author: FLYNN, C. J.

text:
    O AND G INDUSTRIES, INC. v. ALL PHASE ENTERPRISES, INC.
    (AC 28982)
    Flynn, C. J., and Bishop and Harper, Js.

      Argued October 16, 2008
    officially released February 10, 2009

      Regen OMalley, with whom was Paul D. Meade, for the appellant-appellee (defendant-third party plaintiff).

      William J. Tracy, Jr., for the appellee-appellant (third party defendant).

      Michael J. Donnelly filed a brief for the appellee (plaintiff).
   Opinion

FLYNN, C. J.

The defendant-third party plaintiff, All Phase Enterprises, Inc. (All Phase), appeals from the judgment of the trial court, claiming that the court improperly failed to award full indemnity against the third party defendant, Connecticut Metal Siding, LLC (Metal Siding), for the attorney’s fees that All Phase incurred in defense of the first party action filed against it and for the attorney’s fees that it was ordered to reimburse to the plaintiff, O & G Industries, Inc. (O & G). All Phase also claims that the court improperly deducted from its indemnification award against Metal Siding an amount that O & G had been retaining on work performed by All Phase. We agree with both claims, and, accordingly, we reverse in part the judgment of the trial court.

Metal Siding filed a cross appeal from the judgment of the trial court rendered in favor of All Phase on the third party complaint for indemnification. On cross appeal, Metal Siding claims that the court improperly awarded (1) indemnification despite a judicial admission by All Phase that the problems with the roof were not the result of faulty installation work by Metal Siding and (2) damages for a rubber membrane roof system that was not part of the contract and represented a substantial improvement in quality and performance over the steel roof system that was required in the contract. We disagree, and, accordingly, we affirm the judgment of the trial court with regard to Metal Siding’s cross appeal.

The following facts and procedural history are relevant to our resolution of these appeals. In 2000, the Hotchkiss School (Hotchkiss), a college preparatory school located on the south shore of Lake Wonosco-pomic, entered into a construction management agreement with O & G for the construction of an athletic and fitness center at Hotchkiss. O & G then entered into a construction management trade contract (trade contract) with All Phase for a portion of that project. In that trade contract, All Phase agreed to furnish all labor, material and equipment necessary to complete all work included in bid package 1.01, which was for a pre-engineered building. The total amount of the trade contract between All Phase and O & G was $1,048,700. A component part of the trade contract required All Phase to furnish and install a steel roof and insulation panels over the ice arena of the new athletic complex in accordance with the plans and specifications set forth in the trade contract. All Phase, in turn, entered into a subcontract agreement with Metal Siding, in which Metal Siding agreed to perform the actual assembly and erection of the pre-engineered building and the steel roofing for an amount not to exceed $233,700. After Metal Siding, as subcontractor for All Phase, substantially had completed the steel roof, O & G notified All Phase that the roof was leaking. Attempts were made to repair the steel roof, but, by February, 2003, the leaks were so severe that the ice arena could not be used, and hockey season had to be cancelled. O & G notified All Phase by letter of the seriousness of the problem.

On July 17, 2003, O & G filed a two count complaint in the Superior Court against All Phase, alleging breach of contract. In August, 2003, All Phase still had not made any progress on fixing the steel roof, and O & G contacted Eastern Roofing Corporation to install a rubber membrane roof over the steel roof at a cost of $152,771.50 so that the ice arena would be usable for the next hockey season. That rubber membrane roof was installed in October, 2003. All Phase filed an answer and a counterclaim against O & G, and it successfully cited in Metal Siding as a third party defendant, seeking indemnification, pursuant to its subcontract agreement, for any damages for which it was found liable to O & G on the trade contract. Metal Siding filed a two count counterclaim against All Phase, and All Phase filed an answer with special defenses.

After a trial to the court, the court found in favor of O & G on its complaint, and it ordered Ml Phase to pay the sum of $80,530.73, after certain deductions, as well as O & G’s attorney’s fees. On the third party complaint brought by All Phase against Metal Siding, the court found in favor of All Phase, and it ordered Metal Siding to pay to All Phase the sum of $66,089.18. These appeals followed.

I

ALL PHASE’S APPEAL

We first consider All Phase’s appeal from the judgment rendered in its favor against Metal Siding. All Phase claims that the court improperly failed to award it full indemnity against Metal Siding despite concluding that All Phase was entitled to indemnification. Specifically, it argues that the court should have ordered Metal Siding to indemnify Ml Phase for the attorney’s fees that All Phase incurred defending the first party action brought by O & G and that it also should have ordered Metal Siding to indemnify Ml Phase for the attorney’s fees that All Phase was ordered to pay to O & G on O & G’s successful complaint. All Phase further claims that the court improperly deducted from its indemnification award against Metal Siding an amount that O & G had been retaining on work performed by All Phase, which money rightfully was due to All Phase. After setting forth additional facts and the relevant law, we will address each of these claims in turn.

After concluding that “All Phase breached the contract by failing to install the roof in a workmanlike manner” and that it failed to repair the roof successfully, the court awarded damages to O & G for the cost of the new rubber roof membrane in the amount of $152,771.50 less a retainage that O & G owed to All Phase in the amount of $72,240.77, for a total of $80,530.73. The court also ordered that All Phase was obligated to pay O & G’s attorney’s fees but reserved judgment as to the exact amount pursuant to a stipulation of the parties. The court then found, pursuant to § 5.1 of Metal Siding’s subcontract agreement with All Phase, that Metal Siding was responsible to indemnify All Phase “for any claims arising out of [Metal Siding’s] installation of the roof’ because “the evidence show[ed] that the defects were the result of the poor installation of the roof.” The court ordered that Metal Siding “must indemnify All Phase for the damages.” The court then ordered Metal Siding to pay to All Phase $80,530.73, the out-of-pocket amount that All Phase was ordered to pay to O & G, minus $14,441.55 that All Phase was holding in retainage on its subcontract agreement with Metal Siding, for a total of $66,089.18.

We note the standard of review. “If contract language is definitive of the parties’ intent, then the interpretation of the language becomes a question of law for the court. . . . Additionally, a presumption that the language is definitive arises when . . . the contract is between sophisticated parties and commercial in nature. . . . Our review, in such a case, is plenary.” (Citations omitted.) Best Friends Pet Care, Inc. v. Design Learned, Inc., 77 Conn. App. 167, 176, 823 A.2d 329 (2003). Additionally, we note that in determining damages, “[t]he trial court has broad discretion . . . and we will not overturn its decision unless it is clearly erroneous. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Valentin v. Community Remodeling Co., 90 Conn. App. 255, 260, 876 A.2d 1252 (2005).

A

Attorney’s Fees

All Phase claims that the court improperly failed to require Metal Siding to indemnify it fully, arguing that, pursuant to the subcontract agreement, Metal Siding was responsible for the attorney’s fees that All Phase incurred defending the action brought by O & G as well as the attorney’s fees that All Phase was ordered to pay as damages to O & G. We agree.

In its third party complaint, All Phase alleged in relevant part: “By the terms of the . . . subcontract agreement [Metal Siding] is obligated to indemnify [All Phase] from and against the claims [that] have been asserted against [it] in this lawsuit, which claims arise from the conduct, management and performance of the work contracted for and undertaken by [Metal Siding], ... All Phase has incurred and will continue to incur attorney’s fees and other expenses in responding to and defending against the claims asserted by [O & G] and also faces the possible award of damages against it in favor of [O & G] as a result of the allegedly defective furnishing, erection, installation and construction of the subject building by [Metal Siding].” All Phase sought as damages: “Indemnification as to any claims for which it may be held liable . . . [attorney's fees and costs . . . [and] [s]uch other relief as the court deems proper.”

In rendering its decision, the court made no mention of All Phase’s claim in its third party complaint that it was entitled to attorney’s fees, both as indemnification for O & G’s attorney’s fees and for the attorney’s fees for which it was responsible in defending the action brought by O & G. In part because the court failed to mention these fees, All Phase filed a motion for reargument and reconsideration, requesting, among other things, that the court consider that its “decision [did] not address the issue of [Metal Siding’s] liability to indemnify All Phase for counsel fees incurred by All Phase in defending the claim of O & G against, or [Metal Siding’s] liability to All Phase for attorney’s fees of O & G . . . .” Although the court responded to All Phase’s motion with a memorandum of decision addressing many of the issues raised by All Phase, it still did not address the issue of All Phase’s claim for attorney’s fees.

Section 5.1 of the subcontract agreement between All Phase and Metal Siding provided in relevant part: “Subcontractor shall indemnify and save contractor . . . harmless against and from any and all claims arising from the conduct, management or performance of the work, including, without limitation, any and all claims arising from any condition of the work or arising from any breach or default on the part of the subcontractor in the performance of any covenant or agreement on subcontractor’s part to be performed, pursuant to the terms of this [subcontract, or arising from any act or negligence of subcontractor . . . and from and against all costs, reasonable counsel fees (including counsel fees on appeal), expenses and liability incurred in or about any such claim, action or proceeding by counsel satisfactory to contractor . . . .”

