author: Borden, J.

text:
    Bank of Boston Connecticut v. Richard Schlesinger et al.
    (14270)
    Peters, C. J., Shea, Glass, Covello and Borden, Js.

      Argued June 4
    decision released August 13, 1991

      James R. Fogarty, with whom, on the brief, was Carolyn W. Alexander, for the appellants (defendants).

      Anthony M. Fitzgerald, with whom, on the brief, were William P. Yelenak and Susan S. Chambers, for the appellee (plaintiff).
   Borden, J.

This is a suit on a personal guaranty of promissory notes. This appeal arises out of the granting of a prejudgment attachment in favor of the plaintiff, Bank of Boston Connecticut, that imposed a lien on certain partnership interests of the defendants, Richard Schlesinger and William Weinstein. The issues are whether the trial court improperly: (1) granted the prejudgment attachment on the defendants’ partnership interests rather than on the Waterbury Industrial Commons, the property that secured the notes (the property); (2) admitted into evidence expert testimony (a) about environmental issues offered by an attorney from the law firm representing the plaintiff, and (b) concerning the “liquidation value” of the property; and (3) denied the defendants’ motion to stay the prejudgment attachment action pursuant to General Statutes §§ 49-28 and 49-1. We affirm.

The relevant facts of this appeal are undisputed. The defendants are the sole partners in Mark David Associates. In 1985, Mark David Associates purchased the property from the city of Waterbury and the Naugatuck Valley Development Corporation. Because of potential environmental problems with the property, Mark David Associates received from the city of Waterbury and the Naugatuck Valley Development Corporation an indemnification agreement for any liability that might arise for cleaning up the property. This environmental indemnification agreement runs in favor of both Mark David Associates and the plaintiff. Mark David Associates financed the purchase by giving a first mortgage to the plaintiff in July, 1985, in the face amount of $3.9 million, and a second mortgage in November, 1986, in the face amount of $3.1 million. At the closing for the second mortgage, the defendants executed a limited guaranty and indemnity agreement personally guarantying both the first and second mortgages.

The agreement provides, in pertinent part, that: “1. The undersigned, Richard Schlesinger and William Weinstein, jointly and severally, hereby unconditionally and absolutely guaranty] the prompt payment of the Notes and all monies coming due thereunder or under the Mortgages or any other related documents to include, without limitation, each payment of interest and/or additional interest and/or principal coming due under the Notes, costs of collection and attorneys’ fees as provided in the Notes (herein the ‘Liabilities’). Notwithstanding the foregoing it is understood and agreed that the obligation of the undersigned as to the principal amount due under the Notes (Principal Loan Balance) shall be limited to an amount calculated as follows: Principal Loan Balance x 1 - [Net Operating Income] -f [1.2 x Debt Service] = Guaranteed Principal Amount .... 3. Upon any default of Borrower under the Notes, Bank may enforce this guaranty] immediately against any or all of the undersigned without the necessity of any suit or action against Borrower or any other party liable with respect to the Liabilities and without resorting to and without regard to any collateral for the Liabilities or any other guaranty thereof or source of payment therefor.”

In December, 1989, the notes were in default and the plaintiff exercised its right to accelerate the principal. In January, 1990, the plaintiff instituted this action against the defendants based upon the personal guaranty that they had executed. The plaintiff moved for prejudgment attachments in the amount of $2.7 million on the interests of the defendants in nine partnerships. In May, 1990, the plaintiff prepared certain papers, including an unsigned foreclosure complaint on the property, but it never returned the writ and complaint to court. The defendants moved for a stay of the prejudgment attachment proceedings based upon the purported initiation of foreclosure proceedings. The trial court denied the defendants’ motion.

The trial court granted an attachment in the amount of $1.5 million on the interests of the defendants in five partnerships. The court did not explain how it had calculated this sum, and the defendants did not file a motion to articulate this finding. The defendants now appeal from the prejudgment attachment order. General Statutes § 52-2781.

I

We first consider our scope of review. Pursuant to our prejudgment remedy statutes; General Statutes § 52-278a et seq.; the trial court’s function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits. New England Land Co. v. DeMarkey, 213 Conn. 612, 620-21, 569 A.2d 1098 (1990). “The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff’s claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. . . . The court’s role in such a hearing is to determine probable success by weighing probabilities.” Id., 620. Moreover, this weighing process applies to both legal and factual issues. Augeri v. C. F. Wooding Co., 173 Conn 426, 429, 378 A.2d 538 (1977); Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984).

We reiterate “the limited role that our case law assigns to appellate review of a trial court’s broad discretion to deny or to grant a prejudgment remedy. It is the trial court that must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of showing probable cause to sustain the validity of its claim. We decide only whether the determination of the trial court constituted clear error.” Greenberg, Rhein & Margolis, Inc. v. Norris-Faye Horton Enterprises, Inc., 218 Conn. 162, 166, 588 A.2d 185 (1991); see also Dow & Condon, Inc. v. Anderson, 203 Conn. 475, 479-80, 525 A.2d 935 (1987); Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985).

