author: Peters, C. J. Covello, J.,

text:
    Roger S. Dunham v. Carl M. Dunham, Jr. Carl M. Dunham, Jr. v. Roger S. Dunham
    (13997)
    (14108)
    Peters, C. J., Shea, Callahan, Covello and Borden, Js.
    Argued October 31, 1990
    decision released January 1, 1991

      Michael E. Grossman, with whom, on the brief, was Timothy Brignole, for the appellant in each case (Roger S. Dunham).

      Norman J. Voog, with whom was Linda Selby Table-man, for the appellee in each case (Carl M. Dunham, Jr.).
   Peters, C. J.

These two appeals arise out of ongoing litigation between two brothers, Roger S. Dunham (Roger) and Carl M. Dunham, Jr. (Carl), concerning their conflicting claims to real property originally acquired by their father. In Dunham v. Dunham, 204 Conn. 303, 312-15, 528 A.2d 1123 (1987) (Dunham I), we concluded that Roger, the plaintiff in that lawsuit, had failed to establish any contractual right to certain property known as Candlelight Farms Airport, which his father had acquired and had willed to his mother, and his mother had subsequently deeded to Carl by inter vivos transfer.

After the publication of our decision in Dunham I, the trial court, at Carl’s behest, issued a permanent injunction to preclude Roger from any further trespasses on the airport property. The first appeal, Docket No. 13997, challenges the validity of the trial court’s order imposing sanctions on Roger because of his willful contempt of this permanent injunction.

Carl also filed an independent supplemental action seeking to recover, inter alia, damages attributable to Roger’s wrongful use of the airport property. In response to that action, Roger filed a counterclaim alleging that Carl had acquired the Candlelight Farms Airport property in breach of his fiduciary duty to Roger. To secure his counterclaim, Roger filed a notice of lis pendens on the airport property. The second appeal, Docket No. 14108, challenges the validity of the trial court’s order discharging Roger’s notice of lis pen-dens as invalid.

Although both appeals were originally filed in the Appellate Court, we transferred them to this court in accordance with Practice Book § 4024. We affirm the judgment in the first appeal and dismiss the second appeal for lack of a final judgment.

I

Docket No. 13997

On April 29,1986, pending this court’s resolution of Dunham I, the trial court, Kline, J., had issued an order temporarily enjoining Roger from entering upon Candlelight Farms Airport and temporarily enjoining Carl from leasing or permitting anyone else to use the airport property. Subsequent to the publication of Dun-ham I affirming the trial court’s ruling that Roger had no contractual claim to the airport property, the trial court, Pickett, J., on December 14,1987, ordered the temporary injunction against Carl to be dissolved and the temporary injunction against Roger to be made permanent, “subject to the condition that he shall remove any and all personal property, but make no other use of the realty, on or before December 30, 1987, upon penalty of $500.00 per day.”

Carl filed a motion for contempt on August 18,1989, alleging that, on numerous dates subsequent to the issuance of the permanent injunction on December 14, 1987, Roger had trespassed upon the airport in numerous ways, including dumping of garbage, conducting an airport business, and making recreational use of a pond on the property. The contempt motion asked the court to fine Roger and to award Carl attorney’s fees and compensatory damages. After a two day hearing concluding on October 30, 1989, the trial court, Pickett, /., found Roger in contempt and committed him to the custody of the commissioner of correction for thirty days, and ordered him to produce subpoenaed material for Carl’s counsel by December 6, 1989. At a subsequent hearing, Roger stipulated that, in violation of the December 14, 1987 injunction, he had entered the airport property for 165 days. On the basis of this stipulation, the court, on February 26, 1990, ordered Roger to pay Carl a “$49,500.00 fine, plus $10,000 attorney’s fee and $485.70 costs.” Apart from an appeal for clemency, Roger voiced no contemporaneous objection to the substance of this order.

In his appeal to this court, Roger now claims that the trial court’s judgment must be set aside because the court lacked the authority: (1) to order him to pay a fine of $49,500 to Carl without making an express evidentiary finding that Carl suffered damages in that amount; or (2) to order his incarceration and the production of allegedly incriminatory documents. In response, Carl maintains that these issues are not properly before us because they were not distinctly raised at trial.

The record bears out Carl’s contention that Roger did not contest the validity of either of the civil contempt orders* * at the time that they were issued by the trial court on any of the grounds on which he now seeks review. After the judgment, the only motion filed by Roger was a motion to stay the contempt order pending resolution of the present appeal. He never otherwise challenged any of the trial court’s rulings, by filing a motion either in arrest of judgment or to set the order aside. See Practice Book §§ 320, 326. In these circumstances, as in Dunham I, supra, 310-12, since the trial court was never afforded the opportunity to correct any possible errors in its rulings, we review Roger’s claims only insofar as they may constitute plain error. See Practice Book § 4185.

In determining the appropriate scope of plain error review after an uncontested finding of civil contempt, we must take into account the limited scope of review that attends even a plenary appeal from a judgment of civil contempt. In any appeal from a civil contempt order, “our review is technically limited to ‘questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt.’ . . . This limitation originates because by its very nature the court’s contempt power, ‘to be effectual, must be immediate and peremptory, and not subject to suspension at the mere will of the offender.’ ... On the other hand, the trial court’s need for immediate and effective contempt power must be balanced against the contemnor’s fundamental rights and, for this reason, there exists the present mechanism for the eventual review of errors which allegedly infringe on these rights. , . .We have found a civil contempt to be improper or erroneous because: the injunction on which it was based was vague and indefinite . . . the findings on which it was based were ambiguous and irreconcilable . . . the contemnor’s constitutional rights were not properly safeguarded . . . the penalties imposed were criminal rather than civil in nature . . . and the contemnor, through no fault of his own, was unable to obey the court’s order.” Papa v. New Haven Federation of Teachers, 186 Conn. 725, 731-32, 444 A.2d 196 (1982). Although Papa recognizes that plenary review of civil contempt orders extends to some issues that are not truly jurisdictional, its emphasis on fundamental rights underscores the proposition that the grounds for any appeal from a contempt order are more restricted than would be the case in an ordinary plenary appeal from a civil judgment. See Friedlander v. Friedlander, 191 Conn. 81, 84, 463 A.2d 587 (1983).

The rights that Roger claims have been infringed by the fine stipulated in the contempt order cannot fairly be characterized as fundamental rights. It bears emphasis that Roger does not challenge: the validity of the permanent injunction; his willful contempt of the injunction; his ability to obey the injunction; or the authority of the court to order the payment of a fine to Carl in some appropriate amount. He challenges only the amount of the monetary sanction imposed, which, he asserts, was wrongful because: as a matter of law, the court fixed the amount of the fine without considering the damages sustained by Carl; and as a matter of fact, the court lacked an evidentiary foundation to link the amount of the fine with the damages sustained by Carl. On the present record, we are unpersuaded that the trial court’s order so impaired a fundamental right as to constitute plain error.

With respect to Roger’s claim of law, the record of the trial court’s appraisal of Roger’s conduct at the end of the evidentiary hearing held on October 30, 1989, undermines the proposition that the court misconceived the role of a coercive fine. On that occasion, the court stated: “There is no question in the Court’s mind but that Mr. [Roger] Dunham has been guilty of willful violation of the Court’s injunction and done so open and notoriously without claim of right. Accordingly, you are placed in the custody of the Commissioner of Corrections . . . for a period of thirty days. The Court will continue the matter until December 11,1989, for further hearing on the monetary penalties which must be more documented based upon the evidence that I have heard, fifty thousand dollars or more based on five hundred dollars a day. . . . [T]he evidence is not such that the Court can determine as to whether or not some of these lessons were not given more than once on the same day which would reduce the amount. Therefore, I cannot total them all up at this point. But, [Roger] is ordered to produce those documents on or before December 6, 1989, to [Carl’s] counsel for his use and examination for further hearing, at which time the Court will determine the monetary penalties to be imposed.” The “lessons” to which the court referred were flying lessons that Roger had given from the airport, in violation of the injunction. On a theory of unjust enrichment, the income thus generated to Roger would be a cognizable element of Carl’s damages. Having focused on the need for an evidentiary foundation for an assessment of monetary penalties in October, the court was not likely to have imposed such penalties on an entirely different basis in February. Thus, it was not plain error for the court to fix the amount of the fine as it did without further articulating its recognition of the need for an evidentiary basis therefor.

The only remaining issue, therefore, with regard to the monetary fine imposed on Roger, is whether the trial court plainly erred in assessing the amount of the fine at a level that was so lacking in evidentiary foundation as to impair a fundamental right. As the stipulation that Roger violated the permanent injunction on 165 days demonstrates, this is not a case in which the party injured by the contemnor has failed to prove that he suffered any damages whatsoever. Carl’s efforts to quantify the damages attributable to Roger’s willful and continued misconduct were, as the trial court recognized, impaired by the inadequacy of Roger’s records and the lacunae in Roger’s recollection of the extent of his trespasses. It is not unreasonable to assume, however, that if Roger had challenged the calculation of his fine at the time of its assessment, Carl would have persisted in further questioning to establish his damages more precisely. Given the extent of Roger’s contumacious conduct, and the fact that the injunction itself warned him of the substantial economic risk that such conduct entailed, the trial court’s fixing of a fine approximating damages was not plain error. “That damages may be difficult to assess is, in itself, insufficient reason for refusing them once the right to damages has been established.” Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 420, 446 A.2d 799 (1982); Ball v. Pardy Construction Co., 108 Conn. 549, 551, 143 A. 855 (1928); Leabo v. Leninski, 2 Conn. App. 715, 727, 484 A.2d 239 (1984), appeal after remand, 9 Conn. App. 299, 518 A.2d 667 (1986), cert. denied, 202 Conn. 806, 520 A.2d 1286 (1987); see also Tufano v. Tufano, 18 Conn. App. 119, 123-25, 556 A.2d 1036 (1989) (contempt order awarded $500 payments to grandparents as compensation for missed opportunities for visitation).