Section 7.7 of the subcontract agreement further provided in relevant part: “This subcontract shall be construed according to the laws of the [s]tate of Connecticut. In the event litigation arises out of this [subcontract, and [All Phase] is the prevailing party, [Metal Siding] shall pay or reimburse [All Phase’s] expenses and costs of same, including reasonable attorney’s fees, whether incurred with respect to attempted enforcement, trial or appeal, enforcement of judgment or otherwise.”

On the basis of the clear language of the subcontract agreement and the court’s findings of liability, we conclude that All Phase was entitled to indemnification of the attorney’s fees that it was ordered to pay to O & G as well as its own attorney’s fees in defending O & G’s claims against it.

B

The Retainage

All Phase also claims that the court failed to award full indemnification because it improperly deducted from All Phase’s indemnification award an amount that O & G had been retaining on work performed by All Phase, which money rightfully was due to All Phase and which should not have been issued as a credit in favor of Metal Siding’s indemnification order. We agree.

At trial, Alan Seagrave, president of All Phase, testified that All Phase had been paid the retainage for its work on the hockey rink and that the $72,240.77 retainage O & G still owed to All Phase was for work on two other buildings at Hotchkiss. The accuracy of this testimony is not in dispute, and there was no evidence to the contrary.

The court found that the “roof leaked so severely that it was irreparable . . . [and] that the evidence showfed] that the defects were the result of the poor installation of the roof.” Accordingly, it ordered that Metal Siding “must indemnify All Phase for the damages.” The court also found that the cost to install the “rubber membrane over the defective roof to make the rink operational in time for the upcoming hockey season . . . [was] $152,771.50.” On the basis of these findings, and others, the court concluded that All Phase was liable to O & G for the cost of the rubber membrane roof. It awarded damages to O & G in the amount of $152,771.50 minus $72,240.77, which was the amount that O & G held in retainage from All Phase, for a total out-of-pocket amount due of $80,530.73. On the indemnification claim by All Phase against Metal Siding, the court ordered that Metal Siding “must indemnify All Phase for the amount due to O & G, $80,530.73, less their stipulated retainage [that All Phase was withholding from Metal Siding] of $14,441.55, for a total of $66,089.18.”

As the court found, the cost of the rubber membrane roof was $152,771.50, which was the amount that All Phase had to reimburse O & G before the court credited the retainage amount that O & G still owed to All Phase. The $72,240.77 retainage, which was credited or offset against the $152,771.50, is an amount of money that O & G actually owed to All Phase for work completed and for which the court properly gave All Phase a credit when determining the amount of its liability to O & G. That $72,240.77, however, should not have been credited to Metal Siding, which had no entitlement to it. The court found that Metal Siding was hable to Ah Phase to indemnify it for the cost of the membrane roof, which was $152,771.50 and which was Ah Phase’s hability to O & G before the court credited the amount that O & G owed to All Phase, i.e., the retainage.

We do agree with the court that All Phase, however, also owed to Metal Siding $14,441.55 in retainage for Metal Siding’s work in accordance with the subcontract. With this $14,441.55 credited against All Phase’s damages of $152,771.50, Metal Siding should have been ordered to indemnify All Phase in the amount of $138,329.95, plus reasonable attorney’s fees as explained in part I A.

II

METAL SIDING’S CROSS APPEAL

On cross appeal, Metal Siding claims that the court improperly awarded (1) indemnification despite a judicial admission by All Phase that the problems with the roof were not the result of faulty installation work by Metal Siding and (2) damages for a rubber membrane roof system that was not part of the contract and which represented a substantial improvement in quality and performance over the steel roof system that was required in the contract. We are not persuaded.

A

All Phase’s Admission

Metal Siding claims that the court improperly ordered it to indemnify All Phase despite the judicial admission, via the testimony of Seagrave, president of All Phase, that the problems with the roof were not caused by Metal Siding’s installation. All Phase argues that we should decline to review this claim because Metal Siding never raised this issue in any form before the trial court and it is being raised for the first time on appeal. If we conclude that the claim is renewable, however, All Phase argues that the purported admission was an alternative argument, which was nothing more than an evi-dentiary admission that it made in contesting liability on the first party complaint brought by O & G. We agree with All Phase that Metal Siding, having not raised this issue before the trial court, has failed to preserve it for appellate review.

“The determination of whether a party’s statement is a judicial admission or an evidentiary admission is a question of fact for the trial court.” (Internal quotation marks omitted.) Young v. Vlahos, 103 Conn. App. 470, 477, 929 A.2d 362 (2007), cert. denied, 285 Conn. 913, A.2d (2008); see Sweet v. Sweet, 190 Conn. 657, 662, 462 A.2d 1031 (1983) (“[w]hether these statements when viewed as a whole result in a judicial admission is a determination best left to the trial court which observed the witnesses, heard the testimony and was the sole judge of the weight to be accorded such testimony”); see also Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn. App. 557, 565 n.10, 845 A.2d 417 (2004) (witness or party should not be presumed to have made judicial admission without finding of trial court); Harlan v. Norwalk Anesthesiology, P.C., 75 Conn. App. 600, 608-609, 816 A.2d 719 (court must be asked to make finding as to nature of admission), cert. denied, 264 Conn. 911, 826 A.2d 1155 (2003). Because the trial court was never asked to rule on this issue, we are not able to review it for the first time on appeal.

B

The Measure of Damages

Metal Siding claims that the court applied an improper “measure of damages for breach of warranty in a construction contract.” It argues that “O & G and All Phase entered into a contract for the construction of a steel roof system . . . [and O & G] claimed that All Phase breached its warranty by providing a steel roof [that] leaked. Rather than repair the steel roof system, [O & G] installed a roof of an entirely different design. The different design was a substantial upgrade from the steel roof specified in the contract documents.” Metal Siding argues that the court should not have awarded damages to O & G based on this “betterment” but should have awarded damages only for the cost of repairing the steel roof.

1

Before considering the merits of Metal Siding’s claim, we must solve a conundrum with which we are faced. In this case, All Phase appealed from the judgment of the trial court, claiming, among other things, that the measure of damages awarded to O & G was improper. Metal Siding set forth a similar claim in addition to its claim against All Phase. The parties submitted appellate briefs, but, before oral argument, All Phase and O & G reached a settlement, and All Phase withdrew its appeal as to O & G. O & G, although briefing a response to the claims asserted by All Phase, did not brief a response to Metal Siding’s claim. O & G also did not appear for oral argument on Metal Siding’s claim that the damages awarded to O & G were improper, nor was this claim addressed by All Phase during oral argument. Metal Siding, however, did address it during argument, but it did not address the procedural aspect of the claim.

The defendant-third party plaintiff, All Phase, withdrew its appeal as to the plaintiff, O & G, but continued its appeal as to the third party defendant, Metal Siding. The third party defendant and cross appellant, Metal Siding, filed a cross appeal, claiming, in part, that the judgment as between O & G and All Phase was improper because the court used an improper method for determining damages, which, obviously, it argues affected the indemnification award. O & G did not attend oral argument, likely believing that it was no longer a party to the appeal or the cross appeal. Although neither All Phase nor Metal Siding raised it as an issue before us, we must determine as a threshold issue whether a third party defendant may bring a claim attacking the propriety of the judgment as between the first party plaintiff and the first party defendant where there was no direct action (no complaint, answer or defenses) between the first party plaintiff and the third party defendant. On the basis of Gino’s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 141-44, 475 A.2d 305 (1984), we conclude that it may.

In Gino’s Pizza of East Hartford, Inc., the third party defendant appealed from the judgment of the trial court, claiming, among other things, that the award of attorney’s fees between the first party plaintiff and the first party defendant was improper and that, therefore, the judgment ordering the third party defendant to indemnify the attorney’s fees of the first party defendant-third party plaintiff also was improper. Id., 141. Recognizing the “procedural wrinkle” in the case, our Supreme Court analyzed whether a third party defendant could challenge the judgment as between the first party plaintiff and the first party defendant when the first party defendant had not challenged the judgment on appeal. Id. Relying on the interpretation of rule 14 of the Federal Rules of Civil Procedure expressed in Kicklighter v. Nails By Jannee, Inc., 616 F.2d 734 (5th Cir. 1980), on which Practice Book § 10-11 was modeled, our Supreme Court held that to restrict the third party defendant on appeal would be anomalous because the first party defendant’s “failure to appeal should not result in [the indemnitor] having to pay an erroneous award.” Gino’s Pizza of East Hartford, Inc. v. Kaplan, supra, 193 Conn. 141-42.

