

In 1964, the plaintiffs removed a section of the fence. The plaintiffs used the front portion of the roadway to the opening of the fence as a means of gaining vehicular access to their property from River Road. More recently, disputes between the defendants and the plaintiffs have arisen over the use of the roadway. A chain link fence was erected in 1993 along the boundary line between the roadway on the defendants’ property and the plaintiffs’ lot.

In 1993, the plaintiffs commenced this action seeking to enjoin the defendants from interfering with their use of the roadway. They claim that they have a right-of-way by prescriptive easement through use of the roadway from 1964 to 1993.

The attorney referee determined that the plaintiffs did not have a right to violate the 1960 permanent injunction order of the Court of Common Pleas. He concluded that the plaintiffs did not have a claim of right to use of the roadway and, therefore, did not establish an easement by prescription. The attorney referee also concluded that the plaintiffs were not entitled to injunc-tive relief.

The attorney referee supplemented his decision, granting the plaintiffs’ motion to correct in part and denying it in part. He corrected a number of subordinate factual findings, but did not change his conclusions and recommendations. The trial court denied the plaintiffs’ exceptions to the attorney referee’s report, and rendered judgment in accordance with the report as supplemented by his decision on the plaintiffs’ motion to correct. This appeal followed.

I

General Statutes § 47-37 defines an easement by prescription. It provides that “[n]o person may acquire a right of way or any other easement from, in, on or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years.” General Statutes § 47-37. “[A] prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right.” Gioielli v. Mallard Cove Condominium Assn., Inc., 37 Conn. App. 822, 829, 658 A.2d 134 (1995). A prescriptive easement must be proved by a fair preponderance of the evidence. Reynolds v. Soffer, 190 Conn. 184, 188, 459 A.2d 1027 (1983); Public Storage v. Eliot Street Ltd. Partnership, 20 Conn. App. 380, 385, 567 A.2d 389 (1989). “Whether the requirements for such a right have been met in a particular case presents a question for the trier of facts after the nature and character of the use and the surrounding circumstances have been considered.” Krohner v. Seyburt Associates Ltd. Partnership, 20 Conn. App. 298, 301, 566 A.2d 995 (1989), cert. denied, 213 Conn. 814, 569 A.2d 550 (1990).

The attorney referee concluded that the plaintiffs did not possess an easement by prescription because they did not have a claim of right. At trial, the defendants did not contest that the plaintiffs openly, visibly and continuously used the portion of the private way that leads to their property. The defendants argued, however, that the plaintiffs did not have a valid claim of right because of the permanent injunction ordered by the Court of Common Pleas in 1960. The attorney referee concluded that the plaintiffs did not have a claim of right and, therefore, did not have an easement by prescription over the roadway. We disagree.

“There can be no claim of right unless the use is unaccompanied by any recognition of [the right of the servient tenement] to stop such use. A use by express or implied permission or license cannot ripen into an easement by prescription.” (Internal quotation marks omitted.) Westchester v. Greenwich, 227 Conn. 495, 501, 629 A.2d 1084 (1993). The 1960 permanent injunction established that the roadway belonged solely to the defendants’ predecessor and that the plaintiff, Donald Crandall, did not have a right-of-way over any portion of the roadway. This court order, however, reinforces the fact that the defendants did not expressly or impliedly grant permission to the plaintiffs to use the roadway. The attorney referee found that disputes arose between the parties on occasion from 1964 concerning the use of roadway until the chain link fence was erected in 1993. Contrary to the attorney referee’s determination, therefore, the court order actually supports a finding of a claim of right.

The plaintiffs used the roadway without recognition of the rights of the defendants, as owners of the servient tenement, to prevent the use. Not only did the plaintiffs not have permission or a license to use the roadway, they had previously been enjoined from interfering with the fence separating the property from the roadway. Since that order, however, the plaintiffs have used the roadway in an open, visible and uninterrupted manner for more than fifteen years and under a claim of right. We conclude that the plaintiffs, therefore, have a right-of-way by prescriptive easement to use the portion of the roadway that leads to their property.

II

The attorney referee nevertheless determined that the plaintiffs were not entitled to an injunction regardless of whether they had demonstrated an easement by prescription because the plaintiffs did not demonstrate that they were irreparably harmed and the equities did not weigh in favor of injunctive relief.

The attorney referee found that “[t]he elimination of access over the defendants’ premises has not made access to the plaintiffs’ property impossible or impractical. . . . The plaintiffs’ property abuts River Road and the plaintiffs can attain access from River Road directly to their property. The existence of the stone wall [along River Road] does not render the property landlocked. By removal of a portion of the wall, the plaintiffs [have] clear vehicular access to [their] property.”

The attorney referee’s factual findings, however, do not lead to the conclusion that the plaintiffs are not irreparably harmed. A property need not be landlocked to create irreparable harm if the property owner is “disturbed or obstructed in the exercise of his right to use [the right-of-way].” Wambeck v. Lovetri, 141 Conn. 558, 564, 107 A.2d 395 (1954) (ruling that plaintiffs not entitled to injunction because not damaged and enjoying full use of easement). An injunction is the proper means of preventing interference with the dominant property owner’s use of an easement, and that iryunctive relief should be granted unless it would impose a severe hardship on the servient property owners. See DiSorbo v. Grand Associates One Ltd. Partnership, 8 Conn. App. 203, 208 n.4, 512 A.2d 940 (1986).

Moreover, in his report, the attorney referee determined that “even if the plaintiffs had a claim of right to an easement, it would be inequitable to grant an injunction.” Yet, he improperly based this determination on the fact that the defendants were within their rights in erecting the fence and that the plaintiffs were not irreparably harmed because they have alternate access to their property. The trial court, therefore, now must determine, in light of our decision, whether the plaintiffs are entitled to the equitable relief of an injunction.

The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion LAVERY, J., concurred.

