author:
Hull, J.
      Shea, J.,

text:
    Cutter Development Corporation v. Angelo Peluso et al.
    (13641)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued March 30
    decision released July 11, 1989

      Jeffrey J. Mirman, with whom was Mary-Ellen B. Clark, for the appellants (defendants).

      Thomas J. Shortell, with whom, on the brief, were Karen P. Blado and Marjorie J. Berger, for the appellee (plaintiff).
   Hull, J.

This appeal arises from a judgment sustaining an action brought by the plaintiff, Cutter Development Corporation, against the defendants, Angelo Peluso, John Peluso and Louis Peluso, claiming that the plaintiff and the defendants had executed “a certain agreement” for the sale of the defendants’ property to the plaintiff and seeking, upon the defendants’ refusal to convey the property on the date allegedly set for performance, a decree of specific enforcement of the terms of the contract. The defendants contend on appeal, as they did at trial, that they had no obligation to convey the property in question to the plaintiff because: (1) their agreement was merely an option and not a bilateral purchase and sale contract; (2) the plaintiff did not satisfy its burden of proving its entitlement to a decree of specific performance; and (3) the plaintiff did not exercise its option to purchase in timely fashion. After considering the agreement itself, the testimony of the parties regarding their intent, and several letters exchanged between the parties’ attorneys at or near the date set for closing, the trial court found that the agreement is “a bilateral contract for the purchase of the defendants’ property.” The trial court thereupon granted the plaintiff’s request for a decree of specific performance of the terms of the agreement, i.e., the conveyance of the property to the plaintiff in exchange for the purchase price specified in the contract. We find no error.

On September 19, 1984, the parties entered into an agreement concerning the sale of a piece of property owned by the defendants on Sheldon Street in Hartford. A review of the contents of the agreement reveals the following relevant terms and provisions. The thirteen page agreement, entitled “Option Agreement,” sets forth a $1,000,000 purchase price for the property. Apart from its use in the title, the word “option” appears only once in the body of the agreement. Throughout the agreement, the plaintiff and the defendants are referred to as “Purchaser” and “Seller” respectively. An unnumbered paragraph on the first page of the agreement, purporting to obligate the defendants to sell the property to the plaintiff, reads as follows: “Seller does hereby promise and agree to and with Purchaser that immediately upon the faithful performance of Purchaser’s agreement hereinafter made, Seller will on or before the 20th day of September, 1985,” convey the property to the plaintiff. The only language expressly purporting to obligate the plaintiff to buy the property appears in the last paragraph (paragraph 20) of the agreement, wherein it states that “[e]xcept as stated above, the Purchaser agrees to purchase the real property comprising the Premises ‘as is’ and ‘where is’ as of the date of the execution of this Agreement, reasonable wear and tear excepted.” The agreement also provides that the sole remedy of the sellers in the event of a breach by the purchaser is retention of any deposits previously paid by the purchaser: “In the event Purchaser, through no fault of Seller, fails to perform any of the obligations hereinbefore set forth, Purchaser shall forfeit all claims to the Premises described herein, and all deposits previously paid in pursuance of this Agreement prior to said default by the Purchaser shall be construed as full liquidated damages to Seller and Purchaser shall be discharged of any and all liability to Seller under this Agreement.”

I

An option contract and a contract of sale are in fact two separate and distinct contracts, namely, an option contract, and an agreement to sell. “An option, originally, is neither a sale nor an agreement to sell. It is not a contract by which one agrees to sell and the other to buy, but it is only an offer by one to sell within a limited time and a right acquired by the other to accept or reject such offer within such time.” 77 Am. Jur. 2d, Vendor and Purchaser § 28; see Smith v. Hevro Realty Corporation, 199 Conn. 330, 336, 507 A.2d 980 (1986). “The distinction between a contract to purchase and sell real estate and an option to purchase is that the contract to purchase and sell creates a mutual obligation on the one party to sell and on the other to purchase, while an option merely gives the right to purchase within a limited time without imposing any obligation to purchase.” 77 Am. Jur. 2d, supra, § 29. Whether the agreement in question is to be construed as a mutually binding contract of purchase and sale or a mere option to purchase is “a question of the intent of the parties, to be determined, as a matter of fact, from the language of the contract, the circumstances attending its negotiation, and the conduct of the parties in relation thereto.” Kakalik v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981). As a finding of fact, the trial court’s determination that the parties intended to enter into a mutually binding purchase and sale contract “is a determination that we must sustain unless it was clearly erroneous in light of the evidence and the record as a whole.” Id.; see Practice Book § 4061.

The defendants stress three points about the contents of the agreement which they claim establish its nature as an option contract: first, the denomination of the agreement as an “Option Agreement” in its title; second, the alleged lack of an obligation to purchase on the part of the plaintiff; and third, the presence of a liquidated damages clause as the defendants’ sole remedy in the event of the plaintiff’s breach of the agreement. We are unpersuaded.

The fact that the agreement is entitled “Option Agreement” is not determinative of its character. “Whether the nature of a contract is an option or a bilateral obligation to purchase is to be determined not by the name which the parties have given it, but by the nature of the obligations which it imposes. Where it appears that the general intention of the parties was to consummate a sale, that intention should be effectuated.” Cole v. Haynes, 216 Miss. 485, 496, 62 So. 2d 779 (1953); see McGuire v. Andre, 259 Ala. 109, 115, 65 So. 2d 185 (1953) (nature of a contract labeled “option” to be determined by the terms of the contract and not by name given to it); DeFeyter v. Riley, 43 Colo. App. 299, 301, 606 P.2d 453 (1979) (fact that word “option” appears in title does not mandate determination that instrument is an option contract). The trial court was entitled to find, as it did, that the heading of the agreement did not reflect the actual intent of the parties as to the nature of the agreement. This is particularly true where, as here, the word “option” appears only once in the body of the agreement.

The defendants next claim that the agreement lacks a provision obligating the plaintiff to purchase the property and that this establishes its character as an option contract. It is true that a distinguishing feature of an option contract is that it imposes no binding obligation on the option holder to complete the purchase. See, e.g., McGuire v. Andre, supra, 114; State v. New Jersey Zinc Co., 40 N. J. 560, 576, 193 A.2d 244 (1963); 77 Am. Jur. 2d, supra, § 29. We disagree, however, with the defendants’ assertion that the agreement fails to impose an obligation upon the plaintiff to purchase the property. As noted above, paragraph 20 of the agreement expressly provides that “the Purchaser agrees to purchase the real property” of the defendants. This express obligation is unconditional. It is not prefaced by language indicating that purchase of the property by the plaintiff is optional. The defendants have offered no reasons why this explicit language of obligation should not be given its apparent intended effect. Accordingly, we find without merit the defendants’ claim that the agreement fails to impose a binding obligation upon the plaintiff to purchase the property.

The defendants also contend that the presence of a forfeiture provision and the specification that it shall be the defendants’ sole remedy in the event of a breach by the plaintiff establishes the nature of the agreement as an option contract. In support of their contention the defendants point to three jurisdictions that have adopted a bright line rule stating that where an agreement concerning the sale of real estate provides, as the sole remedy for the seller, a provision for liquidated damages or a provision calling for the forfeiture of sums already paid, the agreement shall be construed as an option contract. See Dodek v. CF 16 Corporation, 537 A.2d 1086, 1094 (D.C. App. 1988); Dixon v. Haft, 253 Md. 692, 696, 253 A.2d 715 (1969); Broady v. Mitchell, 572 S.W.2d 36, 40 (Tex. Civ. App. 1978). Our research discloses, however, that several jurisdictions have rejected such a bright line approach. See, e.g., Platte Valley Bank v. B & J Construction, Inc., 44 Colo. App. 21, 606 P.2d 455 (1980); Vance v. Roberts, 96 Fla. 379, 118 So. 205 (1928); State v. Bakers Basin Realty Co., 138 N.J. Super. 33, 350 A.2d 236 (1975), aff'd, 74 N.J. 103, 376 A.2d 1189 (1977); Interactive Properties Corporation v. Blue Cross & Blue Shield of Greater New York, 114 Misc. 2d 255, 450 N.Y.S.2d 1001 (1982). These courts stress that the ultimate focus should be on the intent of the parties, and that the presence or absence of a liquidated damages or forfeiture clause is merely one factor to be considered in deriving that intent. We conclude that the view of these latter jurisdictions is the better one. Accordingly, we refuse to adopt the bright line approach urged by the defendants.

Having concluded that none of the defendants’ arguments establishes per se that the agreement in question is an option contract, we now look to the factors cited by the trial court in support of its determination that the parties entered into a bilateral purchase and sale contract. In reaching its conclusion, the trial court found the following factors to be persuasive: the plaintiff and the defendants are referred to throughout the agreement as “Purchaser” and “Seller” rather than as “Optionee” and “Optioner”; the word option appears nowhere in the agreement except the title; the agreement is devoid of any language granting the plaintiff an option; Anthony F. Cutaia, president of the plaintiff, testified that his company rarely takes options on property and generally enters into binding contracts to pin-chase; several letters exchanged between the parties’ attorneys near the date of closing indicate the nature of the agreement as a bilateral purchase and sale contract; and, the fact that the principal documents that would be required from the plaintiff at the time of closing were attached to the agreement, i.e., the $700,000 promissory note, the purchase money mortgage deed, and a personal guarantee of the mortgage note by Cutaia. We are satisfied that the trial court’s determination that the parties intended to enter into a bilateral purchase and sale contract is amply supported by the record and is therefore not clearly erroneous.