The court explained that in Kicklighter, “the [federal] court allowed a third party defendant to assert on appeal claims of error in the main case . . . even though the defendant/third party plaintiff did not appeal from that judgment. In so holding, the court turned to the language in rule 14 of the Federal Rules of Civil Procedure which provides that ‘a third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiffs claim’ and concluded ‘[f]rom this provision, we think it logically follows that the third-party defendant may assert on appeal errors in the main case. See 6 C. Wright and A. Miller Federal Practice and Procedure § 1463 n.61 (1971).’ ” Gino’s Pizza of East Hartford, Inc. v. Kaplan, supra, 193 Conn. 141-42.

Our Supreme Court then explained that “[w]e have an almost identical provision in Practice Book § 117 [now § 10-11] which provides in relevant part that ‘[t]he third-party defendant may also assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiffs claim.’ ” Gino’s Pizza of East Hartford, Inc. v. Kaplan, supra, 193 Conn. 142. Accordingly, the court held that it saw “no reason to apply a different logic to the construction of this provision than that applied to the federal rule. Thus, [it] construe [d] this provision as permitting . . . the third party defendant to challenge the judgment against [the first party defendant]” because it was derivative thereof. Id. On the basis of this holding, we conclude that Metal Siding may bring a claim challenging the assessment of damages in the main case between All Phase and O & G.

2

Metal Siding claims that the court applied an improper “measure of damages for breach of warranty in a construction contract,” arguing that the court improperly awarded damages to O & G based on a “betterment,” rather than on the cost of repairing the metal roof for which the parties had contracted. It further argues that “ [r] epairs that give the owner more than the owner originally bargained for equitably require that the owner’s ‘cost to repair’ damages be reduced by the amount of the ‘betterment.’ ” We are not persuaded.

The trial court has broad discretion in determining damages, and its decision will not be overturned unless it is clearly erroneous. Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 68, 717 A.2d 724 (1998). “[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Id.

“As a general rule, in awarding damages upon a breach of contract, the prevailing party is entitled to compensation which will place [it] in the same position [it] would have been in had the contract been properly performed. . . . Such damages are measured as of the date of the breach. . . . For a breach of a construction contract involving defective or unfinished construction, damages are measured by computing either (i) the reasonable cost of construction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste; or (ii) the difference between the value that the product contracted for would have had and the value of the performance that has been received by the plaintiff, if construction and completion in accordance with the contract would involve unreasonable economic waste.” (Citations omitted; internal quotation marks omitted.) Levesque v. D & M Builders, Inc., 170 Conn. 177, 180-81, 365 A.2d 1216 (1976). The court may consider evidence demonstrating that the repairs undertaken by the plaintiff were necessary to restore the facility to the condition that it would have been in had it been constructed as warranted. Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 61, 717 A.2d 77 (1998). The repairs, however, may not result in improvements to the property, in the sense that they may not be of a different and superior type than they would have been had they been constructed as warranted. Id. “The nonbreaching party [however] has a duty to minimize any damages as a result of the breach . . . [and] a nonbreaching party who attempts to mitigate [its] losses may recover [its] expenditures toward that goal from the breaching party.” (Citations omitted.) Keefe v. Norwalk Cove Marina, Inc., 57 Conn. App. 601, 610, 749 A.2d 1219, cert. denied, 254 Conn. 903, 755 A.2d 881 (2000).

The crux of Metal Siding’s argument is that O & G contracted for a steel roof system, the design of which was specified in the bid documents. Even if the steel roof had been poorly installed, Metal Siding argues, O & G was not entitled to a rubber roof, the installation of which was a substantial improvement over the steel roof that Metal Siding had been hired to install. The rubber roof was outside the scope of the bid documents and was installed because O & G realized that the steel roof system had design limitations that were not present in the rubber roof. On the basis of these arguments, Metal Siding contends that the court should have awarded damages that would have put O & G “in the position it would have enjoyed had the contract been performed as written [and] damages [should have been] measured against the very contract specifications which [O & G] allege[d] were not followed.” Metal Siding argues that the evidence demonstrated that the steel roof could have been repaired to meet the bid specifications for $38,525. Although we agree that there was evidence that repairs could have been made for $38,525, the court was free to credit or discredit this evidence, and a review of the record convinces us that there is support for the court’s ultimate findings and conclusions.

After hearing all of the evidence presented at trial, the court specifically found that “All Phase breached the contract [with O & G] by failing to install the roof in a workmanlike manner . . . [and that although] All Phase was notified of the defects, it did not successfully repair the roof.” The court also found that although there was “evidence that this type of roof, even if properly installed, may have some long-term problems, that [was] not an issue that [was] relevant to the court . . . [because] [t]his roof leaked so severely that it was irreparable approximately [ninety] days after installation . . . [and] the evidence show[ed] that the defects were the result of the poor installation of the roof.” In assessing damages, the court found, “O & G contracted for a new roof that was to be built to certain specification and installed in a workmanlike manner. By the end of February, 2003, the extent of the leakage and failures of the roof was irreparable. Mere patchwork fixes and repairs were not a viable way to conform the roof to the standard of workmanlike performance. The value ... of the roof that All Phase provided [to O & G] was negligible since it could not keep out the water and rendered the rink unusable. Therefore, the difference in value between what O & G contracted for and what [it] got is the full value of a properly constructed and installed roof. . . . Tearing down the roof to start over, however, would have been economic waste. Instead, to obtain such a roof that would meet the standards of workmanlike performance in time for the next hockey season, O & G installed the rubber membrane over the existing structure. Quite simply, installing the rubber membrane was not an impermissible betterment. Rather, it was a reasonable and cost-effective way to remedy the defect in time for the upcoming hockey season.”

The court also explained that “the installation of this membrane was an attempt at mitigation by O & G. The roof was so defective that the only way to get a conforming roof built to the specifications in the original contract would have been to tear down and construct a whole new roof. Had O & G chosen to do this, [it] would have been entitled to all the damages and costs incurred in building the new roof.” The court held that “O & G [was] entitled to recover the full amount of out of pocket expenses incurred in installing the rubber membrane [because this would] best place O & G in the position that [it] would have been in had the original contract been performed.”

On appeal, “[o]ur role is not to retry the facts. . . . [W]e will upset a factual determination of the trial court only if it is clearly erroneous. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole .... We cannot retry the facts or pass on the credibility of the witnesses. A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 301, 685 A.2d 305 (1996).

After reviewing the evidence presented at trial, we find support in the record for the court’s findings and conclusions. Charles Geyer, the project manager for O & G, testified that § 3.2 of the contract between Hotch-kiss and All Phase required the installation of sealant and gaskets to prevent weather penetration, which, in his opinion, meant that “they would provide a building that did not leak.” He explained that this, in turn, meant that “as the contractor, [O & G] expected the subcontractor to provide a building that did not leak.” Geyer explained that this roof had leaks all along, which he admitted was not unusual, and that when All Phase was notified, Metal Siding came out to repair the leaks. He further explained that in February, 2003, the roof still was leaking, and he expected Metal Siding to come back and “repair these leaks as they had done with other leaks in the past.” However, the facility then experienced a failure of the roof, “where [there were] leaks occurring] at almost every lap joint on a particular column lineup and even some of the next column lineup. It just really rendered the rink useless.” O & G notified All Phase by writing of the seriousness of these leaks in a letter dated Februaiy 25, 2003. Hotchkiss had to cancel its summer hockey program, and a graduation dinner that was held in May in the ice rink building was ruined when the roof leaked “on all the trustees and everyone” during a heavy rain and wind storm. Geyer also testified that by the end of May, he had discovered that “any repairs that we did, because of the missing butyl caulk . . . we would have to do a considerable amount of damage to the roof to open it up to repair it, and any repairs that we did, all indications were— and this was even from [the building manufacturer, American Building]—that they would not be permanent repairs.”

Geyer also stated that by July 21, 2003, All Phase still had not submitted a plan to O & G, and, accordingly, O & G sent a letter to All Phase advising that it had put its own plan into place and that it was seeking approval from the manufacturer. Although All Phase wrote in an August 14, 2003 letter to O & G that it had a plan in place and that it would be moving ahead in conjunction with American Building, Geyer testified that the letter also indicated that the plan was attached, but Geyer saw no attachment.

Further evidence before the court came from the testimony of Paul Darling, a roofing consultant, hired by Hotchkiss, who testified that Hotchkiss asked him to evaluate the metal roof in the spring of 2003. Darling testified that many areas of the roof lacked the necessary sealant, the absence of which would cause water leakage. He opined that the problems with the roof were caused by poor installation. Darling also stated that he did not think that repairing the lap seams in this case was a viable option. He stated: “The chances of success are small. It’s a low probability, high risk of continuing leaks even after you try to do it. Unbending the standing seams, being steel, is very difficult. Things end up looking like a washboard. You can’t get them straight. ... [If you] bend [steel] and unbend it a few times ... it also has a potential to crack off from work hardening.” He further stated that the rubber roofing system was a cost-effective and fast way to correct this problem.

Although there certainly was evidence that contradicted portions of the cited testimony, the court was free to credit or discredit the testimony of any of the witnesses in whole or in part. Our responsibility on appeal is to determine whether there exists support in the record for the court’s findings, not to retry the case. See 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., supra, 239 Conn. 301. Our review of the record reveals such support.