O’CONNELL, J.,

dissenting. The majority opinion goes beyond the issues raised by the plaintiff's on appeal. The plaintiffs do not argue that the trial court improperly found irreparable injury but rather contend that irreparable injury is not a requirement for entry of an injunction. The plaintiffs are wrong. It is axiomatic that “ ‘[a] party seeking injunctive relief has the burden of alleging and proving irreparable harm . . . .” Branch v. Occhionero, 239 Conn. 199, 207, 681 A.2d 306 (1996). Nowhere in their brief do the plaintiffs argue that the finding of lack of irreparable injury was based on improper evidence. This issue is raised for the first time in the majority decision. We should not decide appeals on issues not raised by the parties. See Lynch v. Granby Holdings, Inc., 230 Conn. 95, 97, 644 A.2d 325 (1994); LoSacco v. Young, 210 Conn. 503, 506, 555 A.2d 986 (1989).

There is no reason for us to consider the merits of the plaintiffs’ claim for a prescriptive easement. The only issue before us is whether the trial court properly refused to order an injunction. “Whether the requirements for such a [prescriptive] right have been met in a particular case presents a question of fact for the trier of facts. Robert S. Weiss & Co. v. Mullins, [196 Conn. 614, 618, 495 A.2d 1006 (1985)]; Wadsworth Realty Co. v. Sundberg, [165 Conn. 457, 464, 338 A.2d 470 (1973)]. The tiler’s determination of facts will be disturbed only when those findings are clearly erroneous. Practice Book § [4061]; Roberts. Weiss & Co. v. Mullins, supra, 618; Russo v. Terek, 7 Conn. App. 252, 256-57, 508 A.2d 788 (1986).” (Internal quotation marks omitted.) DiSorbo v. Grand Associates One Ltd. Partnership, 8 Conn. App. 203, 206, 512 A.2d 940 (1986). In the present case, the fact finder found that there was no irreparable injury. We cannot disturb that factual finding in the absence of an abuse of discretion. Accordingly, the trial court properly refused the injunction.

Wambeck v. Lovetri, 141 Conn. 558, 564, 107 A.2d 395 (1954), relied on by the majority, is not in point. In Wambeck, the plaintiff was denied an injunction because he was in fact using the right-of-way and thus could not show that his use of the easement was disturbed or obstructed. In the present case, it is undisputed that the plaintiffs’ use of the easement has been disturbed and obstructed.

I agree with the majority that whether the property is landlocked is not an element of establishing a prescriptive easement. The fact that the plaintiffs’ property will not be rendered landlocked, however, may appropriately be taken into consideration in determining whether a plaintiff has suffered irreparable harm.

Because the trial court here has already determined that the plaintiffs have not established irreparable harm, it is unclear to me what the trial court is expected to do in response to this court’s remand for further proceedings.

Furthermore, we should not reach the issue of whether the plaintiff acted under a claim of right when their conduct was in express derogation of a court order.

For the foregoing reasons, I respectfully dissent.

       The document creating this roadway refers to the way as a “private way.” The private way was created by the selectmen of Stonington in 1918. The instrument provided: “The subscriber owners of property over which the foregoing private way is laid out hereby agree to claim no damage arising from the laying out of said private way as aforesaid other than the said William S. Maggs is to erect and build and at all times keep in good repair a substantial legal fence or wall.”

       Although the attorney referee addresses in his report the issue of whether the fence constitutes a “substantial legal fence” pursuant to General Statutes § 47-43, it is not disputed on appeal. The attorney referee also determined that the erection of the fence was not the malicious erection of a structure within General Statutes § § 52-570 and 52-480. This finding is also not relevant to the claims on appeal.

       The plaintiffs first claim that the plaintiff Arma Crandall is not bound by the injunction. While the language of the 1960 order, “servants and agents,” may include Anna Crandall, we need not address this claim because, as we conclude above, a determination that all the plaintiffs were bound by the injunction would not preclude a finding that they acquired an easement over the defendants’ property.

         The alternate access to the property would be relevant in establishing an easement by necessity or implication, but not an easement by prescription. See Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 398-99, 324 A.2d 247 (1973) (necessity); O’Brien v. Coburn, 39 Conn. App. 143, 148, 664 A.2d 312 (1995) (implication).

       This burden does not apply if the party seeks enforcement of a restrictive covenant. Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 20, 376 A.2d 381 (1977). This exception is not relevant to the present case.


author: LAVERY, J.

text:
    MARCUS L. LANE ET AL. v. JAMES M. STEWART
    (AC 15476)
    Lavery, Hennessy and Spallone, Js.

      Argued June 9
    officially released August 12, 1997

      Robert L. Fisher, Jr., for the appellants (plaintiffs).

      Trudie R. Hamilton, with whom, on the brief, were John K. McDonald and William M. ODonnell III, for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiffs, Marcus L. Lane and Barbara P. Lane, appeal from a judgment rendered after a jury trial in favor of the defendant, James M. Stewart, and the denial of plaintiffs’ motion to set aside the verdict. The plaintiffs brought a negligence claim against the defendant for damages resulting from personal injuries suffered by Marcus Lane as the result of an accident that occurred on May 6, 1992. On appeal, the plaintiffs claim that the trial court improperly (1) quashed a subpoena duces tecum issued by the plaintiffs’ counsel directed to the defendant’s expert witness, (2) refused to instruct the jurors that they could draw an adverse inference from the defendant’s failure to call as a witness an accident reconstruction expert hired by the defendant, (3) deprived the plaintiffs of their constitutional rights pursuant to the constitution of the United States and the Connecticut constitution to have the jury decide the factual issues in dispute by quashing the plaintiffs’ subpoena duces tecum and refusing to charge the jury that it could draw an adverse inference, and (4) denied the plaintiffs’ timely motion to set aside the verdict.

The following facts and procedural history are necessary for the disposition of this appeal. On May 6, 1992, the plaintiff Marcus Lane was operating a motorcycle westbound on Route 341 in Kent. The speed limit in that area was usually posted at thirty-five miles per hour, but at the time of the accident the state had reduced it to twenty-five miles per hour due to construction. The defendant was operating an automobile, making a left turn from the athletic fields of the Kent School onto Route 341 eastbound. As the defendant turned left, Marcus Lane, traveling at a high rate of speed on a motorcycle, collided with the defendant’s automobile.