II

The defendants’ final claim relates to the trial court’s award of a decree of specific performance in favor of the plaintiff. “ ‘[A]n action for specific performance of a contract to sell real estate is an equitable action and is to be determined by equitable principles.’. . : The granting of specific performance of a contract to sell land is a remedy which rests in the broad discretion of the trial court depending on all of the facts and circumstances when viewed in light of the settled principles of equity.” (Citation omitted.) Frumento v. Mezzanotte, 192 Conn. 606, 615, 473 A.2d 1193 (1984). It is settled law, however, that in an action for specific performance the plaintiff has the burden of proving all of the essential elements of his cause of action and the burden is primarily on him to show his right in equity and good conscience to the relief sought. See DiBella v. Widlitz, 207 Conn. 194, 199-200, 541 A.2d 91 (1988); Frumento v. Mezzanotte, supra, 615-16.

In evaluating whether the plaintiff was entitled to specific performance of the terms of the contract in this case, the trial court stated that it would grant such a remedy upon the application of a party “unless it would be unjust, oppressive, or otherwise inequitable to do so.” The defendants claim that this standard employed by the trial court effectively relieved the plaintiff of its lawful burden of proving an entitlement to specific performance and improperly placed the onus upon the defendants to demonstrate that this remedy was not warranted in this case. We disagree. Although an inference might be drawn from the above-quoted language that the court shifted the burden to the defendants to prove that the plaintiff was not entitled to specific performance, the trial court’s subsequent analysis of the issue in its memorandum of decision clearly indicates otherwise. The trial court undertook a proper balancing of the equities in deciding that a decree of specific performance was justified in this case and, when read as a whole, the memorandum of decision persuades us that the burden of proof was properly placed upon the plaintiff. We are not inclined to find error on the basis of an inference that the trial court improperly shifted the burden of proof where such inference is clearly refuted by the substantive analysis of the trial court.

There is no error.

In this opinion Peters, C. J., Glass and Covello, Js., concurred.

Shea, J.,

concurring. I disagree with the conclusion of the majority that the agreement between the parties, despite its title, “Option Agreement,” and the inclusion of provisions expressly discharging the plaintiff of liability in the event of its failure to purchase the property, imposed “a binding obligation upon the plaintiff to purchase the property.” Paragraph 16 of the written contract is as follows: “In the event Purchaser, through no fault of Seller, fails to perform any of the obligations hereinbefore set forth, Purchaser shall forfeit all claims to the Premises described herein, and all deposits previously paid in pursuance of this Agreement prior to said default by the Purchaser shall be construed as full liquidated damages to Seller and Purchaser shall be discharged of any and all liability to Seller under this Agreement. The parties agree that such deposits that have been previously paid to the Seller shall be considered as full liquidated damages by reason of the fact that the parties will be unable to agree on actual damages suffered by the Seller by removal of the Premises from the sales market.” In contrast, paragraph 17 provides that, upon default of the seller, “Purchaser may at its option: (a) enforce the terms hereof by action for specific performance; or (b) terminate this Agreement in which event all deposits and any and all interest thereon tendered by Purchaser to Seller shall be released and returned to Purchaser.”

The majority concedes that “a distinguishing feature of an option contract is that it imposes no binding obligation on the option holder to complete the purchase.” Because the “Option Agreement” provided for forfeiture as “full liquidated damages” of the deposits made by the plaintiff as the purchaser upon its failure to complete the purchase of the property and, in such event, discharged it from “all liability” under the agreement, no obligation to purchase has been imposed on the plaintiff beyond forfeiture of the deposits. In the same way no obligation is imposed on the holder of a standard option to purchase property beyond loss of the price paid for the option. Therefore, I would follow the cases that have treated agreements like the one before us, which incorporate an option provision into a contract of sale in the form of a provision releasing the buyer from liability for failure to perform but forfeiting the deposit as liquidated damages, as having essentially the same legal consequences as an option contract. Dodek v. CF 16 Corporation, 537 A.2d 1086, 1094 (D.C. App. 1988); Green Manor Corporation v. Tomares, 266 Md. 472, 295 A.2d 212 (1972); Dixon v. Haft, 253 Md. 692, 696, 253 A.2d 715 (1969); Broady v. Mitchell, 572 S.W.2d 36, 40 (Tex. Civ. App. 1978).

I agree with the result, nevertheless, because the alternative ground relied upon by the trial court, that the plaintiff did effectively exercise its option to purchase within the time contemplated is adequately supported by the evidence. There was evidence that the parties were negotiating over modifications of the terms of their agreement and that the defendants made a counterproposal on the date originally scheduled for performance concerning an extension of the time of performance. These negotiations, as the court found, “belie any claim on the part of the seller that time was of the essence” while the parties were attempting to agree upon a modification of the “Option Agreement.”

       In the alternative, the trial court found that even if the agreement could be construed as an option contract, the plaintiff had timely exercised its option to purchase. In view of our disposition of this case, it is unnecessary for us to address this alternative finding of the trial court.

       The agreement calls for the following payment schedule: an “initial deposit” of $7500 to be made upon the execution of the agreement; a “second deposit” of $42,500 to be paid on December 19,1984; a “third deposit” of $25,000 to be paid on March 19, 1985; a “fourth deposit” of $25,000 to be paid on June 8, 1985; a $700,000 promissory note to be executed by the plaintiff at the time of closing; and the balance of the purchase price to be paid by certified check, bank check or cash at the time of closing.

       The word “option” does in fact appear once in the thirteen page agreement.

       The record reveals that the plaintiff notified the defendants that it would not be ready, willing and able to purchase the property until October 3, 1985, or almost two weeks after the agreed upon closing date of September 20,1985. The validity of the contract, however, is not affected by this relatively brief delay. “In real estate contracts, ‘the fact that a specific time is fixed for payment or for conveyance does not make “time of the essence”—át least, it does not make performance at the specified time of the essence. Failure to pay at that time is not per se sufficient to terminate the seller’s duty to convey; and failure to convey on the exact date does not per se discharge the buyer.’ 3A Corbin, Contracts § 716, p. 365 (1960).” (Emphasis in original.) Kakalik v. Bernardo, 184 Conn. 386, 392, 439 A.2d 1016 (1981). The agreement does not specify that “time is of the essence” with respect to the date set for closing. Moreover, we conclude that the thirteen day delay was not an unreasonable one. See John J. Brennan Construction Corporation, Inc. v. Shelton, 187 Conn. 695, 714, 448 A.2d 180 (1982). Accordingly, the contract is not invalidated because of the plaintiffs inability to perform on the date set forth in the agreement for closing.

       We are also reluctant to find error based upon an inference that the burden of proof was improperly shifted where the defendants failed to avail themselves of the opportunity to erase any ambiguity on this point by filing a motion for articulation. See Practice Book § 4051.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Edward F. Lawler v. Dolores A. Lawler
    (13532)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.
    Argued June 13
    decision released July 11, 1989

      Jeffrey A. Hoberman, with whom were Susan M. Cor-mier and, on the brief, Wesley W. Horton and Lloyd Frauenglass, for the appellant (plaintiff).

      Raynald B. Cantin, with whom, on the brief, was David M. Askinas, for the appellee (defendant).
   Per Curiam.

In this dissolution action, we granted the plaintiff’s petition for certification in order to consider, in light of Rubin v. Rubin, 204 Conn. 224, 527 A.2d 1184 (1987), whether a trial court may “order automatic cost of living increases in periodic alimony payments based upon the payor’s projected increase in salary.” Lawler v. Lawler, 209 Conn. 821, 551 A.2d 756 (1988). The Appellate Court, in considering this issue among others, found no error in the judgment of the trial court. Lawler v. Lawler, 16 Conn. App. 193, 195-99, 547 A.2d 89 (1988).

After examining the record on appeal and after considering the briefs and the arguments of the parties, we have concluded that the appeal in this case should be dismissed on the ground that certification was improvidently granted. As a matter of fact, the record does not clearly establish that the trial court’s formula for automatic increases in alimony payments is a true cost of living adjustment provision. As a matter of law, there is an underlying issue, which we did not certify, about the relationship between the automatic adjustments ordered by this decree and the decree’s provision for limited modifiability. Because the present proceeding, complicated by our intervening holding in Darak v. Darak, 210 Conn. 462, 556 A.2d 145 (1989), does not afford us the opportunity to give a full consideration to the long-term implications of the question that we certified, our grant of certification was improvident.

The appeal is dismissed.

       The contested portions of the dissolution decree provided for alimony as follows: “[T]he plaintiff shall pay periodic alimony to the defendant in the amount of $480.00 per week, starting November 14,1986 and continuing to February 1, 1998. The $480.00 figure will automatically be increased on a weekly basis by a cost-of-living factor and the cost-of-living factor will be based upon 60% of the percentage of the gross increase which the plaintiff actually receives from his employer. The increase shall continue each year until the alimony either ceases or reduces as herein below ordered. . . . [S]aid alimony might modify earlier than the February 1, 1998 date if on or after February 1,1995, the plaintiff retires. Until February 1,1995, said alimony award shall not reduce. On February 1,1995 or after, if the plaintiff retires, the alimony shall automatically reduce to $1,200.00 per month. Again, said reduction shall take place no sooner than February 1, 1995. The $1,200.00 will automatically be increased annually, or monthly, but on an annual review basis, again increasing by 60% of the annual percentage increases that the plaintiff receives on his pension from UTC. In other words, the defendant shall receive a percentage increase equivalent to 60% of the plaintiffs percentage increase. . . . [T]he alimony shall terminate earlier, upon the death of either party or the remarriage of the defendant.”