Ill

CONCLUSION

The judgment is reversed as to the indemnification award to All Phase and the case is remanded for a recalculation of the indemnification award in accordance with this opinion. On remand, the court should also consider the effect of the settlement between O & G and All Phase on the amount of indemnification for which Metal Siding is responsible. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       All Phase also appealed from the court’s judgment in favor of O & G. While the appeal was pending, however, All Phase and O & G entered into a settlement agreement, and All Phase withdrew its appeal as to O & G. During oral argument before this cotut, All Phase stated that, despite the judgment of the trial court setting the amount of damages and indemnification, the settlement amount would serve as a cap to the indemnification award. O & G did not appear for oral argument.

       An unsigned copy of this agreement was submitted to the trial court as defendant’s exhibit twenty-one. Whether a signed copy of this agreement exists is not raised as an issue in these appeals.

       A “retainage” is a “percentage of what a landowner pays a contractor, withheld until the construction has been satisfactorily completed and all mechanic’s liens are released or have expired.” Black’s Law Dictionary (7th Ed. 1999). For example, if the contract price was $10,000, with a 10 percent retainage, and payments were to be made as the work progressed, the landowner or general contractor would withhold 10 percent from each payment that it made to the party performing the work. If the party performing the work submitted an invoice for $2000 in week one, the landowner or general contractor would pay the party $1800, withholding $200 in retainage until the job was complete. The same would happen in week two. At the end of the job, the landowner or general contractor would have withheld $1000 (10 percent of the $10,000) to ensure that all of the work was acceptable and that there were no mechanic’s liens. Once the work was accepted, the landowner or general contractor would pay that retainage to the party who had performed the work. In this case, the retainage of $72,240.77 was money that O & G was withholding from its payments to All Phase.

       The parties stipulated to the trial court that $14,441.55 was the amount of retainage held by All Phase on its subcontract agreement with Metal Siding.

       “Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney occurring during judicial proceedings. . . . They excuse the other party from the necessity of presenting evidence on the fact admitted and are conclusive on the party making them.” (Citation omitted; internal quotation marks omitted.) Borrelli v. Zoning Board of Appeals, 106 Conn. App. 266, 271, 941 A.2d 966 (2008). “The statement relied on as a binding admission [however] must be clear, deliberate and unequivocal.” National Amusements, Inc. v. East Windsor, 84 Conn. App. 473, 482, 854 A.2d 58 (2004). “Whether a party’s statement is a judicial admission or an evidentiary admission is a factual determination to be made by the trial court. . . . The distinction between judicial admissions and mere evidentiary admissions is a significant one that should not be blurred by imprecise usage. . . . While both types are admissible, their legal effect is markedly different; judicial admissions are conclusive on the trier of fact, whereas evidentiary admissions are only evidence to be accepted or rejected by the trier.” (Citation omitted; internal quotation marks omitted.) In re Kristy A., 83 Conn. App. 298, 312, 848 A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579 (2004). Additionally, “[i]t is well settled that [fjactual allegations contained in pleadings upon which the cause is tried are considered judicial admissions and hence irrefutable as long as they remain in the case.” (Internal quotation marks omitted.) Borrelli v. Zoning Board of Appeals, supra, 271.
      “In contrast with a judicial admission, which prohibits any further dispute of a party’s factual allegation contained in its pleadings on which the case is tried, [a]n evidential admission is subject to explanation by the party making it so that the trier may properly evaluate it. . . . Thus, an evidential admission, while relevant as proof of the matter stated . . . [is] not conclusive.” (Citation omitted; internal quotation marks omitted.) Nationwide Mutual Ins. Co. v. Allen, 83 Conn. App. 526, 542, 850 A.2d 1047, cert. denied, 271 Conn. 907, 859 A.2d 562 (2004). “Because the probative value of an admission depends on the surrounding circumstances, it raises a question for the trier of fact. . . . The trier of fact is free to give as much weight to such an admission as, in the trier’s judgment, it merits, and need not believe the arguments made regarding the statement by one side or the other.” (Citation omitted; internal quotation marks omitted.) Id., 541.

       General Statutes § 52-102a provides in relevant part: “(a) A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a . . . complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiffs claim against him. . . .
      “(b) The . , . complaint . . . shall be equivalent in all respects to an original . . . complaint and the person upon whom it is served, hereinafter called the third-party defendant, shall have available to him all remedies available to an original defendant, including the right to assert set-offs or counterclaims against the third-party plaintiff, and shall be entitled to file cross-complaints against any other third-party defendant. The third-party defendant may also assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiffs claim and may assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiffs claim against the third-party plaintiff.
      “(c) The plaintiff, within twenty days after the third-party defendant appears in the action, may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the original complaint, and the third-party defendant, as against such claim, shall have available to him all remedies available to an original defendant, including the right to assert set-offs or counterclaims against the plaintiff. . . .” See Practice Book § 10-11.

       Because our Supreme Court agreed with the claim of the third party defendant in Gino 's Pizza of East Hartford, Inc., it then went on to determine what it called “a second procedural wrinkle,” the scope and effect of that holding on all of the parties, and it determined that the third party defendant’s claim could be used not only to its own benefit but also to the benefit of the nonappealing first party defendant; the court then vacated the judgment on attorney’s fees as to both the third party defendant and the first party defendant. Gino’s Pizza of East Hartford, Inc. v. Kaplan, supra, 193 Conn. 142-43. The court explained that “[the third party defendant’s] liability, based on implied indemnity . . . [was] derivative of [the first party defendant’s] liability to [the first party plaintiff] and [its] reversal of the judgment against [the third party defendant was] based solely on an error in the main case ...” (Citation omitted.) Id., 144.
      Before we would have to consider the scope and effect of any reversal regarding the measure of damages, however, we first must consider whether the measure of damages in the main case was improper.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    RONALD CLUKEY v. WILLIAM J. SWEENEY ET AL.
    (AC 29221)
    Flynn, C. J., and DiPentima and Peters, Js.

      Argued October 29, 2008
    officially released February 10, 2009

      William F. Gallagher, with whom, on the brief, was Hugh D. Hughes, for the appellants (named defendant et al.).

      John-Henry M. Steele, for the appellee (plaintiff).
   Opinion

PETERS, J.

The doctrine of collateral estoppel, or issue preclusion, “prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim.” (Internal quotation marks omitted.) Powell v. Infinity Ins. Co., 282 Conn. 594, 600, 922 A.2d 1073 (2007). Relying on a prior lawsuit that established that there was no attorney-client relationship between the plaintiff and the defendant attorney, the defendant moved for summary judgment on several of the plaintiff s common-law and statutory claims for relief. Because the prior action did not result in a definitive determination of the exact nature of the relationship between the parties, the trial court held the doctrine of collateral estoppel to be inapplicable and denied the defendant’s motion. The defendant has appealed. We affirm the decision of the court.

On March 7, 2007, the plaintiff, Ronald Clukey, filed a fourteen count amended complaint against a number of defendants, including his brothers, a medical group called Multicare Physicians & Rehabilitation Group, P.C. (Multicare Physicians), and the defendants in this appeal, William J. Sweeney and his law firm of Sweeney & Griffen. The plaintiff alleged that, although the defendant knew that he and his brothers had agreed to share both the attorney’s fees and the proceeds of a lawsuit brought by Multicare Physicians against a former employee named Kurt Marschner (Marschner lawsuit), the defendant failed to ensure the plaintiffs receipt of one third of the value of a settlement with Marschner. The defendant moved for summary judgment on the ground of collateral estoppel because, in another action brought by Multicare Physicians, the Superior Court had found that there was no attorney-client relationship between the defendant and the plaintiff. The trial court denied the defendant’s motion, and he has appealed.

Many of the facts underlying the plaintiffs complaint and the defendant’s motion for summary judgment are undisputed. Until June 30,2004, the plaintiff and his two brothers were the officers and directors of Multicare Physicians. In 2002, Multicare Physicians engaged the defendant to enforce a noncompete clause in its employment contract with Marschner. In 2006, this litigation was settled without the distribution of any of the settlement proceeds to the plaintiff.

After leaving Multicare Physicians, the plaintiff founded another corporation, Multicare Medical Center, P.C. (Multicare Medical), which hired former Multicare Physicians employee Michael Wong. Multicare Physicians again retained the defendant, this time to enforce the noncompete clause in its employment contract with Wong (Wong lawsuit). The plaintiff and Wong sought to disqualify the defendant from representing Multicare Physicians in the Wong lawsuit. In their view, the defendant had a conflict of interest because of his alleged representation of the plaintiff and Multicare Physicians in the Marschner lawsuit at a time when the plaintiff was still an officer of Multicare Physicians. At the disqualification hearing, however, the plaintiff acknowledged that he never had a fee agreement with the defendant and that the defendant never represented him personally in any manner. The court, Blue, J., denied the motion for disqualification, having found that no attorney-client relationship existed between the plaintiff and the defendant in the Marschner lawsuit, and noting the applicability of rule 1.13a of the Rules of Professional Conduct, pursuant to which a lawyer retained by an organization represents only the organization and not its constituent members.