Prior to trial, the plaintiffs served a subpoena duces tecum on Michael E. Shanok, an accident reconstruction expert hired by the defendant to conduct an independent investigation and reconstruction of the accident in question. Pursuant to Practice Book § 220 (D), the defendant disclosed Shanok as an expert witness. The defendant moved to quash the subpoena and the trial court granted the motion. Shanok did not testify at trial.

I

The plaintiffs claim that the trial court improperly granted the defendant’s motion to quash the plaintiffs’ subpoena duces tecum served on Shanok. The plaintiffs argue that the trial court should have denied the defendant’s motion to quash and compelled Shanok to testify at trial.

In this case, the defendant properly disclosed, pursuant to Practice Book § 220 (D), that Shanok would possibly be called as an expert witness at trial. The plaintiffs deposed Shanok, and as a result of his deposition testimony decided that they wanted to call him to testify in the event that the defendant did not.

The issue of compelling an opponent’s expert witness to testify at trial has arisen twice before in the appellate courts of Connecticut. Both of these cases permitted the expert witness to testify. In Thomaston v. Ives, 156 Conn. 166, 174, 239 A.2d 515 (1968), the Connecticut Supreme Court held that a landowner in an eminent domain proceeding may require an appraiser hired by the state, whom the state did not call, to testify concerning his valuation of the land. In Barksdale v. Harris, 30 Conn. App. 754, 764, 622 A.2d 597, cert. denied, 225 Conn. 927, 625 A.2d 825 (1993), this court held that the trial court should have allowed the plaintiff to call as a witness, a physician hired by the defendant as an expert witness who had personally examined the plaintiff.

The defendant argues that Barksdale can be distinguished from this case because it involved a physician who became a fact witness with firsthand knowledge as a result of performing a physical examination of the plaintiff. The physician in Barksdale also gave his expert opinion as to the severity of the plaintiffs injury and the defendant’s causation of that injury. The present case involves an expert witness who conducted an investigation of an accident, reconstructing the events in question and ultimately reaching a conclusion as to what transpired based on his expertise in accident reconstruction.

There is no justification for a “rule that would wholly exempt experts from placing before a tribunal factual knowledge relating to the case in hand [or] opinions already formulated . . . .” Kaufman v. Edelstein, 539 F.2d 811, 821 (2d Cir. 1976). “[W]e think the rule favoring testimonial compulsion should be applied to all experts, including doctors, appraisers, and others.” Fenlon v. Thayer, 127 N.H. 702, 707, 506 A.2d 319 (1986).

After cross-examining the plaintiffs’ accident reconstruction expert, the defendant’s counsel chose to rely on the testimony of five eyewitnesses and not to call Shanok to testify. Counsel for the defendant argues that her reason for not calling Shanok to testify was a result of her strategic decision to attempt to destroy the accident reconstruction opinion offered by the plaintiffs’ expert witness, and to expose inherent defects in the methods used by accident reconstructionists. The defendant argues that allowing one party to compel the testimony of the opponent’s expert witness would have a negative impact on the adversarial system. We do not believe that the impact of such a decision would rise to that magnitude.

In its order on the defendant’s motion to quash, the trial court stated that it refused to extend the ruling in Barksdale to the facts in this case. We disagree. In this case, the plaintiffs had already deposed the witness and wanted to compel his testimony at trial. By disclosing the witness, the defendant made it possible for the plaintiffs to discover evidence that the plaintiffs decided was beneficial to their case and should be brought before the trier of fact. To allow the defendant to prevent this witness from testifying may have deprived the trier of fact of material and relevant information that would have assisted it in reaching a decision in the case.

We hold that where one party has disclosed an expert witness pursuant to Practice Book § 220 (D), and that expert witness has either been subsequently deposed by the opposing party, or the expert’s report has been disclosed pursuant to discovery, then either party may call that expert witness to testify at trial. This holding follows the rule adopted in other jurisdictions. See, e.g., Kaufman v. Edelstein, supra, 539 F.2d 811; Grangers v. Wisner, 134 Ariz. 377, 656 P.2d 1238 (1982); Fenlon v. Thayer, supra, 127 N.H. 702. Even though the trial court improperly granted the defendant’s motion to quash the subpoena duces tecum served on Shanok, we do not reverse the judgment of the trial court because we conclude the error was harmless.

“Any testimony in a case that tends of itself or in connection with other testimony to influence the result on a fact in issue is material. If the testimony would tend to affect the verdict of the jury, it meets the test of materiality. . . . It is well established that if erroneously admitted evidence is merely cumulative of other evidence presented in the case, its admission does not constitute reversible error.” (Citations omitted; internal quotation marks omitted.) Swenson v. Sawoska, 215 Conn. 148, 153-55, 575 A.2d 206 (1990).

In this case, the expert testimony of Shanok was not material. Shanok’s report concerning the accident concluded that (1) at the instant of collision the motorcycle operated by Marcus Lane was traveling at fifty-nine miles per hour, (2) it was not possible for the defendant to have avoided the collision by his actions alone, and (3) the sole proximate cause of the collision was the excessive speed and reckless operation by Marcus Lane of his motorcycle. In addition, the jury had before it the testimony of five eyewitnesses who were present at the time of the accident, witnessed the events immediately preceding the accident, and testified that Marcus Lane was traveling at a high rate of speed. Upon our review of Shanok’s report, we conclude that any testimony he might have offered would not have influenced the result on a fact in issue or affected the verdict of the jury, but would have been cumulative and supportive of the testimony of the five eyewitnesses. We find the trial court’s quashing of the plaintiffs’ subpoena duces tecum to be harmless error.

II

The plaintiffs’ second claim is that the trial court improperly refused to include an adverse inference instruction in its jury charge following the defendant’s failure to call his disclosed accident reconstruction expert to testify at trial. The plaintiffs argue that the requested instruction should have been given because the witness, Shanok, was available and was a witness that the defendant would naturally produce.