There is even less merit in Roger’s belated effort to invoke a constitutional justification for his refusal to respond to a subpoena that was valid on its face. Just as the privilege against self-incrimination does not provide an automatic defense to a grand jury summons; see State v. Morrill, 197 Conn. 507, 518, 498 A.2d 76 (1985); so it does not provide an automatic defense to a subpoena. In civil actions, the privilege against self-incrimination is not self-executing but must be expressly invoked at the time that allegedly incriminatory evidence is sought to be compelled or introduced. Garner v. United States, 424 U.S. 648, 655, 96 S. Ct. 1178, 47 L. Ed. 2d 370 (1976); Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 107, 81 S. Ct. 1357, 6 L. Ed. 2d 625 (1961); C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 12.2.4, p. 424; C. McCormick, Evidence (3d Ed. 1984) § 136.

In summary, in appeal Docket No. 13997, Roger has failed to demonstrate plain error in any aspect of the sanctions imposed by the trial court for his repeated and willful violations of the permanent injunction forbidding his trespassing on the airport property owned by Carl. Even in criminal appeals invoking the common law doctrine of plain error codified in Practice Book § 4185, “[bjelated appellate scrutiny is warranted only for egregious errors that undermine the fairness of a trial and cast doubt on the integrity of judicial proceedings.” State v. Hull, 210 Conn. 481, 485, 556 A.2d 154 (1989). In the circumstances of this case, we are unpersuaded that the sanctions imposed on Roger manifest the deprivation of such a fundamental right or of a fair trial.

The judgment in Docket No. 13997 is affirmed.

II

Docket No. 14108

The substantive issue in the second appeal is the interpretation of General Statutes § 52-325 with respect to the time constraints it imposes on a defendant’s recordation of a notice of lis pendens. In response to Carl’s supplemental action for damages, for an accounting, and for equitable relief, seeking further remedies to secure his rights to the Candlelight Farms Airport and other property, Roger, as defendant, timely filed an answer, a special defense, and a counterclaim alleging an equitable interest in the real property. Almost nine months later, Roger filed and recorded a notice of lis pendens to secure his counterclaim. As § 52-325 (a) provides, the purpose of such a notice is to bind any subsequent purchaser or encumbrancer “as if he were made a party to the action” described in the lis pen-dens. “[A] notice of lis pendens ensures that the [litigant’s] claim cannot be defeated by a prejudgment transfer of the property. . . . [T]he lis pendens procedure provides security for payment of the claim pending final resolution of the case.” Williams v. Bartlett, 189 Conn. 471, 479-80, 457 A.2d 290, appeal dismissed, 464 U.S. 801, 104 S. Ct. 46, 78 L. Ed. 2d 67 (1983).

The trial court granted Carl’s motion to discharge Roger’s lis pendens. The motion alleged that the lis pen-dens had never become effective because, in violation of § 52-325 (a), the notice had not been filed “at the time the answer is filed.” Granting the motion to discharge on March 22, 1990, the court ordered: “The notice of Lis Pendens filed by Roger Dunham, the Defendant herein, through his attorney, Timothy Brignole, on or about March 12, 1990, is invalid and discharged, and the same does not constitute constructive notice.” At trial, Roger contested Carl’s construction of the time constraints contained in § 52-325 (a), and on appeal he renews his claim that the trial court should not have discharged his lis pendens.

Before proceeding to the merits of the trial court’s ruling, we must decide whether the discharge of a lis pendens on the ground of an alleged procedural default is a final judgment. “[T]he right to appeal is purely statutory and is accorded only if the conditions fixed by statute are met. Milford v. Local 1566, 200 Conn. 91, 95, 510 A.2d 177 (1986); State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). General Statutes § 52-263 provides that in proceedings before the Superior Court, ‘if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial ... he may appeal to the court having jurisdiction from the final judgment. . . .’ See also Practice Book § 3000.” Durso v. Misiorek, 200 Conn. 656, 660, 512 A.2d 917 (1986). For a lis pendens, whose validity now depends entirely on statutory fiat, what constitutes a final judgment depends upon the text of the governing statutes. General Statutes §§ 52-325 through 52-326.

The governing statutes contemplate that a property owner burdened by a notice of lis pendens may rightfully challenge its validity on two independent grounds: (1) the absence of probable cause to sustain the lis pen-dens claim; or (2) noncompliance with the procedural requirements of an effective lis pendens notice. The legislature provided a separate set of statutory provisions to deal differently with the issues raised by these disparate challenges to a lis pendens.

When a property owner challenges the existence of probable cause for the validity of the lis pendens claim, resolution of this application for discharge is governed by General Statutes §§ 52-325a, 52-325b and 52-325c. Section 52-325a prescribes the required content of an application for discharge grounded on an alleged lack of probable cause. Section 52-325b describes the requisite hearing to be held on a § 52-325a application, if probable cause is contested, and assigns the burden of proof on this issue to the lis pendens claimant. Subsection (b) of § 52-325b empowers the trial court, having resolved the probable cause issue, either to deny the application for discharge or to order the notice of lis pen-dens discharged. To complete the scenario, § 52-325c (a) then provides that “[a]ny order entered as provided in subsection (b) of section 52-325b shall be deemed a final judgment for the purpose of appeal.” Other subsections of § 52-325c: require an appeal to be taken within seven days; provide for a hearing upon an application for a stay, supported by a surety bond, once a timely appeal has been taken; and authorize recordation of an order discharging a notice of lis pendens.

When, however, a property owner files a motion for discharge alleging an invalid notice of lis pendens, resolution of this motion is governed in its entirety by General Statutes § 52-325d.* ***** Section 52-325d provides relief if the recorded notice of lis pendens: “(1) . . . is not intended to affect real property, or (2) . . . does not contain the information required by subsection (a) of section 52-325 or section 46b-80 . . . or (3) . . . was not [served] in accordance with statutory requirements, or (4) . . . for any other reason . . . never became effective or has become of no effect . . . .” Upon a judicial finding that the notice of lis pendens “never became effective or has become of no effect,” the court is empowered to issue its order “declaring that such notice of lis pendens is invalid and discharged.” General Statutes § 52-325d. A certified copy of the order of discharge “may be recorded in the land records . . . .” General Statutes § 52-325d.

Although the provisions of § 52-325d parallel those of §§ 52-325a, 52-325b and 52-325c in many salient respects, the statutory patterns differ conspicuously with respect to the immediate appealability of orders discharging or validating a notice of lis pendens. Section 52-325d is entirely silent on this matter, while § 52-325c expressly contemplates an immediate appeal for contested findings of probable cause, albeit an appeal permitted only within narrowly defined time constraints. The inference to be drawn is that § 52-325d orders, unlike § 52-325b orders, are not final judgments. The legislature’s contrasting treatment of what constitutes a final judgment is particularly telling because all four sections were enacted contemporaneously as part of Public Acts 1981, No. 81-8.

The present proceedings for discharge of Roger’s notice of lis pendens were unquestionably brought pursuant to § 52-325d. Carl alleged that the notice was ineffective because it was filed in violation of § 52-325 (a). Although the trial court’s order of discharge found only that Roger’s notice was “invalid and discharged,” probable cause was never an issue before the trial court.

In these circumstances, we conclude that Roger’s appeal from an order discharging his notice of lis pen-dens under § 52-325d must be dismissed because this order, interlocutory on its face pending the resolution of the underlying litigation, is not a final judgment. To characterize the trial court’s § 52-325d order as other than interlocutory would render the legislative enactment of § 52-325c superfluous, and indeed would arguably permit a common law appeal outside of the seven-day period limitation prescribed therein. As in City National Bank v. Davis, 181 Conn. 42, 45-46, 434 A.2d 310 (1980), involving the immediate appealability of disputes about statutory prejudgment remedies, we are bound to give effect to legislatively prescribed distinctions in the rights and remedies that accompany various, challenges to nonconsensual liens upon real property. Rawlings. New Haven, 206 Conn. 100, 112, 537 A.2d 439 (1988); Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987).

The appeal in Docket No. 14108 is dismissed.

In this opinion Callahan and Borden, Js., concurred.

Covello, J.,

with whom Shea, J., joins, dissenting. On the basis of this record, I submit that it was plain error for the trial court to order the $49,500 fine paid by the contemnor to his brother. As the majority impliedly concedes, there was simply no evidence of actual damage that could serve as the basis for such an award to be paid to the moving party.

“A criminal contempt is ‘conduct that is directed against the dignity and authority of the Court.’ . . . In contrast, civil contempt is conduct directed against the rights of the opposing party .... Sanctions for civil contempt may be either a fine or imprisonment; the fine may be [1] remedial or [2] it may be the means of coercing compliance with the court’s order and compensating the complainant for losses sustained. . . .” McTigue v. New London Education Assn., 164 Conn. 348, 352-53, 321 A.2d 462 (1973). “In civil contempt the fine must be conditional and coercive, and may not be absolute.” Board of Education v. Shelton Education Assn., 173 Conn. 81, 85, 376 A.2d 1080 (1977).

The injunctive order of December 14,1987, directed the contemnor to “make no other use of the realty.” To coerce compliance, the trial court further ruled, “upon penalty of $500.00 per day.” At the contempt proceedings of February 26, 1990, the parties stipulated that “Mr. Dunham gave lessons from the airport in violation of the injunction [on] 165 days . . . .’’The trial court then stated: “It is clear to this Court as I found previously, the plaintiff has violated the Court’s injunction .... The penalty made the Court impose at that time a $500 per day court violation for 165 days, which would make a total fine of $82,500. The Court will grant some clemency to the plaintiff, however, and remit $200 per day or $33,000 making a fine of $49,500 to which would be added attorney fees of $10,000 and costs in the amount of $485.70.” Such a calculation could never serve as the basis for an award of compensation to be paid to the complaining party.