       In Darak v. Darak, 210 Conn. 462, 556 A.2d 145 (1989), we held that General Statutes § 46b-86 (a), as amended in 1987, did not govern the modifiability of dissolution decrees entered before the effective date of the amendment. For pre-amendment decrees, modifiabililty still depends upon a showing that a change in financial circumstances was not contemplated at the time of the dissolution. Only for decrees entered after October 1, 1987, may a party request a fiscal modification without regard to prior contemplation of a change in financial circumstances. Id., 467-74. The present case involves a 1986 decree.


author: Glass, J.

text:
    Bargain Mart, Inc. v. Mordechai Lipkis et al.
    (13669)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued May 9
    decision released July 11, 1989

      S. Robert Jelley, with whom were Andrea G. Savoca and, on the brief, Cheever Tyler and Carolyn Wilkes Kaas, for the appellants-appellees (defendants).

      Gary P. Sklaver, with whom were Irving H. Perlmut-ter and, on the brief, Willa B. Perlmutter, for the appellee-appellant (plaintiff).
   Glass, J.

The issue in this case is whether a sublessee’s sublease survived the allegedly voluntary extinction of two superior leases. One sublessor had relinquished its superior lease by “rejection” under federal bankruptcy law and the other by stipulation in a summary process action. The defendants, Mordechai Lipkis and Ceasar’s Bazaar Limited Partnership, have appealed from the trial court’s judgment ruling that, because the sublessors’ conduct constituted a “voluntary surrender” of the superior leases, the plaintiff, Bargain Mart, Inc. (Bargain Mart), has a valid and subsisting sublease. We find no error.

In 1972, G. Harold Welch acquired the entire leasehold interest in the building at Two Church Street in New Haven from a prior tenant who, in 1962, had leased the property for a term of 102 years from the building’s owners, the trustees of the estate of Edward Malley. (We hereinafter refer to the lease between the owners of the building and Welch as the Welch Lease.) Upon acquiring the lease, Welch immediately sublet the building for a twenty-nine year term to the Edward Malley Company (Malley Company). On February 13, 1979, the Malley Company in turn sublet a 3456 square foot portion of the building to Bargain Mart. The Bargain Mart sublease was for a term of fourteen years, to expire in 1993, with an option for an extension to the year 2001. In November, 1980, Outlet Department Stores, Inc. (Outlet), acquired the Malley Company’s leasehold interest under Welch, subject to Bargain Mart’s 1979 sublease. (We hereinafter refer to the sublease between Welch and Outlet, the assignee of the Malley Company, as the Outlet Lease.)

In January, 1982, Outlet filed a Chapter 11 petition in the bankruptcy court for the southern district of New York. Under 11 U.S.C. § 365 (a), Outlet had the option of either assuming or rejecting the unexpired portion of the Outlet Lease. Outlet attempted without success to sell or assign its lease. Thereafter, Welch applied to the bankruptcy court for an approval of Outlet’s rejection of the lease. On May 6,1982, the bankruptcy court determined that it was in the best interests of the bankrupt’s estate to reject the lease and, with the parties’ consent, approved the rejection. In approving the rejection, the bankruptcy court did not determine whether Outlet had defaulted on its lease obligations or whether Welch had had a corresponding right to terminate the Outlet Lease.

At some time prior to March 18, 1983, the trustees of the Edward Malley estate transferred the fee interest in the building to eleven individuals, collectively known as the “Malley heirs,” subject to the Welch Lease. In February and March, 1983, the Malley heirs served two notices to quit on Welch and, on March 14, 1983, instituted a summary process action against him. The heirs sought immediate possession of the premises, claiming that Welch had failed to pay rent and taxes from November, 1982, through February, 1983. In response, Welch filed an answer and alleged several special defenses, including the defense that the Malley heirs had not given him proper notice as a prerequisite to bringing the eviction action. He also commenced two lawsuits against the Malley heirs, claiming, inter alia, that he owned the property. Welch’s suits sought a conveyance of the premises or, alternatively, a partition and an order for sale. Further, after the Malley heirs had initiated their summary process action, Land Enterprises, Inc. (Land Enterprises), a corporation controlled by members of Welch’s family, obtained a 10 percent ownership interest in the premises. Land Enterprises itself subsequently brought partition proceedings against the Malley heirs. Further, by purchasing an ownership interest in the building, Land Enterprises became a plaintiff with the Malley heirs in the summary process action against Welch.

The Malley heirs and Welch settled the summary process action on April 13,1984, by a stipulated judgment. The trial court in the summary process action did not decide any of the claims in that case on the merits, including Welch’s claim of improper notice of default. The trial court in the present case found that the stipulated judgment provided: “(1) That a judgment for immediate possession of the subject premises may enter in favor of the plaintiffs [Malley heirs and Land Enterprises]. (2) Said plaintiffs waive any and all rights and release Welch from any monetary claims arising from the former lease. (3) Welch to withdraw his two suits against the heirs. (4) The heirs agree they will not oppose the partition by sale of the subject property as sought by Land Enterprises, Inc., in its suit against the heirs. (5) Welch to assume sole responsibility and liability for maintaining said property pending its sale in exchange for which Welch may retain whatever rentals he is receiving from the satellite stores occupying parts of said property.”

In accordance with the parties’ agreement, on July 2, 1985, the trial court in the Land Enterprises partition action rendered a judgment of partition by sale. The committee appointed by the court to sell the property scheduled a public auction for November 18,1985. The committee sent the defendant Lipkis, who had expressed interest in the property, a packet of information indicating that the property was being sold subject to the “[ljeases and rights of tenants in satellite stores.” That notice included a detailed schedule of the “satellite stores” and specifically referred to the Bargain Mart lease and its terms. On December 8, 1986, Lipkis and codefendant Ceasar’s Bazaar Limited Partnership bought the building as a result of their successful bid at the auction sale. Upon purchasing the building, Lipkis executed a “bond for deed,” or purchase and sale agreement, that indicated that the sale was “subject to the rights of tenants in possession.”

The record discloses that, upon entering into its sublease of February 13,1979, Bargain Mart tendered its rent payments to the Malley Company, and then to the Malley Company’s assignee, Outlet. After Outlet had rejected its lease with Welch in the bankruptcy proceeding in 1982, Bargain Mart complied with Welch’s direction to pay the rent to him. In February, 1986, following the order of partition in the Land Enterprises action against the Malley heirs, Bargain Mart sent its rent checks to the committee appointed by the court to sell the property. Further, beginning on July 10, 1985, Bargain Mart endorsed its rent check payments with the legend “lease ends 11-30-2001” or similar words. In January, 1987, Lipkis, the new owner, received from the committee Bargain Mart’s rent check dated January 8, 1987. Lipkis noted on the back that he accepted and negotiated the check without prejudice “to the landlord’s assertion that tenant has no lease and has a month to month status.” From February to November, 1987, Bargain Mart sent all rent checks to Lipkis. As had been Bargain Mart’s practice since 1985, it noted on these checks that its sublease ended in the year 2001. Lipkis, however, noted on seven of the ten checks sent directly to him that the checks were accepted on the understanding that Bargain Mart had no lease and occupied the premises as a month to month tenant.

On October 5,1987, Lipkis sent Bargain Mart a handwritten note stating “that since, in our analysis, you have no lease [and] are therefore a month to month tenant, we can not provide heat to your store, particularly since you are the only tenant remaining. It is impossible to run a heating system full time for only 1 1/2% of the [building]. We will run the central system [enough] so that the pipes do not freeze [and] you can supplement that with individual heaters. We still insist that you vacate the premises since you have no lease.”

On November 13, 1987, Bargain Mart commenced the present action by application for a temporary injunction requiring the defendants to furnish heat for the premises in accordance with Bargain Mart’s 1979 sublease. The trial court conducted a hearing on November 19, 1987, and, with the consent of the parties, entered an order requiring Lipkis to provide heat to the premises Bargain Mart occupied, pending resolution of the matter. On January 21,1988, the defendants filed an answer and counterclaim seeking a declaratory judgment that the Bargain Mart sublease of February 13, 1979, had terminated, that Bargain Mart presently was a month to month tenant, and that the defendants were entitled to immediate possession of the premises. The trial court conducted a three day hearing on the parties’ claims and on May 25, 1988, rendered judgment for Bargain Mart on all claims. The court ruled that the sublease between the Malley Company and Bargain Mart of February 13,1979, “is a valid and subsisting lease in full force and effect in all of its terms, conditions and covenants, to which the defendants are bound.”

The defendants appealed the trial court’s judgment to the Appellate Court and we transferred the appeal to ourselves pursuant to Practice Book § 4023. On appeal, the defendants claim that the trial court erred in: (1) ruling that the Outlet Lease and the Welch Lease had not been “terminated” by the lessor but had been “voluntarily surrendered” by the lessee, and therefore concluding that Bargain Mart’s sublease of February, 1979, is in full force and effect; and (2) awarding Bargain Mart attorney’s fees. We find no error.

