text:
    Ecos Corporation v. Geraldine D. Conlon Ecos Corporation v. Westland Company, Inc.
    (3362)
    (3363)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued June 11—decision
    released July 30, 1985

      Elaine Gordon, with whom, on the brief, was Raymond A. Garcia, for the appellant (plaintiff in both cases).

      I. Milton Widen, for the appellees (defendant in each case).
   Spallone, J.

The plaintiff, in these combined appeals, claims that the trial court erred in granting the defendants’ applications for discharge of two notices of lis pendens.

The facts do not appear to be controverted. On May 14, 1984, the plaintiff instituted separate suits against the defendants, claiming, inter alia, specific performance of agreements it had entered into with each defendant for the sale of real estate. Incidental to the commencement of the actions, the plaintiff filed a notice of lis pendens against each parcel of land. On June 25, 1984, at a consolidated evidentiary hearing, the court took evidence on the defendants’ applications for discharge of those notices.

At the conclusion of the hearing, the trial court ruled that the plaintiff could not show probable cause to sustain the validity of its claims for specific performance against each defendant and stated that its reason for so ruling was that the plaintiff planned to resell the lots. The court thereupon granted the defendants’ applications and discharged both notices of lis pendens.

The plaintiff now appeals from that order, claiming error in the trial court’s conclusion that specific performance would not lie because the land in question was to be resold. At oral argument, counsel for the defendants conceded that the trial court erred in this regard.

It is universally recognized that the remedy of specific performance is available to enforce contracts for the sale of real estate. Hodges v. Rowing, 58 Conn. 12, 21-22, 18 A. 979 (1889); see Calamari & Perillo, Contracts (2d Ed.) § 16-2 and cases cited therein. The availability of this remedy is not a matter of right, but depends upon an evaluation of equitable considerations. Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981). “Applications for specific performance of agreements to sell land are addressed to the discretion of the court which must determine upon the facts and under the circumstances whether the contract is fair, reasonable, on good consideration, free from fraud, surprise or mistake and made according to the requirements of the law. Sidor v. Kravec, 135 Conn. 571, 573-74, 66 A.2d 812 [1949].” Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 18-19, 420 A.2d 1142 (1979). The trial court erred in singling out the plaintiff’s plans to resell the land as determinative of its likelihood of prevailing upon full trial.

The defendants’ contention that the trial court had alternate grounds to support its decision, that is, that the plaintiff did not show that it was ready, willing and able to purchase the property; see Allen v. Nissley, 184 Conn. 539, 542, 440 A.2d 231 (1981); is equally without merit. Our thorough review of the record before us does not disclose any finding by the trial court that the plaintiff was unable to establish probable cause that it would prevail in a trial upon the merits based on a failure to prove it was ready, willing and able at all times to purchase the property. In our review, “[w]e cannot resort to matters extraneous to the formal record or to facts which have neither been found by the trial court nor admitted in the pleadings.” Guaranty Bank & Trust Co. v. Dowling, 4 Conn. App. 376, 384, 494 A.2d 1216 (1985).

There is error, the judgment of the trial court dissolving the notices of lis pendens is set aside and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Emery J. Pavel v. Lena A. Pavel
    (4011)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued June 14—decision
    released July 30, 1985

      Gordon A. Evans, for the appellant (defendant).

      John D. Sailing, for the appellee (plaintiff).
   Per Curiam.

In this appeal from the judgment in an action for the dissolution of a marriage, the defendant wife contends that the state trial referee erred in its assignment of property and in its award of alimony and child support.

The parties were married in 1972. They have one child, born in 1974. The present dissolution action was commenced in 1981 by the plaintiff husband. A previous dissolution action, commenced by the wife in 1978, was dismissed in 1980. In the interim, the parties had reconciled. The husband concedes, in his brief, that the state trial referee on numerous occasions admonished the wife’s counsel for attempting to elicit testimony or adduce evidence during the course of the trial, which related to matters predating the filing of the second action. Further, he concedes that the state trial referee stated that he was only interested in events occurring simultaneous with the filing of the second dissolution action or occurring thereafter.

Most of the wife’s claims of error involve the trial court’s restrictive view of what evidence was relevant and material. When “the parties choose to litigate the issues of alimony or division of property the causes of the dissolution must be considered by the court.” Sweet v. Sweet, 190 Conn. 657, 660, 462 A.2d 1031 (1983). It is “error for the trial court to refuse to hear witnesses who might attest to the causes of the marital breakdown.” Posada v. Posada, 179 Conn. 568, 573, 427 A.2d 406 (1980). The state trial referee’s rulings on evidence suggest that the doctrine of condonation was applied to the present dissolution action. Condonation was abolished as a defense in a marital dissolution action by a 1973 statutory enactment. Mitchell v. Mitchell, 194 Conn. 312, 329, 481 A.2d 31 (1984) (Shea, J., dissenting and concurring); see General Statutes § 46b-52. Evidence offered as to the causes of the marital breakdown predating the filing of the second dissolution action was admissible and the state trial referee erred in excluding such evidence in toto.

The state trial referee also erred in excluding evidence offered in respect to the statutory criteria in General Statutes §§ 46b-81 and 46b-82. Evidence offered as to the wife's contribution to the acquisition, preservation or appreciation in value of the husband’s estate was admissible. General Statutes § 46b-81.

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

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       The wife also raises a claim of judicial bias. This claim is not addressed because she did not move to disqualify the state trial referee before the outcome of the trial and it is considered waived. Szypula v. Szypula, 2 Conn. App. 650, 654, 482 A.2d 85 (1984). Another claim of error relates to the admissibility of testimony of the husband, a dentist, as to the age of the financial peak of solo dental practitioners. The evidentiary issue may recur on retrial but is unlikely to arise by way of the same question which is at issue in this appeal. We, therefore, do not consider this claim. The wife seeks relief, on appeal, from the trial court’s financial awards only, and we, therefore, do not consider any claims of error with reference to the orders of the court relating to the custody of the child of the parties.


text:
    Allen Hadelman v. Donald B. Alderman et al.
    (3198)
    Spallone, Daly and McKeever, Js.
    Argued May 24—decision,
    released July 30, 1985

      Robert G. Wetmore, with whom, on the brief, was Edward L. Marcus, for the appellants (defendants).

      L. Douglas Shrader, for the appellee (plaintiff).
   Per Curiam.

The defendants, Donald B. Alderman and the Vascular Surgery Group Pension Trust, have appealed from a judgment of the trial court confirming an arbitration award in favor of the plaintiff, Allen Hadelman.

The panel of arbitrators, selected by and sitting pursuant to the constitution and rules of the board of directors of the New York Stock Exchange, Inc., denied all claims made by the defendants, and taxed costs solely against Shearson/American Express, Inc., which is not a party to this appeal. The plaintiff then applied to the Superior Court for confirmation of the arbitration award. The defendants objected to confirmation of the award because of a letter received by the defendant Alderman, subsequent to the arbitration award and prior to the application for confirmation, putting him on notice that the plaintiff would look to him for legal fees and costs incurred as a result of the arbitration claim.

Before consenting to confirmation of the award, the defendants sought a stipulation by all parties that no action would be taken by the plaintiff to recover such legal fees and costs or, in the alternative, sought a condition to be imposed by the court by virtue of its inherent equitable power to such effect. The plaintiff refused to so stipulate and the trial court, in confirming the award, imposed no such condition. The defendants cite no authority for the proposition that the court’s inherent powers would allow it to do other than to confirm an arbitration award except as allowed by statute.

Once a party has applied properly to the court for an order confirming an award, pursuant to General Statutes § 52-421, the court “shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.” General Statutes § 52-417. No claim is made by the defendants that the award suffered from any of the defects described in General Statutes §§ 52-418 or 52-419. Absent any showing of such a defect, the trial court properly confirmed the award.

There is no error.

       Although the defendants raised five issues in their preliminary statement of issues, they have briefed only one. Issues not briefed must be considered abandoned. Greene v. Metals Selling Corporation, 3 Conn. App. 40, 42 n.2, 484 A.2d 478 (1984).


text:
    Capmar Construction, Inc. v. Jeffrey Coyle et al.
    (3051)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued June 14—decision
    released July 30, 1985

      Jeffrey J. Mirman, with whom, on the brief, was Dennis L. Pieragostini, for the appellant (plaintiff).

      Irving B. Shurberg, for. the appellees (defendants).
   Per Curiam.

This is an appeal by the plaintiff from the trial court’s judgment awarding damages on the defendants’ counterclaim.

The plaintiff instituted this action to recover sums allegedly due under a construction contract entered into with the defendants. The defendants answered, claiming setoffs against the sum due, and counterclaimed for damages arising out of alleged defective and incomplete work, and undue delays in completing the work undertaken.

After a full trial before Hon. Roman J. Lexton, state trial referee, judgment was rendered for the plaintiff on the complaint and for the defendants on the counterclaim.

The sole issue for our consideration is whether the damages awarded on the counterclaim are justified, in view of the evidence presented at trial. We consider the claim of error in this regard to be completely without merit.

The trial referee prepared a meticulously detailed memorandum of decision which, when analyzed objectively and completely, negates the plaintiff’s claims of error.

We are not the finders of fact; that is for the trial court. Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982); Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 4, 420 A.2d 1142 (1979); Riccio v. Abate, 176 Conn. 415, 418, 407 A.2d 1005 (1979); Hirst v. Hirst, 2 Conn. App. 348, 350, 478 A.2d 618 (1984).