At the conclusion of the defendant’s case, the plaintiffs requested that the court give the jury an adverse inference instruction pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). The trial court refused to deliver the requested instruction and made the specific findings that (1) the witness was available to the defendant and (2) the witness was not one that the defendant would naturally produce.

“In order for the trial court to give an instruction that the jury could draw an adverse inference from the failure of a party to call a witness, two requirements must be met: (1) the witness must be available; and (2) the witness must be one whom the party would naturally produce. [Id., 675].” Barksdale v. Harris, supra, 30 Conn. App. 762. The plaintiffs claim that the first requirement was met because the trial court made a specific finding that the witness was available to the defendant. We agree.

The defendant claims that Shanok was not a witness that he would naturally have produced. “A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” (Internal quotation marks omitted.) State v. Dawkins, 42 Conn. App. 810, 814, 681 A.2d 989, cert. denied, 239 Conn. 932, 683 A.2d 400 (1996), quoting Secondino v. New Haven Gas Co., supra, 147 Conn. 675. An accident reconstruction expert hired to conduct an investigation and reconstruction of an accident, who is deposed by opposing counsel and who is disclosed as an expert in anticipation of testifying at trial pursuant to Practice Book § 220 (D), is a witness whom the party who hired him would naturally have produced.

The defendant also claims that Shanok is not a witness having peculiar or superior material information. The defendant argues that because five eyewitnesses testified at trial, any testimony offered by Shanok would have been cumulative. We disagree with the defendant’s characterization of the possible testimony of Shanok. Shanok’s expert testimony would have allowed the jury to hear testimony of an accident reconstructionist whose conclusions were based on his independent professional investigation of the accident. Had his testimony been a mere recital of that of eyewitnesses, we would agree with the defendant’s characterization of that testimony as cumulative.

Because Shanok was the defendant’s expert, it is reasonable to conclude that the defendant would have called him to testify had his findings been more favorable to the defendant than to the plaintiffs. Barksdale v. Harris, supra, 30 Conn. App. 764. We conclude that Shanok was a witness whom the defendant would naturally have produced had his testimony been favorable. A Secondino instruction, therefore, should have been given. Nevertheless, we conclude that Shanok’s testimony would neither have benefited the plaintiffs nor affected the verdict of the jury. We find that the trial court’s refusal to issue an adverse inference instruction constituted harmless error for the same reasons set forth in part I, concerning the quashing of the subpoena duces tecum.

Ill

The plaintiffs next claim that the trial court improperly deprived them of their constitutional right to have the jury decide the factual issues in dispute by quashing their subpoena duces tecum of Shanok, and by refusing to give an adverse inference instruction to the jury. This claim is without merit and we decline to review it because we find no constitutional basis.

IV

The plaintiffs’ fourth claim is that the trial court improperly denied their timely motion to set aside the verdict. The plaintiffs argue that the trial court abused its discretion when it refused to set aside the verdict. We disagree.

“In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the juiy’s verdict. . . . The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness. . . . This is so because [fjrom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury. . . . It is the function of this court to determine whether the trial court abused its discretion in denying [a party’s] motion. ... In reviewing this issue, our sole responsibility is to decide whether, on the evidence presented, the jury could fairly have reached the conclusion it did.” (Citations omitted; internal quotation marks omitted.) Skrzypiec v. Noonan 228 Conn. 1, 10-11, 633 A.2d 716 (1993).

The evidence presented at trial was more than adequate to support the verdict reached by the jury in favor of the defendant. We conclude that it was within the discretion of the trial court to refuse to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 220 (D), prior to its amendment effective October 1, 1995, provided in relevant part that “any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testily, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. Each defendant shall disclose the names of his or her experts in like manner within 120 days from the date the case is claimed to a Irial list. . . .”


author: LANDAU, J.

text:
    PEGGY J. WESTFALL v. ROBERT M. WESTFALL
    (AC 15400)
    Lavery, Landau and Hennessy, Js.
    Submitted on briefs June 10
    officially released August 12, 1997

      Ronald Petosa filed a brief for the appellant (plaintiff).

      John P. Febbroriello filed a brief for the appellee (defendant).
   Opinion

LANDAU, J.

The plaintiff, Peggy J. Westfall, appeals from the judgment of the trial court denying her motion for contempt and modifying, sua sponte, the original judgment of dissolution. On appeal, the plaintiff claims that the trial court improperly (1) denied her motion for contempt and (2) modified the order requiring the defendant, Robert M. Westfall, to maintain a $100,000 insurance policy for the benefit of the plaintiff and the minor child when no such motion was pending before the court. The judgment of the trial court is affirmed in part and reversed in part.

The following facts are pertinent to this appeal. The parties’ marriage was dissolved on December 8, 1993. The judgment provided, inter alia, that the defendant maintain a life insurance policy in the amount of $100,000, naming the plaintiff and the parties’ son as irrevocable beneficiaries. The order further provided that the defendant was responsible for certain debts and would hold the plaintiff harmless from those debts. On February 6, 1995, the plaintiff filed a motion for contempt, alleging that the defendant failed to comply with those orders. In addition, the plaintiff filed a motion to modify the order of support. On October 23, 1995, the trial court denied the plaintiffs motion for contempt and further ordered that “[the] defendant shall continue to maintain life insurance for the benefit of the minor children through employment as available in the amount of $20,000.” No motion for articulation of the court’s decision on the plaintiffs motion for contempt was filed.

I

The plaintiff first claims that the trial court improperly denied her motion for contempt. The plaintiff claims that there was sufficient competent evidence for the trial court to conclude that the defendant had not complied with the court orders.

The trial court limited its orders to written notations on the motions. We, therefore, are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings. “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative. . . . State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992).” (Internal quotation marks omitted.) Cohen v. Cohen, 41 Conn. App. 163, 168-69, 674 A.2d 869 (1996).