I

Our review of the defendants’ separate claims concerning the Outlet Lease and the Welch Lease is governed by the following general principles. In Golde Clothes Shop, Inc. v. Silver, 95 Conn. 678, 685-86, 112 A. 264 (1921), we stated: “A voluntary surrender by a principal lessee to a principal lessor, effected in a manner contrary to the provision of termination in the lease, does not affect the rights of a tenant acquired under a sublease which the lessor had authority to make. The surrender will end the rights of the principal lessor in his lease; it will leave the rights of his under-tenant unimpaired, and make of him the tenant of the principal lessor upon the terms of the sublease. ‘That surrender, and the consequent merger of the greater and lesser interest, terminate[s] the original lease, and the term created thereby, as between the parties to the lease and the surrender. . . . The interests and the terms of the subtenant of the lessee [continue] as if no surrender had been made. . . . [T]he surrenderees and owners in fee, bec[o]me the immediate landlords of the [subtenant], with only such rights as his lessor would have had to the possession of the premises before the expiration of the term.’ Eten v. Luyster, 60 N.Y. 252, 259 [1875]. Every surrender by a principal lessee is voluntary, unless the lessor enforces the right of termination in accordance with the reservation of his lease.”

Golde Clothes Shop, Inc., establishes that “[t]he surrender of a lease by a lessee to his lessor, after a sublease, will not be permitted to operate so as to defeat the estate of the sublessee.” 49 Am. Jur. 2d, Landlord and Tenant § 512. Golde Clothes Shop, Inc., also implies, however, that unless the rights of the sublessee are protected by the terms of the sublease, “[t]he right of the sublessee to the possession of the premises, as against the original lessor, terminates with the lease or term of the original lessee . . . [Since] a subtenant holds the premises subject to the performance of the terms and conditions impressed upon the estate by the provisions of the original lease, his rights are generally held to be terminated when the original lessor declares a forfeiture of the original lessee’s term based upon the latter’s nonperformance of obligations imposed on him.” 49 Am. Jur. 2d, Landlord and Tenant § 511.

A

The defendants first claim that the trial court erred in its determination that there was a voluntary surrender of the Outlet Lease with Welch when the bankruptcy court, on Welch’s motion, approved Outlet’s rejection of the lease. They initially argue that a “rejection” of an unexpired portion of a lease under the bankruptcy code necessarily constitutes a “termination” of the lease. See, e.g., In re Hawaii Dimensions, Inc., 47 Bankr. 425, 427 (D. Hawaii 1985); In re United Nesco Container Corporation, 47 Bankr. 230, 233 (E.D. Pa. 1985). We disagree. Section 365 (h) (l) of the bankruptcy code provides that, if a debtor/lessor rejects the unexpired portion of a real property lease, the determination of the lessee’s rights turns on “applicable non-bankruptcy law.” Where a debtor/sublessor has rejected the primary lease, state law establishes the subtenants’ rights under the sublease. In re Elmhurst Transmission Corporation, 60 Bankr. 9, 10 (E.D.N.Y. 1986); see also In re Dial-a-Tire, Itic., 78 Bankr. 13, 14 (W.D.N.Y. 1987) (where debtor/sublessor rejects both primary lease and sublease, sublessee’s rights as against lessor determined by state law and not bankruptcy code); cf. In re Picnic ’n Chicken, Inc., 58 Bankr. 523, 525-26 (S.D. Cal. 1986) (rejection under code does not conclusively terminate lease, but gives landlord option of terminating lease); In re Storage Technology Corporation, 53 Bankr. 471, 474-75 (D. Colo. 1985).

The defendants further argue that because the bankruptcy court granted Welch’s motion to approve Outlet’s rejection of the lease, Welch “terminated” the Outlet Lease in accordance with its terms and, therefore, Outlet’s rejection could not possibly have been a “voluntary surrender” under Golde Clothes Shop, Ine. In connection with this argument, the defendants assert that the automatic stay provisions of the bankruptcy code precluded Welch from taking any legal action other than filing the motion to compel Outlet’s rejection once Outlet had filed for bankruptcy. See 11 U.S.C. § 362 (a) (3). Therefore, they claim, an application to approve Outlet’s rejection was the only feasible method by which Welch could have terminated the lease. We are not persuaded.

“Whether there has been surrender and acceptance thereof is to be determined by the intention of the parties, and thus, it is usually a question of fact for the [trier].” 49 Am. Jur. 2d, Landlord and Tenant § 1095; cf. Golde Clothes Shop, Inc. v. Silver, supra, 688-89 (identifying parties’ intent as critical to whether lessee had voluntarily surrendered lease). “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

In the present case, paragraph 11 of the Outlet Lease contains the following relevant events of default: “(a) If Tenant shall default in the payment of the whole or any installment on part of the Basic Rent . . . and such default shall continue for a period of 15 days after the Landlord shall have given written notice thereof to the Tenant. . . . (c) If the Tenant . . . shall file a petition in bankruptcy.” Paragraph 10 provides: “Upon the happening of any one of the Events of Default . . . the Landlord may, at any time during the continuance of such Event of Default, in its sole discretion, terminate this Sublease.” See 11 U.S.C. § 365 (a). The trial court found that Welch’s application to the bankruptcy court to compel Outlet to reject its lease did not constitute a “termination” within the meaning of Golde Clothes Shop Inc. It further found that Outlet’s rejection of its lease was a “breach” amounting to a voluntary surrender.

We first note that the provision entitling Welch to terminate the lease if Outlet filed a bankruptcy petition was void under the bankruptcy code. 11 U.S.C. § 365 (b) (2) (B); In re Computer Communica tions, Inc., 824 F.2d 725 (9th Cir. 1987). Consequently, Welch could not have relied on that provision to terminate the lease.

Further, since the Outlet Lease did not provide for termination by filing a motion to compel rejection in the event of the lessee’s bankruptcy, Welch did not enforce “the right of termination in accordance with the reservation of his lease.” Golde Clothes Shop, Inc. v. Silver, supra, 686. We disagree with the defendants’ assertion that Welch’s motion to the bankruptcy court to approve Outlet’s rejection of the lease was his only feasible method of terminating the lease. Welch made no attempt to suspend the automatic stay under 11 U.S.C. § 362 (d), nor did he thereafter express an intent to terminate the lease “by some unequivocal act clearly showing the exercise of that option”; Mayron’s Bake Shop, Inc. v. Arrow Stores, Inc., 149 Conn. 149, 156, 176 A.2d 574 (1961); such as by initiating a summary process action. See In re Boston Business Machines, 87 Bankr. 867, 870 (E.D. Pa. 1988). Although extrication from the automatic stay in this context “cannot easily be done”; id.; neither is it impossible. See In re Aries Enterprises, Ltd., 3 Bankr. 472 (D.C. 1980).

In finding that Outlet “breached” the lease upon the bankruptcy court’s approval of the rejection, the trial court implicitly found that Outlet had thereby surrendered the lease “in a manner contrary to the provision of termination in the lease . . . .” Golde Clothes Shops, Inc. v. Silver, supra, 685-86. Further, Welch’s conduct subsequent to the rejection of the Outlet Lease, as well as his trial testimony, indicated that he treated Outlet’s rejection as a “voluntary surrender” which he accepted. Welch never attempted to terminate Bargain Mart’s tenancy as a result of the extinguishment of the Outlet Lease. Indeed, he testified at the present trial that the Bargain Mart “sublease was still intact” and was still in full force and effect after Outlet’s rejection. Moreover, Bargain Mart continued to occupy the premises for the five years after Outlet’s departure and before the defendants purchased the property. The trial court could reasonably have inferred from this evidence that the parties intended the rejection of the Outlet Lease as a “voluntary surrender.” Cf. Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 741, 557 A.2d 525 (1989), and cases cited therein (parties’ conduct subsequent to act in issue evidence of intent regarding that act).

The defendants further argue that, as a matter of public policy, a bankrupt tenant should not be permitted unilaterally to breach a lease by “rejecting” it in bankruptcy and thereby impose upon the landlord the tenant’s obligations to its subtenants. Since voluntary surrender is usually a question of fact, however; 49 Am. Jur. 2d, Landlord and Tenant § 1095; the determination of whether a rejection of a lease in bankruptcy operates as a “termination” or “voluntary surrender” will be tied to the particular circumstances of each case. In the present case, the trial court found that the rejection of the lease in the bankruptcy proceeding constituted a “voluntary surrender.” The trial court’s conclusion was not clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, supra. Under these circumstances, the defendants’ public policy argument is unpersuasive. Consequently, we conclude that the trial court did not err in determining that Bargain Mart’s sublease was not terminated as a result of the rejection of the Outlet Lease.

B

The defendants next claim that the trial court erred in concluding that Welch had voluntarily surrendered his leasehold interest under his lease with the property owners, the Malley heirs, when he agreed to the stipulated judgment entitling the heirs and Land Enterprises to immediate possession of the premises. They assert that since the Welch Lease did not provide the method of termination, the unequivocal act of service of a notice to quit sufficiently showed the Malley heirs’ intent to terminate the lease. Therefore, according to this argument, the Malley heirs terminated the Welch Lease by service on him of two notices to quit. See Chapel-High Corporation v. Cavallaro, 141 Conn. 407, 411, 106 A.2d 720 (1954); Housing Authority v. Hird, 13 Conn. App. 150, 155, 535 A.2d 377 (1988); Sandrew v. Pequot Drug, Inc., 4 Conn. App. 627, 630-31, 495 A.2d 1127 (1985); Rivera v. Santiago, 4 Conn. App. 608, 610, 495 A.2d 1122 (1985). We disagree.