Our review is limited to a determination of whether the decision made is logically consistent and supported by the evidence. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). We conclude that it is.

There is no error.


author: Spallone, J.

text:
    John H. Sauter v. Roberta R. Sauter
    (2903)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued March 6—decision
    released July 30, 1985

      Louis Kiefer, for the appellant (plaintiff).

      Nancy Conaway-Raczka, with whom, on the brief, werelvarA. Jozus, Joseph E. Milardo, Jr., and Dean A. Thomasson, for the appellee (defendant).
   Spallone, J.

The parties to this dissolution action were married in Vermont in 1958. They later moved to New York, where the defendant continues to reside. The plaintiff has lived in Connecticut since 1980.

On April 2,1983, the defendant commenced a dissolution action against the plaintiff in New York. The plaintiff was personally served in that action and appeared in the New York court through counsel. On July 23,1983, the plaintiff instituted the present action in Connecticut. The defendant moved to dismiss the Connecticut action on two grounds. She claimed, first, that the prior pending action in New York was reason to abate the Connecticut action and, second, that the trial court lacked subject matter jurisdiction because neither party was domiciled in Connecticut. The trial court granted the motion to dismiss, finding that the plaintiff remained domiciled in New York and that New York was the proper jurisdiction in which to maintain the dissolution action. The plaintiff now appeals from the judgment rendered on that dismissal.

The plaintiff argues that the trial court erred, first, in considering the question of domicil prior to trial, and second, in finding that he was a domiciliary of New York. As an alternate ground upon which the judgment may be affirmed; Practice Book § 3012 (a); the defendant argues that the court properly dismissed the action because of the prior pending suit between the parties in New York.

The plaintiff initially argues that the court erred in dismissing the action for lack of subject matter jurisdiction because it should not have considered the question of domicil until trial. On the basis of LaBow v. LaBow, 171 Conn. 433, 370 A.2d 990 (1976), he argues that while domicil is essential to “final jurisdiction,” residence alone provides jurisdiction for the filing of a dissolution complaint. We agree.

In LaBow, our Supreme Court pointed out that the term “residence” as used in our dissolution statutes has been construed by our courts to require domicil plus substantially continuous physical residence in this state for the granting of a dissolution decree. Id., 437. It also noted that General Statutes (Rev. to 1977) § 46-35, the immediate predecessor of General Statutes § 46b-44 which currently sets forth the jurisdictional requirements applicable to dissolution actions, required “domicil plus substantially continuous residence in Connecticut by one of the parties for the twelve months next prior to either the filing of the complaint or the granting of the decree.” (Emphasis in original.) Id. Because jurisdiction to grant a decree on the basis of one year’s residence prior to the decree cannot be determined until the date of the decree, the court held that residence of one party, without a showing of domicil, is sufficient to give the court subject matter jurisdiction for the purposes of filing a complaint or for the granting of alimony and support pendente lite. Id., 439; see McAnerney & Schoonmaker, “Connecticut’s New Approach to Marriage Dissolution,” 47 Conn. B.J. 375, 379 (1973).

Subsequent to LaBow, General Statutes (Rev. to 1977) § 46-35 was amended and transferred to General Statutes § 46b-44 by Public Acts 1978, No. 78-230, § 20. The amendment, however, was merely a technical revision and was not intended to effect a change in the substance of the law. Hearings before Joint Standing Committee on the Judiciary, Pt. 4, 1978 Sess., pp. 1558-59. We thus conclude that LaBow is dispositive of this case and that the trial court erred in dismissing this action for absence of subject matter jurisdiction based on lack of domicil. Having so concluded, we need not reach the issue of whether the trial court was correct in finding that the plaintiff was domiciled in New York.

There is no merit to the alternate ground for affirming the judgment which the defendant has raised, that is, that the trial court properly dismissed this action because of the prior pending suit in New York. The rule that the pendency of a prior action between the same parties and to the same ends is grounds for dismissal has efficacy only where the actions are pending in the same jurisdiction. The pendency of an action in one state is not a ground for abatement of a later action in another state. Schaefer v. O. K. Tool Co., Inc., 110 Conn. 528, 535, 148 A. 330 (1930); 1 Stephenson, Conn. Civ. Proc. § 104 (a). This is so even though the court in which the first action is pending has acquired complete jurisdiction and even though the parties are reversed in the subsequent action. 1 C.J.S., Abatement and Revival § 65 (a); see Miller v. Miller, 213 Neb. 219, 221-22, 328 N.W. 2d 210 (1982).

It makes little sense, however, for two actions for the same relief to be litigated in parallel, with “the plaintiff in each seeking to rush to judgment.” Nielsen v. Nielsen, 3 Conn. App. 679, 684, 491 A.2d 1112 (1985). In the interests of judicial economy, a court may, in the exercise of its discretion, order that the second action be stayed during the pendency of the first action, even though the actions are pending in different jurisdictions. 24 Am. Jur. 2d, Divorce and Separation § 181. “[WJhere an action is pending in one state, the court of another state in which another action, involving the same parties and subject matter, is brought, may grant a stay of proceedings in the latter action, unless plaintiff will consent to stay or dismiss the second action in the other state; but such a stay is not a matter of right and is not required, but rests within the discretion of the court in the exercise of which it must see that injustice is not done; and a stay should not be ordered if the opportunity to obtain satisfaction in the foreign suit is not as good as the domestic suit, or that it appears that the foreign suit was instituted merely to forestall the domestic suit.” 1 C.J.S., Actions § 133, p. 1410. We express no opinion as to whether a stay should be granted in this case upon remand, but merely note that the defendant is not without a remedy.

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

In this opinion the other judges concurred.

       General Statutes (Rev. to 1977) § 46-35 provided in pertinent part: “No decree dissolving a marriage or granting a legal separation shall be entered unless one of the parties to the marriage has been a resident of this state for at least twelve months preceding the date of the filing of the complaint or next preceding the date of the decree . . . provided nothing herein shall be construed to prevent the filing of a complaint at any time after either party has established residence in this state or the granting of temporary relief pursuant to such complaint . . . .” (Emphasis added.)

       General Statutes § 46b-44 provides in pertinent part: “(a) A complaint for dissolution of a marriage or for legal separation may be filed at any time after either party has established residence in this state.
      “(b) Temporary relief pursuant to the complaint may be granted in accordance with sections 46b-56 and 46b-83 at any time after either party has established residence in this state.
      “(c) Decree dissolving a marriage or granting a legal separation may be entered if: (1) one of the parties to the marriage has been a resident of this state for at least the twelve months next preceding the date of the filing of the complaint or next preceding the date of the decree; (2) one of the parties was domiciled in this state at the time of the marriage and returned to this state with the intention of permanently remaining before the filing of the complaint; or (3) the cause for the dissolution of the marriage arose after either party moved into this state. . . .”


author: Stodolink, J.

text:
    Evergreen Manor Associates v. Felicien Michel et al.
    (3089)
    Dupont, C.P.J., Hull and Stodolink, Js.

      Argued April 19—decision
    released July 30, 1985

      David E. Schancupp, for the appellant (plaintiff).

      James A. Trowbridge and Paul W. Insinna, law student intern, filed a brief for the appellees (defendants).
   Stodolink, J.

The plaintiff landlord brought a summary process action seeking possession of the leased premises from the defendant tenants on the basis of their violation of a provision relating to pets contained in a lease executed by the defendants and the plaintiff for the period April 1,1983, to December 31,1983. The trial court rendered judgment for the defendants and the plaintiff has appealed, claiming the trial court erred in finding that the plaintiff waived enforcement of the lease provision concerning pets.

The following relevant facts serve as a framework for considering the plaintiffs claim of error. On January 12, 1983, the plaintiff acquired ownership of the subject premises. On March 14, 1983, the plaintiff entered into a written lease with the defendants for the period beginning April 1, 1983. A clause in that lease provided that the tenant agreed not to “have pets or animals of any kind in the unit without prior written permission of the landlord.” An identical clause was contained in the previous lease between the defendants and the former landlord. The trial court found that the previous landlord had waived the enforcement of the clause prohibiting pets throughout the years of the defendants’ tenancy. The trial court further found that the new landlord took over the previous lease as it was interpreted by the parties thereto. The trial court then went on to find that because the “no-pet” clause had not been enforced by the previous landlord, when the new lease was entered into by the defendants for the term beginning April 1,1983, they did not agree to be bound by the “no-pet” clause since its enforcement had been waived by the previous landlord. The trial court stated that “the new landlord took over that lease as it was interpreted by the parties thereto. He cannot now, in effect, seek to vary its terms by adding a requirement to which the defendants had never agreed.”

Our Supreme Court has defined “[w]aiver [as] the intentional relinquishment of a known right.” Multiplastics, Inc. v. Arch Industries, Inc., 166 Conn. 280, 286, 348 A.2d 618 (1974); Brauer v. Freccia, 159 Conn. 289, 295, 268 A.2d 645 (1970); Jenkins v. Indemnity Ins. Co., 152 Conn. 249, 257, 205 A.2d 780 (1964). A person cannot waive a right before he is in a position to assert it. 28 Am. Jur. 2d, Estoppel and Waiver § 157. The plaintiff in the present action did not acquire possession of the subject premises until January 12,1983. No legal basis therefore existed for concluding that any action by the previous owner or his agent constituted a waiver by the plaintiff of the enforcement of any provision relating to the defendants’ tenancy under the lease for the term beginning April 1, 1983. Furthermore, it is the essence of a waiver that the relinquishment of the right claimed to be waived must be voluntary and intentional. 28 Am. Jur. 2d, Estoppel and Waiver § 158.