“ ‘The plaintiff, as appellant, has the responsibility to provide this court with an adequate record for review. Practice Book § 4061; DeMilo v. West Haven, 189 Conn. 671, 681, 458 A.2d 362 (1983); Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993); Connecticut Bank & Trust Co., N.A. v. Linsky, 32 Conn. App. 13, 15, 627 A.2d 954 (1993); Augeri v. Planning & Zoning Commission, 24 Conn. App. 172, 178, 586 A.2d 635, cert. denied, 218 Conn. 904, 588 A.2d 1383 (1991).’ ” deFur v. deFur, 37 Conn. App. 450, 451-52, 656 A.2d 703 (1995). The plaintiff did not file a notice pursuant to Practice Book § 4059 (b) or a motion for articulation of this ruling pursuant to Practice Book § 4051. Therefore, in the absence of an adequate record, we decline to review the contempt issue.

II

The plaintiff claims that the trial court improperly modified the order requiring the defendant to maintain a $100,000 insurance policy for the benefit of the plaintiff and her minor child when no such motion was pending before the court. The plaintiff filed a motion seeking a modification of support. At a hearing on October 23, 1995, the trial court heard testimony as to this claim and granted the plaintiffs motion for modification of child support payments. No motion for modification was filed by the defendant nor was any evidence offered as to a modification of the insurance order. So far as appears from the motions filed and the hearing, the trial court heard the plaintiffs motion for modification on the basis of a need and ability for greater support.

“Facts proved but not averred cannot be made the basis of a recovery.” Kane v. Kane, 120 Conn. 184, 189, 180 A. 308 (1935). “ ‘A judgment cannot be founded on a finding of facts not in issue, although they may have been shown in evidence to which no proper objection was taken.’ ” Modem Home Utilities, Inc. v. Garrity, 121 Conn. 651, 654, 186 A. 639 (1936), quoting New Idea Pattern Co. v. Whelan, 75 Conn. 455, 458, 53 A. 953 (1903). “[W]hen a court has approved the provisions of a dissolution decree agreed upon by the parties, the court cannot modify or augment those provisions without following the requirements of due process.” Costello v. Costello, 186 Conn. 773, 777, 443 A.2d 1282 (1982); see also Guss v. Guss, 1 Conn. App. 356, 361, 472 A.2d 790 (1984) (trial court cannot on its own initiative modify alimony or child support orders); Grobstein v. Grobstein, 14 Conn. Sup. 378, 379 (1946) (“[n]o decrees concerning alimony, support or custody of children in an action for divorce can be vacated or modified by the mere act of the parties, but only upon application duly made to this court and then only upon consideration warranting such action”).

It is axiomatic that if facts are neither proved nor averred, a recovery may not be based on this failure. While evidence was admitted in support of the plaintiffs motion for contempt regarding the defendant’s failure to provide $100,000 of life insurance, neither the plaintiff nor the defendant was aware that such evidence would be the basis for a modification of the amount of life insurance. As to this part of the judgment, the action of the trial court is improper.

The judgment is reversed only as to the modification of the insurance order, and the case is remanded with direction to render judgment reinstating the order requiring the defendant to maintain $100,000 in life insurance for the benefit of the plaintiff and the minor child.

In this opinion the other judges concurred.

       The plaintiff did, however, move for an articulation of the trial court’s decision on her motion for modification, but that motion for articulation did not request an articulation of the trial court’s decision on the motion for contempt.

       Practice Book § 4059 (b) provides: “If the trial judge fails to file a memorandum of decision or sign a transcript of the oral decision in any case covered by paragraph (a), the appellant may file with the appellate clerk a notice that the decision has not been so filed in compliance with paragraph (a). The notice shall specify the trial judge involved and the date of the ruling for which no memorandum of decision was filed. The appellate clerk shall promptly notify the trial judge of the filing of the appeal and the notice. The trial court shall thereafter comply with paragraph (a).”
      Since a contempt finding is a case covered by paragraph (a), the plaintiff should have filed notice to compel compliance with paragraph (a), because compliance with paragraph (a) is essential to providing an adequate record for appellate review.

       It does not appear that a memorandum of decision on the motion for contempt would shed any light on the power of the trial court to modify sua sponte the life insurance order and, therefore, noncompliance with Practice Book § 4059 and § 4061 does not bar our review of this question.


author: DUPONT, C. J.

text:
    PEQUOT SPRING WATER COMPANY v. DORIS G. BRUNELLE ET AL.
    (AC 15993)
    Dupont, C. J., and Hennessy and J. Kaplan, Js.
    Argued March 20
    officially released August 12, 1997

      James G. Green, Jr., with whom was Richard F. Wareing, for the appellants (defendants).

      Francis J. Brady, with whom, on the brief, was Everett E. Newton, for the appellee (plaintiff).
   Opinion

DUPONT, C. J.

The defendants, Doris G. Brunelle (Brunelle) and Doris G. Brunelle, trustee, appeal from the trial court’s rendering of a declaratory judgment in favor of the plaintiff, the Pequot Spring Water Company (Pequot). Pequot sought an interpretation of the rent provisions of a long-term percentage rent lease between Pequot and Brunelle. The defendants counterclaimed, seeking a declaratory judgment that a breach of an implied covenant “to deal fairly” and “act in good faith,” would result if Pequot ceased operations on the leased premises or stopped paying a minimum monthly rental payment of $4000. In its declaratory judgment, the trial court determined that no minimum rent was due to Brunelle and that the lease did not prohibit Pequot from selling its business, thereby ceasing operations on the premises and causing its gross sales to be reduced to zero so that no rent would be due to Brunelle.

Until 1984, Brunelle was the owner of Pequot. In 1984, Brunelle transferred her majority interest in the stock of Pequot to the shareholders of Pequot. Brunelle retained ownership of the bottling plant and the natural spring used by Pequot to produce bottled water. The parties agreed that Brunelle would lease the plant and the spring to Pequot for a period of twenty-five years, as an extended term, which commenced on July 1, 1984. In return, Pequot would pay Brunelle rent calculated by a percentage of its gross sales. Two subsequent amendments to the lease, dated June 29 and 30, 1984, further specified the terms of the payments due under the lease. In addition, Pequot was to pay all taxes and assessments on the property and to pay for utilities, repairs, maintenance and insurance (triple net charges). Annual rents from 1990 to 1995 totaled between $75,000 and $85,000.