“Where compensation is intended, a fine is imposed, payable to the complainant. Such fine must of course be based upon evidence of complainant’s actual loss . . . ." DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 278-79, 471 A.2d 638 (1984). “[S]uch a ‘compensatory fine’ must necessarily be limited to the actual damages suffered by the injured party as a result of the violation of the injunction”; G. & C. Merriam Co. v. Webster Dictionary Co., 639 F.2d 29, 34 (1st Cir. 1980); and the “claim of actual damages must be established by competent evidence and the amount must not be arrived at by mere speculation or conjecture.” Babee-Tenda Corporation v. Scharco Mfg. Co., 156 F. Sup. 582, 588 (S.D.N.Y. 1957); see also Broadview Chemical Corporation v. Loctite Corporation, 311 F. Sup. 447, 449 (D. Conn. 1970). Because there was no evidence of the injured party’s actual damages, I would reverse that portion of the judgment ordering the fine paid to the complainant and remand the case for the purpose of determining the actual damages he sustained.

       At the same time that he moved for the issuance of this permanent injunction order, Carl also filed a motion for contempt against Roger, alleging that Roger had violated the temporary injunction by continuing to use the airport. The contempt motion was continued for further proceedings because of the absence of the necessary evidentiary foundation. The record does not indicate that Carl pursued this contempt motion thereafter.

       On March 13,1990, subsequent to the filing of Ms notice of appeal from the trial court’s contempt orders, Roger filed a motion, pursuant to Practice Book §§ 4051 and 4059, asking the trial court “to articulate and set forth in writing the factual findings and legal conclusions of the Court, and the factual findings and legal conclusions that pertain to the Court’s order that the Plaintiff is to pay to the Defendant Forty-nine Thousand Five Hundred ($49,500.00) Dollars fine.” The trial court denied the motion for articulation on April 25,1990. The record does not indicate that Roger pursued any further legal remedies to obtain judicial review of this denial.

       The contempt orders in this case were civil contempt orders because they were issued to vindicate the private rights of Carl rather than the dignity and authority of the court. Mays v. Mays, 193 Conn. 261, 265-66, 476 A.2d 562 (1984); DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 278, 471 A.2d 638 (1984); McTigue v. New London Education Assn., 164 Conn. 348, 352-53, 321 A.2d 462 (1973). Sanctions for civil contempt may be either a fine or imprisonment; a fine may be remedial or it may be the means of coercing compliance with the court’s order and compensating the complainant for losses sustained. DeMartino v. Monroe Little League, Inc., supra; McTigue v. New London Education Assn., supra, 278-79; see also United States v. United Mine Workers of America, 330 U.S. 258, 303-304, 67 S. Ct. 677, 91 L. Ed. 884 (1947); G. & C. Merriam Co. v. Webster Dictionary Co., 639 F.2d 29, 41 (1st Cir. 1980). “[T]he contempt is civil when the fine is conditional and coercive and when the eontemnor can obtain release from the sanction by compliance with the judicial decree.” McTigue v. New London Education Assn., supra, 353. The fine imposed for a civil contempt may be payable to the complainant as compensation for his loss. DeMartino v. Monroe Little League, Inc., supra, 279.

       The trial court granted this motion.

       In a motion for reconsideration of his sentencing for violation of the court’s order to respond to the subpoena, Roger expressly conceded “the error of his ways and the seriousness of [the] injunction which he has violated.” In response to these representations, the trial court granted his motion to reduce his thirty day sentence to twenty days.

       “[General Statutes] Sec. 52-325a. application for discharge, forms. HEARING, (a) Whenever a notice of lis pendens is recorded against any real property pursuant to subsection (a) of section 52-325, the property owner, if the action has not then been returned to court, may make application, together with a proposed order and summons, to the superior court for the judicial district to which the action is made returnable, or to any judge thereof, that a hearing or hearings be held to determine whether such notice of lis pendens should be discharged. The court or judge shall thereupon order reasonable notice of such application to be given to the plaintiff and shall set a date or dates for the hearing or hearings to be held thereon. If such plaintiff is not a resident of this state such notice shall be given by personal service, registered or certified mail, publication or such other method as the court or judge shall direct. At least seven days notice shall be given to the plaintiff prior to the date of such hearing.
      “(b) The application, order and summons shall be substantially in the following form:

        APPLICATION FOR DISCHARGE OF NOTICE OF LIS PENDENS
      To the .... Court of ... .
      The undersigned represent(s):
      1. That .... is the owner of the real property described in schedule A attached hereto;
      2. That on or about .... (date) .... (name of plaintiff) of ... . (address of plaintiff) recorded a notice of lis pendens affecting such real property and gave notice thereof;
      3. That there is not probable cause to sustain the validity of the plaintiff’s claim;
      4. That the applicant seeks an order for discharge of such recorded notice of lis pendens.
      (Name of Applicant) By: ... .
      His Attorney
      ORDER
      The above application having been presented to the court, it is hereby ordered that a hearing be held thereon at ... . (time) on ... . (date) and that the applicant give notice to the following persons: .... (Names and addresses of persons entitled to notice) of the pendency of said application and of the time when it will be heard by causing a true and attested copy of the application and of this order to be served upon such persons by some proper officer or indifferent person on or before .... and that due return of such notice be made to this court.
      Dated at ... . this .... day of . . . ., 19. . .
      (Clerk of the Court)
      SUMMONS
      To the sheriff of the county of . . . ., his deputy or either constable of the town of . . . ., in said county,
      Greeting:
      By authority of the state of Connecticut, you are hereby commanded to serve a true and attested copy of the above application and order upon . . . ., of . . . . by leaving the same in his hands or at his usual place of abode (or such other notice as ordered by the court) on or before ....
      Hereof fail not but due serve and return make.
      Dated at ... . this .... day of .... 19. . .
      (Commissioner of the Superior Court)

        (1) The clerk upon receipt of all such documents in duplicate, if he finds them to be in proper form, shall fix a date for a hearing on the application and sign the order of hearing and notice. A copy of the original document shall be placed in the court file.
      (2) The clerk shall deliver to the applicant’s attorney the original of such documents for service. Service having been made, such original documents shall be returned to such court with the endorsement by the officer of his actions.
      “(c) If the action for which notice of lis pendens was recorded, is pending before any court, the property owner may at any time, unless the application under subsection (a) of this section has previously been ruled upon, move that such notice of lis pendens be discharged of record.”
      “[General Statutes] Sec. 52-325b. burden of proof at hearing, authority of court, (a) Upon the hearing held on the application or motion set forth in section 52-325a, the plaintiff shall first be required to establish that there is probable cause to sustain the validity of his claim. Any property owner entitled to notice under subsection (c) of section 52-325 may appear and be heard on the issue.
      “(b) Upon consideration of the facts before it, the court or judge may: (1) Deny the application or motion if probable cause to sustain the validity of the claim is established, or (2) order such notice of lis pendens discharged of record if probable cause to sustain the validity of the plaintiff’s claim is not established.”
      “[General Statutes] Sec. 52-325c. appeal, (a) Any order entered as provided in subsection (b) of section 52-325b shall be deemed a final judgment for the purpose of appeal.
      “(b) No appeal shall be taken from such order except within seven days thereof. The effect of such order shall be automatically stayed for such seven-day period. If an appeal is taken within such seven-day period, the party taking such appeal may, within such period, file an application with the clerk of the court in which such order was issued, requesting a stay of the effect of such order pending such appeal, which application shall set forth the reasons for such request. A copy of such application shall be sent to the adverse party by the applicant. Upon the filing of such application, the effect of such order shall be further stayed until a decision is rendered thereon. A hearing on such application shall be held promptly. Such order shall be stayed if the party taking such appeal posts a bond, as provided in subsection (c) of this section.
      “(c) Upon the hearing on such application, the court shall: (1) Upon motion of the party taking the appeal set an amount of bond with surety for the stay of such order as provided in subsection (b) of this section, which amount shall be as the court deems sufficient to indemnify the adverse party for any damages which may result from the stay. If the party taking the appeal gives such bond the order shall be stayed; or (2) grant the stay; or (3) deny the stay; or (4) condition the granting of the stay upon the giving of such a bond.
      “(d) Any order of discharge or any order of any stay shall take effect upon recording of a certified copy thereof in the office of the town clerk in which such notice of lis pendens was recorded. The clerk of the court in which any such order is issued shall not deliver any certified copies thereof until the time for taking an appeal has elapsed or, if an appeal is taken and an application for a stay of such order is filed, until such time as a decision granting or denying such stay has been rendered.
      “(e) When a certified copy of such order of discharge of notice of lis pen-dens has been recorded, such discharged notice of lis pendens shall not be deemed to constitute constructive notice of the claim of the party recording such notice to any third party who acquires his interest in the particular property either before or after the recording of such discharge.”

       “[General Statutes] Sec. 52-325d. motion foe discharge of invalid notice OF LIS pendens. In any action in which (1) a notice of lis pendens was recorded which is not intended to affect real property, or (2) the recorded notice does not contain the information required by subsection (a) of section 52-325 or section 46b-80, as the case may be, or (3) service of process or service of the certified copy of the notice of lis pendens was not made in accordance with statutory requirements, or (4) when, for any other reason, the recorded notice of lis pendens never became effective or has become of no effect, any interested party may file a motion requesting the court to discharge the recorded notice of lis pendens. If the court finds that such notice never became effective or has become of no effect, it shall issue its order declaring that such notice of lis pendens is invalid and discharged, and that the same does not constitute constructive notice. A certified copy of such order may be recorded in the land records of the town in which the notice of lis pendens was recorded.”

       The majority states: “Carl’s efforts to quantify the damages attributable to Roger’s willful and continued misconduct were, as the trial court recognized, impaired by the inadequacy of Roger’s records and the lacunae in Roger’s recollection of the extent of his trespasses. It is not unreasonable to assume, however, that if Roger had challenged the calculation of his fine at the time of its assessment, Carl would have persisted in further questioning to establish his damages more precisely. Given the extent of Roger’s contumacious conduct . . . the trial court’s fixing of a fine approximating damages was not plain error.”


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    Rocco Paternostro v. The Edward Coon Company et al.
    (14069)
    Peters, C. J., Shea, Covello, Hull and Borden, Js.
    Argued November 8, 1990
    decision released January 1, 1991

      Ross Lessack, with whom, on the brief, was Edward T. Dodd, Jr., for the appellant (plaintiff).