The evidence adduced at trial consequently afforded no basis for the trial court’s conclusion that a waiver, binding on the plaintiff, occurred in this instance. At the time the defendants signed their new lease on March 14, 1983, they were aware of the presence in the lease of the “no-pet” provision, and there was no discussion at that time as to whether that provision was going to be enforced. The execution of the new lease, effective April 1, 1983, commenced a new tenancy between the plaintiff and the defendants and, even if there was any waiver with respect to prior periods of tenancy, it could have no application to future breaches of the same covenant. See Club Road Corporation v. Whitehead, 34 Conn. Sup. 580, 378 A.2d 110 (1977).

The trial court therefore erred in determining that the plaintiff was unable to enforce the “no-pet” provision of its lease for the term beginning April 1, 1983, because of the failure by the previous landlord to enforce the same provision in a previous lease.

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

In this opinion the other judges concurred.

       This summary process action was consolidated at trial with two other summary process actions brought by the plaintiff, one against Ada Carattini and the other against Mildred Gonzalez. Appeals were taken from the trial court’s judgment in each case and a motion to combine the cases for the purposes of the appeal was granted. The appeals involving Ada Carattini and Mildred Gonzalez were withdrawn prior to oral argument.

       The plaintiff also claims that the trial court erred in admitting certain evidence, but our disposition of the first claim of error renders it unnecessary to consider that claim. In passing, this court notes that this claim was not properly preserved for appellate review; Practice Book § 3060F (d) (3); Aetna, Life & Casualty v. Miscione of Connecticut, Inc., 193 Conn. 435, 437, 476 A.2d 577 (1984); nor was the claim raised in the plaintiffs preliminary statement of issues. Practice Book § 3012 (a).


text:
    Country Lumber, Inc. v. Newington Builders Finish Co. et al. Clive Radway et al. v. Karlis Zalcmanis et al.
    (2592)
    (2672)
    Dupont, C.P.J., Hull and Spallone, Js.
    Argued April 3—decision
    released July 30, 1985

      Michael D. O’Connell, with whom, on the brief, was Marcel J. Bernier, for the appellants (defendants in the first case, plaintiffs in the second case Clive Radway et al.).

      Joseph Glass, for the appellee (plaintiff in the first case).

      John J. Quinn, for the appellee (defendant in each case Frazao Construction Co., Inc.).

      William J. Bumster, filed a brief for the appellee (named defendant in the second case).
   Spallone, J.

These are combined appeals from judgments in two cases which involve common questions of law and fact. In Radway v. Zalcmanis, the plaintiffs, Clive and Joan I. Radway brought an action to quiet title against several corporate defendants all of which held encumbrances on real estate owned by the plaintiffs. In that action, the trial court found all but one encumbrance to be valid claims on the title of the plaintiffs in the subject property.

The other case, Country Lumber, Inc. v. Newington Builders Finish Co., was an action to foreclose a judgment lien on the property in question. In that action, Clive and Joan I. Radway, State Bank for Savings, the mortgagee of the property, and the remaining encumbrancers were defendants. The trial court granted Country Lumber, Inc.’s motion for summary judgment as to liability only and rendered judgment of strict foreclosure.

The defendants Clive and Joan I. Radway and State Bank for Savings have appealed from the judgment of strict foreclosure. The plaintiffs, Clive and Joan I. Radway, have also appealed from the judgment in the quiet title action.

When the chain of events leading to the original law suits was set in motion, Optimo Realty (vendor) was the owner of the realty in question. As vendor, it entered into a contract of sale and a lease with Neville and Carmen Bryden (vendees). The total purchase price for the real estate was $45,474.78. The vendees paid the vendors a deposit of $9474.78.

On March 26, 1976, a bond for deed reciting the agreement of sale between the parties and a notice of lease were duly recorded on the land records of the town of Windsor. Subsequent to the recording of these documents, the defendants brought sundry actions against the vendor and filed various encumbrances upon the vendor’s interest in the real estate.

Later, the vendor delivered a warranty deed to the vendees which conveyed the real estate to the vendees, but which was silent as to the recorded encumbrances. The vendees recorded the conveyance on the land records. Approximately two years later, the vendees, also by warranty deed, conveyed the real estate to Clive and Joan I. Radway who in turn gave a first mortgage to the State Bank for Savings. All transactions were duly recorded on the land- records. The deed tendered by the vendees was also silent as to the encumbrances placed upon the realty.

The central and controlling issue before this court is whether the execution of a lease coupled with a bond for deed divests the vendor of an attachable interest in the subject real estate.

The very same issue was before the Appellate Session of the Superior Court in Eugene Steinberg Co. v. Zalcmanis, 38 Conn. Sup. 452, 454, 450 A.2d 1170 (1982). There the court determined: “The agreement between the parties was a long term sales contract ‘in which the buyer [was] in possession and the seller retained] the title.’ 7 Casner, American Law of Property § 16.20. By executing the lease and bond for deed, Optimo did no more than relinquish possession of the property; at the time of the plaintiff’s attachment, Optimo Realty retained full right, title and interest in the property.” Id. Although we recognize that a bond for deed gives the holder an equitable title; see 8A Thompson, Real Property § 4441; we find the underlying reasoning and conclusion of the court in that case compelling and dispositive of the claims of error in the present case. The judgment lien of Country Lumber, Inc., which related back to the date of its attachment, was both valid and superior to the Radways’ equitable interests as they appeared in the foreclosure action. See Eugene Steinberg Co. v. Zalcmanis, supra. So, too, the Rad way s’ interest in the action to quiet title was subject to the interests of the defendants in that action as manifested by the defendants’ timely and duly recorded encumbrances.

The trial court’s conclusions are supported by the evidence and we cannot say that its conclusions were clearly erroneous. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); Practice Book § 3060D.

There is no error on either appeal.

In this opinion the other judges concurred.


author: Dupont, C.P.J.

text:
    Yale Literary Magazine et al. v. Yale University et al.
    (2643)
    (2959)
    Dupont, C.P.J., Borden and Daly, Js.

      Argued March 13—decision
    released July 30, 1985

      John R. Williams, with whom, on the brief, was Sue L. Wise, for the appellants (Andrei Navrozov and American Literary Society, Inc.).

      William J. Doyle, with whom was Mark R. Kravitz, for the appellees (defendants).
   Dupont, C.P.J.

This appeal arises from a judgment rendered by the trial court in favor of Yale University and several of its officials (hereinafter Yale University) on their counterclaim, in which they sought an injunction to restrain the use of the name “Yale” in the title of a publication called “Yale Literary Magazine.” To put the issues and the underlying facts in perspective, an examination of the procedural history of the present action is required. This action was originally commenced in 1982 by Andrei Navrozov and the Yale Literary Magazine. They sought injunctive relief against Yale University in connection with the continued use of the name “Yale” in the title of their publication. Specifically, an order was sought enjoining Yale University from requiring Yale Literary Magazine to register as an undergraduate organization.

Yale University answered, interposed special defenses, and counterclaimed against Navrozov and American Literary Society (hereinafter Society), the corporate publisher of Yale Literary Magazine. In 1983, the complaint was withdrawn. Thereafter, Society joined Navrozov in treating Yale University as the plaintiff in the action, by jointly filing an answer, special defenses and counterclaims to Yale University’s supposed complaint. Two years prior to the commencement of this action, Yale University entered into an agreement with Navrozov and Society allowing them to continue to publish the Yale Literary Magazine provided they register as an undergraduate organization. Yale University’s counterclaim was based upon the alleged breach of the terms of that agreement. Upon the trial of the action, the counterclaim of Yale University was treated as the complaint, and Yale University was considered the plaintiff.

On appeal, Navrozov and Society raise and brief ten claims of error. They are whether the trial court erred (1) in striking the case from the jury docket, (2) in refusing to permit an attorney, licensed by another state, to be admitted pro hac vice, (3) in proceeding to trial where an appeal was taken from that refusal, (4) in granting Yale University injunctive relief in the absence of proof that an irreparable injury was sustained, (5) in applying general contract law to the agreement in question, (6) in finding that the agreement did not violate the rule against perpetuities, (7) in rulings on the evidentiary claims pressed by the parties, (8) in failing to decide whether the special defenses interposed of impossibility of performance and frustration of purpose were proven, (9) in issuing impermissibly broad injunctive relief, and (10) in finding facts not supported by the evidence. Many of the claims of error pressed do not require an extensive discussion.

Society and Navrozov claim that the trial court made various erroneous evidentiary rulings. No appellate review of those claims is possible. Practice Book § 3060F (d) (3). The claim of error involving the special defenses of impossibility of performance and frustration of purpose are likewise not properly preserved for appellate review since the defendants failed to move for a further amplification or clarification from the trial court. Newington v. General Sanitation Service Co., 196 Conn. 81, 84, 491 A.2d 363 (1985). The trial court’s memorandum of decision notes that Society’s and Navrozov’s special defenses included frustration of the contract. The trial court, in its memorandum of decision, expressly held that they failed to sustain their burden of proof as to all the special defenses. If they desired a further amplification or clarification of the trial court’s decision on these points, they should have sought a further articulation from the trial court. Id. In the absence of such a request, the trial court did not err.