In 1994, Brunelle discovered that Pequot intended to sell its business to Suntori, doing business as Belmont Springs Water Company (Suntori), and to terminate its operations. The agreement between Pequot and Suntori provided for a sales price of over two million dollars. Pequot claimed that, once it ceased operations, it would no longer owe Brunelle any rent because its gross sales, the base on which rent was calculated, would have dropped to zero. Brunelle argued that the lease provided for a minimum monthly rent of $4000, or, alternatively, that Pequot had a good faith duty to continue operating the company for the full term of the lease.

In January, 1995, Pequot sought a judgment declaring that, if its gross sales fell to zero upon the sale of its assets to Suntori and the termination of operations, it would owe no rent to Brunelle for the remaining period of the lease. On May 10, 1996, the trial court rendered judgment in favor of Pequot, holding that: “1. The calculation of rent due to Doris G. Brunelle and/or Doris G. Brunelle, Trustee, is to be computed according to the formula set forth in Paragraph Five of the original lease ... 2. The lease [and amendments] do not provide for a minimum rent to be paid to Doris Brunelle by Pequot; and 3. The lease documents do not prohibit Pequot from selling its business, thereby reducing its gross sales to zero so that no rent would be due to Doris Brunelle.”

Brunelle, in her individual capacity and as trustee, appealed, claiming that the trial court improperly (1) held that the lease did not contain an implied covenant obligating Pequot to operate on the premises during the entire term of the lease, (2) failed to find, under the doctrine of equitable estoppel, that the lease contained a minimum monthly rent of $4000, and (3) failed to find that under the doctrine of mistake the lease contained a minimum monthly rent of $4000.

Although Connecticut appellate courts have not yet considered whether and under what conditions a percentage lease may be deemed to contain an implied covenant to continue to operate and generate sales for the duration of a lease, other jurisdictions have considered the subject. We conclude, as do cases from other jurisdictions, that, under appropriate language in a lease and appropriate circumstances, such an implied covenant may exist. We, therefore, analyze the lease of the parties against the backdrop of those cases.

“In agreements where the rental is based either upon a straight percentage of sales, or upon a minimum fixed rental and additional rental based upon a percentage of sales, the inadequacy of the base rent implies a covenant of continuous operation.” First American Bank & Trust Co. v. Safeway Stores, Inc., 151 Ariz. 584, 586, 729 P.2d 938 (1986); see also Lippman v. Sears Roebuck & Co., 44 Cal. 2d 136, 143, 280 P.2d 775 (1955); Fox v. Fox Valley Trotting Club, 8 Ill. 2d 571, 573, 134 N.E.2d 806 (1956); Simhawk Corp. v. Egler, 52 Ill. App. 2d 449, 454, 202 N.E.2d 49 (1964); East Broadway Corp. v. Taco Bell Corp., 542 N.W.2d 816, 819 (Iowa 1996); Fashion Fabrics of Iowa, Inc. v. Retail Investors Corp., 266 N.W.2d 22, 28 (Iowa 1978); Stop & Shop v. Ganem, 347 Mass. 697, 703, 200 N.E.2d 248 (1964); Worcester-Tatnuck Square CVS, Inc. v. Kaplan, 33 Mass. App. 499, 601 N.E.2d 485 (1992); Kretch v. Stark, 26 Ohio Op. 2d 385, 393, 193 N.E.2d 307 (Court of Common Pleas 1962). Courts consider several factors to determine whether a covenant to remain in business will be implied: “(1) whether base rent is below market value, (2) whether percentage payments are substantial in relation to base rent, (3) whether the term of the lease is lengthy, (4) whether the tenant may sublet, (5) whether the tenant has rights to fixtures, and (6) whether the lease contains a noncompetitive provision.” Lagrew v. Hooks-SupeRx, Inc., 905 F. Sup. 401, 405 (E.D. Ky. 1995). We adopt the factors of Lagrew in order to determine whether there is an implied covenant to continue to remain in business.

The first factor of Lagrew concerns the base rent. If the base rent is below market value, one of the conditions for implying a covenant of continued operation is present. The reason for the applicability of this factor in relation to the implied covenant is that the amount of minimum rent can be tested by a trier to determine its adequacy. If it is adequate, there would be no basis for implying a covenant to continue operations in order to generate rent. Here, the $4000 rental payment as provided in paragraphs 2 (a) and (e) of the first amendment to the lease is not a base payment but, rather, a payment “to be applied against the amount of rent due Lessor . . . .” Here, because the lease provided for no minimum rent payment, the base rent is “below market value” and meets the first factor of Lagrew. The second factor of Lagrew is whether the percentage payments are substantial in relation to base rent payments. Because there are no base rent payments at all, the percentage payments are obviously substantial when compared with a base rent of zero.

The third test of Lagrew, the fact that the term of the lease is lengthy, is true here. At the time of trial, thirteen years remained in a twenty-five year lease. The length of the term is indicative of the parties’ intention that Pequot remain in business. Pequot would not have entered into a lease with such a length and Brunelle would not have accepted rental payments based solely on Pequot’s sales if both parties had not intended that Pequot remain in business for the full length of the lease.

The fourth Lagrew factor is whether the lease contains a subletting provision. In the Pequot-Brunelle lease, the right to enter a sublease is limited. Pequot argues that the provision is indicative of the intent that the parties did not contemplate continuous operation by the lessee. The fact that Brunelle retained the right to refuse a sublease implies, however, that a suitable replacement business would occupy the bottling plant. “Thus, a more precise statement of the implied covenant is that the lessee, or some suitable sublessee, will continuously operate on the premises.” Lagrew v. Hooks-SupeRx, Inc., supra, 905 F. Sup. 406; see also First American Bank & Trust Co. v. Safeway Stores, Inc., supra, 151 Ariz. 586; East Broadway Corp. v. Taco Bell Corp., supra, 542 N.W.2d 820.