Taking note of Judge Blue’s observation in the Wong lawsuit that the exact nature of the relationship between the parties had not yet been fully and fairly litigated, the court in the present case was not persuaded that the Wong ruling required it to grant the defendant’s motion for summary judgment. More specifically, the court found that “there are genuine issues of material fact in existence regarding whether or not an enforceable contract was formed between the parties.” The defendant has appealed.

A well established standard of review governs our consideration of a trial court’s ruling on a motion for summary judgment. “[T]he trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.” (Internal quotation marks omitted.) Mortgage Electronic Registration Systems, Inc. v. White, 278 Conn. 219, 226, 896 A.2d 797 (2006). In particular, the applicability of the doctrine of collateral estoppel presents a question of law that is subject to de novo review on appeal. Powell v. Infinity Ins. Co., supra, 282 Conn. 601.

In this appeal, the defendant argues that the court’s denial of his motion for summary judgment should be reversed on three grounds. He contends that (1) the doctrine of collateral estoppel bars the plaintiffs complaint in its entirety, (2) there are no genuine issues of material fact regarding the plaintiffs claims for breach of fiduciary duty, breach of contract, unjust enrichment or breach of the covenant of good faith and fair dealing, and (3) the plaintiffs claim is unsustainable under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., because it lacks allegations relating to the entrepreneurial aspects of the practice of law. We disagree with the first claim. Assuming that we have jurisdiction to reach the other two claims, we disagree with them as well.

I

COLLATERAL ESTOPPEL

The defendant’s principal contention in this appeal is that, as a result of Judge Blue’s decision in the Wong lawsuit, the doctrine of collateral estoppel required the court to bar the plaintiff from relitigating the nature of his relationship with the defendant with respect to the Marschner lawsuit. The defendant contends in this court, as he did before the trial court, that every count in the plaintiffs complaint requires proof of the existence of an attorney-client relationship and that the plaintiff no longer is entitled to pursue that claim. We agree with the court that the plaintiffs complaint need not be read so narrowly at this stage in the proceedings.

As the court noted at the outset of its discussion of the defendant’s motion, “collateral estoppel, or issue preclusion . . . prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim. ... An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. ... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 11.19.” (Citations omitted; internal quotation marks omitted.) Efthimiou v. Smith, 268 Conn. 499, 506-507, 846 A.2d 222 (2004).

As the court also noted, however, our Supreme Court has urged caution in the application of collateral estop-pel because it “has dramatic consequences for the party against whom the doctrine is applied.” Gladysz v. Planning & Zoning Commission, 256 Conn. 249, 261, 773 A.2d 300 (2001). One of the cautionary factors that the Supreme Court advised trial courts to consider is “whether the opportunity to litigate the claim or issue differs as between the two forums . . . .” Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 61, 808 A.2d 1107 (2002).

In the present case, the court reasonably declined to give preclusive effect to Judge Blue’s ruling in the Wong lawsuit that no attorney-client relationship existed between the plaintiff and the defendant in the Marschner lawsuit. The court found it significant that Judge Blue expressly had declined to undertake a judicial determination of “what the exact nature of the relationship [between the plaintiff and the defendant] was.” That is precisely the issue in this case. Accordingly, we affirm the court’s refusal to grant the defendant’s motion for summary judgment on the ground of collateral estoppel.

II

ISSUES OF MATERIAL FACT

The defendant’s second argument for reversal of the denial of his motion for summary judgment is based on the familiar proposition that summary judgment must be granted in the absence of disputed questions of material fact. Mortgage Electronic Registration Systems, Inc. v. White, supra, 278 Conn. 226. Even if the trial court properly declined to hold that the plaintiff was collaterally estopped from pursuing his complaint in its entirety, the defendant maintains that each of the counts of the plaintiffs complaint impliedly requires proof of facts that are at variance with the findings of Judge Blue in the Wong lawsuit. We disagree.

A

Before addressing the merits of the defendant’s arguments, we must decide whether we have jurisdiction to consider them. The denial of a motion for summary judgment is not, ordinarily, an appealable final judgment. Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 783, 865 A.2d 1163 (2005). Our Supreme Court has held, however, that, in some circumstances, the factual and legal issues raised by a legal argument, the appealability of which is doubtful, may be so “inextricably intertwined” with another argument, the appealability of which is established that we should assume jurisdiction over both. Collins v. Anthem Health Plans, Inc., 266 Conn. 12, 29, 836 A.2d 1124 (2003).

Collins is particularly instructive in this case because the defendant’s answers to the relevant counts of the complaint repeatedly include a denial of any allegation that the defendant represented the plaintiff in the Marschner lawsuit. It is clear that this defense rests heavily on Judge Blue’s finding that, in that litigation, the defendant was acting solely as an attorney for Multicare Physicians and not as an attorney for the plaintiff. Because this defense is related so closely to the principles underlying the doctrine of collateral estoppel, we conclude that it is appropriate for us to assume that we have jurisdiction to address its merits.

B

As the court noted in its analysis of the defendant’s motion for summary judgment, Judge Blue’s determination that the defendant did not represent the plaintiff in the Marschner lawsuit expressly left open the question of what their relationship in fact was. The defendant argues, however, that Judge Blue’s finding that the defendant was representing only Multicare Physicians had direct implications for all of the plaintiffs allegations against the defendant, which the court improperly failed to take into account.

The defendant stresses the holding of our Supreme Court, in Krawczyk v. Stingle, 208 Conn. 239, 543 A.2d 733 (1988), that putative third party beneficiaries are not entitled to hold an attorney liable for negligence in the execution of a will. In that case, the court emphasized that “[determining when attorneys should be held liable to parties with whom they are not in privity is a question of public policy. ... A central dimension of the attorney-client relationship is the attorney’s duty of [e]ntire devotion to the interest of the client. . . . This obligation would be undermined were an attorney to be held liable to third parties.” (Citations omitted; internal quotation marks omitted.) Id., 245-46. Krawczyk, however, does not address the consequences of an express or implied agreement between the attorney and a third party such as the present plaintiff.

The defendant’s reliance on rule 1.15 (e) of the Rules of Professional Conduct is similarly unpersuasive. That rule provides that “ [u]pon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client or third person, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.” (Emphasis added.) On its face, the rule does not prohibit the dispersal of settlement funds in accordance with an “agreement with the client or third person . . . .” Under the circumstances of the present case, a motion for summary judgment is not the proper vehicle for a judicial determination of the kind of agreement that this rule requires a lawyer to consider for the proper disbursement of funds.

C

In addition to the defendant’s contention that the plaintiffs complaint, insofar as it is addressed to him, is unsustainable in its entirety, he asks that we review separately the merits of each of the relevant counts contained therein. We note, however, that the court’s memorandum of decision denied the defendant’s motion for summary judgment only with respect to (1) the contract theories advanced by the plaintiff and (2) the plaintiffs CUTPA claim. Because the defendant has opted to appeal without obtaining further clarification from the court about the relationship between its memorandum of decision and its unconditional denial of his motion for summary judgment in the judgment file, we confine our review to the issues addressed by the court.

The court denied the defendant’s motion for summary judgment with respect to the contract theories advanced by the plaintiff because, in its view, the plaintiffs pleadings raised genuine issues of material fact with respect to the existence of an enforceable contract between the parties. The court took note of allegations in the plaintiffs complaint that (1) after the plaintiff left Multicare Physicians, the defendant continued to bill the plaintiff for one third of the costs and attorney’s fees incurred in the litigation, (2) the plaintiff paid said bills and (3) the defendant invited the plaintiff to attend a settlement conference in the Marschner litigation that took place at the defendant’s office on December 8, 2005.

In his appeal from the court’s ruling, the defendant again focuses on the hearing in the Wong litigation. He maintains that the plaintiffs concession, at that hearing, that no attorney-client relationship existed between him and the defendant in the Marschner lawsuit, precludes the plaintiffs claim of a contractual relationship of any kind. We do not agree. The implications of that concession warrant further factual exploration at trial. On the one hand, both rule 1.8 (f) of the Rules of Professional Conduct and § 134 (1) of the Restatement (Third) of the Law Governing Lawyers (2000) permit lawyers to accept compensation for representing a client from third parties. See also 1 G. Hazard & W. Hodes, The Law of Lawyering (3d Ed. Sup. 2004) §§ 10.6, 12.13. On the other hand, lawyers also may “owe personal loyalties and some legal duties to persons who are not their clients . . . .” (Emphasis in original.) Id., §10.1. Significantly, the defendant has not alleged that, at the time when he billed the plaintiff and invited the plaintiff to participate in the settlement conference, he was unaware of the fact that the plaintiff had left Multicare Physicians. On the record before us, therefore, we agree with the court’s conclusion that the defendant has not established that, as a matter of law, his alleged contractual relationship with the plaintiff necessarily impaired the defendant’s professional obligations to Multicare Physicians.