      Thomas F. McDermott, Jr., with whom, on the brief, was Lawrence R. Pellett, for the appellees (defendants).
   Hull, J.

The sole issue in this appeal is whether specific indemnity workers’ compensation benefits under General Statutes § 31-308 (b) for permanent partial impairment of one’s arm as a result of a shoulder injury are payable concurrently with benefits for temporary total incapacity under General Statutes § 31-307 caused by a skull fracture that arose out of the same incident. We conclude that concurrent payment of such benefits is prohibited. Accordingly, we affirm the decision of the compensation review division.

The following facts are either stipulated or undisputed. On September 12,1986, the plaintiff, Rocco Paternostro, and the named defendant (defendant), The Edward Coon Company, executed a voluntary agreement whereby they agreed that the plaintiff had sustained a skull fracture and a dislocated left shoulder in the course of his employment by the defendant on June 3, 1986, for which the defendant would pay workers’ compensation benefits in the amount of $397 per week. Thereafter, the plaintiff received and has continued to receive the agreed upon compensation pursuant to § 31-307 for the temporary total incapacity caused by the skull fracture.

On September 28,1987, the shoulder injury reached maximum medical improvement. The permanent effect of the injury was a 10 percent loss of use of the plaintiff’s left arm at or above the elbow. The plaintiff sought specific indemnity benefits for this permanent partial impairment pursuant to § 31-308 (b). In a finding and award dated January 25, 1989, the workers’ compensation commissioner for the fifth district (commissioner) found that the permanent partial impairment was compensable under § 31-308 (b) and further, that such specific indemnity benefits could be paid concurrently with the benefits presently being received pursuant to § 31-307 for temporary total incapacity caused by the skull injury.

The defendants appealed the award to the compensation review division (CRD). The CRD sustained the defendants’ appeal and concluded that because the two injuries for which the plaintiff was receiving benefits constituted the same injury for purposes of workers’ compensation, concurrent payment of benefits under §§ 31-307 and 31-308 (b) was prohibited as double compensation for the same injury.

The plaintiff appealed the decision to the Appellate Court. We subsequently transferred the appeal to this court pursuant to Practice Book § 4023.

On appeal the plaintiff claims that based upon the plain language of § 31-308 (b) and the remedial purpose of the Workers’ Compensation Act; General Statutes § 31-275 et seq.;. he is entitled to concurrent payment of the benefits awarded by the commissioner. The defendants counter that the language of § 31-308 (b) is consistent with the decisions of this court prohibiting concurrent payment of such benefits. We agree with the defendants.

Section 31-308 (b) provides in pertinent part: “With respect to the following-described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate set forth in section 31-309 ... (1) For the loss of the master arm at or above the elbow . . . three hundred and twelve weeks; for the loss of the other arm, at or above the elbow . . . two hundred and ninety-one weeks . . . .” (Emphasis added.) The plaintiff asserts that the language, “in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation,” is most reasonably construed as providing that a claimant may simultaneously receive benefits for total incapacity pursuant to § 31-307 and specific indemnity benefits for partial impairment under § 31-308 (b), so long as the specific indemnity benefits are in lieu of other specific benefits described in the subsection. We recognize that the phrase “in addition to,” as used in our Workers’ Compensation Act, has been interpreted to mean “over and above”; see Scalora v. Dattco, Inc., 39 Conn. Sup. 449, 453, 466 A.2d 334 (1983) (construing that portion of General Statutes § 31-308 [d] that provides benefits for permanent significant disfigurement and scarring); and that we have construed “in lieu of” to mean “in lieu of other compensation of a like nature, that is, of compensation for [specific] injuries.” Panico v. Sperry Engineering Co., 113 Conn. 707, 714, 156 A. 802 (1931). Nevertheless, the plaintiff’s interpretation of the terminology in isolation ignores the longstanding, unaltered precedent of this court.

The predecessor of § 31-308 (b), General Statutes (1918 Rev.) § 5352, provided in pertinent part: “In case of the following injuries the compensation, in lieu of all other payments, shall be half of the average weekly earnings of the injured employee, prior to such injury for the terms respectively indicated, but in no case more than fourteen dollars or less than five dollars weekly: (a) For the loss of one arm at or above the elbow . . . two hundred and eight weeks . . . .’’In Olmstead v. Lamphier, 93 Conn. 20, 22-23, 104 A. 488 (1918), we concluded that specific indemnity benefits pursuant to General Statutes (1918 Rev.) § 5351 for total incapacity caused by a leg injury were properly paid consecutively to benefits pursuant to § 5352 for partial incapacity caused by a shoulder injury. Id., 23. Because the two injuries arose out of the same incident, concurrent payment would constitute double compensation which is prohibited by our Workers’ Compensation Act. Id. Therefore, although the plaintiff had sustained two distinct, independently compensable injuries during a single incident, “the award for the total incapacity [was] to precede in payment that for the partial incapacity.” Id.

Shortly after our decision in Olmstead, the General Assembly passed the Public Acts of 1919. Chapter 142, § 7, of the 1919 Public Acts provided in pertinent part: “Section 5352 of the general statutes is amended to read as follows .... In case of the following injuries the compensation, in addition to the usual compensation for total incapacity, but in lieu of all other payments for compensation, shall be half of the average weekly earnings of the injured employee, prior to such injury for the terms respectively indicated . . . .” (Emphasis added.) According to the plaintiff, the new language added to § 5352 effectively overruled our conclusion in Olmstead that benefits for partial and total incapacity are properly paid consecutively. We do not agree.

In Panico v. Sperry Engineering Co., supra, 713-14, we discussed the 1919 amendment to § 5352 at length. The plaintiff in that case sought a specific award for permanent partial loss of the use of his arm after he had received compensation for the temporary total incapacity caused by the injury. We concluded that § 5352 had been amended to allow a more liberal measure of compensation, specifically to permit payment of benefits for total incapacity in addition to a specific indemnity for injuries resulting from the same incident. Id., 713. Nevertheless, we adhered to our earlier conclusion in Olmstead that the benefits were to be received consecutively, because we had to assume that in adopting the amendment of 1919 the General Assembly had in contemplation the construction and operation accorded the statute by this court, namely consecutive payment of the benefits, and that “usual compensation for total incapacity,” as employed in the amendment, referred to and signified the compensation for total incapacity received prior to the determination of the specific indemnity. Id., 714.

The plaintiff claims that the interpretation in Scalora v. Dattco, Inc., supra, of language similar to § 31-308 (b) warrants a different conclusion. In Scalora the Appellate Session of the Superior Court interpreted the phrase “[i]n addition to compensation for total or partial incapacity” set forth in § 31-308 (d) as providing that a claimant may be paid benefits for permanent significant disfigurement or scarring “over and above” benefits for total incapacity under § 31-307. Id., 453. The court recognized the prohibition against concurrent payment of benefits set forth in Olmstead v. Lamphier, supra; Scalora v. Dattco, Inc., supra, 452-53; however, it concluded that the prohibition did not apply in that case, because although “one cannot be at once totally and partially incapacitated . . . [conversely, one can be simultaneously incapacitated and disfigured.” Id., 452. Thus, because concurrent payment would not result in double compensation, the court declined to interpret the phrase “[i]n addition to” as meaning “after” or “following.” Id., 453.

In the instant case the benefits under §§ 31-307 and 31-308 (b) provide compensation for total and partial incapacity respectively. To accord the language of § 31-308 (b) the construction proffered by the plaintiff, therefore, would result in double compensation in violation of our Workers’ Compensation Act. Id., 452. Statutes must be construed to avoid illogical, irrational results. Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 593, 522 A.2d 771 (1987); Middletown v. Local 1073, 1 Conn. App. 58, 62-63, 467 A.2d 1258 (1983), cert. dismissed, 192 Conn. 803, 471 A.2d 244 (1984). Accordingly, we conclude that the rule against double compensation prohibits concurrent payment of specific indemnity benefits for permanent partial impairment under § 31-308 (b) and benefits for total incapacity under § 31-307 as a result of the same incident.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 31-308 (b) provides in pertinent part: “With respect to the following-described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate set forth in section 31-309 . . . (1) For the loss of the master arm at or above the elbow or the complete and permanent loss of the use of the master arm, three hundred and twelve weeks; for the loss of the other arm, at or above the elbow; or the complete and permanent loss of use of the other arm, two hundred and ninety-one weeks . . . .”

       General Statutes § 31-307 provides in pertinent part: “If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury . . . .”

       In their brief, the defendants argued in the alternative that even if simultaneous payment of benefits under General Statutes §§ 31-307 and 31-308 (b) is generally permissible, in the instant case it is prohibited because it would result in payment of benefits in violation of the statutory ceiling set forth in General Statutes § 31-309. The defendants conceded at oral argument before this court, however, that the record is without the necessary factual underpinnings to warrant this court’s review of their alternative claim. Thus, even if it were necessary to reach the claim concerning § 31-309, we would be prohibited from doing so, because “[a] case must be decided on the formal record and a court cannot resort to matters extraneous to the record in making its determination.” State v. Gilnite, 202 Conn. 369, 378, 521 A.2d 547 (1987).

       General Statutes (1918 Rev.) § 5351, the predecessor of General Statutes § 31-307, provided: “In case the injury results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to half of his average weekly earnings at the time of the injury; but the compensation shall in no case be more than fourteen dollars or less than five dollars weekly; and such compensation shall not continue longer than the period of total incapacity, or in any event longer than five hundred and twenty weeks. The following injuries of any person shall be considered as causing total incapacity and compensation shall be paid accordingly: (a) Total and permanent loss of sight in both eyes, or the reduction to one-tenth or less of normal vision with glasses; (b) the loss of both feet at or above the ankle; (c) the loss of both hands at or above the wrist; (d) the loss of one foot at or above the ankle and one hand at or above the wrist; (e) any injury resulting in permanent and complete paralysis of the legs or arms or of one leg and one arm; (f) any injury resulting in incurable imbecility or insanity.”