The fifth characteristic of an implied covenant to remain in business concerns the right of a lessee to remove fixtures from the leased premises. Although Pequot has rights in the fixtures, this fact does not negate any implication of a covenant of continuous operation. In this case, Pequot as lessee was also the owner of the fixtures under the stock purchase agreement. “While a term requiring accession of fixtures would present stronger evidence that the parties intended the lessee to continuously operate on the premises, the absence of such a term does not necessarily prove the converse.” Lagrew v. Hooks-SupeRx, Inc., supra, 905 F. Sup. 407.

The sixth factor of Lagrew, whether a noncompetition provision exists, does not fit the factual situation here. Most of the cases involving percentage leases involve space in shopping centers, a situation where a lessee is likely to bargain for a provision in a lease that the lessor will not lease to a competitor in that shopping center or the surrounding area. Here, where the business is tied to a spring, which is part of the leased premises, there is no necessity for such a noncompetition provision.

In Lagrew v. Hooks-SupeRx, Inc., supra, 905 F. Sup. 404, the plaintiff-lessors claimed an implied covenant of continuous operation existed “because such a provision is necessarily involved in the contractual relationship so that the parties must have intended it and only failed to express it because of [sheer] inadvertence or because the provision was too obvious to need expression.” The court considered the six factors mentioned above before holding that “[w]ithout an implied covenant of continuous occupation by the lessee or a suitable sublessee the entire agreement is nonsensical. The implied covenant of continuous operation is necessary to effectuate the true intentions of these parties.” Id., 407-408.

After a consideration of the factors involved in determining whether the lease of the parties contains an implied covenant to continue to operate and generate sales for the duration of the lease, we conclude that it does. The implied covenant is necessary to a rational understanding of this lease.

Having determined that the lease contains such an implied covenant, we next consider whether the scope of our review can include a resolution of the relief that may be afforded on the defendants’ counterclaim for a declaratory judgment. We conclude that we may determine, for the trial court’s guidance on remand, how to measure damages if Pequot ceases operations on the leased premises.

Declaratory judgment actions are governed by General Statutes § 52-29 and Practice Book § 391. General Statutes § 52-29 (a) provides that the Superior Court “may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed.” Section 52-29 (b) further provides that “[t]he judges of the superior court may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section.”

Practice Book § 391 (b) provides that, in actions seeking a declaratory judgment, “no claim for consequential relief need be made.” Our Supreme Court has recognized that the declaratory judgment statute should be liberally construed. See Middlebury v. Steinmann, 189 Conn. 710, 716, 458 A.2d 393 (1983). Indeed, § 52-29 “is broader in scope than [the Uniform Declaratory Judgments Act] and the statutes in most, if not all, other jurisdictions.”Horton v. Meskill, 172 Conn. 615, 626-27, 376 A.2d 359 (1977).

The declaratory judgment procedure in Connecticut “has the distinct advantage of affording to the court in granting any relief consequential to its determination of rights the opportunity of tailoring that relief to the particular circumstances.” Id., 627. The relief afforded in a declaratory judgment action “is highly remedial and the statute and rules should be accorded a liberal construction to carry out the purpose underlying such judgments.” Bania v. New Hartford, 138 Conn. 172, 175, 83 A.2d 165 (1951).

In Sheff v. O’Neill, 238 Conn. 1, 678 A.2d 1267 (1996), a declaratory judgment action seeking a declaration regarding equal educational opportunity in our public schools, our Supreme Court rendered judgment for the plaintiffs on the merits. The court was then faced with the question of what sort of relief it could properly afford to the plaintiffs. In their prayer for relief, the plaintiffs in Sheff did not focus on appropriate remedial consequences in the event of judgment in their favor. See id., 45. Under these circumstances, the court determined that it had three options, one of which was to remand the case to the trial court for further proceedings. Id. This is the course that we choose to take.

In light of our judgment for the defendants, the trial court on remand will need to determine the consequential relief owing to the defendants if Pequot ceases operations on the leased premises. In an action for declaratory judgment, the court is “not limited by the issues joined or by the claims of counsel.” Bania v. New Hartford, supra, 138 Conn. 175. Thus, “monetary relief may be granted to [the] party so entitled in proceedings for declaratory judgment, even though relief was not requested in [the] pleadings.” 22A Am. Jur. 2d 887, Declaratory Judgments § 246 (1988). That principle was employed in McNally v. Moser, 210 Md. 127, 141, 122 A.2d 555 (1956), a declaratory judgment case factually similar to the one before us. In McNally, the plaintiffs sought a declaratory judgment that the premises in question were leased to the defendants for a period of ten years, thus preventing the defendants from vacating the premises and ceasing to pay rent after only four years. The court of appeals upheld the trial court’s decision rendering judgment for the plaintiffs and granting them relief in the form of rent due on the leased premises, even though the plaintiffs did not pray for such relief in their petition for declaratory judgment. See id., 140-41.

The defendants in the present case alluded in their counterclaim to what they believed was the amount of monthly rent due to them. In view of the broad scope of § 52-29 and Practice Book § 391, we conclude that the allegations of the defendants’ counterclaim make it appropriate for us to determine how to measure the defendants’ damages.

“For breach of an implied covenant to remain in business, the measure of damages ordinarily is the amount which the lessor would have received from his share of the proceeds of the business had the lessee operated it in its usual and customary manner.” Lippman v. Sears Roebuck & Co., supra, 44 Cal. 146. In most of the cases in which the lessor was victorious under this theory, the lessee had moved to another location and was still in operation. The courts could, therefore, award damages under the lease by awarding a percentage of the sales of the company at its new location. See Simhawk Corp. v. Egler, supra, 52 Ill. App. 2d 454-55. Here, where the company will no longer be in business, this remedy is not available.

Some courts have treated the remedy of damages as arising from a breach of an implied covenant to pay a reasonable rent during the term of a lease rather than arising from a breach of an implied covenant to continue to operate a business on the premises. Bastian v. Albertson’s, Inc., 102 Idaho 909, 914, 643 P.2d 1079 (1982); see also Sinclair Refining v. Davis, 47 Ga. App. 601, 605, 171 S.E. 150 (1933). Any implied covenant to pay a reasonable rent is “a subspecies of a covenant of continuous operation.” Lagrew v. Hooks, supra, 905 F. Sup. 408. We agree that a covenant of continuous operation contains within it the subsidiary promise to pay a reasonable rent. The damages, thus, are the fair rental value of the premises during the time of the breach. Id.; Bastian v. Albertson’s, Inc., supra, 914. The dollar value of that amount is a question of fact.