Society and Navrozov also claim that the trial court erred in granting Yale University injunctive relief in the absence of evidence establishing irreparable injury. Tied to this argument is the notion that the plaintiff is proceeding pursuant to a common law cause of action for unfair competition. See Yale University v. Benneson, 147 Conn. 254, 159 A.2d 169 (1960). Yale University’s action sounds in contract and the special defenses interposed thereto concern contracts. Cases are reviewed on the theory upon which they are tried and decided. Fuessenich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985). The decisional law relevant to this matter involves the enforcement of contractual provisions restricting the use of a trade name. Injunctive relief in such situations has been granted. Overhead Door Corporation v. Nathanson, 291 F. Sup. 961, 963 (W.D.N.C. 1968); see T & T Mfg. Co. v. A. T. Cross Co., 449 F. Sup. 813, 823-26, (D.R.I. 1978), aff’d, 587 F.2d 533 (1st Cir. 1978), cert. denied sub nom. A. T. Cross Co. v. Quill Co., 441 U.S. 908, 99 S. Ct. 2000, 60 L. Ed. 2d 377 (1979); Mozzochi v. Luchs, 35 Conn. Sup. 19, 391 A.2d 738 (1977).

Society and Navrozov argue that clause 10 of the certificate of incorporation of Society, by which Yale University has the right to revoke Society’s permission to use the “Yale” name, violates the rule against perpetuities. Society and Yale University are charitable organizations and as such the rule against perpetuities does not apply to them. City National Bank v. Bridgeport, 109 Conn. 529, 544, 147 A. 181 (1929); Pierce v. Phelps, 75 Conn. 83, 86, 52 A. 612 (1902).

Society and Navrozov contend that the trial court misapplied the relevant law of contracts since it failed to account for the fiduciary capacity in which Yale University dealt with the other parties. This argument was not distinctly raised below and need not be reviewed. Practice Book §§ 3063, 285A; Farmington Savings Bank v. Zoning Board of Appeals, 189 Conn. 727, 739-40, 458 A.2d 1151 (1983).

Navrozov and Society claim the trial court erred in finding facts not supported by the evidence. Wholesale attacks on the trial court’s finding of facts have been repeatedly criticized by this state’s appellate courts. Toffolon v. Avon, 173 Conn. 525, 527, 378 A.2d 580 (1977); Dick v. Dick, 167 Conn. 210, 212, 355 A.2d 110 (1974); American Frozen Foods, Inc. v. International Brotherhood of Teamsters, 3 Conn. App. 300, 301-302, 487 A.2d 570 (1985). In this case, the facts found by the trial court were supported by the evidence.

Society and Navrozov argue that the trial court was divested of its jurisdiction in the present action when they appealed the trial court’s refusal to admit an out of state attorney to appear pro hac vice. Their claim is that the trial court committed error in proceeding to a trial on the merits. Yale University claims that the refusal to admit an out of state attorney to appear pro hac vice is not an immediately appealable order and that, even if the order was immediately appealable, the stay of execution provided in Practice Book § 3065 does not apply to this situation. It further argues that even if an appellate stay applied to this situation, the trial of the action was harmless error since the trial court held that the appeal was frivolous and taken only to delay the proceedings.

The threshold question of the immediate appealability of such an order must first be addressed because challenges to the trial court’s jurisdiction to hear a matter must be resolved before considering the other issues presented on appeal. See Sullivan v. Board of Police Commissioners, 196 Conn. 208, 213, 491 A.2d 1096 (1985).

Society and Navrozov rely on Silverman v. St. Joseph’s Hospital, 168 Conn. 160, 363 A.2d 22 (1975), as authority for the proposition that the denial of a motion for an attorney to appear pro hac vice is immediately appealable. Our Supreme Court’s denial of a motion to dismiss for lack of a final judgment filed in response to an appeal from the denial of a pro hac vice motion is also relied upon. Penebre v. Eli Lilly & Co., No. 11864 (1983) (unreported order on motion to dismiss, appeal later withdrawn); see Moller & Horton, Connecticut Practice (8th Ed. 1985), p. 44.

In Silverman v. St. Joseph’s Hospital, supra, 169-70, the court expressed its reluctance to entertain an appeal from the denial of such a motion but addressed the merits of the claim due to the unique circumstances involved in that action. That Silverman is not authority for the proposition that the denial of a motion to appear pro hac vice is immediately appealable is revealed by the court’s following comment: “If that judgment was a final judgment, then the time for filing the appeal was under the provisions of § 601 of the Practice Book limited to twenty days. If, on the other hand, the appeal is considered to be permissible under the provisions of § 604 of the Practice Book as a judgment disposing of part of the issues, it was incumbent upon the plaintiff to file notice of the appeal within twenty days. A notice of appeal was not filed until May 23,1973, almost exactly a year late. Despite the existence of all of these complications, we have, not without considerable hesitation and reluctance, decided to entertain the present appeal.” Id., 169-70.

The reliance on the summary denial of a motion to dismiss an appeal taken from a trial court’s refusal to admit an attorney pro hac vice is misplaced. Our Supreme Court, just recently, summarily denied a motion to dismiss appeals for lack of final judgments, but decided to dismiss those appeals because of the absence of a final judgment after oral argument on the merits was presented. Pendiman Corporation v. White Oak Corporation, 195 Conn. 393, 397 n.2, 488 A.2d 449 (1985).

Since Silverman v. St. Joseph’s Hospital, supra, was decided, Connecticut’s appellate courts have reviewed a ruling on the denial of a motion to appear pro hac vice after a judgment on the merits in the action was rendered. Enquire Printing & Publishing Co. v. O’Reilly, 193 Conn. 370, 477 A.2d 648 (1984); State v. Reed, 174 Conn. 287, 386 A.2d 243 (1978); State v. Moffett, 38 Conn. Sup. 301, 444 A.2d 239 (1981). Jurisdictional challenges based on the timeliness of appealing such an issue were not interposed in those cases. Practice Book §§ 3000 and 3001. Consequently, whether such an order is immediately appealable was not addressed in those cases, although in Enquire Printing & Publishing Co. v. O’Reilly, supra, a claim was advanced, on different grounds, that the trial court’s ruling on the pro hac vice motion was not properly before the court.

In Enquire Printing & Publishing Co. v. O’Reilly, supra, the court readily analogizes to the decisional law within the state on the disqualification of counsel in an action. Subsequent to the decision in the latter case, the United States Supreme Court decided the question of the appealability of a trial court order disqualifying counsel in a criminal matter, and held that it was not immediately appealable. Flanagan v. United States, 465 U.S. 259, 104 S. Ct. 1051, 79 L. Ed. 2d 288 (1984). Previously there had been a split among the United States Circuit Courts of Appeals on this issue. The Second Circuit had held the disqualification of counsel was immediately appealable. United States v. Curcio, 694 F.2d 14 (2d Cir. 1982). Connecticut has previously followed the decisional path of the United States Supreme Court on the denial of a motion to disqualify counsel. State v. Rapuano, 192 Conn. 228, 229 n.1, 471 A.2d 240 (1984); State v. Powell, 186 Conn. 547, 552 n.8, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982). In fact, the latter case extended the holding in Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373-79, 101 S. Ct. 669, 66 L. Ed. 2d 571 (1981), where the Supreme Court held that the denial of a motion to disqualify counsel in a civil action was not immediately appealable, to disqualifications in criminal actions as well as civil actions. Subsequent to the decision in Flanagan, the United States Supreme Court held that disqualification of counsel in a civil proceeding because of a trial court’s revocation of counsel’s admission to appear pro hac vice was not immediately appealable. Richardson-Merrell, Inc. v. Roller, 472 U.S. 424, 105 S. Ct. 2757, 86 L. Ed. 2d 340 (1985). Connecticut has not distinguished the denial of a motion to disqualify an attorney on the basis of whether the proceeding is civil or criminal in the context of deciding the appealability of such a ruling. State v. Rapuano, supra, 229 n.1. “The granting of a motion to disqualify an attorney is . . . an appealable final judgment.” Id. The court relies on two decisions on that issue in the context of a civil proceeding for authority for the proposition that a disqualification in a criminal proceeding is an appealable final judgment. Connecticut historically has not distinguished cases on the basis of whether they are a criminal or a civil proceeding in concluding whether an immediate appeal lies from the trial court’s action on a motion to disqualify.

In light of the United States Supreme Court’s opinions in Flanagan v. United States, supra, and in Richardson-Merrell, Inc. v. Roller, supra, this court, therefore, believes that the Connecticut Supreme Court would, as it has in the past, change its position on the appealability of a disqualification of an attorney. The interest of a litigant affected by the denial of a motion pro hac vice and the granting of a disqualification of an attorney are identical. Both involve the loss of the right to employ counsel of one’s choice and, therefore, if one is not immediately appealable then neither is the other. See DiLuzio v. United Electrical, Radio & Machine Workers of America, Local 274, 391 Mass. 211, 461 N.E.2d 766 (1984). Counsel for Society and Navrozov at oral argument analogized a motion to disqualify to a motion pro hac vice.