The defendants’ argument erroneously equates an unequivocal notice of intent to terminate a lease with a termination of the lease. As the Appellate Court correctly observed in Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn. App. 574, 582-84, 548 A.2d 744 (1988), however, a notice to quit will not terminate a lease if the notice itself is invalid. Indeed, it is self-evident that if the notice is invalid, then the legal consequence of “termination” arising from the service of a valid notice does not result.

In the present case, the Malley heirs served Welch with notice of default on January 27,1983, and subsequent notices to quit on February 15, 1983, and March 1,1983, claiming that he had failed to pay rent and taxes and had failed to maintain insurance as required by the lease. On March 14, 1983, the heirs instituted a summary process action against Welch, seeking immediate possession. Welch denied the allegations in the summary process action, and asserted several special defenses, including the defense that the heirs had failed to serve upon him proper notice to initiate the action. The parties eventually settled the dispute by a stipulated judgment. The trial court in the summary process action never reached Welch’s special defense that the notices to quit were invalid.

A stipulated “judgment is not a judicial determination of any litigated right. . . . The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement.” Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956). Such a judgment represents “a settlement of the controversy by the parties thereto [thus creating the presumption] that the parties intended to settle all aspects of the controversy, including all issues raised by the papers comprising the record.” Gagne v. Norton, 189 Conn. 29, 34, 453 A.2d 1162 (1983); see also Guille v. Guille, 196 Conn. 260, 265, 492 A.2d 175 (1985). Because the trial court in the summary process action did not determine whether the notices to quit were valid, we have no basis for concluding that those notices terminated the Welch Lease.

We are not persuaded by the defendants’ assertion that the trial court’s conclusion means that a lease may be considered “terminated” only if the lessor wins in the summary process action. The trial court’s conclusion did not make termination dependent on recovery of possession. The trial court’s analysis, consistent with our own, only recognizes that an invalid notice to quit does not terminate the lease. Bridgeport v. Barbour-Daniel Electronics, Inc., supra. Similarly, the Appellate Court’s analysis relating to the “revival” of a terminated lease in Housing Authority v. Hird, supra, is irrelevant to the present case. In Hird, the landlord served the tenant with a notice to quit claiming that the tenant had violated the lease by maintaining the premises in an unsanitary condition and keeping pets. Id., 153. The tenant prevailed in the subsequent summary process action. The Appellate Court held that a “lease is neither voided nor rescinded until the landlord performs [an unequivocal act notifying the tenant of termination] and, upon service of a notice to quit possession, a tenancy at will is converted to a tenancy at sufferance. Mayron’s Bake Shops, Inc. v. Arrow Stores, Inc., [supra, 156]; Chapel-High Corporation v. Cavallaro, [supra, 411] . . . . ” Id., 155. The Appellate Court concluded, however, that because the tenant eventually prevailed at the summary process action, that judgment “revived” the original lease agreement. Id.

The defendants argue that, under Hird, there would be no reason for a judgment in favor of the tenant in a summary process action to “revive” the lease if the lease had not been terminated by the notice to quit. We have no reason, however, to review this proposition in the present case. In the summary process action by the Malley heirs against Welch, the validity of the notices to quit was in dispute, and the trial court made no findings or conclusions on that issue. There was no dispute about the validity of any notices to quit in Hird, or in our cases upon which the Appellate Court relied. Housing Authority v. Hird, supra, 153; Mayron’s Bake Shops, Inc. v. Arrow Stores, Inc., supra, 153, 156; Chapel-High Corporation v. Cavallaro, supra. Thus, the logical predicate to the Hird court’s “revival” analysis—the existence of a valid notice to quit or, where the validity of the notice is in dispute, a finding of validity—was absent in the Malley heirs-Welch summary process action.

We are similarly unpersuaded by the defendants’ further argument that Welch’s voluntary acceptance of the stipulation cannot be equated with a voluntary surrender of the premises. The record shows that Welch purchased a 10 percent interest in the Two Church Street property through his family’s Land Enterprises company after the Malley heirs had instituted the summary process action. The stipulated judgment provided that the heirs would not contest Land Enterprises’ partition action. It further provided that the Malley heirs would forego their claims against Welch for his alleged failure to pay rent and taxes. Thus, the trial court could reasonably have concluded that Welch, in foregoing his several special defenses and counterclaims, including the claim that he, in fact, was the owner of the property, voluntarily surrendered his lease. It also could reasonably have concluded that the Malley heirs accepted the surrender by waiving their claims against Welch. Further, as we have already indicated, a stipulated judgment is in essence a voluntary agreement. Bryan v. Reynolds, supra. The trial court’s conclusion was, therefore, supported by the facts, and was legally and logically correct. Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 221.

We also reject the defendants’ final argument that affirmation of the trial court’s judgment will “waste time, money and judicial resources” by requiring landlords who wish to terminate both the primary lease and the sublease to litigate a summary process action against the primary tenant and obtain judgment on the merits. Where a landlord has not terminated the tenant’s lease, the landlord and tenant cannot unilaterally undertake to eliminate the sublessee’s interests. Byrd v. Peterson, 66 Ariz. 253, 259, 186 P.2d 955 (1947). In the Malley heirs-Welch summary process action, termination of the Welch Lease was in dispute and was never resolved. Consequently, we conclude that the trial court did not err in ruling that the stipulated judgment between the Malley heirs and Welch did not extinguish Bargain Mart’s sublease.

II

The defendants argue that the trial court erred in awarding Bargain Mart attorney’s fees, but concede that if Bargain Mart’s sublease was valid, then so was the trial court’s award of attorney’s fees. Because we conclude that the trial court did not err in ruling that Bargain Mart occupied the premises at Two Church Street under a valid and subsisting lease, the trial court also did not err in awarding attorney’s fees.

There is no error.

In this opinion the other justices concurred.

       The plaintiff cross appealed, claiming that the trial court’s decision should be upheld on the theory of attornment. We do not reach this issue since we affirm the trial court’s judgment on the grounds raised in the defendants’ appeal.

       Edward Malley, a Malley heir, did not agree to the stipulated judgment. Several statements in the stipulated judgment exclude him from the agreement, for example: “Unless I have overlooked a party, Judge, that leaves one plaintiff, and that is plaintiff Edward Malley. And the record should reflect that insofar as Edward Malley is concerned, he does not release Mr. Welch from any claims of any kind whatsoever that he may have against him under the former lease between the parties.”

       Title 11 of the United States Code, § 365 (a) provides: “Except as provided in sections 366 and 766 of this title and in subsections (b), (c), and (d) of this section, the trustee, subject to the court’s approval, may assume or reject any executory contract or unexpired lease of the debtor.”

       Title 11 of the United States Code, § 365 (h) (1) provides: “If the trustee rejects an unexpired lease of real property of the debtor under which the debtor is the lessor, or a timeshare interest under a timeshare plan under which the debtor is the timeshare interest seller, the lessee or timeshare interest purchaser under such lease or timeshare plan may treat such lease or timeshare plan as terminated by such rejection, where the disaffirmance by the trustee amounts to such a breach as would entitle the lessee or timeshare interest purchaser to treat such lease or timeshare plan as terminated by virtue of it own terms, applicable nonbankruptcy law, or other agreements the lessee or timeshare interest purchaser has made with other parties; or, in the alternative, the lessee or timeshare interest purchaser may remain in possession of the leasehold or timeshare interest under any lease or timeshare plan the term of which has commenced for the balance of such term and for any renewal or extension of such term that is enforceable by such lessee or timeshare interest purchaser under applicable non-bankruptcy law.”

       Title 11 of the United States Code, § 362 (a) (3) provides: “Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under 5 (a) (3) of the Securities Investor Protection Act of 1970 (15 U.S.C. 78eee (a) (3)), operates as a stay, applicable to all entities, of . . . (3) any act to obtain possession of property of the estate or of property from the estate.”

       Title 11 of the United States Code, § 365 (b) provides: “ (1) If there has been a default in an executory contract or unexpired lease of the debtor, the trustee may not assume such contract or lease unless, at the time of assumption of such contract or lease, the trustee—
      “(A) cures, or provides adequate assurance that the trustee will promptly cure, such default;
      “(B) compensates, or provides adequate assurance that the trustee will promptly compensate, a party other than the debtor to such contract or lease, for any actual pecuniary loss to such party resulting from such default; and
      “(C) provides adequate assurance of future performance under such contract or lease.
      “(2) Paragraph (1) of this subsection does not apply to a default that is a breach of a provision relating to—

        “(A) the insolvency or financial condition of the debtor at any time before the closing of the case;
      “(B) the commencement of a case under this title; or
      “(C) the appointment of or taking possession by a trustee in a case under this title or a custodian before such commencement.
      “(3) For the purposes of paragraph (1) of this subsection and paragraph (2) (B) of subsection (f), adequate assurance of future performance of a lease of real property in a shopping center includes adequate assurance—
      “(A) of the source of rent and other consideration due under such lease, and in the case of an assignment, that the financial condition and operating performance of the proposed assignee and its guarantors, if any, shall be similar to the financial condition and operating performance of the debtor and its guarantors, if any, as of the time the debtor became the lessee under the lease;
      “(B) that any percentage rent due under such lease will not decline substantially;
      “(C) that assumption or assignment of such lease is subject to all the provisions thereof, including (but not limited to) provisions such as a radius, location, use, or exclusivity provision, and will not breach any such provision contained in any other lease, financing agreement, or master agreement relating to such shopping center; and
      “(D) that assumption or assignment of such lease will not disrupt any tenant mix or balance in shopping center.
      “(4) Notwithstanding any other provision of this section, if there has been a default in an unexpired lease of the debtor, other than a default of a kind specified in paragraph (2) of this subsection, the trustee may not require a lessor to provide services or supplies incidental to such lease before assumption of such lease unless the lessor is compensated under the terms of such lease for any services and supplies provided under such lease before assumption of such lease.”