The trial court’s ruling on the plaintiffs claim of an unfair trade practice under CUTPA stands on a different footing. The court agreed with the defendant that, as drafted, “the CUTPA count is legally insufficient.” Taking into account the plaintiffs pending motion to amend his pleadings, however, the court held that the defendant had “failed to prove that the plaintiff actually will be unable to cure said defect.”

To succeed in his appeal on this issue, the defendant must establish that there is no possibility whatsoever of an amendment to the plaintiffs pleadings to include allegations of entrepreneurial misconduct on his part. Although the trial court recognized that the likelihood of a successful amendment was slim, there is something to the old adage of “never say never.” Because, as we have held, the plaintiff is entitled to pursue his contract claims at trial, it seems pointless to deny him the opportunity to allege a proper CUTPA claim as well.

The judgment is affirmed.

In this opinion the other judges concurred.

       The denial of a motion for summary judgment based on a claim of collateral estoppel is appealable immediately because such a claim is “a civil law analogue to the criminal law’s defense of double jeopardy . . . Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 195, 544 A.2d 604 (1988).

       The defendants William J. Sweeney, an attorney, and his law firm, Sweeney & Griffen, have appealed from the denial of their motion for summary judgment. For convenience, we refer in this opinion to attorney Sweeney and Sweeney & Griffen in the singular as the defendant.

       In a letter to the defendant on the eve of the hearing before the court, Blue, J., on the motion to disqualify, the plaintiff stated that he had a concrete personal interest in the noncompete litigation between Multicare Physicians and Marschner and that “you represent my interests.”

       Indeed, in the Wong lawsuit, Judge Blue observed that “attorney Sweeney has—has some association—it may not rise to the level of representation, but some association with Dr. Clukey [the present plaintiff] in the Marschner case.”


text:
    PERRY D. CAMINIS ET AL. v. AUSTIN TROY ET AL.
    (AC 28955)
    DiPentima, McLachlan and Peters, Js.

      Argued September 16, 2008
    officially released February 10, 2009

      David Thomas Ryan, with whom were John P. Casey and, on the brief, Dwight H. Merriam, for the appellants-appellees (plaintiffs).

      Robert F. Maslan, Jr., with whom, on the brief, was Amy J. Boland, for the appellees-appellants (defendants).
   Opinion

PETERS, J.

An ancient principle of the common law is that “the title in the soil of the sea, or of arms of the sea, below ordinary high water mark ... is held subject to the public right, jus publicum, of navigation and fishing.” (Internal quotation marks omitted.) Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 284, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997), quoting Shively v. Bowlby, 152 U.S. 1, 13, 14 S. Ct. 548, 38 L. Ed. 331 (1894). Although Connecticut law has long recognized that “the public, whose representative is the State, is the owner of the soil between high and low-water mark upon navigable water where the tide ebbs and flows”; Rochester v. Barney, 117 Conn. 462, 468, 169 A. 45 (1933); “[t]he owner of the adjoining upland has certain exclusive yet qualified rights and privileges in the waters and submerged land adjoining his upland,” notably “the exclusive privilege of wharfing out and erecting piers over and upon such soil .... However, where a party’s upland bordering on navigable waters adjoins and abuts the property of another, each must exercise his respective littoral rights with due regard for the corresponding rights of the other.” (Citations omitted.) Id., 468-69. The principal issue in this case is whether protracted and prejudicial delay in establishing their littoral rights precludes upland property owners from receiving not only injunctive but also declaratory relief from then-abutting neighbors. We affirm the judgment of the trial court denying the plaintiffs’ application for an injunction because of laches but reverse the court’s holding that the plaintiffs’ laches do not bar their right to a declaratory judgment establishing the littoral rights boundary line between their property and that belonging to the defendants.

On October 12, 2005, the plaintiffs, Perry D. Caminis and Diane W. Caminis, filed a three count complaint against the defendants, Austin Troy and Dana Troy, requesting (1) a declaratory judgment that the defendants had encroached on their “riparian” rights, (2) compensatory damages for the defendants’ violation of those rights and (3) an injunction ordering the defendants not to use, and to remove, any part of their dock system that intruded into the plaintiffs’ littoral rights area. In their amended answer of June 16, 2006, the defendants denied the plaintiffs’ claims but filed seven special defenses and a two count counterclaim. Significantly, in their third special defense, the defendants claimed that the plaintiffs’ extensive delay in asserting their rights constituted laches, barring the plaintiffs from both injunctive and declaratory relief.

After a court trial, the court granted the plaintiffs’ request for a declaratory judgment and thereby set the littoral rights boundary line between the two properties as it had been depicted in a survey commissioned by the plaintiffs in 2000. The court found this line to have been “applicable from . . . 1957 to the present.” It further found that the defendants’ dock and pilings “encroach upon the area of the plaintiffs’ littoral rights,” but denied the plaintiffs’ request for an injunction because it found that the defendants had established their third special defense of laches. Subsequently, in response to an order for rectification issued by this court, the trial court clarified that it had determined that laches did not preclude the plaintiffs’ right to legal relief in the form of a declaratory judgment. Finally, the court denied both counts of the defendants’ counterclaim and each of their other six special defenses except the second, which pertained to the statute of limitations on the plaintiffs’ abandoned claim for damages.

The plaintiffs have appealed and the defendants have cross appealed. The central issue in both appeals is whether the trial court properly applied the law of laches. The plaintiffs contest the validity of the courts’ finding that, as a matter of fact, the defendants established the basis for their defense of laches. Both parties argue that, as a matter of law, it was inconsistent for the court to have concluded that proof of the defense of laches barred the plaintiffs from obtaining injunctive relief but did not bar them from obtaining declaratory relief. We agree with the defendants that the court’s finding of laches was not clearly erroneous as a matter of fact and that this finding required the court to conclude as a matter of law that the plaintiffs failed to establish their right to affirmative relief.

The facts underlying the trial court’s finding of laches are not in dispute. The parties are neighbors on the eastern shore of the navigable Five Mile River in Nor-walk whose residential waterfront properties abut each other near where the river joins Long Island Sound. In 1957, a previous owner of the defendants’ property obtained a permit to build a fixed pier and attached floating dock from the predecessor of the state department of environmental protection (department). These structures existed at the time the plaintiffs purchased their property in 1975.

In 1984, John Morgan, the defendants’ immediate predecessor in title, obtained from the department a permit to replace the existing float and several pilings and to dredge the area around the floating dock. When this work was completed in 1985, the plaintiffs became concerned that the defendants’ rebuilt float infringed on their littoral rights area, in violation of the 1984 permit. Although they expressed these concerns to the department between 1985 and 1988, they did not engage a surveyor to determine the boundary lines until 2000, when they sought a permit from the department to build a dock of their own.

In 1991, the defendants purchased their home from Morgan “without notice of any issue regarding the location of the pilings and floating dock.” It was not until 2000 that the plaintiffs asked the defendants to relocate their float to accommodate the plaintiffs’ own proposal for a dock. The defendants declined to do so. Even so, the plaintiffs did not commence the present action until 2005.

I

THE PLAINTIFFS’ APPEAL

The plaintiffs’ appeal raises only one issue. They argue that, as a matter of fact, the evidence at trial did not support the court’s factual finding that the defendants proved the elements of their special defense of laches. We are not persuaded.

The standard of review that governs appellate claims with respect to the law of laches is well established. “A conclusion that a plaintiff has been guilty of laches is one of fact for the trier and not one that can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law. . . . We must defer to the court’s findings of fact unless they are clearly erroneous.” (Internal quotation marks omitted.) Florian v. Lenge, 91 Conn. App. 268, 281, 880 A.2d 985 (2005).

“The defense of laches, if proven, bars a plaintiff from seeking equitable relief .... First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant.” (Internal quotation marks omitted.) Id. “The burden is on the party alleging laches to establish that defense.” Cummings v. Tripp, 204 Conn. 67, 88, 527 A.2d 230 (1987). “The mere lapse of time does not constitute laches . . . unless it results in prejudice to the [opposing party] ... as where, for example, the [opposing party] is led to change his position with respect to the matter in question.” (Internal quotation marks omitted.) Fromm v. Fromm, 108 Conn. App. 376, 385-86, 948 A.2d 328 (2008).

The plaintiffs first claim that the court improperly found that the defendants had proved that the plaintiffs’ protracted delay over many years was inexcusable. Without disputing the factual support for the court’s findings, the plaintiffs maintain that the facts on which the court relied do not establish the defendant’s contention. We disagree.