       General Statutes § 31-308 (d) provides in pertinent part: “In addition to compensation for total or partial incapacity or for a specific loss of a member or use of the function of a member of the body, the commissioner may award such compensation as he deems just ... for any permanent significant disfigurement of, or permanent significant scar on, any part of the body . . . .”


text:
    Roberta Ancona v. City of Norwalk Ann Kachaluba v. Town of Greenwich
    (13939)
    (13940)
    Peters, C. J., Shea, Covello, Hull and Borden, Js.
    Argued November 8, 1990
    decision released January 1, 1991

      Kristin A. Domey, with whom, on the brief, was Gerald F. Stevens, for the appellant-appellee in the first appeal and the appellant in the second appeal (plaintiffs).

      Frank W. Murphy, with whom, on the brief, was Barbara L. Coughlan, for the appellee-appellant in the first appeal (defendant city of Norwalk).

      John W. Greiner, for the appellee in the second appeal (defendant town of Greenwich).
   Hull, J.

The sole issue in these appeals is whether special workers’ compensation benefits under General Statutes § 31-308 (d) awarded for permanent partial impairment of one’s heart are payable concurrently with dependent death benefits under General Statutes § 31-306 (b) (2). We conclude that concurrent payment of such benefits is prohibited. Accordingly, we affirm the decisions of the compensation review division.

The facts in the first case are stipulated as follows. The plaintiff, Roberta Ancona, is the widow of David F. Ancona, a former employee of the department of fire services of the defendant city of Norwalk who died on February 10, 1988, as a result of heart disease. At the time of his death, David Ancona had been receiving workers’ compensation benefits under § 31-308 (d) for permanent partial impairment of his heart pursuant to a voluntary agreement with the city of Norwalk. On January 17,1989, the workers’ compensation commissioner for the seventh district (commissioner) ordered the city of Norwalk to pay Roberta Ancona the special benefits that it had been paying her husband pursuant to § 31-308 (d) concurrently with dependent death benefits under § 31-306.

The facts in the second case are undisputed. The plaintiff, Ann Kachaluba, is the widow of John P. Kachaluba, a former employee of the fire department of the defendant town of Greenwich. On May 15,1985, the commissioner found that John Kachaluba suffered from heart disease and was eligible for benefits pursuant to General Statutes § 7-433c, of the Heart and Hypertension Act. On January 11, 1987, John Kachaluba died as a result of heart disease. Thereafter on May 12,1987, the commissioner awarded dependent death benefits under § 31-306 to Ann Kachaluba.

On August 26, 1988, based upon the parties’ stipulation that John Kachaluba, at the time of his death, was entitled to special benefits for permanent partial impairment of his heart, the commissioner ordered the town of Greenwich to pay Ann Kachaluba benefits under § 31-308 (d) concurrently with the benefits she was receiving under § 31-306.

The defendants in both cases appealed the decisions to the compensation review division (CRD). The CRD sustained the defendants’ appeals and concluded that because dependent death benefits under § 31-306 are a proxy for benefits for total incapacity under General Statutes § 31-307,* ** concurrent payment of benefits under §§ 31-306 and 31-308 (d) is prohibited as double compensation. Furthermore, the balance of any unpaid special benefits awarded under § 31-308 (d) would not be properly payable until the payment of benefits under § 31-306 ceased.

The plaintiffs appealed the decisions to the Appellate Court and, in the first case, the defendant city of Norwalk filed a cross appeal. We subsequently transferred the appeals to this court pursuant to Practice Book § 4023.

On appeal, the plaintiffs claim that because benefits under §§ 31-308 (d) and 31-306 compensate different persons for distinct losses, they are payable concurrently. The defendants contend that concurrent payment is prohibited as double compensation. We agree with the defendants.

The CRD concluded that concurrent payment of benefits under §§ 31-306 and 31-308 (d) would constitute double compensation which is not permitted under our Workers’ Compensation Act. General Statutes § 31-275 et seq.; see Olmstead v. Lamphier, 93 Conn. 20, 22-23, 104 A. 488 (1918). The plaintiffs claim that §§ 31-306 and 31-308 (d) compensate for distinct losses and, therefore, that the prohibition against double compensation does not apply in this case. The plaintiffs rely for this assertion on Scalora v. Dattco, Inc., 39 Conn. Sup. 449, 452, 466 A.2d 334 (1983). Their reliance is misplaced.

In Scalora the Appellate Session of the Superior Court concluded that benefits for permanent significant disfigurement or scarring under § 31-308 (d) were simultaneously payable with benefits for total incapacity under § 31-307. Id., 454. Specifically, the court held that because “one can be simultaneously incapacitated and disfigured,” the Olmstead prohibition against concurrent payment did not apply. Id., 452.

The benefits involved in the instant case are not so readily distinguishable. Dependent death benefits under our Workers’ Compensation Act are “made to take the place of the wages which the employee can no longer earn, and in which those who were dependent upon him for support had an interest.” Jackson v. Berlin Construction Co., 93 Conn. 155, 157, 105 A. 326 (1918) (discussing General Statutes [1918 Rev.] § 5349, the predecessor to General Statutes § 31-306). Compensation under § 31-308 (d) for partial impairment of one’s heart is a special award of benefits. Felia v. Westport, 214 Conn. 181, 186, 571 A.2d 89 (1990). “In contrast to the specific benefits of § 31-308 (b), which relate weekly benefits to the impairment or loss of designated body parts . . . id.; “a special award is one that is not compensation for the loss or loss of use of a body part, but is compensation for the inability to work as a result of the disability. See Bassett v. Stratford Lumber Co., 105 Conn. 297, 307, 135 A. 574 (1926) (Haines, J., concurring); J. Asselin, [Connecticut Workers’ Compensation Practice Manual (1985)] p. 119 (the author refers to these benefits as ‘continuing wage benefits’).” Morgan v. East Haven, 208 Conn. 576, 584, 546 A.2d 243 (1988). Thus, although a special award derives from a more specific form of impairment, benefits under §§ 31-306 and 31-308 (d) compensate for the same loss, that is, the loss of wages as a result of one’s inability to work.

Because the benefits under these sections provide compensation for the same loss, we conclude that the decision of the CRD is a reasonable construction of the relationship between §§ 31-306 and 31-308 (d) “that warrants respect as the considered judgment of the governmental agency vested with primary authority for enforcing our workers’ compensation statutes.” Felia v. Westport, supra, 188, citing Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 599, 522 A.2d 771 (1987); New Haven v. United Illuminating Co., 168 Conn. 478, 493, 362 A.2d 785 (1975).

The plaintiffs claim that “[tjhere is no language in Sections 31-306 or 31-308 (d) or any other provision of Chapter 568 which supports the . . . position that concurrent payment of Section 31-308 (d) benefits and Section 31-306 benefits is prohibited.” We recognize that there is no explicit prohibition against concurrent payment in the provisions. However, “[i]f the meaning of a statute is ambiguous, it should be construed in view of its societal purpose in order to obtain a result which is neither incongruous nor irrational. State v. Campbell, 180 Conn. 557, 563, 429 A.2d 960 (1980).” Middletown v. Local 1073, 1 Conn. App. 58, 62-63, 467 A.2d 1258 (1983), cert. dismissed, 192 Conn. 803, 471 A.2d 244 (1984).

“The purpose of our [Workers’ Compensation] Act . . . is to give to the employee and to his dependents compensation for the loss of wages accruing from the employee’s injury.” Bassett v. Stratford Lumber Co., supra, 303. As previously stated, §§ 31-306 and 31-308 (d), each exclusively of the other, provide compensation for loss of wages. Simultaneous payment of the two benefits, therefore, would result in double compensation for a single loss which is prohibited by our Workers’ Compensation Act. See Paternostro v. Edward Coon Co., 217 Conn. 42, 49, 583 A.2d 1293 (1991); Olmstead v. Lamphier, supra, 22-23.

Moreover, after the death of her husband resulting from a compensable injury, concurrent payment of death benefits and special benefits for impairment would afford a widow greater benefits than her husband would have been able to recover while he was alive. See Paternostro v. Edward Coon Co., supra (concurrent payment of benefits for total incapacity under General Statutes § 31-307 and partial incapacity under General Statutes § 31-308 [b] is prohibited as double compensation); see also Olmstead v. Lamphier, supra, 23; Scalora v. Dattco, Inc., supra, 452. “ ‘[CJourts are particularly sensitive to claims which would give rise to solutions providing the plaintiff either with greater benefits for disability or death than if the worker had lived and worked or with greater benefits than other workers similarly situated. . . .’ ” Maciejewski v. West Hartford, 194 Conn. 139, 151, 480 A.2d 519 (1984), quoting Middletown v. Local 1073, supra, 64.

“The anomalous result which would be obtained if we were to accept the plaintiff’s position was clearly not intended by the legislature . . . .” Maciejewski v. West Hartford, supra. We conclude, therefore, that concurrent payment of benefits for death caused by heart disease under § 31-306 and benefits for permanent partial impairment of one’s heart under § 31-308 (d) is prohibited.

The judgments are affirmed.

In this opinion the other justices concurred.

       General Statutes § 31-308 (d) provides in pertinent part: “In addition to compensation for total or partial incapacity for a specific loss of a member or loss of use of the function of a member of the body or for disfigurement or scarring, the commissioner may award such compensation as he deems just for the loss or loss of use of the function of any organ or part of the body not otherwise provided for herein, taking into account the age and sex of the claimant, the disabling effect of the loss of or loss of function of the organ involved and the necessity of the organ or complete functioning of the organ with respect to the entire body, but in no case more than the sum equivalent to compensation for seven hundred and eighty weeks.”

       General Statutes § 31-306 (b) (2) provides in pertinent part: “Compensation shall be paid on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease as follows. . . .
      “(2) To those wholly dependent upon the deceased employee at the time of his injury, a weekly compensation equal to sixty-six and two-thirds per cent of the average weekly earnings of the deceased at the time of the injury but in no case more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred or less than twenty dollars weekly. ...”

       General Statutes § 7-433c provides in pertinent part: “In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusual high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment. . .

       On August 17, 1987, by a supplemental finding and award, the commissioner ordered that two thirds of the dependent death benefits under General Statutes § 31-306 be paid to Arm Kachaluba and that the remaining one third be paid to Rita Kachaluba as mother and guardian of John P. Kachaluba, the decedent’s son.