       Title 11 of the United States Code, § 362 (d) provides: “On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay—
      “(1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or
      “(2) with respect to stay of an act against property under subsection (a) of this section, if—
      “(A) the debtor does not have an equity in such property; and
      “(B) such property is not necessary to an effective reorganization.”


author: Covello, J.

text:
    Eugene K. Ferryman, Administrator (Estate of Michael Ferryman) v. City of Groton
    (13558)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued April 6
    decision released July 18, 1989

      Ronald J. Cohen, for the appellant (defendant-third party plaintiff city of Groton).

      Thomas F. Maxwell, Jr., with whom were Charles H. Gifford and, on the brief, Timothy G. Atwood, for the appellees (third party defendant General Dynamics Corporation et al.).
   Covello, J.

This is a negligence action seeking to recover damages for the wrongful death of the plaintiff’s decedent. The dispositive issue is whether an employee-employer relationship between a plaintiff and a third party defendant bars a claim for indemnity brought by the original defendant against the third party defendant. Because there are allegations of an independent relationship between the defendant and the third party defendant/employer, we conclude that the employee-employer relationship between the plaintiff’s decedent and the third party defendant/employer does not bar the third party action.

On July 9,1986, the plaintiff, Eugene K. Ferryman, as administrator, commenced this action seeking damages from the defendant, the city of Groton, for the death of Michael J. Ferryman. The complaint alleged that Groton was the owner of an electrical substation within the city limits. On July 3, 1985, the plaintiff’s decedent entered the substation area to cut grass and remove weeds. While there he came in contact with a high voltage line and was instantaneously electrocuted. The complaint further alleged that all of this occurred by reason of Groton’s negligence in the maintenance and operation of the substation.

On November 9, 1987, Groton filed a motion to implead, as third party defendants, the Electric Boat Division of General Dynamics Corporation (Electric Boat), an alleged co-owner of the substation, and Charlie R. Franklin, an Electric Boat employee. The trial court, Tamborra, J., granted the motion.

Groton’s third party complaint alleged that “[t]he electrical substation was owned, operated, maintained and controlled by Electric Boat” and that Groton “owned only the transformers and the metering equipment at the electrical substation.” The complaint further alleged that “Electric Boat controlled access to the electrical ■ substation” and that Franklin, “an employee and agent of Electric Boat, unlocked the gate surrounding the electric substation, making it possible for Ferryman to enter the area of the substation.” Further, the complaint alleged that if Ferryman’s death was caused by anyone’s negligence, it was the negligence of Electric Boat and Franklin. Finally, the complaint alleged that both Electric Boat and Franklin “had control of the situation to the exclusion of the City of Groton, and the City of Groton did not know of Electric Boat’s or Franklin’s negligence, had no reason to anticipate it and could reasonably rely on them to act otherwise.” The complaint claimed indemnification.

On December 28, 1987, Electric Boat and Franklin filed a motion to strike the third party complaint in its entirety contending that the “exclusive remedy” provisions of the Workers’ Compensation Act found in General Statutes § 31-284 (a) barred the prosecution of the third party complaint against Electric Boat, Ferryman’s employer. This statute provides in part: “All rights and claims between employer and . . . representatives ... of such employees, arising out of . . . death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter . . . . ” The trial court, Hurley, J., granted the motion, rejecting Groton’s argument that the third party complaint alleged an independent legal relationship between Groton and Electric Boat, thus entitling Groton to indemnification. Groton declined to plead over, and the trial court thereafter rendered judgment on the stricken complaint in favor of both third party defendants. Groton filed a timely notice of a reservation of its right to appeal.

On November 1,1988, the plaintiff and Groton filed a stipulated judgment for the plaintiff to recover $450,000 in the underlying action. Groton thereafter appealed to the Appellate Court the earlier judgment that followed the granting of the motion to strike. We then transferred the matter to ourselves pursuant to Practice Book § 4023.

“The motion to strike, Practice Book, 1978, § 151, replaced the demurrer in our practice. Its function, like that which the demurrer served, is to test the legal sufficiency of a pleading. Practice Book, 1978, § 152; cf. McAnerney v. McAnerney, 165 Conn. 277, 282, 334 A.2d 437 (1973). The motion to strike, like the demurrer, admits all facts well pleaded. Cf. Cyr v. Brookfield, 153 Conn. 261, 263, 216 A.2d 198 (1965); Weaver v. Ives, 152 Conn. 586, 589, 210 A.2d 661 (1965). ‘The allegations are entitled to the same favorable construction as a trier would be required to give in admitting evidence under them; Benson v. Housing Authority, 145 Conn. 196, 199, 140 A.2d 320 [1958]; and if facts provable under the allegations would support a defense or a cause of action, the demurrer [motion to strike] must fail. Cyr v. Brookfield, [supra].’ Stradmore Development Corporation v. Commissioners, 164 Conn. 548, 550-51, 324 A.2d 919 (1973).” Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980).

“Ordinarily there is no right of indemnity or contribution between joint tort-feasors.” Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412, 207 A.2d 732 (1965). “Where, however, one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury.” Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co., 133 Conn. 536, 543, 52 A.2d 862 (1947). “Under the circumstances described, we have distinguished between ‘active or primary negligence,’ and ‘passive or secondary negligence.’ Kaplan v. Merberg Wrecking Corporation, supra, 415.” Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 698, 535 A.2d 357 (1988). We have permitted recovery even absent a finding of an express or implied agreement as between the two tortfeasors to exercise reasonable care. Kaplan v. Merberg Wrecking Corporation, supra, 411. The third party complaint here was carefully drawn so as to allege circumstances that would give rise to an application of the Kaplan doctrine.

Electric Boat and Franklin argue, however, that the original complaint alleges that Ferryman was an employee of Electric Boat, and that the exclusive remedy provisions of the workers’ compensation statute, i.e., General Statutes § 31-284 (a), insulate them from the indemnification claim. Electric Boat claims that its liability arising from the death of its employee is limited to that imposed by the Workers’ Compensation Act and that if recovery is permitted in this case, it could be paying more than the act requires.

While we have never considered this precise legal issue, we have considered a similar factual circumstance. In Farm Bureau Mutual Automobile Ins. Co. v. Kohn Bros. Tobacco Co., 141 Conn. 539, 107 A.2d 406 (1954), an employee was injured while riding as a passenger in a truck leased to her employer. The employee’s injuries were caused by the operator of the truck, a fellow employee. The employee obtained judgment against the owner/lessor of the truck pursuant to a statute that made the lessor of a motor vehicle liable for injuries caused by the operation of the vehicle while leased, just as if the owner had been the operator of the vehicle. Id., 542.

The insurance carrier for the owner of the truck brought suit as subrogee of its insured against the employer/lessee of the truck. We allowed recovery by the insurance carrier against the employer reasoning that the employer’s liability to the owner of the truck was “predicated upon the leasing of the truck [and was] not based upon any duty that the [employer] owed to [its employee] but upon an entirely independent and separate duty owed to [the lessor].” Id., 554.

Having found an independent, legal duty owed by the employer/lessee to the owner/lessor, not simply an active/passive negligence relationship which we now conclude would be inadequate, we permitted recovery even though the party originally injured was an employee of the employer/lessee. This view comports with the position taken by the majority of other jurisdictions that have considered this issue. See 2A A. Larson, Workmen’s Compensation Law § 76.

“When the third party, in a suit by the employee, seeks recovery over against a contributorily negligent employer, contribution [or indemnification is ordinarily denied on the ground that the employer cannot be said to be jointly liable in tort to the employee because of the operation of the exclusive-remedy clause. But if the employer can be said to have breached an independent duty toward the third party, or if there is a basis for finding an implied promise of indemnity, recovery in the form of indemnity may be allowed. The right to indemnity is clear when the obligation springs from a separate contractual relation, such as an employer-tenant’s express agreement to hold the third-party landlord harmless, or a bailee’s obligation to indemnify a bailor, or a contractor’s obligation to perform his work with due care; but when the indemnity claim rests upon the theory that a ‘primary’ wrongdoer impliedly promises to indemnify a ‘secondary’ wrongdoer, the great majority of jurisdictions disallow this claim.” 2A A. Larson, supra, § 76.