The central factual findings on which the court relied were that, despite having been alerted as early as 1985 that Morgan’s dock might be infringing on their littoral rights, the plaintiffs “took no action” to have the boundary lines surveyed until 2000. They then waited another five years before bringing an action. It is true that they sporadically sought redress between 1985 and 1988, and again between 2000 and 2005, mostly through the department, which informed them in 2001 that it did not have the authority to decide private littoral rights boundary disputes. Nonetheless, neither in their briefs nor at oral argument before this court have the plaintiffs offered a satisfactory explanation for their long inaction between 1988 and 2000. The court reasonably found it significant that the plaintiffs did not explain their further protracted delay in bringing an action, even after their suspicions of encroachment apparently had been confirmed by the survey of 2000 and the department had advised them to take the matter to court. On this record of undisputed facts, the court reasonably found that the defendants had proved the first element of laches, namely, that the plaintiffs had inexcusably delayed in asserting their rights.

In the alternative, the plaintiffs claim that the court improperly found that the defendants established that they had been prejudiced by the plaintiffs’ delay. Again, the underlying facts are not at issue. Again, we are not persuaded by the plaintiffs’ argument.

The court found that if the defendants had known that the float and pilings were located within the area of the plaintiffs’ exclusive littoral rights, they would not have (1) purchased their residence in 1991, (2) paid the price they did for their property, (3) paid real property taxes based in part on the value of the float and dock and (4) maintained and repaired the dock. Moreover, the evidence showed that the defendants had “expended considerable sums of money in improving their property prior to being put on notice of the plaintiffs’ concerns regarding the location of the pilings and floating dock.” As boat owners, the existence of the dock was an important factor in their decision to buy the Morgan property. After the purchase, the defendants invested more than $500,000 in alterations and improvements to the residence on the property. This undisputed evidence amply supports the court’s finding of prejudice to the defendants from the plaintiffs’ delay.

In view of this considerable record of delay by the plaintiffs and detrimental reliance by the defendants, the plaintiffs have failed to demonstrate any impropriety in the court’s factual findings in support of the defendants’ defense of laches. They maintain, however, that the court’s analysis of laches was flawed by the court’s failure to undertake an assessment of comparative damage pursuant to the holdings of two older Connecticut Supreme Court cases, Bauby v. Krasow, 107 Conn. 109, 139 A. 508 (1927), and Gage v. Schavoir, 100 Conn. 652, 124 A. 535 (1924). The plaintiffs maintain that these cases require a trial court, as a matter of law, to rule against a defense of laches unless the delay by the parties seeking injunctive relief “made it impossible or very difficult for the court to enjoin [their] adversary without inflicting great injury thereby . . . .” (Internal quotation marks omitted.) Id., 664-65, quoting Fisk v. Hartford, 70 Conn. 720, 732, 40 A. 906 (1898); see also Adams v. Greenwich Water Co., 138 Conn. 205, 218, 83 A.2d 177 (1951). The plaintiffs maintain that if the court had conducted “a more thorough review of the equities involved” under this “theory of comparative damage,” it would have found that requiring the defendants to move their dock would have imposed no “great injury upon them,” and consequently that, on the present record, the defendants have not established that laches bar the plaintiffs’ right to injunctive relief. We do not agree.

The plaintiffs’ reliance on those cases is unpersuasive for two reasons. To the extent that the plaintiffs assert that the trial court was required, as a matter of law, to undertake some special form of balancing of the equities beyond that normally associated with the law of laches, they have failed to demonstrate when and where they called this principle of law to the attention of the trial court. In the absence of some such showing, it is not properly before us. “We have stated repeatedly that we ordinarily will not review an issue that has not been properly raised before the trial court.” (Internal quotation marks omitted.) Traggis v. Shawmut Bank Connecticut, N.A., 72 Conn. App. 251, 264, 805 A.2d 105, cert. denied, 262 Conn. 903, 810 A.2d 270 (2002); see also Practice Book § 60-5 (court not bound to consider claim unless distinctly raised at trial or arose subsequent to trial).

More importantly, however, as more recent case law demonstrates, the cases on which the plaintiffs rely simply illustrate the breadth of the trial court’s fact-bound exercise of discretion in balancing the equities of a proposed injunction. See Franc v. Bethel Holding Co., 73 Conn. App. 114, 145, 807 A.2d 519, cert. granted on other grounds, 262 Conn. 923, 812 A.2d 864 (2002) (appeal withdrawn October 21, 2003). Similarly, the statement in Adams v. Greenwich Water Co., supra, 138 Conn. 218, that “[i]n an action involving riparian rights, a mandatory injunction should ordinarily be refused on the theory of comparative damage between the parties only [inter alia] . . . where the plaintiff has been guilty of laches” does not suggest a sea change in the role of fact-finding to determine whether the plaintiff has been guilty of laches. The record before us provides more than ample support for the trial court’s finding of laches.

n

THE DEFENDANTS’ CROSS APPEAL

In their cross appeal, the defendants assert that the court improperly rendered a declaratory judgment for the plaintiffs, as a matter of law, after having found that the defendants had established their defense of laches as a matter of fact. Both parties agree that an action for declaratoiy judgment is the proper vehicle for determining the littoral rights boundary line in navigable waters between adjoining properties; see Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230 Conn. 764, 765-66, 646 A.2d 790 (1994); and both sought that remedy in the present case. According to the defendants, however, because the request for a declaratory judgment in this case is based on an underlying claim that sounds in equity and is subject to laches, the declaratory action is likewise subject to the same defense. We agree.

Under the applicable standard of review, although “[a] conclusion that a plaintiff has been guilty of laches is one of fact for the trier . . . [w]hether the defense of laches [is] applicable ... is a question of law. When there is a question of law, our review of the court’s decision is plenary.” (Citation omitted; internal quotation marks omitted.) Florian v. Lenge, supra, 91 Conn. App. 281.

“Courts have routinely referred to laches as an equitable defense, that is, a defense to equitable remedies but not a defense available to bar a claim of legal relief.” 1 D. Dobbs, Law of Remedies (2d Ed. 1993) § 2.4 (4), p. 105. In Florian v. Lenge, supra, 91 Conn. App. 282, for instance, this court held that “[1] aches is purely an equitable doctrine . . . not to be imputed to one who has brought an action at law . . . .” Although “courts have not settled fully on any firm approach” for determining whether a claim sounds in equity rather than at law, “[i]n general, a case will be treated as equitable if an equitable, coercive remedy is invoked” such as “injunction, otherwise not.” D. Dobbs, supra, § 2.6 (3), p. 155.

In its clarified ruling that laches did not bar the plaintiffs’ claim for a declaratory judgment “as a legal action,” the trial court relied principally on Silberman v. McLaughlin, 129 Conn. 273, 276, 27 A.2d 634 (1942), and U.S. Fidelity & Guaranty Co. v. Spring Brook Diary, Inc., 135 Conn. 294, 299, 64 A.2d 39 (1949), quoting Silberman, which describe an action for a declaratory judgment as “not one in equity.” Neither of these cases, however, supports the proposition that laches may not bar a claim for declaratory relief. As best we can tell, this issue is one of first impression for the appellate courts of this state.

In Silberman, our Supreme Court did not state that an action for declaratory relief is a “legal action,” or that, as such, it is immune from a laches defense but, rather, that it is “a statutory action and not one in equity . . . .” Silberman v. McLaughlin, 129 Conn. 276. More importantly, the court denied the requested declaratory relief in that case and precluded the similarly nonequita-ble remedy of mandamus “on the broad ground of an unconscionably long and inexcusable delay” by the plaintiffs. Id., 279. “Whether the staleness of the claim and the prolonged sleep of the plaintiffs be called laches or something else is not of controlling importance” when equitable principles are within the court’s discretion to consider, even if “laches in the ordinary legal acceptation of the term is not strictly applicable.” Id., 276. The holding of Silberman is thus consonant with the more recent cases of Middlebury v. Steinmann, 189 Conn. 710, 715-16, 458 A.2d 393 (1983), and Wilson v. Kelley, 224 Conn. 110, 116, 617 A.2d 433 (1992), which support the proposition that an action for declaratory judgment is subject to equitable defenses when the underlying cause of action on which it is based sounds in equity.

In Middlebury v. Steinmann, supra, 189 Conn. 711-12, the trial court had granted the plaintiff town a declaratory judgment stating that an easement for a sewer line right-of-way, which the town had acquired by condemnation, was superior to the defendant’s interest as owner of the land through which the easement ran. The defendant unsuccessfully appealed, claiming insufficient notice of the condemnation proceeding because the lis pendens recorded in conjunction with that proceeding failed to describe the subject property adequately. Id., 713. In affirming the grant of a declaratory judgment on equitable grounds, our Supreme Court acknowledged that although a proceeding for a declaratory judgment is “a special statutory action and therefore distinct from one seeking the imposition of equitable relief,” in appropriate cases “the trial court may, in determining the rights of the parties, properly consider equitable principles in rendering its judgment. . . . This conclusion not only harmonizes the rule that actions in law and equity may be combined in this state ... it is also in accord with our position favoring liberal construction of the declaratory judgment statute in order to effectuate its sound social purpose.” (Citations omitted; internal quotation marks omitted.) Id., 715-16.