Further, an otherwise interlocutory order is solely appealable “(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Although this test was articulated in the context of an interlocutory appeal in a criminal proceeding, it has been applied with equal force to civil proceedings. Barboto v. J. & M. Corporation, 194 Conn. 245, 247-48, 478 A.2d 1020 (1984). Federal appellate procedure similarily limits immediate appellate review of interlocutory orders. In federal practice, the trial court’s interlocutory order to be subject to immediate appellate review must satisfy at least three conditions. “First, it ‘must conclusively determine the disputed question’; second, it must ‘resolve an important issue completely separate from the merits of the action’; third, it must ‘be effectively unreviewable on appeal from a final judgment.’ ” Flanagan v. United States, supra, 1055. The United States Supreme Court held that the disqualification of counsel is not immediately appealable because it does not resolve an issue completely separate from the merits of the action. Richardson-Merrell, Inc. v. Roller, supra; Flanagan v. United States, supra.

The denial of a motion pro hac vice consequently does not terminate a separate and distinct proceeding. The three decisions of this state’s appellate courts which consider, after a trial on the merits, the trial court’s denial of a motion to admit an attorney pro hac vice dispel any notion that such an order falls within the purview of the second criterion in Curdo. Since we conclude that an immediate appeal does not lie from the trial court’s refusal to admit an attorney pro hac vice, we also conclude that the trial court had jurisdiction to proceed to the trial on the merits. It is unnecessary to consider the other alternative grounds proffered by Yale University on which the trial court’s action may be upheld.

The defendant also claims that the trial court erred in refusing to allow an out-of-state attorney to appear pro hac vice. A request to appear pro hac vice should be granted “unless some legitimate state interest is thwarted by admission of the out-of-state attorney.” Enquire Printing & Publishing Co., v. O'Reilly, supra, 375.

Certain facts are relevant to this issue. The present action was commenced in the fall of 1982 by Navrozov. After the action had proceeded for about six months, Navrozov dismissed the Connecticut counsel who had commenced the action and retained other Connecticut counsel who substantially altered the state of the pleadings. Prior to the new local counsel entering the case, Robert D’Agostino had acted as a consultant to the former counsel. In October of 1983, on the eve of trial, the motion to allow D’Agostino to appear pro hac vice was denied by the court.

D’Agostino’s affidavit in support of the motion discloses that he is a member in good standing of two state bars, that he has served as a consultant to attorneys practicing in seven states, that he acted only as a consultant to other attorneys and did not accept private clients, although here he was willing to join as cocounsel. The local counsel’s affidavit in support of the motion avers that he believes this action can not be fairly tried by one attorney, that D’Agostino has a specialized knowledge of the law involved in this case, that the clients are unable to pay any further legal expenses, and that the legal services provided by D’Agostino are on a pro bono basis.

The transcript of the hearing on the motion reveals that D’Agostino was a professor of law, whose contractual relationship with his employer prevented him from working directly with clients. The trial court rendered a decision from the bench denying the motion. It then stated that it had concluded, after examining the pleadings in the action and listening to arguments pressed by local counsel, that it was quite impressed with the local counsel’s capabilities. The trial court also denied a request to permit D’Agostino to sit at counsel table since Yale University’s counsel objected to that procedure.

Navrozov and the Society attack the trial court’s conclusion that pursuant to Practice Book § 24 they failed to show good cause for the granting of the motion. Nonetheless, they did not move for further articulation or clarification of the trial court’s ruling pursuant to Practice Book § 3082. See Newington v. General Sanitation Service Co., 196 Conn. 81, 84, 491 A.2d 363 (1985).

The trial court’s resolution of this issue was draconian since it denied the request to allow D’Agostino to sit at counsel table and, immediately thereafter, in response to a request by the local counsel for a short recess to consult with D’Agostino, declared such interruptions in the flow of the case would not be tolerated.

The legitimate state interest thwarted by the admission of an out-of-state attorney, sufficient to overcome the litigant’s right to have counsel of his choice, generally involves ethical problems caused by allowing out-of-state counsel to appear. In Enquire Printing & Publishing Co. v. O’Reilly, supra, 374-75, the court provided citations to cases demonstrating a legitimate state interest. Two of those cases, State v. Rapuano, supra, and United States v. Curcio, supra, concerned possible violations of Disciplinary Rules of the Code of Professional Responsibility. Enquire also involves a denial upheld on that same ground. The other example of a legitimate state interest proferred in that case is the control of the court’s docket. United States ex rel. Spurlark v. Wolff, 683 F.2d 216, 220 (1982), aff’d in part, rev’d in part, 699 F.2d 354 (7th Cir. 1983). Here, the record does not reveal that the admission of D’Agostino would have adversely affected the trial court’s control of its docket, and does not, on its face, present a legitimate state interest which would be served by denying the motion to appear pro hac vice. The trial court, therefore, erred in denying the motion.

Whether a civil litigant’s right to counsel is constitutionally protected, as intimated in Enquire Printing & Publishing Co. v. O’Reilly, supra, therefore causing the erroneous denial of a pro hac vice motion to be harmful error per se; see State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980); need not be decided in this case. Navrozov, a party to the lawsuit, chairman of the board and chief operating officer of Society, refused to testify because of the court’s denial of the motion, despite being subpoenaed by Yale University. The Massachusetts Supreme Judicial Court has addressed the constitutional argument suggested in Enquire Printing & Publishing Co. v. O’Reilly, supra, 374 n.8, protecting a civil litigant’s choice of counsel and found the argument unpersuasive where the litigant has effective access to the courts through representation by local counsel. DiLuzio v. United Electrical, Radio & Machine Workers of America, Local 294, supra, 219; see Thoma v. A.H. Robins Co., 100 F.R.D. 344 (D.N.J. 1983); annot., 20 A.L.R.4th 855.

In light of the action of Navrozov in refusing to testify, this court cannot say that the error affected the result. Manning v. Michael, 188 Conn. 607, 611, 452 A.2d 1157 (1982). Navrozov, as an officer and director of the corporation, has a fiduciary relationship with the corporation and its stockholders. Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 407, 456 A.2d 325 (1983). The actions of Navrozov as a fiduciary are binding on those he represents. Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 147, 470 A.2d 246 (1984). This sanction applies to the corporation as well as to Navrozov individually. Id. The error of the trial court under these circumstances was harmless.

Society and Navrozov also argue that the trial court erred in striking the present action from the jury docket. The parties agree that the trial court correctly relied on Franchi v. Farmholme, Inc., 191 Conn. 201, 464 A.2d 35 (1983). That case provided: “The United States constitutional guarantee of a right to a jury trial established by the seventh amendment applies only in the federal courts.” Id., 209 n.11. Under the Connecticut constitution, only where distinct issues triable to a jury in 1818 are presented in an equitable action is there a constitutional right to a jury trial. Id., 210.

“Our case law has spoken to the resolution of factual issues in the context of actions essentially equitable or essentially cognizable at law. In National Bank of Commerce of New London v. Howland, [128 Conn. 307, 310, 22 A.2d 773 (1941)], we said: ‘Where incidental issues of fact are presented in an action essentially equitable, the court may determine them without a jury in the exercise of its equitable powers. Doris v. McFarland, 113 Conn. 594, 608, 156 Atl. 52 [1931]. Where, however, the essential basis of the action is such that the issues presented would be properly cognizable in an action at law, either party has a right to have the legal issues tried to the jury, even though equitable relief is asked in order to give full effect to the legal rights claimed; Berry v. Hartford National Bank & Trust Co., 125 Conn. 615, 618, 7 Atl. (2d) 847 [1939]; LaFrance v. LaFrance, 127 Conn. 149, 152, 14 Atl. (2d) 739 [1940] ....’” Franchi v. Farmholme, Inc., supra, 210-11.

Yale University’s action seeks specific performance of the contract which is essentially an equitable remedy. Dick v. Dick, 167 Conn. 210, 221-22, 355 A.2d 110 (1974). Further, Yale University sought relief into the future. The action was equitable in nature. Id. The trial court did not err in finding that Yale University’s action was not triable to a jury as a matter of right.

Society and Navrozov interposed special defenses to Yale University’s action and also made various claims against Yale University. An examination of the pleadings filed by Society and Navrozov reveal the action was essentially equitable. They interposed a special defense alleging fraud, an equitable defense. 27 Am. Jur. 2d., Equity § 20. In addition, they asserted an equitable defense alleging duress or undue influence. 27 Am. Jur. 2d, Equity § 22. Their claim that a defense of lack of consideration here interjected an issue triable to the jury is disposed of by Dick v. Dick, supra, 224-27. Further, an examination of Society’s and Navrozov’s action against Yale University fails to reveal any distinct issues triable to a jury which were presented in this essentially equitable action. The trial court, therefore, did not err in striking the case from the jury docket.

There is no error.

In this opinion the other judges concurred.

         To avoid confusion, throughout the course of this opinion the names of the parties will be used instead of the terms plaintiff and defendant.

       Their preliminary statement of issues raised thirty-nine issues. Those claims which have not been briefed are deemed abandoned. County Federal Savings & Loan Assn. v. Eastern Associates, 3 Conn. App. 582, 583 n.l, 491 A.2d 401 (1985). Two appeals were taken in this action. For the purposes of printing the record and oral argument the appeals were combined.

       Practice Book § 3060F (d) (3) provides in pertinent part: “When error is claimed in any other ruling in a court or jury case, the brief or appendix shall include . . . 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.”