Thus, Electric Boat and Franklin argue that in the present instance, allegations that are based solely upon the “active or primary negligence” versus the “passive or secondary negligence” principles of Kaplan v. Merberg Wrecking Corporation, supra, 415, are simply inadequate to establish the independent relationship that would obviate the operation of the exclusive remedy doctrine in Electric Boat’s favor. While we agree with this proposition, it is inapplicable in the present case as we conclude that there are sufficient other allegations in the third party complaint that may establish the required independent relationship between Electric Boat and Groton.

The third party complaint alleges that “[t]he electrical substation was owned, operated, maintained and controlled by Electric Boat. The City of Groton owned only the transformers and the metering equipment at the electrical substation.” It further alleges that “Electric Boat controlled access to the electrical substation.” Finally, it alleges that Franklin, “an employee and agent of Electric Boat, unlocked the gate surrounding the electric substation, making it possible for Ferryman to enter the area of the substation.” Thus, we see allegations by an owner whose property, while in the possession of another, is alleged to have caused the death of a third person whose access to the property has been furnished by the agent of the party in possession. When viewed in the light most favorable to the pleader, as required in addressing a motion to strike; Benson v. Housing Authority, supra; the complaint discloses the essentials of either a co-owner relationship, a bailor-bailee relationship or a lessor-lessee relationship, any one of which could contain the express or implied independent, legal duty that would serve to preclude the operation of the exclusive remedy provisions of § 31-284. “ ‘What is necessarily implied need not be expressly alleged.’ Wexler Construction Co. v. Housing Authority, 144 Conn. 187, 193, 128 A.2d 540 (1956) . . . . ” Trichilo v. Trichilo, 190 Conn. 774, 779, 462 A.2d 1048 (1983).

Since the allegations of the third party complaint were facially sufficient to establish an independent relationship between Groton and Electric Boat and Franklin, a relationship that goes beyond the active/passive negligence relationship found in Kaplan v. Merberg Wrecking Corporation, supra, we conclude that the trial court erred in striking the third party complaint.

Our conclusion that General Statutes § 31-284 does not necessarily furnish the exclusive remedy against employers in the context of negligence actions, and that indemnification is possible under appropriate circumstances, is supported by the fact that the legislature has chosen not to permit indemnification in the related field of product liability. General Statutes § 52-572r (d) provides: “In any product liability claim for personal injury or death arising out of and in the course of employment . . . brought against any third party, such third party may not maintain any action for indemnity against any person immune from liability. ” (Emphasis added.) Had the legislature intended to provide the same protection to employers in the negligence context, it could have done so expressly and with equal precision and clarity.

There is error, the judgment is set aside and the case is remanded for further proceedings.

In this opinion the other justices concurred.

       Practice Book § 117 provides in part: “A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiffs claim against him. Such a motion may be filed at any time before trial and such permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action or work an injustice upon the plaintiff or the party sought to be impleaded.” See also General Statutes § 52-102a.

       Practice Book § 157 provides in part: “[I]n those instances where an entire complaint . . . has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within [a] fifteen-day period, the court may upon motion enter judgment against said party on said stricken complaint . . . .”

       Practice Book § 4002 (a) provides in part: “A judgment disposing of certain of the issues between the parties or of part or all of the issues between some of them in such a manner as to be final but not terminating the litigation . . . may be treated as a final judgment for the purpose of an appeal by the party or parties against whom the judgment is rendered, notwithstanding that the cause remains undisposed of . . . as to other parties; but the party . . . may, at their option, reserve their appeal until the final judgment is rendered which disposes of the cause for all purposes and as respects all parties; provided, in such a case, that notice of such reserving of appeal shall be filed in the trial court . . . within twenty days after issuance of notice of the rendition of the judgment disposing of part of the issues.”

       General Statutes (1949 Rev.) § 2479 then provided: “Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner.” See General Statutes § 14-154a.

       See Malerba v. Cessna Aircraft Co., 210 Conn. 189, 194, 554 A.2d 287 (1989).

       In view of the allegation concerning the property being a transformer, the law concerning fixtures may implicate the actual ownership of this item.


author: Hull, J.

text:
    Hall Manor Owner’s Association v. City of West Haven
    (13654)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.
    Argued May 10
    decision released July 18, 1989

      Kathleen S. Mass, with whom, on the brief, were Vincent R. Falcone and Mark Healey, for the appellant (plaintiff).

      Mark J. DeGennaro, deputy corporation counsel, for the appellee (defendant).
   Hull, J.

The sole issue on appeal is whether the plaintiffs residential complex known as Hall Manor is entitled to refuse collection by the defendant, the city of West Haven, pursuant to a West Haven ordinance that regulates such collection within the city. We agree with the trial court that, under the language of the ordinance, the complex is not eligible for the city provided service, and, accordingly, find no error.

The relevant facts are not in dispute. Prior to January 20, 1983, the Hall Manor complex was a residential apartment building containing seventy-six individual apartments. On January 20, 1983, a document entitled “Declaration of Covenants, Easements, Reservations and Tenancies in Common” was recorded on the land records of the city of West Haven purporting to create “Hall Manor, A Planned Unit Development Modular Complex.” This declaration divided the complex into nineteen attached and detached “modules,” each containing four apartment dwelling units. Fee simple ownership for each module was then conveyed separately to various purchasers. According to the declaration, the plaintiff, a Connecticut corporation comprised of owners of the nineteen modules, was conveyed fee simple ownership of the land and common improvements, exclusive of the buildings.

Since January 20,1983, the plaintiff has removed the refuse generated at its complex based upon the defendant’s claim that such removal is the plaintiff’s responsibility. Refuse collection in the city of West Haven is regulated by a city ordinance which provides, inter alia, that “[t]he Department of Public Works is responsible for the collection, removal and disposal of garbage, refuse and other waste material from all private dwellings in the city.” West Haven Code § 119-1 (D). While no definition of “private dwellings” was contained in the ordinance as adopted in February, 1983, the city amended the ordinance on June 27,1983, to include the following: “ ‘Private dwellings’ as used herein shall include all residential condominiums as the term condominium is defined by the Condominium Act of the Connecticut General Statutes. It is expressly understood that condominiums shall not include commercial or other forms of non-residential condominium unit ownership. It shall not include apartments nor co-op housing ownership.” West Haven Code § 119-1 (D) (1). The ordinance provides further that “[t]he collection of garbage, refuse and other waste material from industrial, business and apartment buildings of more than four (4) dwelling units shall be the responsibility of the property owner(s).” West Haven Code § 119-1 (E).

In February, 1988, the plaintiff instituted a declaratory judgment action against the city seeking a declaration that, pursuant to the ordinance, Hall Manor was entitled to municipal refuse collection, and seeking compensatory damages for expenses incurred for refuse removal during the five year period in which the defendant failed to provide the service to the plaintiffs residential complex. The case was referred to Hon. Harold M. Mulvey, state trial referee. A stipulation of facts, trial briefs and exhibits were submitted to the trial court to serve as the basis for its decision. The plaintiff claimed in its trial brief that Hall Manor was a “private dwelling” within the meaning of the ordinance and therefore eligible for the municipal service. The city responded that the complex, as a planned unit development, was not a “private dwelling” and thus not eligible for the service. The trial court agreed with the defendant and rendered judgment accordingly. This appeal by the plaintiff ensued.

On appeal the plaintiff claims that the trial court erred by ruling that, under the language of the ordinance, Hall Manor is not a “private dwelling” entitled to municipal refuse collection. The plaintiff argues in the alternative that: (1) Hall Manor is entitled to the municipal service because it is a condominium; (2) Hall Manor, although a planned unit development, is entitled to the service because it consists of individual private dwelling units; and (3) Hall Manor is implicitly entitled to the service because it is composed of nineteen distinct four unit apartment buildings. As to each of these claims, we disagree.

The plaintiff first contends that Hall Manor-is entitled to municipal refuse collection because it is a condominium, and as such is specifically defined by the ordinance as a “private dwelling” eligible for the municipal service. We conclude that Hall Manor is not a condominium.

The ordinance’s inclusion of condominiums within the phrase “private dwelling” is limited by the provision that the term “condominium” be defined “by the Condominium Act of the Connecticut General Statutes [§ 47-68a et seq.]” West Haven Code § 119-1 (D) (1). General Statutes § 47-68a (a) defines a “condominium” as “real property and any incidents thereto and interests therein, lawfully submitted to this chapter by the recordation of condominium instruments pursuant to the provisions of this chapter.” “Condominium instruments,” in turn, are defined as “the declarations, bylaws, survey maps and plans recorded and filed pursuant to the provisions of this chapter.” General Statutes § 47-68a (d).

While the plaintiff has recorded an instrument labeled as a declaration, this document does not fulfill the requirements of General Statutes § 47-68a et seq. General Statutes § 47-70 (a) clearly provides that “[t]he declaration shall contain the following information: (1) The name by which the condominium is to be identified, which name shall include the word ‘condominium’ or be followed by the words, ‘a condominium;’ (2) A description of the land on which the buildings and improvements are, or are to be, located together with the title and reference to a survey of such land prepared and certified substantially correct by a licensed surveyor or engineer and filed prior to or simultaneously with such declaration . . . . ” (Emphasis added.) The declaration fails to meet either of these statutory requirements. First, while the declaration does contain the name of the complex, that name does not include the word “condominium” nor is the name followed by the words “a condominium.” To the contrary, the plaintiff’s complex is referred to throughout the declaration as “Hall Manor, A Planned Unit Development Modular Complex.” Secondly, the declaration contains a legal description of the land, but it does not refer to any survey of the land as required by the statute.