       General Statutes § 31-307 provides in pertinent part: “If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the injury; but the compensation shall in no case be more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred . . .

       In its cross appeal in the first case, the defendant city of Norwalk claims that the award of special benefits under General Statutes § 31-308 (d) has expired and, therefore, that the CRD mistakenly concluded that when payment of benefits to Roberta Ancona under General Statutes § 31-306 ceases, the commissioner may then order payment of the special benefits under § 31-308 (d). In the second case, the defendant town of Greenwich argues that no award of benefits under § 31-308 (d) was ever made with respect to John Kachaluba but that the commissioner merely found that at the time of his death he was eligible for such benefits. Norwalk failed to raise the issue of expiration of benefits and Greenwich failed to raise the issue of lack of an award of benefits in their appeals to the CRD. We have generally taken the position that we do not sit de novo on civil cases for arguments that have not been raised in the agency whose action we are reviewing. Harrison v. Commissioner, 204 Conn. 672, 680, 529 A.2d 188 (1987); Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023,107 S. Ct. 781, 93 L. Ed. 2d 819 (1986); Burnham v. Administrator, 184 Conn. 317, 323, 439 A.2d 1008 (1981). Accordingly, we decline to address these issues.

       General Statutes § 31-308 (d) provides in pertinent part: “In addition to compensation for total or partial incapacity or for a specific loss of a member or use of the function of a member of the body, the commissioner may award such compensation as he deems just . . . for any permanent significant disfigurement of, or permanent significant scar on, any part of the body ....’’


author: Shea, J. Peters, C. J., with whom Callahan, J.,

text:
    Dianne Fellows v. Marjorie Martin
    (14055)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.

      Argued September 27, 1990
    decision released January 1, 1991

      Joel M. Ellis, with whom was Gregory J. Sherman, for the appellant (defendant).

      Lois Frankforter, for the appellee (plaintiff).
   Shea, J.

The defendant tenant appeals from a judgment for the plaintiff landlord in a summary process action seeking possession of the leased premises for nonpayment of rent. The dispositive issue on appeal is whether the trial court erred in refusing to prevent the forfeiture of the lease on equitable grounds when the lessor’s loss was small, the default slight, and the hardship to the tenant great. Although the tenant’s appeal also raised five other issues, only one of these (the variance between the allegations in the complaint and the evidence offered by the landlord) was fully presented at trial. Because we reverse the decision on equitable grounds, we do not consider the merits of these other claims or their reviewability.

I

The trial court found the following facts. On March 4, 1983, the landlord leased a duplex apartment in East Hartford to the tenant for a term of ninety-nine years. The terms of the lease required the tenant to make a down payment in cash ($9900* paid at the execution of the lease), monthly payments for forty years on a promissory note ($419.57 per month), and monthly payments for the property tax ($54.48 per month) and insurance ($25.96 per month). The lease also required the tenant to pay the landlord’s actual costs of exterior maintenance. The trial court found that the total amount of “rent” due was $500.01. The tenant withheld $25 from her rent check in April, 1988, because of a dispute over her parking accommodations. The landlord served the tenant with a notice to quit and commenced a summary process action to evict her from the premises.

The trial court rejected the tenant’s special defenses of estoppel, based on the landlord’s prior acceptance of amounts less than the full amount of rent, and satisfaction, based on the prior payment of $9900. In addition to her special defenses, the tenant also raised two counterclaims, seeking, inter alia, “[djenial of the summary process action on equitable grounds.” Counsel agreed at oral argument, and the transcript and trial briefs clearly show, that the trial court heard and considered the tenant’s arguments in equity.

II

As a threshold matter, we must decide whether the tenant was entitled to raise an equitable defense or counterclaim in a summary process action. We last considered this issue forty-five years ago in Atlantic Refining Co. v. O’Keefe, 131 Conn. 528, 531, 41 A.2d 109 (1945), when we held that neither equitable nor legal counterclaims were available in summary process actions.* ** When Atlantic Refining Co. was decided, however, summary process actions were still decided by justices of the peace in the “justice courts,” which did not have jurisdiction over equitable issues. Giering v. Hartford Theological Seminary, 86 Conn. 208, 212, 84 A. 930 (1912). Summary process defendants at that time could not, therefore, raise equitable defenses, but could and did bring separate actions in equity to enjoin the prosecution of summary process actions.* *

In the years since Atlantic Refining Co., the legislature abolished the justice courts; Public Acts 1959, No. 28, §§ 130, 204; and, in 1978, created the housing docket of the Superior Court. Public Acts 1978, No. 78-365. In addition to hearing summary process actions; General Statutes §§ 47a-68 (a), 51-165; “housing court” judges hear actions on a wide range of “housing matters” including administrative appeals, building code violations and “[a]ll actions for back rent, damages, return of security deposits and other relief arising out of the parties’ relationship as landlord and tenant or owner and occupant.” General Statutes § 47a-68 (c), (f), (h).

After the creation of the housing docket in 1978, numerous Connecticut courts have concluded that defendants in summary process actions may raise equitable defenses and counterclaims, including the equitable doctrine against forfeitures. Morin v. DeMarco, 18 Conn. App. 417, 557 A.2d 1287 (1989); Tartaglia v. R.A.C. Corporation, 15 Conn. App. 492, 545 A.2d 573, cert. denied, 209 Conn. 810, 548 A.2d 443 (1988); Elliott v. South Isle Food Corporation, 6 Conn. App. 373, 506 A.2d 147 (1986); 750 Main Street Associates v. Specter, 5 Conn. App. 170, 497 A.2d 96 (1985); Mobilia, Inc. v. Santos, 4 Conn. App. 128,492 A.2d 544 (1985); Filosi v. Hawkins, 1 Conn. App. 634, 635 n.1, 474 A.2d 1261 (1984); Southland Corporation v. Vernon, 1 Conn. App. 439, 445, 473 A.2d 318 (1984); Haddad v. Francis, 40 Conn. Sup. 567, 537 A.2d 174 (1986), aff’d, 13 Conn. App. 324, 536 A.2d 592 (1988); Zitomer v. Palmer, 38 Conn. Sup. 341, 446 A.2d 1084 (1982); Danpar Associates v. Falkha, 37 Conn. Sup. 820, 438 A.2d 1209 (1981); S.H.V.C., Inc. v. Roy, 37 Conn. Sup. 579,428 A.2d 806 (1981), affd, 188 Conn. 503,452 A.2d 638 (1982); Mark I Enterprises, Inc. v. Sendele, 37 Conn. Sup. 569, 572, 427 A.2d 1352 (1981); Steinegger v. Fields, 37 Conn. Sup. 534, 537,425 A.2d 597 (1980). Those courts that enunciated their underlying rationale reasoned that the ban on equitable issues in summary process proceedings arose from the jurisdictional limitations of the extinct justice courts, and concluded that the ban should be abolished. See, e.g., Southland Corporation v. Vernon, supra.

We agree that there is no longer sufficient justification for the old prohibition against the application of equitable principles barring forfeitures to summary process, that the prohibition, arising from an obsolete system, is itself obsolete, and that equitable defenses and counterclaims implicating the right to possession are available in a summary process proceeding. If, then, the tenant’s equitable claim was properly raised, it was properly before the trial court.

III

The tenant’s answer did not raise the equitable doctrine against forfeitures as a defense to the summary-process action but instead sought by way of a counterclaim the “denial of the summary process action on equitable grounds.” The doctrine against forfeiture was, however, considered in principle by the trial court and briefed by the tenant. The tenant thus raised the issue below sufficiently for us to consider it upon review, particularly in light of the doctrine that once any equitable claim has been raised, the court retains its equitable jurisdiction to consider all of the equities before it in order to render complete justice; Natural Harmony, Inc. v. Norman, 211 Conn. 145, 149, 558 A.2d 231 (1989); McGaffin v. Roberts, 193 Conn. 393, 404, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985); Clipfel v. Kantrowitz, 143 Conn. 184, 188, 120 A.2d 416 (1956); Beardsley v. Halls, 1 Root 366 (1792); even where the equitable jurisdiction was conferred by a defendant’s counterclaim. Seymour Water Co. v. Horischak, 149 Conn. 435, 442, 181 A.2d 112 (1962).

IY

“ ‘Equity abhors ... a forfeiture.’ ” Menzies v. Fisher, 165 Conn. 338, 357, 334 A.2d 452 (1973), quoting Pierce v. Staub, 78 Conn. 459, 466, 62 A. 760 (1906); Sheets v. Selden, 74 U.S. (7 Wall.) 416, 421, 19 L. Ed. 166 (1868). It is well settled that equity will relieve against the forfeiture of a lease for nonpayment of rent. Kann v. King, 204 U.S. 43, 27 S. Ct. 213, 51 L. Ed. 360 (1907); Sheets v. Selden, supra, 421; 1 Restatement (Second), Property, Landlord and Tenant § 12.1, comment (n); J. Eaton, Handbook of Equity Jurisprudence (2d Ed.) § 27; H. McClintock, Handbook of Equity § 31; 2 J. Pomeroy, Equity Jurisprudence as Administered in the United States of America (5th Ed.) § 453; 3 J. Story, Equity Jurisprudence (14th Ed.) § 1727; see Nicoli v. Frouge Corporation, 171 Conn. 245, 246, 368 A.2d 74 (1976); Thompson v. Coe, 96 Conn. 644, 115 A. 219 (1921). This ancient principle allows relief because “[i]n reason, in conscience, in natural equity, there is no ground to say because a man has stipulated for a penalty in case of his omission to do a particular act (the real object of the parties being the performance of the act), that if he omits to do the act he shall suffer an enormous loss wholly disproportionate to the injury to the other party.” 3 J. Story, supra, § 1728. The “penalty” is the forfeiture of the leasehold, imposed for “omission to do a particular act,” that is, to pay rent; if the payment may be secured without a forfeiture, equity will not permit a forfeiture. J. Eaton, supra, § 34; 2 M. Friedman, Leases (2d Ed. 1983) § 16.2; H. McClintock, supra, § 31; J. Story, supra; 2 J. Taylor, American Law of Landlord and Tenant (9th Ed.) § 495; 2 H. Tiffany, Law of Landlord and Tenant § 194 (3).