         The appellate counsel in his brief has made numerous derogatory remarks about the skill and character of the local counsel who tried the case in the trial court, all of which are totally unsubstantiated by anything in the record. He has also included unfounded derogatory remarks about the trial judge. Comments such as these have no place in appellate practice, and cannot be tolerated. Practice Book § 3096; Pradlik v. State, 131 Conn. 682, 683 n.1, 41 A.2d 906 (1945); Pierce v. Norton, 82 Conn. 441, 442 n., 74 A. 686 (1909).

       A denial of a pro hac vice motion does not preclude the granting of a request to allow out-of-state counsel to sit at the counsel table. State v. Reed, 174 Conn. 287, 386 A.2d 243 (1978).

       Practice Book § 24 provides: “An attorney who is in good standing at the bar of another state, the District of Columbia, or the commonwealth of Puerto Rico, may, upon special and infrequent occasion and for good cause shown upon written application presented by a member of the bar of this state, be permitted in the discretion of the court to participate to such extent as the court may prescribe in the presentation of a cause or appeal in any court of this state; provided, however, that a member of the bar of this state must be present at all proceedings and must sign all pleadings, briefs and other papers filed with the court and assume full responsibility for them and for the conduct of the cause and of the attorney to whom such privilege is accorded. Where feasible, the application shall be made to the judge before whom such cause is likely to be tried. Good cause for according such privilege shall be limited to facts or circumstances affecting the personal or financial welfare of the client and not the attorney. Such facts may include a showing that by reason of a long-standing attorney-client relationship predating the cause of action or subject matter of the litigation at bar, the attorney has acquired a specialized skill or knowledge with.respect to the client’s affairs important to the trial of the cause, or that the litigant is unable to secure the services of Connecticut counsel.”


text:
    Adela Rivera v. Venancio Santiago
    (3070)
    Dupont, C.P.J., Hull and Stodolink, Js.
    Argued April 19—decision
    released July 30, 1985

      Sheryl J. Sha’afi, for the appellant (plaintiff).
   Stodolink, J.

The plaintiff brought an action pursuant to General Statutes § 42a-14h, which provides judicial relief for tenants who claim that their landlords have failed to perform their legal duties as required by § 47a-7 of the General Statutes. The plaintiffs complaint was filed on January 18, 1984. On October 24, 1983, the defendant landlord had caused a notice to quit to be served on the plaintiff tenant. A summary process action was commenced on December 5, 1983, returnable on January 10, 1984.

The trial court dismissed the plaintiffs complaint for lack of jurisdiction since it concluded that the service of a notice to quit terminated the landlord-tenant relationship, which serves as the basis for any action under General Statutes § 47a-14h. The plaintiff has appealed, claiming the trial court erred in concluding that no landlord-tenant relationship existed between the parties because of the pendency of a summary process action.

General Statutes § 47a-l (d) provides that “ ‘[l]and-lord’ means the owner, lessor or sublessor of the dwelling unit or the building of which it is a part.” “ ‘Tenant’ means the lessee, sublessee or person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others or as is otherwise defined by law.” General Statutes § 47a-l (l). A landlord-tenant relationship, in its most common and traditional form, is one in which there is an oral or written rental agreement between the parties containing the terms and the conditions for the use and occupancy of the subject dwelling unit. “A tenancy at sufferance arises when a person who came into possession of land rightfully continues in possession wrongfully after his right thereto has terminated.” Welk v. Bidwell, 136 Conn. 603, 608-609, 73 A.2d 295 (1950).

The issuance by a landlord of a notice to quit is an unequivocal act terminating the lease agreement with the tenant. Termination of the lease does not terminate the tenancy since, upon service of a notice to quit, a tenancy at sufferance is created. Bushnell Plaza Development Corporation v. Fazzano, 38 Conn. Sup. 683, 460 A.2d 1311 (1983). In the present action, the plaintiff became a tenant at sufferance on October 24, 1983, when she was served with a notice to quit. Nonetheless, the landlord-tenant relationship continued.

The statutory obligations of the landlord and tenant continue even when there is no longer a rental agreement between them. After a notice to quit has been served, for example, a tenant at sufferance no longer has a duty to pay rent. He still, however, is obliged to pay a fair rental value in the form of use and occupancy for the dwelling unit. Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 131, 357 A.2d 910 (1975). A landlord also is required to fulfill his statutory obligations, even after a notice to quit has been served on the tenant and a summary process case is begun. Ciavaglia v. Bolles, 38 Conn. Sup. 603, 605-606, 457 A.2d 669 (1982). In that case, funds paid into court during the pendency of a summary process action for use and occupancy were properly partially distributed to hold over tenants in order to reimburse them for sums spent in discharge of obligations imposed on the landlord by virtue of General Statutes § 47a-7. Id., 606.

Although General Statutes §§ 47a-14h and 47a-7 use the terms “tenant” and “landlord,” there is no provision which requires that the relationship between the parties be based solely on a rental contract. The wording of the statutes militates against such a narrow construction. “A statute is to be construed so that all its parts have meaning . . . .” Eagle Hill Corporation v. Commission on Hospitals & Health Care, 2 Conn. App. 68, 75, 477 A.2d 660 (1984).

General Statutes § 47a-14h (g) provides that “[t]he court, in ordering interim or final relief, may order that accrued payments of rent or use and occupancy held by the clerk be used for the repair of the building or be distributed in accordance with the rights of the parties.” (Emphasis added.) Under Connecticut law, use and occupancy, by definition, is an amount equal to fair rental value and payable during the pendency of a summary process action. General Statutes § 47a-3c. It is the amount to which the landlord is entitled after the rental agreement has been terminated but while a tenancy at sufferance exists. Use of that phrase in the statute indicates that a tenancy at sufferance falls within the court’s jurisdiction pursuant to the statute. The trial court, therefore, erred in concluding that it was without jurisdiction to entertain the action.

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

In this opinion the other judges concurred.

       General Statutes § 47a-14h provides in pertinent part: “(a) Any tenant residing at property located in the judicial district of Hartford-New Britain, who claims that his landlord has failed to perform his legal duties, as required by section 47a-7, may, between January 1,1984, and June 30,1985, inclusive, institute an action in the superior court for such judicial district to obtain the relief authorized by this section and sections 47a-20 and 47a-68.
      “(b) The action shall be instituted by filing a complaint, under oath, with the clerk of the court. The complaint shall allege (1) the name of the tenant; (2) the name of the landlord; (3) the address of the premises; (4) the nature of the alleged violation of section 47a-7; and (5) the dates when rent is due under the rental agreement and the amount due on such dates. The complaint shall also allege that at least five days prior to the date on which the complaint is filed, the tenant made a complaint concerning the premises to the municipal agency, in the municipality where the premises are located, responsible for enforcement of the housing code or, if no housing code exists, of the public health code. ...”

       A Connecticut case decided by the Appellate Session of the Superior Court held that defendants who did not pay rent, who were not holding pursuant to a lease agreement, and who did not hold superior title to the premises were not tenants as that term is defined in General Statutes § 47a-1 (l) in the context of General Statutes § 47a-20. Groton Townhouse Apts. v. Covington, 38 Conn. Sup. 370, 448 A.2d 221 (1982).


author: Celotto, J.

text:
    George H. Eversman v. Joanne J. Eversman
    (2688)
    Spall one, Daly and Celotto, Js.
    Argued May 31—decision
    released August 6, 1985

      Samuel V. Schoonmaker III, with whom was Jonathan D. Elliot, for the appellant (defendant).

      Robert M. Wechsler, for the appellee (plaintiff).
   Celotto, J.

The defendant appeals from a judgment dissolving the marriage of the parties and the entry of certain financial orders ancillary thereto.

The plaintiff, who is fifty-five years old, and the defendant, who is fifty-four, were married on December 30,1950. They have raised three children, none of whom is a minor. The plaintiff is a successful executive in the advertising industry and the defendant has been a homemaker during the marriage. On July 6, 1981, the plaintiff filed a complaint seeking a dissolution of the marriage on the basis of irretrievable breakdown. The defendant denied that the marriage had broken down irretrievably. At trial, both parties presented extensive evidence on this issue. The plaintiff testified that the marriage started to deteriorate “approximately fifteen years ago.” The defendant advanced two reasons to support her claim that the marriage had not broken down irretrievably. First, she claimed that she loved her husband. Second, she claimed that the parties had not exhausted the joint exploration of their problems with the assistance of a professional.

Without detailing the testimony of the parties, the trial court stated that “from a complete examination of the evidence, the court finds that the plaintiff has sustained his burden of proof that the marriage has irretrievably broken down. The defendant’s position that the breakdown is not irretrievable is not realistic or reasonable. The plaintiff, by both his statements and actions, has clearly demonstrated that the marriage is no longer viable. The plaintiff left the defendant approximately three years ago and has other living arrangements and plans for the future.” The court also entered a number of financial orders and awards. In doing so, the court noted that it had carefully considered the criteria set forth in General Statutes §§ 46b-81 and 46b-82.

General Statutes § 46b-40 (c) (1) provides that a decree of dissolution of a marriage shall be granted upon a finding that the marriage has broken down irretrievably. The defendant contends that the breakdown of the parties’ marriage was not irretrievable. It is well settled that judicial review of a trial court’s exercise of its broad discretion in domestic relations cases is limited to the questions of whether the trial court correctly applied the law and could reasonably have concluded as it did. Holley v. Holley, 194 Conn. 25, 29, 478 A.2d 1000 (1984). Therefore, this court may only consider whether the trial court could reasonably have concluded that the parties’ marriage had irretrievably broken down.