The judgment for Pequot is reversed and the case is remanded with direction to render judgment for the defendants on their counterclaim, declaring that the lease and amendments to the lease contain an implied covenant to continue operations on the leased premises, and to hold a hearing to determine the amount of damages due to the defendants.

In this opinion the other judges concurred.

       Unless otherwise noted, as used in this opinion, “Brunelle” refers to Doris G. Brunelle in her individual capacity.

       Practice Book § 391 (e) provides: “The defendant in any appropriate action may seek a declaratory judgment by a counterclaim.”

       The defendants, in their answer, also asserted the special defenses of promissory estoppel, fraud, estoppel and mistake.

       Brunelle’s father founded the company in the 1940s as a soft drink business with a side line of bottling the water from a spring located on the property. Brunelle took over the company in 1964. Eventually Pequot’s focus shifted to the bottling and sale of spring water and the rental and sale of water coolers. Doris G. Brunelle conveyed her interest in the real estate and the lease to Doris G. Brunelle, trustee, on September 14, 1990.

       The lease had been in effect from July 1, 1980 to June 30, 1984, when, in accordance with paragraph 4 of the lease, Doris Brunelle divested herself of a majority interest in Pequot Spring Water Company, and the extended term began.

       The relevant paragraph of the lease, paragraph five, states as follows: "Rental During Extended Term: Lessee shall pay to Landlord as annual rental for the demised premises during the extended term a sum equal to six (6%) percent of the first FIVE HUNDRED THOUSAND ($500,000) DOLLARS of Lessee’s annual gross sales plus, if applicable, a sum equal to five (5%) percent of the next TWO HUNDRED THOUSAND ($200,000) DOLLARS of Lessee’s annual gross sales, plus, if applicable, a sum equal to four (4%) percent of the next THREE HUNDRED THOUSAND ($300,000) DOLLARS of Lessee’s gross sales plus, if applicable a sum equal to three (3%) percent of the next FIVE HUNDRED THOUSAND ($500,000) DOLLARS of Lessee’s gross sales in excess of ONE MILLION FIVE HUNDRED THOUSAND ($1,500,000) DOLLARS.
      “The percentage rent period shall be semiannual and the rent shall be computed each percentage rent period. The last percentage rent period shall end on the date the term expires or otherwise terminates. Semiannual rent periods are periods within each lease year ending on June 30 and December 31, whether or not consisting of six (6) months. On or before the tenth (10th) day of the calendar month immediately following the close of each percentage rent period, lessee shall pay to landlord the percentage rent as defined herein.”

       Paragraph 2 (a) of the first amendment provides: “Extended Term Rental Payments (a) Commencing on July 1, 1984, Lessee shall pay to the Lessor 1he sum of FOUR THOUSAND AND NO DOLLARS ($4,000.00) on or before the tenth (10th) day of each calendar month, to be applied against the amount of rent due Lessor pursuant to Paragraph 5 of the Lease.”
      Paragraph 2 (e) of the first amendment provides: “The monthly payment set forth in Paragraph 2 (a) hereof shall be adjusted on June 30, 1985, and on each anniversary date thereof, for so long as this Lease shall remain in force and effect, in order that the monthly payments for each year shall be based upon computation of the previous year’s actual annual gross sales.”
      Paragraph one of the second amendment provides: “Commencing on June 30, 1985, and on each anniversary date thereof throughout the term of the Lease, an adjustment shall be made so that the rent paid by Lessee to Lessor over the previous twelve month period shall equal the rent actually due Lessor for said period, pursuant to Paragraph 5 of the Lease. In the event that the rent due Lessor exceeds the amount paid by Lessee dining said period, then the amount of such excess rent due Lessor shall be added to the amount of the next monthly payment. In the event that the amount of rent paid by Lessee exceeds the rent due Lessor for said period, then Lessee shall deduct from its next monthly rental payment the amount of said excess payment, provided however, that in the event that the excess payment exceeds the amount of rent due Lessor for the next monthly payment, the excess over the amount of the next monthly payment shall bear interest at the rate of 10% per annum commencing upon the adjustment date, unless Lessor pays the amount of such excess payment to Lessee prior to the date of the next monthly payment.”

       Pequot acknowledged that it would still owe Brunelle the triple net charges.

       In view of our decision on the defendants’ first claim and the reasoning used to reach that decision, it is not necessary to reach her second and third claims. We agree with the trial court that the lease did not provide for a minimal monthly rent of $4000, and we agree with the trial court’s logical reasoning as to the claims involving equitable estoppel and mistake.

       The subletting clause of the lease provides: “Assignment of Sublease. Lessee shall not assign this Lease nor sublet the premises without the written consent of the Lessor, which consent shall not be unreasonably withheld; it being understood, however, that the Lessee may, at any time, assign this Lease or sublet all or any part of the premises to a corporation or corporations in which the Lessee is the holder of a majority of said corporation’s issued and outstanding voting stock; and further, that the Lessee may sublet roof-top space or facilities for advertising purposes, subject to reasonable requirements of the Lessor. But no assignment or subletting shall release the Lessee from the performance of its obligations herein contained, and Lessee shall remain fully liable under this Lease.”

       The lessee is permitted by the terms of the lease to remove fixtures from the leased premises.

       The defendants’ counterclaim for a declaratory judgment requested settlement of the following questions:
      "a. whether it would be a breach of the implied covenant of good faith and fair dealing contained in the Lease, as amended, for Pequot to cease operations of the Premises during the Extended Term, absent bankruptcy; and
      “b. whether it would be a breach of the implied covenant of good faith and fair dealing in the Lease, as amended, for Pequot to cease paying the minimum monthly rental payment of $4,000.00 per month during the Extended Term, absent bankruptcy.”