Connecticut Appellate and Superior Courts have applied the ancient equitable doctrine against forfeitures to summary process actions for nonpayment of rent and have occasionally, on the particular facts of each case, granted relief to the tenant. Danpar Associates v. Falkha, supra; Syncro Flame Burner Corporation v. Windham Development Co., 11 Conn. Sup. 28 (1942); Seaboard Oil Co. v. Williamson, 1 Conn. Sup. 47 (1935); Dinardo v. Preston, Superior Court, judicial district of New Haven, Housing Session, Docket No. SPNH8912-023883 (July 18,1990), 16 Conn. Law Trib. No. 38, p. 33; Googel v. Genesis Health Ventures, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Housing Session, Docket No. SPH8604-32516 (March 23, 1987), 2 C.S.C.R. 558. More often, while applying the same doctrine to different facts, our courts have declined to grant such relief to tenants. See, e.g., Morin v. DeMarco, supra; Elliott v. South Isle Food Corporation, supra; Mobilia, Inc. v. Santos, supra; Haddad v. Francis, supra; Zitomer v. Palmer, supra; S.H.V.C., Inc. v. Roy, supra; Steinegger v. Fields, supra.

The factors considered by these courts in deciding whether to grant equitable relief in nonpayment cases are those suggested by Justice Story in his learned treatise, namely, (1) whether, in the absence of equitable relief, one party will suffer a loss 11 wholly disproportionate to the injury to the other party”; (emphasis added) 3 J. Story, supra, § 1728; and (2) whether the injury to the other party is reparable. See 3 J. Story, supra; see also Petterson v. Weinstock, 106 Conn. 436, 443-44, 138 A. 433 (1927). We applied a similar balancing test in two landlord-tenant cases, Fountain Co. v. Stein, 97 Conn. 619, 624, 118 A. 47 (1922) (a lease renewal case), and Nicoli v. Frouge Corporation, supra, 247 (a breach of covenant case).

A court of equity will apply the doctrine of clean hands to a tenant seeking such equitable relief; thus, a tenant whose breach was “willful” or “grossly negligent” will not be entitled to relief. Fountain Co v. Stein, supra, 624; see also Tartaglia v. R.A.C. Corporation, supra, 494; but see Thompson v. Coe, supra, 656, discussing Mactier v. Osborn, 146 Mass. 399, 402, 15 N.E. 641 (1888); 27 Am. Jur. 2d, Equity § 82; C. Lewis, The Law of Leases 62; 1 H. Underhill, A Treatise on the Law of Landlord and Tenant § 411 (equity will relieve against forfeiture of a lease for nonpayment of rent even where tenant’s breach is wilful).

Y

Applying these considerations to the undisputed facts of this case, we conclude that eviction of the tenant would work a forfeiture “wholly disproportionate to the injury suffered.” In essence, the trial court ruled that for want of a $25.01 payment, withheld because of a dispute over a parking space, the tenant must forfeit a ninety-nine year lease and an advance rental payment of $9900. Although we ordinarily are reluctant to interfere with a trial court’s equitable discretion; Sturman v. Socha, 191 Conn. 1, 7, 463 A.2d 527 (1983); see also Natural Harmony, Inc. v. Norman, supra, 149-50; we will reverse where we find that a trial court acting as a court of equity could not reasonably have concluded as it did; Leveston v. Leveston, 182 Conn. 19, 23, 437 A.2d 819 (1980); or to prevent abuse or injustice. Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 54, 492 A.2d 223 (1985). This case presents just such a situation. Applying the maxim “de minimis non curat lex,” we find that under the circumstances presented, the underpayment of $25.01 is insufficient, as a matter of law, to justify such a forfeiture.

We need not decide whether a tenant who deliberately refuses to pay rent may yet claim relief under the equitable doctrine against forfeitures where the forfeiture is as grossly disproportionate as it is in this case. Here, the trial court found that the tenant withheld the rent in a dispute over her parking accommodations. She apparently believed that she had the right to withhold rent if her landlord breached the lease. While her belief was erroneous; see Thomas v. Roper, 162 Conn. 343, 346, 294 A.2d 321 (1972) (as a general rule, covenants in a lease are independent); her misconception amounts to a mistake of law, rather than the type of “wilfulness” disapproved by Fountain v. Stein, supra, and other authorities. See Petterson v. Weinstock, 106 Conn. 436, 444, 138 A. 433 (1927). Indeed, we have specifically held that a court of equity may grant relief from a forfeiture when the defendant’s omission was caused by an error of law. Connecticut National Bank v. Chapman, 153 Conn. 393, 398, 216 A.2d 814 (1966); Bronson v. Leibold, 87 Conn. 293, 87 A. 979 (1913) (the court granted the defendant tenant’s equitable counterclaim in a landlord’s action to recover rent, where a buyer-mortgagor, mistaken as to his legal rights, reconveyed his property to the seller-mortgagee, who then ejected him for nonpayment of rent). The doctrine against forfeitures applies to a failure to pay rent in full when that failure is accompanied by a good faith intent to comply with the lease or a good faith dispute over the meaning of a lease. 2 M. Friedman, supra, § 16.2, pp. 840-41; 2 J. Pomeroy, supra, § 292.

VI

Although the trial court’s judgment must be set aside, we are mindful that the equitable doctrine against forfeitures presupposes that the landlord’s injury is reparable—that is, the landlord’s injury can be remedied by money instead of forfeiture of the tenancy.

Here, the tenant admits that her payment was $25.01 short of the amount the trial court found to be the rent due, $500.01. The record suggests that after service of the notice to quit, she resumed monthly payments of a sum in excess of that amount, that is, $525.01, the sum the landlord initially claimed. On remand, the trial court should hear evidence concerning this issue.

Because the trial court could not reasonably have failed to grant equitable relief to the tenant by relieving her from forfeiture of the lease, we reverse the judgment of possession on the complaint, but remand for further proceedings regarding the amount due the landlord. We affirm the dismissal of the counterclaim to the extent that it claimed damages, because its prayers for monetary relief did not implicate the right to possession.

In this opinion Glass and Borden, Js., concurred.

Peters, C. J., with whom Callahan, J.,

joins, concurring. I concur in the judgment that, in the circumstances of this case, summary process would result in so unwarranted a forfeiture that the trial court should not have granted possession to the landlord. Neither the briefs nor the record, however, furnish a basis for the majority opinion’s sweeping changes in the law of summary process.

My concerns arise out of the significant difference in the configuration of this case at trial and in the majority opinion in this court. At trial, the tenant resisted summary process by alleging three special defenses and a two count counterclaim.

The trial court considered and rejected each of the tenant’s special defenses on their merits, and thus concluded that the landlord had not failed to fulfill her maintenance obligation, was not estopped from declaring a forfeiture, and had not been paid in full at the time of bringing her action. The majority opinion accepts the propriety of these rulings.

The trial court also rejected the tenant’s two part counterclaim, one part of which reiterated a claim that the landlord had defaulted in her maintenance obligations, and the other of which sought relief under the Connecticut Unfair Trade Practices Act (CUTPA). General Statutes 42-100 et seq. The court’s ruling on the counterclaim was addressed solely to the form of relief being sought. The court mistakenly dismissed the counterclaim out-of-hand, as improperly seeking monetary damages, when in fact the prayer for relief had sought not only damages but also specific performance and “denial of the summary process action on equitable grounds.”

It bears mention, however, that the two counts of the counterclaim have not been established on their merits. The first count merely reiterated, and sought equitable relief for, the same dispute about maintenance obligations that the trial court, in its memorandum of decision, had already rejected as a special defense. Inferentially, the trial court intended the same ruling on the counterclaim, which by its own terms, apart from the later prayer for relief, sought specific performance. It is entirely plausible that the court’s reference to monetary damages related solely to the second count, premised on CUTPA, whose merits, despite extensive appellate advocacy on behalf of the tenant, have not found favor in this court.

In precise procedural terms, therefore, the question is whether a tenant, who has not established a substantive basis either for her special defenses or for her counterclaims, has distinctly alerted a trial court to wide-ranging equitable issues merely by appending an unstructured request for “denial of the summary process action on equitable grounds” to an unsustainable counterclaim. To my mind, an affirmative answer to this question is doubtful at best.

On this state of the record, am persuaded that this case does not furnish us the proper occasion for consideration of the extent to which any and all equitable considerations now inform the availability of a statutory right to summary process. General Statutes §§ 47a-23 through 47a-42. The need to retain summary process as an “expeditious remedy to the landlord seeking possession”; Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973); must be balanced against the broad jurisdiction now conferred upon the judges of the Superior Court hearing cases in the housing division. See Southland Corporation v. Vernon, 1 Conn. App. 439, 449, 473 A.2d 318 (1984). In my view, we should pursue that balancing process, in the common law tradition, on a case-by-case basis, in order to identify the relevant factors that tip the scales one way or the other. It seems to me entirely plausible, for example, that an equitable defense to default on a lease that sought a far-reaching accounting of complex partnership or intercorporate relations would not lend itself to resolution by summary process.

The facts of this case, however, present a compelling case for equitable intervention on the ground of forfeiture. In light of the tenant’s substantial investment in the leasehold, it was plain error for the trial court to have rendered judgment awarding possession to this landlord for the tenant’s default of a mere $25.01. Since the tenant’s breach was not willful, but was premised on a good faith dispute, forfeiture of her interest would be wholly disproportionate to the gravity of her default. I therefore agree with parts IV, V and VI of the majority opinion.

Accordingly, I respectfully concur that the judgment of the trial court must be set aside and the case remanded to determine what arrearages the tenant presently owes the landlord.