In analyzing whether a declaratory judgment action is barred by a particular statutory period of limitations, our Supreme Court relied on the same principle of examining “the underlying claim or right on which the declaratory action is based” because “ [declaratory relief is a mere procedural device by which various types of substantive claims may be vindicated.” (Internal quotation marks omitted.) Wilson v. Kelley, supra, 224 Conn. 115-16. Accordingly, the court held that a declaratory judgment action “must rest on some cause of action that would be cognizable in a nondeclaratory suit. ... To hold otherwise would convert our declaratory judgment statute and rules into a convenient route for procuring an advisory opinion . . . .” (Citation omitted; internal quotation marks omitted.) Id., 116. “It necessarily follows that if a statute of limitations would have barred a claim asserted in an action for relief other than a declaratoiy judgment, then the same limitation period will bar the same claim asserted in a declaratory judgment action.” Id.

In Wilson, the defendants had abandoned their laches defense on appeal, giving the court no opportunity to address directly whether laches would have barred the plaintiffs’ declaratory judgment action as had the particular statute of limitations in that case. Id., 115 n.4. Our Supreme Court’s characterization in Wilson of declaratory relief as derivative in nature, however, read in light of the court’s application of equitable principles to an action for declaratory judgment in Middlebury, indicates that an action for a declaratory judgment in this state should be subject to equitable defenses such as laches when the underlying cause of action on which it is based sounds in equity. Indeed, the Superior Court expressly found laches to be a valid defense against an action for a declaratory judgment in Plymouth v. Church-Dlugokenski, 48 Conn. Sup. 481, 488 n.7, 852 A.2d 882 (2003). In that case, both the plaintiff town and the defendant citizen sought declaratory judgments to determine whether a town school bond referendum should be held invalid as a result of illegal voting. Id., 482. In deciding the issue in favor of the plaintiff, the trial court determined that the defendant’s counterclaim for a declaratory judgment was subject to laches because the “ultimate remedy” she sought, namely, to declare the referendum and approval of the bond issue void, was “akin to that of an injunction” and “quasi-equitable in nature.” Id., 492. We agree with that holding.

We note, furthermore, that courts in other jurisdictions have held the defense of laches to be available in an action for a declaratory judgment. The Supreme Court of Rhode Island has held that “[a] declaratory judgment proceeding is neither an action at law nor a suit in equity but a novel statutory proceeding . . . sufficiently equitable in nature to justify the application of the doctrine of laches in appropriate circumstances.” (Citation omitted; internal quotation marks omitted.) Northern Trust Co. v. Zoning Board of Review, 899 A.2d 517, 520 n.6 (R.I. 2006). The Supreme Court of North Carolina likewise has held that “[s]ince proceedings for declaratory relief have much in common with equitable proceedings, the equitable doctrine of laches has been applied in such proceedings.” (Internal quotation marks omitted.) Taylor v. Raleigh, 290 N.C. 608, 622 n.10, 227 S.E.2d 576 (1976). The courts of several other jurisdictions have reached a similar conclusion.

We conclude therefore that, on the record of this case, it was improper for the trial court to have granted the plaintiffs’ request for a declaratory judgment that set the littoral boundary lines between the parties. At best, the plaintiffs might have had a sustainable claim to establish that line to protect themselves from future encroachment on their littoral rights by the defendants or by their successors. In the absence of any such claim either at trial or in this appeal, however, the court’s well supported factual finding that the defendants had established their defense of laches supported the defendant’s legal claims that the plaintiffs had forfeited both their right to an injunction and their right to a declaratory judgment. A “trial court’s conclusions . . . must stand unless they are legally or logically inconsistent with the facts found . . . .” (Internal quotation marks omitted.) Cummings v. Tripp, supra, 204 Conn. 87.

In sum, because the trial court’s finding of laches was correct, the denial of the plaintiffs’ request for an injunction was proper. For the same reason, the judgment declaring the plaintiffs’ littoral rights must be reversed.

On the defendants’ cross appeal, the judgment is reversed in part and the case is remanded with direction to deny the plaintiffs’ request for a declaratory judgment. On the plaintiffs’ appeal, the judgment is affirmed.

In this opinion the other judges concurred.

      As the trial court noted, “[tjhere is often confusion between the terms littoral’ and ‘riparian’ as applied to the water rights of property owners. ‘Littoral’ is the proper term for describing the rights that shoreline owners possess to make exclusive use of the land lying seaward of the mean high watermark. . . . ‘[RJipariari rights are limited to rights related to the waters in a watercourse and include the right to take waters from a stream . . . .” (Citation omitted.) Although we note that the terms have been used interchangeably; see, e.g., Rochester v. Barney, supra, 117 Conn. 466, 469; we follow our Supreme Court in employing the more precise term “littoral” to describe the rights at issue in this case. See Water Street Associates Ltd. Partnership v. Innopak Plastics Corp., 230 Conn. 764, 769 n.5, 646 A.2d 790 (1994).

       The defendants’ seven special defenses were (1) adverse possession, (2) statute of limitations for tort actions, (3) laches, (4) estoppel by acquiescence, (5) failure to exhaust administrative remedies, (6) substantial compliance with state permits and (7) collateral estoppel. Their two count counterclaim was for declaratory judgments that they are entitled to maintain their dock system in its current location and that they own the littoral rights in that area.

       The defendants did not seek to introduce a survey of their own and “offered no evidence contradicting” the plaintiffs’ survey.

       Relying on the plaintiffs’ statement in their posttrial brief that they were seeking only a declaratory judgment and an injunction, the court inferred that the plaintiffs had abandoned their second count, which sought compensatory damages.

       Although the defendants also have briefed a number of other arguments reiterating some of their contentions at trial, they agreed at oral argument in this court that we need not resolve those claims if they prevailed on the question of laches as a defense to the plaintiffs’ request for both injunctive and declaratory relief.

       Because its policy currently opposes approving fixed docks extending into the “public trust lands and waters” below mean low water, the department refused the plaintiffs’ application of August, 2001, for a permit to build a fixed pier of 148 feet. In its September, 2001 letter to the plaintiffs, however, the department informed them that it likely would approve a fixed pier extending 105 feet “to mean low water,” which is more shallow than the water in the dredged area beneath the defendants’ float. The department suggested that the plaintiffs ask the defendants “to share their dredged footprint,” which the defendants declined to do, or to reapply for a shorter pier.

       The plaintiffs also claim that the trial court did not sufficiently consider their right to an iiqunction under Practice Book § 17-56 (a) (3), which provides that “actions claiming coercive relief may also be accompanied by a claim for a declaratory judgment, either as an alternative remedy or as an independent remedy.” The right of plaintiffs to seek both declaratory and coercive relief, however, is not at issue in the present case. As the plaintiffs have not adequately briefed the relevance of this argument, we deem it abandoned. See State v. Clark, 255 Conn. 268, 281 n.30, 764 A.2d 1251 (2001).

       General Statutes § 52-29, entitled “Superior Court may declare rights and legal relations,” provides: “(a) The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment.
      “(b) The 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.”

       In Wilson v. Kelley, supra, 224 Conn. 110, our Supreme Court reversed, on the basis of a one year statute of limitations, a judgment rendered in favor of the plaintiff taxpayers declaring that their town’s grand list was invalid and epj oining the tax collector from collecting taxes based on the list.

       The Supreme Court of the United States has also held, with respect to the federal Declaratory Judgment Act, 28 U.S.C. § 2201, that because “declaratory judgment and injunctive remedies are equitable in nature . . . [t]he defense of laches could be asserted if the Government, is prejudiced by a delay.” (Citations omitted.) Abbott Laboratories v. Gardner, 387 U.S. 136, 155, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967). The Supreme Court of Wyoming similarly has determined that “an action for declaratory relief is essentially equitable in character,” and therefore subject to laches. Anderson v. Wyoming Development Co., 60 Wyo. 417, 469 n.13, 154 P.2d 318 (1944).
      The Supreme Court of Alaska has observed that because that state’s declaratory judgment act added “another remedy to existing legal and equitable remedies,” its courts have “applied laches if the claim would have arisen in equity before declaratory judgment was available.” Laverty v. Alaska Railroad Corp., 13 P.3d 725, 730 (Alaska 2000). The Illinois Appellate Court has similarly held that because a declaratory judgment action is “neither legal nor equitable but rather sui generis," laches “is available as an affirmative defense in declaratory judgment proceedings.” (Emphasis in orginal.) Villiger v. Henry, 47 Ill. App. 3d 565, 567, 362 N.E.2d 120 (1977).
      In contrast, the Supreme Court of Georgia has held that “[ljaches is an equitable doctrine not applicable in a petition for declaratory judgment, which is an action at law.” (Internal quotation marks omitted.) Jones v. Douglas County, 262 Ga. 317, 320, 418 S.E.2d 19 (1992).