The term “irretrievably” is not defined in our statutes. In upholding the constitutionality of General Statutes (Rev. to 1977) § 46-32 (now § 46b-40), insofar as it authorizes a dissolution of marriage upon a finding of irretrievable breakdown, our Supreme Court, in Joy v. Joy, 178 Conn. 254, 423 A.2d 895 (1979), made the following relevant observation: “Despite the defendant’s claims to the contrary, the evidence amply supports the trial court’s factual finding of irretrievable breakdown. We decline ... to circumscribe this delicate process of fact-finding by imposing the constraint of guidelines on an inquiry that is necessarily individualized and particularized. ‘Since it is the marriage as a whole which is at issue, any evidence which bears upon the viability of the marriage is admissible, whether it be classified as objective or subjective.’ ” (Citations omitted.) Id., 255.

The determination of whether a breakdown of a marriage is irretrievable is a question of fact to be determined by the trial court. Id., 255-56; Flora v. Flora, 337 N.E.2d 846, 850 n.2 (Ind. App. 1975); Woodruff v. Woodruff 114 N.H. 365, 367, 320 A.2d 661 (1974). In its memorandum of decision, the trial court saw no need to reiterate the testimony of the parties nor will any purpose be served by doing so here. It is sufficient to note that the plaintiff testified to numerous extramarital affairs and to his belief that the marriage had been deteriorating for approximately fifteen years. He further testified that, at the time of trial, he was living with another woman whom he wished to marry. Finally, the evidence disclosed that while some attempts were made at joint and individual counselling in 1981, those efforts proved unsuccessful.

The fact that the defendant maintains hope for reconciliation will not support a finding that there are prospects for a reconciliation. McCoy v. McCoy, 236 Ga. 633, 634, 225 S.E.2d 682 (1976); see In re Dunn, 13 Or. App. 497, 511 P.2d 427 (1973). A difference, to be irreconcilable, need not necessarily be so viewed by both parties. Id.; see In re Marriage of Baier, 39 Colo. App. 34, 561 P.2d 20 (1977) (evidence supported finding of irretrievable breakdown even though husband claimed strong attachment to wife and that difficulties could be resolved by counseling). We conclude that the defendant failed to demonstrate that the trial court abused its discretion in finding that the marriage had broken down irretrievably. See Yontef v. Yontef, 185 Conn. 275, 279, 440 A.2d 899 (1981).

The defendant also argues that the trial court abused its discretion in its orders with respect to the marital residence, the division of property, and alimony. “ ‘With respect to the financial awards in a dissolution action, great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence.’ Moreover, ‘the power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.’ Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975) . . . .” (Citations omitted.) Holley v. Holley, supra, quoting Anderson v. Anderson, 191 Conn. 46, 57, 463 A.2d 578 (1983). In making its financial awards, the trial court must consider the statutory criteria; General Statutes §§ 46b-81 and 46b-82; but it need not make express findings as to each one. Carpenter v. Carpenter, 188 Conn. 736, 740, 453 A.2d 1151 (1982); Osborne v. Osborne, 2 Conn. App. 635, 642, 482 A.2d 77 (1984). “It is free to weigh the relevant statutory criteria without having to detail what importance it has assigned to the various statutory factors. Tutalo v. Tutalo, 187 Conn. 249, 251-52, 445 A.2d 598 (1982).” Katreczko v. Katreczko, 1 Conn. App. 686, 688, 475 A.2d 323 (1984).

The memorandum of decision in this case indicates that the trial court properly considered and weighed the statutory factors in making its financial awards. As we have noted, in order to conclude that the trial court abused its discretion, we must find that the trial court either incorrectly applied the law or could not reasonably conclude as it did. Holley v. Holley, supra. The facts of this case do not warrant such a result.

The defendant’s specific claims are that the trial court abused its discretion (1) in ordering her to pay the plaintiff $110,000 for his interest in the family home, (2) in awarding her only two 1977 Pinto automobiles from the marital property and (3) in awarding her only $4500 per month in alimony. With respect to the order regarding the family residence, the trial court noted, in response to a motion for articulation filed by the defendant: “The Court may have misled the parties by indicating in its decision that ... it arrived at an 80/20 percent distribution . . . based on the contributions the parties made .... The Court considered all the criteria set forth in the appropriate statute and reached its conclusion of 80/20 percent based on all the statutory criteria, not just the contributions by both parties.” A review of the record, including the financial affidavits of the parties, indicates that the trial court could reasonably allocate $110,000 to the plaintiff for his interest in the family residence.

With regard to the division of property and award of alimony, we note that we do not review any single order without examining it in the context of all of the other orders as well as the assets and liabilities of both parties. Wolk v. Wolk, 191 Conn. 328, 333, 464 A.2d 780 (1983). Thus, we may properly consider the liabilities of the plaintiff, including the fact that at the time of trial, he was paying for the college education of one of the children. See id., 333. The financial affidavits reveal that both parties have considerable assets and liabilities. Because of the trial court’s distinct advantage over this court in terms of its proximity to the parties and to the evidence which serves as a basis for alimony and property assignment decisions; Gallo v. Gallo, 184 Conn. 36, 50, 440 A.2d 782 (1981); only in rare cases will a disappointed litigant be able to demonstrate abuse of a trial court’s broad discretion. Yontef v. Yontef, supra. On the basis of the evidence in this case, the trial court could reasonably conclude as it did.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).


text:
    Frank Rivera v. Administrator, Unemployment Compensation Act, et al.
    (3238)
    Spallone, Daly and Celotto, Js.
    Argued May 31—decision
    released August 6, 1985

      Thomas F. Brown, with whom, on the brief, was Vincent Villano, for the appellant (plaintiff).

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (named defendant).
   Celotto, J.

The plaintiff appeals from a judgment of the Superior Court dismissing his appeal from the denial of his request for unemployment benefits.

The plaintiff was terminated from his employment on June 24,1982. On June 19,1981, and May 4,1982, the plaintiff received written and oral reprimands for poor work attendance. On June 6, 1982, the plaintiff sustained personal injuries as a result of being struck by an automobile. The plaintiff underwent medical treatment for his injuries on five occasions between June 8 and July 1, 1982.

The plaintiff asked his brother, who worked for the same employer, to inform the employer that the plaintiff had been in an accident and that he would not report to work on June 7. The plaintiffs brother did not advise the employer of the accident until June 8. The plaintiff did not contact his employer until June 11, on which date he phoned the plant manager and told him that he would return to work on June 14. The plaintiff did not contact his employer subsequent to June 11, and he was terminated on June 24 for failing to return to work on June 14.

On July 29,1982, the administrator denied unemployment compensation benefits to the plaintiff on the ground that the plaintiff left work voluntarily and without sufficient cause. On August 27, 1982, the appeals referee affirmed the denial of benefits. The appeals referee concluded, however, that the plaintiff was discharged from his employment for repeated acts of wilful misconduct, pursuant to General Statutes § 31-236 (2) (B). On October 15, 1982, the board of review affirmed the decision of the appeals referee. On March 22, 1983, the Superior Court, Cretella, J., remanded the case to the appeals referee for proceedings de novo, and for further proceedings on the record. Subsequent to the rehearing, the appeals referee again affirmed the denial of benefits. The decision of the appeals referee, which was affirmed by the board of review, was again based on General Statutes § 31-236 (2) (B) concerning discharge from employment for repeated acts of wilful misconduct.

On May 1, 1984, the Superior Court, Reynolds, J., dismissed the plaintiff’s appeal, finding that the referee’s conclusions were supported by the findings of fact and that a review of the record did not support a conclusion that the referee acted unreasonably, arbitrarily or illegally.

In this appeal, the plaintiff claims that the appeals referee erred (1) in failing to find that when the plaintiff called his employer on June 11 he told the employer that he “might” return to work on June 14, not that he “would” return to work on June 14, (2) in failing to find that from June 11 to June 14 the plaintiff was bedridden, went to visit a doctor on June 16, and asked his brother to report this fact to his employer, and (3) in finding that the plaintiff was not totally disabled during his absence from work. Thus, the plaintiff contends that he did not leave suitable work voluntarily and without sufficient cause, and that he did not engage in repeated acts of wilful misconduct. See General Statutes § 31-236 (2) (A).

In unemployment compensation cases, the court is bound by the referee’s findings of fact: “In appeals of this nature, the Superior Court does not try the matter de novo. It is bound by the findings of subordinate facts and the reasonable conclusions of fact made by the appeals referee, where, as is true here, the board of review adopted the findings and affirmed the decision of the referee. . . . The court’s function is to determine, on the record, whether the referee acted unreasonably, arbitrarily or illegally. Conclusions of law reached by the referee must stand if they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Citations and footnote omitted.) Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 4-5, 434 A.2d 293 (1980). Insofar as the plaintiff’s appeal is directed to the factual findings of the appeals referee, appellate review is limited to determining whether these factual conclusions were reasonably and logically drawn. Guevara v. Administrator, 172 Conn. 492, 495-96, 374 A.2d 1101 (1977); Stapleton v. Administrator, 142 Conn. 160, 165, 112 A.2d 211 (1955). A review of the proceedings indicates that the factual conelusions of the referee, adopted by the board of review, were both reasonable and logical. See Goranson v. Administrator, 3 Conn. App. 420, 488 A.2d 849 (1985).