       The tenant argued on appeal that (1) the variance between the complaint and the proof as to the amount of rent due was fatal to the action; (2) the tenant was entitled to a credit for unpaid accrued interest on her advance rental payment because it was a security deposit under the summary process statute; (3) the tenant was entitled to a credit for previous overpayment of maintenance charges that the landlord was required by the lease to substantiate and could not; (4) the landlord violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., by filing an inaccurate complaint, overcharging for maintenance, failing to refund twice the alleged security deposit and failing to pay interest on the alleged security deposit; and (5) the landlord violated CUTPA by disguising a mortgage as a ninety-nine year lease in order to circumvent the protections of a foreclosure proceeding. The tenant did present a CUTPA claim to the trial court, but alleged different unfair trade practices from those underlying her arguments (4) and (5). The tenant did not present claims (2) and (3) to the trial court until after judgment was rendered against her.

       The $9900 paid at the time of execution actually consisted of $2000 previously paid by the tenant for an option to buy the premises, $4800 previously paid by the tenant for the past year’s rent for the premises, and $3100 in cash.

       Thus, the lease resembled a seller-financed condominium sale, the principal difference being that upon final payment of the promissory note, the tenant received a term interest (ninety-nine years reduced by forty years) instead of a fee interest in the property.

       The complaint alleged that the monthly rent totaled $525.01. This figure included a maintenance charge that had been regularly assessed at $25 per month. At trial, the landlord abandoned this figure and accepted the figure of $500.01 found by the trial court. The tenant raised a defense of variance at trial and on appeal, but because we vacate the judgment below, we need not consider this issue.

       The trial court relied on Atlantic Refining Co. v. O’Keefe, 131 Conn. 528, 41 A.2d 109 (1945), when dismissing the tenant’s CUTPA counterclaim as “not actionable” because “[ejounterclaims seeking money damages are not permitted in summary process actions.” The trial court did not explicitly address the tenant’s request for equitable relief, which was included in the counterclaim.

       The Circuit Court, which heard summary process actions after the justice courts were abolished; Public Acts 1959, No. 28, § 204; also refused to hear equitable defenses. See Dreifuss v. World Art Group, Inc., 6 Conn. Cir. Ct. 309, 272 A.2d 144, cert. denied, 160 Conn. 667, 269 A.2d 293 (1970).

       Even after the justice courts were abolished, summary process defendants continued to bring separate actions for injunctive relief on equitable grounds. Such actions have frequently been successful. See Nicoli v. Frouge Corporation, 171 Conn. 245, 368 A.2d 74 (1976); Galvin v. Simons, 128 Conn. 616,25 A.2d 64 (1942); R & R of Connecticut, Inc. v. Stiegler, 4 Conn. App. 240, 493 A.2d 293 (1985); Damato v. Gilman, 16 Conn. Sup. 276 (1949); Syncro Flame Burner Corporation v. Windham Development Co., 11 Conn. Sup. 28 (1942); but see Brauer v. Freccia, 159 Conn. 289, 268 A.2d 645 (1970); Alpert v. Peloquin, 96 Conn. 626, 115 A. 81 (1921); Wienski v. Wallace Motors, Inc., 16 Conn. Sup. 57 (1948).

       Neither party has discussed the application of General Statutes § 52-122 to the issue before us. That statute provides that “[s]ections 52-1, 52-45a, 52-45b, 52-97 and 52-279 shall not affect flowage petitions, or proceedings in paternity, replevin, summary process, habeas corpus, mandamus, ne exeat, quo warranto, forcible entry and detainer or peaceable entry and forcible detainer, or for the payment of rewards,” (emphasis added) and was enacted in substantially the same form in 1879. When enacted, it created an exception to the provisions of the Practice Act of 1879, which declared that legal and equitable claims could be brought in the same action. See General Statutes §§ 52-1 and 52-97. Section 52-122 has been amended periodically to reflect changes in numbering and to delete references to obsolete statutes, most recently by Public Acts 1982, No. 82-160, § 51, Public Acts 1981, No. 81-410, § 13, and Public Acts 1965, No. 574, § 40.
      At first glance, § 52-122 appears to conflict with Practice Book §§ 116, 133 and 169. Practice Book § 116, in particular, provides that “[i]n any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff’ (emphasis added), and § 169 provides that withdrawal of an action after an equitable counterclaim is filed shall not impair the defendant’s right to prosecute the counterclaim. Section 52-122 provides, however, only that the listed statutes “shall not affect” proceedings in summary process. The summary process statute, General Statutes §§ 47a-23 through 47a-42, does not itself expressly prohibit the court from ruling on equitable and legal issues in the context of a summary process action, and, indeed, § 47a-39, entitled “Court may grant stay of execution,” contemplates that the court will undertake a traditionally equitable consideration of the defendant’s need for a stay. It is well established that the summary process statute provides landlords with an expedited eviction process that is in derogation of the common law action in ejectment; Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973); and as such, shall be narrowly construed. Jo-Mark Sand & Gravel Co. v. Pantanella, 139 Conn. 598, 601, 96 A.2d 217 (1953). Given the broad scope of authority now vested in the Superior Court housing session by the enactment of No. 78-379 of the 1978 Public Acts, including the authority to decide “[a]ll actions for . . . other relief arising out of the parties’relationship as landlord and tenant or owner and occupant”; General Statutes § 47a-68 (h); and to decide cases related to the same landlord-tenant relationship that have been brought in other courts upon their transfer to the housing docket; General Statutes § 47a-70 (b); we decline to read the summary process statute to prohibit consideration, in a single action, of equitable issues relating to a summary process action brought to the housing docket.
      There is an additional reason for allowing the doctrine against forfeitures to be raised as a defense to a summary process action despite the language of § 52-122. Even at common law, forfeitures are traditionally disfavored. Before the enactment of the Practice Act of 1879, common law courts occasionally allowed a defense against forfeiture upon motion, if all arrearages, interests and costs were paid. See Sheets v. Selden, 74 U.S. (7 Wall.) 416, 421,19 L. Ed. 166 (1868); 2 J. Taylor, American Law of Landord and Tenant (9th Ed.) § 495; 1 H. Underhill, Landlord and Tenant § 411. Were we to read § 52-122 as excluding summary process from the rule allowing equitable and legal claims in the same action, such a common law defense against forfeitures might still be available. See Seaboard Oil Co. v. Williamson, 1 Conn. Sup. 47 (1935) (allowing such a defense).

       The concurring opinion expresses concern that to allow “any and all equitable considerations” to be raised in a summary process action will seriously impair the usefulness of this statutory procedure as an “ ‘expeditious remedy to the landlord seeking possession,’ ” quoting Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 292, 320 A.2d 797 (1973). We disagree that such a development is sanctioned by our opinion. First, it should be noted that our holding does not involve equitable considerations generally, but declares only that “equitable defenses and counterclaims implicating the right to possession are available in a summary process proceeding.” (Emphasis added.) Second, even if we were to preclude such equitable defenses in the summary process action itself, a separate action raising the same equitable considerations could be filed in the housing court as a basis for enjoining the eviction and would presumably be tried with the summary process action, if the right to possession was at issue. To allow the same matters to be raised in the summary process action without the necessity of commencing a separate suit for injunctive relief should result in a more expeditious resolution of all the issues relating to possesion in a single action. Third, our view that equitable claims involving the right to possession may properly be raised in a summary process action is no great departure from precedent, as evidenced by the lower court cases that have disregarded or distinguished Atlantic Refining Co. v. O’Keefe, 131 Conn. 528, 41 A.2d 109 (1945), since the abolition of the justice of the peace courts. See, e.g., Filosi v. Hawkins, 1 Conn. App. 634, 635 n.1, 474 A.2d 1261 (1984); Southland Corporation v. Vernon, 1 Conn. App. 439, 445, 473 A.2d 318 (1984); S.H.V.C., Inc. v. Roy, 37 Conn. Sup. 579, 583-84, 428 A.2d 806 (1981), aff’d, 188 Conn. 503, 450 A.2d 351 (1982); Mark I Enterprises, Inc. v. Sendele, 37 Conn. Sup. 569, 572, 427 A.2d 1352 (1981); Steinegger v. Fields, 37 Conn. Sup. 534, 537, 425 A.2d 597 (1980).

       The Appellate Session of the Superior Court discussed the same principle in a recent nonpayment case, Danpar Associates v. Falkha, 37 Conn. Sup. 820, 438 A.2d 1209 (1981). In that case, however, the court appeared to rely instead upon the well established rule that “a court of equity, even in the absence of fraud, accident or mistake, may relieve against a forfeiture resulting from the breach of a covenant to pay rent upon payment or tender of all arrears of rent with interest. Thompson v. Coe, 96 Conn. 644, 655, 115 A. 219 (1921).” Id., 823.

       In 1928, considering an appeal on an action to recover the balance due on a $10,500 construction contract, we held that a discrepancy of $21 was “de minimis.” Zajonc v. Szrzepowski, 107 Conn. 532, 534-35, 141 A. 651 (1928). If $21 was de minimis in 1928, it is safe to say that $25.01 is de minimis today.

       That the tenant also had legal self-help rights under General Statutes §§ 47a-13 and 47a-14h is irrelevant. At least on their face, those sections appear to apply, respectively, only to a landlord’s failure to supply “essential services” or to comply with the provisions of General Statutes § 47a-7. Interference with a tenant’s parking space would not appear to come within those provisions.

       The payments were tendered as rent, but accepted by the landlord as “use and occupancy,” thus eliminating any potential claim by the tenant that the landlord had waived the default and renewed the tenancy. See Borst v. Ruff, 137 Conn. 359, 361, 77 A.2d 342 (1950); Alteri v. Layton, 35 Conn. Sup. 258, 259, 408 A.2d 17 (1979).

       The tenant’s trial court motions for reargument and for articulation appear to reflect the same understanding, because the court was asked to focus its attention on the alleged availability of equitable relief under CUTPA. Nowhere in the motion for articulation did the tenant ask the trial court to explain whether and why it had refused to deny summary process on equitable grounds in relation to the first count of the counterclaim.

       The briefs filed in this court, although they cite Southland Corporation v. Vernon, 1 Conn. App. 439, 473 A.2d 318 (1984), do not contain any reasoned argument about the extent to which equitable issues can appropriately be resolved in the context of summary process actions.