Furthermore, General Statutes § 47-88b sets forth the requirements for conversion condominiums. Since Hall Manor was used as an apartment complex prior to 1983, certain additional information relative to conversion condominiums is required to be included with the condominium instruments. There is no evidence of such compliance.

The plaintiff concedes that its condominium instruments are defective at least to the extent that the declaration does not use the word “condominium” in identifying the complex; the plaintiff argues, however, that the requirements of the Condominium Act are not to be construed strictly, but, rather, the court must look to the legislative intent and purpose in construing the statute.

In setting forth the previously discussed requirements for the creation of a condominium, the legislature consistently used the word “shall.” While we generally will not look for interpretative guidance beyond the language of the statute when the words of that statute are plain and unambiguous; Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54, 523 A.2d 477 (1987); our past decisions have indicated that the use of the word “shall,” though significant, does not invariably create a mandatory duty. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985); Tramontano v. Dilieto, 192 Conn. 426, 433-34, 472 A.2d 768 (1984). The test we have adopted for determining whether such a statutory requirement is mandatory or directory is “ ‘ “whether the prescribed mode of action is of the essence of the thing to be accomplished, or in other words, whether it relates to matter material or immaterial—to matters of convenience or of substance.” ’ ” Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 503-504, 503 A.2d 1161 (1986), quoting Gallup v. Smith, 59 Conn. 354, 358, 22 A. 334 (1890). If it is a matter of convenience, the statutory provision is directory; if it is a matter of substance, the statutory provision is mandatory. Fidelity Trust Co. v. BVD Associates, supra.

A statutory provision that is directory “ ‘prescribes what shall be done but does not invalidate action upon a failure to comply.’ Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75 (1969).” Fidelity Trust Co. v. BVD Associates, supra, 278. The Condominium Act is not such a directory statute. General Statutes § 47-71 (a) provides: “The owner or owners of any property in the state may submit such property to the provisions of this chapter by filing or recording on the land records of the municipality or municipalities in which the property is located condominium instruments that comply with the provisions of this chapter.” (Emphasis added.) General Statutes § 47-71 (b) provides that any declaration of condominium or other condominium instruments “shall not be of legal effect until filed or recorded on [such] land records . ... ” Therefore, under the Condominium Act, “regardless of any intention or preparatory conduct of a property owner to convert its property to condominiums, the property has no condominium status until proper condominium instruments . . . are recorded.” (Emphasis added; citation omitted.) Stratford Arms Co. v. Stratford, 7 Conn. App. 496, 500, 508 A.2d 842 (1986). Since the Condominium Act clearly makes compliance with its requirements a condition precedent to attaining condominium legal status, its use of the word “shall” is mandatory. Accordingly, since the plaintiff has not filed condominium instruments pursuant to the provisions of the statute, we conclude that Hall Manor is not a condominium within the meaning of the ordinance.

The plaintiff next claims that Hall Manor is eligible for municipal refuse collection because the complex is comprised of private dwelling units. According to the plaintiff, the ordinance’s provision that “[t]he Department of Public Works is responsible for the collection, removal and disposal of garbage, refuse and other waste material from all private dwellings in the city” (emphasis added); West Haven Code § 119-1 (D); was intended by the city to be read broadly, encompassing any multi-unit residential complex unless otherwise specified within the ordinance. We do not agree with the plaintiff’s interpretation of the city’s intent.

“A local ordinance is a municipal legislative enactment and the same canons of construction which we use in interpreting statutes are applicable to ordinances. Duplin v. Shiels, Inc., 165 Conn. 396, 398-99, 334 A.2d 896 (1973) . . . . ” Maciejewski v. West Hartford, 194 Conn. 139, 151, 480 A.2d 519 (1984). “ ‘A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. Peck v. Jacquemin, 196 Conn. 53, 63, 491 A.2d 1043 (1985).’ Orticelli v. Powers, 197 Conn. 9, 13-14, 495 A.2d 1023 (1985).” (Citation omitted.) University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 399-400, 512 A.2d 152 (1986).

The phrase “all private dwellings” must be read in conjunction with the definition in the ordinance of “private dwellings.” Even though the definition is obviously not all-inclusive, it is relevant to the plaintiff’s claim since it deals with multi-unit complexes and specifically includes one type of multi-unit complex within its scope. That the city deemed it necessary to add this definition by amendment four months after the original act was enacted is significant to our interpretation of the phrase “all private dwellings.”

“In determining the effect of a subsequent statutory amendment on earlier legislation, we are guided by well defined principles of statutory interpretation. We recognize the usual presumption that, in enacting a statute, the legislature intended a change in existing law. Shelton v. Commissioner, 193 Conn. 506, 513, 479 A.2d 208 (1984); Vartuli v. Sotire, 192 Conn. 353, 364 n.12, 472 A.2d 336 (1984); 1A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 22.30. This presumption, however, like any other, may be rebutted by contrary evidence of the legislative intent in the particular case.” State v. Magnano, 204 Conn. 259, 277, 528 A.2d 760 (1987).

The plaintiff presented no evidence to establish that the amendment was merely clarifying the original use of the phrase “private dwellings.” Absent such a showing, we abide by the presumption that the city, in adopting the amendment, intended to change the then existing law. Therefore, prior to the amendment, a residential condominium was not eligible for municipal refuse collection. Since a condominium is a type of multi-unit complex, the scope of “all private dwellings” does not, as the plaintiff argues, extend to all multiunit complexes.

This determination by itself, however, does not fully address the plaintiff’s second claim. The plaintiff also contends that the expansion of “private dwellings” to encompass condominiums is itself indicative of the city’s intent that the phrase be interpreted broadly. The plaintiff maintains that the city intended this expansion to extend to all multi-unit complexes, unless specifically excluded by the ordinance. We are not persuaded. Absent evidence to the contrary, “ ‘ “statutory itemization indicates that the legislature intended the list to be exclusive.” ’ ”The B. F. Goodrich Co. v. Dubno, 196 Conn. 1, 6, 490 A.2d 991 (1985), quoting State v. Kish, 186 Conn. 757, 766, 443 A.2d 1274 (1982). Accordingly, we conclude that the city intended to include only one type of multi-unit complex within its definition of “private dwellings,” i.e., condominiums.

The plaintiffs final claim is that the language of the ordinance implicitly provides for municipal refuse removal from apartment buildings consisting of four or fewer dwelling units. In reaching this, conclusion, the plaintiff relies on the provision of the ordinance that states that “[t]he collection of garbage, refuse and other waste material from industrial, business and apartment buildings of more than four (4) dwelling units shall be the responsibility of the property ownerjs].” Implicit in this statement, the plaintiff contends, is that refuse collection from apartment buildings with four or fewer dwelling units is the responsibility of the department of public works. The plaintiff argues further that each of the nineteen modules that comprise Hall Manor is such an apartment building, and that the complex is therefore entitled to the municipal refuse collection service. At oral argument, the plaintiff intimated that this claim is yet another way in which Hall Manor falls within the scope of “all private dwellings,” i.e., the ordinance implicitly encompasses apartment buildings with four or fewer dwelling units in its phrase “private dwellings.” We disagree.

“ ‘It is well settled that a statute must be applied as its words direct. Dental Commission v. Tru-Fit Plastics, Inc., 159 Conn. 362, 365, 269 A.2d 265 [1970]; Obuchowski v. Dental Commission, 149 Conn. 257, 265, 178 A.2d 537 [1962].’ New Haven v. United Illuminating Co., 168 Conn. 478, 485, 362 A.2d 785 (1975).” Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 141, 509 A.2d 1050 (1986). If the statutory language is clear and unambiguous, there is no room for construction. Beloff v. Progressive Casualty Ins. Co., supra, 54; State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987). With respect to the plaintiff’s final claim, the definition of “private dwellings” in the ordinance is unambiguous: “ ‘Private dwellings’ as used herein shall include all residential condominiums .... [Private dwellings] shall not include apartments . ... ” Since this language is clear, we shall not speculate as to the intent of the city in including the provision relied upon by the plaintiff.

There is no error.

In this opinion the other justices concurred.

       Hall Manor Owner’s Association was established, according to the declaration, “to manage, maintain and operate the Complex and to act as agent and attorney-in-fact for its members in the pursuit of their common interests and mutual health, welfare and safety.”

       The city of West Haven first enacted an ordinance regulating the collection of refuse in 1967. This ordinance was amended and re-enacted as “An Ordinance Regulating the Collection of Refuse in the City of West Haven” in February, 1983. Both ordinances were promulgated pursuant to the general power granted municipalities to “[pjrovide for or regulate the collection and disposal of garbage, trash, rubbish, waste material and ashes by contract or otherwise . . . .” General Statutes § 7-148 (c) (4) (H).

       An amendment that in effect construes and clarifies a prior statute must be accepted as a declaration of the meaning of the original act. State v. Magnano, 204 Conn. 259, 278, 528 A.2d 760 (1987); see also Neyland v. Board of Education, 195 Conn. 174, 180, 487 A.2d 181 (1985).

       Although the plaintiff in its brief attempts to make this claim in a context broader than the “private dwellings” argument, we will not address the broader claim because it was not presented to the trial court. See Practice Book § 4185.