On the basis of the evidence presented, the appeals referee found that the plaintiff was terminated for unreported absences. In light of the plaintiff’s poor work attendance record, the referee concluded that the plaintiff was guilty of “wilful misconduct” in failing properly to notify his employer of his absence.

General Statutes § 31-236 (2) (B) provides that an individual shall be ineligible for benefits if he was discharged for “repeated wilful misconduct” in the course of his employment. “ ‘Wilful’ implies bad purpose, wantoness and reckless indifference.” Lazarcheck v. Administrator, 1 Conn. App. 591, 594, 474 A.2d 465 (1984). “Misconduct” is “an act of wanton or wilful disregard of the employer’s interest or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to the employer.” Id., 594-95; Sturges v. Administrator, 27 Conn. Sup. 215, 218, 234 A.2d 372 (1966). “Repeated” is defined as “again and again.” Lazarcheck v. Administator, supra, 595, quoting Webster, Third New International Dictionary.

Under the facts of this case, the appeals referee could reasonably and logically have concluded that the plaintiff was guilty of .“wilful misconduct.” See Hannon v. Administrator, 29 Conn. Sup. 14, 269 A.2d 80 (1970).

In Hannon, wilful misconduct was found to exist where, during a fifteen month period, the plaintiff was absent from work on twenty-nine separate occasions despite receiving four warnings. On his most recent absence, the plaintiff was terminated. The plaintiff claimed that his absences were due to illness, but he did not seek medical advice or report his illness to the employer’s medical department.

In the present case, the plaintiff was absent without properly notifying the employer. This absence occurred despite two prior warnings issued to the plaintiff regarding his poor work attendance. Thus, the appeals referee could have concluded that the plaintiff’s absence amounted to wilful misconduct. While the incident giving rise to the plaintiff’s termination occurred during his absence as a result of the automobile accident, the prior warnings were properly considered in establishing the plaintiff’s awareness of the situation. The referee’s conclusion that the plaintiff had engaged in repeated wilful misconduct was supported by the subsidiary facts found and was not unreasonable or arbitrary.

There is no error.

In this opinion the other judges concurred.


author: Kulawiz, J.

text:
    Brian L. Dingwell et al. v. Town of Litchfield
    (2717)
    Borden, Daly and Kulawiz, Js.
    Argued April 25—decision
    released August 6, 1985

      Donald R. Holtman, with whom, on the brief, was Dean F. Radke, for the appellant (defendant).

      E. Seward Stevens, for the appellees (plaintiffs).
   Kulawiz, J.

The plaintiffs brought this action seeking injunctive relief and damages against the town of Litchfield incident to the town’s maintenance of a public landfill operation adjacent to the plaintiffs’ property. The plaintiffs allege that the landfill constitutes a nuisance and has damaged them by polluting their well and contaminating their water supply. The trial court, Hon. Robert A. Wall, state trial referee, rendered a judgment awarding damages to the plaintiffs due to the contamination and enjoining the town “from continuing the nuisance and [ordering it] to take such corrective measures to enable the plaintiffs to be free from contamination emanating from the landfill . . . .” From that judgment, the town has appealed.

There is little dispute concerning the facts. The town has operated a sanitary landfill on Little Pitch Road for over fifty years. The landfill, which is located far from the center of town, is the only landfill, public or private, in the town.

In 1980, the plaintiffs purchased land adjacent to the landfill. They built a house on their land and, as part of the construction, had a well dug on their property. Several months thereafter, the water from the well was determined to be impotable and polluted. The plaintiffs had to close the well and obtain water from neighbors.

The well was found to be contaminated by leachate, an inevitable by-product of landfill operations. While the production of leachate is controllable to a certain extent, it cannot be entirely eliminated. The Connecticut department of environmental protection (DEP) has issued a pollution abatement order with respect to the town’s landfill. Even though the landfill operation is being closed, leachate therefrom will still be produced and will contaminate streams in the area for at least a generation.

The trial court found that the plaintiffs’ well was contaminated by leachate from the defendant’s landfill. It found that this condition was created and maintained by the town and determined that the condition was an absolute nuisance under the common law. The trial court further found that the nuisance arose from the town’s violation of environmental protection laws, specifically General Statutes § 22a-427, formerly § 25-54Í, which prohibits a person or municipality from causing pollution to the waters of the state.

The town challenges both bases of the trial court’s decision in its appeal. Our conclusion that the trial court did not err in finding an absolute nuisance based on the common law is dispositive of the appeal. We therefore find it unnecessary to reach the question of whether there is a private cause of action under General Statutes § 22a-16 or § 22a-427, as the parties urge us to do.

The town claims that the law of absolute nuisance is inapplicable to the facts of this case because of the town’s status as a public authority and that, to the extent it is applicable, there was insufficient evidence to find that a nuisance existed.

“It is well established that a town may be held liable for injury resulting from a nuisance created and maintained by it.” Marchitto v. West Haven, 150 Conn. 432, 437, 190 A.2d 597 (1963). Actions against public authorities founded upon such nuisance fall into three general classes: (1) nuisances which result from the conduct of the public authority in violation of a statute; (2) nuisances which are intentional in the sense that the creator intended to bring about the conditions constituting a nuisance; and (3) nuisances having their origin in negligence, that is, in the failure of the creator of the conditions to exercise due care. Carabetta v. Meriden, 145 Conn. 338, 339-40, 142 A.2d 727 (1958).

The first two categories are generally referred to as absolute nuisances. Id., 340. An absolute nuisance is one grounded in conduct which is intentional, not negligent. Beckwith v. Stratford, 129 Conn. 506, 510-11, 29 A.2d 775 (1942). “Intentional,” in this context, means, “not that a wrong or the existence of a nuisance was intended but that the creator of [it] intended to bring about the conditions which are in fact found to be a nuisance.” Id., 511; DeLahunta v. Waterbury, 134 Conn. 630, 634, 59 A.2d 800 (1948).

A nuisance has been described as a condition, the natural tendency of which is to create danger and inflict injury upon person or property. Kostyal v. Cass, 163 Conn. 92, 99, 302 A.2d 121 (1972); Wright & Fitzgerald, Conn. Law of Torts § 128, p. 288. “To establish a nuisance four elements must be proven: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; (4) the existence of the nuisance was the proximate cause of the plaintiffs’ injuries and damages.” Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978). These elements are required in a nuisance action against a town as well as against a private individual. Id., 35-37; DeLahunta v. Waterbury, supra, 634-35. Whether these elements exist is a question of fact. Filisko v. Bridgeport Hydraulic Co., supra, 36; Marchitto v. West Haven, supra, 437.

The trial court’s memorandum of decision indicates that the elements establishing an absolute nuisance were met. It found that the landfill was a condition created and maintained by the town which had a natural tendency to create an unhealthy and dangerous situation and to inflict damage, that the defendant’s conduct unlawfully violated the environmental laws of this state, that the condition was a continuing one to the extent that the town did not or could not abate it, and that the contamination of the plaintiffs’ well was undoubtedly caused by the leachate from the town’s landfill. In view of the evidence presented to the trial court, we cannot say that the determination that an absolute nuisance existed was clearly erroneous. See Peterson v. Oxford, 189 Conn. 740, 747, 459 A.2d 100 (1983).

The town’s second claim is that the trial court’s injunction is not sufficiently clear and definite in its terms to enable the town to comply with the order. It is a general requirement when an injunction is granted that “the decree should be sufficiently clear and definite in its terms for the defendant to be able to determine with reasonable certainty what conduct on his part is required or prohibited.” Adams v. Vaill, 158 Conn. 478, 485-86, 262 A.2d 169 (1969).

After carefully reviewing the trial court’s memorandum of decision, we conclude that the injunctive relief ordered was sufficiently clear and definite for the town to know what it was required to do. The injunctive order is phrased in the following manner: “Judgment is to enter enjoining the defendant from continuing the nuisance and to take such corrective measures to enable the plaintiffs to be free from contamination emanating from the landfill.” On the preceding page of the memorandum of decision the following language appears: “Under the first and second counts the plaintiffs seek injunctive relief which involves elimination of solid wastes on the landfill and other corrective measures which relief and orders (Plaintiffs Exhibit 4) the defendant has already been subjected to in a prior suit by the Department of Environmental Protection, which suit is pending in Hartford County. The injunctive relief should follow the same as that litigation.” (Footnote and emphasis added.) The trial court made clear that the injunctive relief it was granting to the plaintiffs was to be no different than the DEP orders by which the town was already trying to abide.

In addition, the broad phrase used by the trial court in its injunctive order is similar to the broad language used in the order by the DEP which was in evidence and was referred to by the court. See footnote 2, supra. In that document, the commissioner of DEP ordered the town “to take remedial actions to minimize or eliminate the contamination resulting from [the landfill].” The commissioner, however, also set down a detailed schedule for the town to follow to accomplish this broad order. Although the trial court did not duplicate that schedule in its memorandum of decision, its paraphrase of the broad language of the DEP order clearly directed the town to take the same action as detailed in that order.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1981) § 25-54f was transferred to General Statutes § 22a-427 in 1983.

       Although the memorandum of decision refers to “Plaintiffs’ Exhibit 4,” no plaintiffs’ exhibit was given that enumeration. A review of the exhibits, however, indicates that the court was referring to the order designated “Plaintiffs’ Exhibit Y” and that the trial court’s mistake was merely clerical. The parties did not seek rectification of the trial court’s memorandum and refer to the plaintiffs’ Exhibit Y in their briefs.