II

The defendants first claim that the trial court improperly granted the plaintiff’s prejudgment attachment on the partnership interests because the plaintiff was adequately secured by the mortgaged property. The defendants do not dispute the validity of the guaranty and indemnity agreement, or that the plaintiff was entitled to bring an action under the agreement rather than to foreclose on the mortgage. The defendants’ argument, presented without the benefit of supporting authority, is that because the value of the collateral accompanying the notes is greater than the debt, the plaintiff should have been equitably precluded from exercising its contractual right, pursuant to the guaranty and indemnity agreement, to pursue, by way of attachment, other security for the notes. The plaintiff argues, to the contrary, that because the guaranty and indemnity agreement permits a cause of action separate and independent from the mortgages executed by Mark David Associates, it was not required to proceed first against Mark David Associates and the property, regardless of the value of that property as security for the notes. We agree with the plaintiff.

The trial court concluded that probable cause existed to attach the sum of $2.5 million dollars of the defendants’ partnership interests in order to “secure the collection guaranty] signed by [the defendants.]” The court limited the amount of the attachment to $1.5 million, however, because it concluded that the defendants, as guarantors, “may be entitled to a credit for monies realized upon foreclosure.” Implicit in the court’s decision is the determination that, pursuant to the guaranty and indemnity agreement, the plaintiff was not legally required to exhaust the collateral securing the loan prior to resorting to other assets by way of attachment. It is also clear from the court’s decision that, in arriving at its conclusion, it considered the possibility of the plaintiff’s obtaining some value from’the mortgaged property.

“Where there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 131, 523 A.2d 1266 (1987). The language of the guaranty and indemnity agreement explicitly provides that the plaintiff has the right to enforce the guaranty “without resorting to and without regard to any collateral for the [liabilities . . . .” Whether the collateral securing the mortgage was sufficient to cover the amount of the debt was irrelevant with respect to the enforceability of the guaranty because the plaintiff had the right pursuant to the agreement to pursue different sources of security, namely, the partnership interests of the defendants. Since the trial court’s granting of the attachment on the defendants’ partnership interests was supported by the guaranty, under the facts of this case, the trial court made no clear error of law and did not clearly abuse its discretion.

The defendants are effectively requesting that we rewrite their commercially sophisticated guaranty and indemnity agreement to require the plaintiff to exhaust the collateral securing the notes before pursuing its available remedy under the agreement. The parties could have written such an agreement, but they did not do so. “It is not within the power of courts to create new and different agreements.” Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 55, 453 A.2d 771 (1983).

Ill

The defendants next claim that the trial court improperly admitted into evidence: (1) expert testimony as to the “liquidation value” of the property; and (2) expert testimony of an attorney from the law firm of the plaintiffs counsel concerning environmental issues surrounding the property. We disagree.

In challenging the evidentiary rulings of the trial court on a prejudgment attachment, the defendants must establish not only that the admission was clear error, but also that the error was harmful. Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 142, 491 A.2d 389 (1985). In Part II of this opinion, we decided that the trial court need not have considered the value of the property at all because the plaintiff was contractually entitled to pursue other assets under the express terms of the guaranty and indemnity agreement. Therefore, even assuming clear error in the admission of the challenged evidence, the defendants could not have been harmed because the evidence was related only to the value of the property, a consideration that was irrelevant to the determination of whether an attachment should have been granted.

IV

The defendants’ final claim is that because the plaintiff had initiated a foreclosure action, the trial court improperly failed to stay the attachment pursuant to General Statutes §§ 49-1 and 49-28. We disagree.

In May, 1990, the plaintiff purported to begin foreclosure proceedings on the property by bringing an unsigned foreclosure writ, summons, complaint, lis pen-dens, application for temporary injunction, bond, and order to show cause to the Waterbury Superior Court. Although Mark David Associates was later served with the papers, the plaintiff did not prosecute the show cause hearing and the unsigned foreclosure writ, summons, and complaint, which were made returnable to the court on June 26,1990, were never returned to the court. During the hearing on the prejudgment attachment, the defendants moved to stay this case and, thereby, the attachment sought by the plaintiff. The trial court denied their motion.

The defendants claim that the following language in § 49-28 supports their argument that the trial court should have stayed the proceedings: “If the proceeds of the sale are not sufficient to pay in full the amount secured by any mortgage or lien thereby foreclosed, the deficiency shall be determined, and thereupon judgment may be rendered in the cause for the deficiency against any party liable to pay the same who is a party to the cause and has been served with process or has appeared therein, and all persons liable to pay the debt secured by the mortgage or lien may be made parties; but all other proceedings for the collection of the debt shall be stayed during the pendency of the foreclosure suit, and, if a deficiency judgment is finally rendered therein, the other proceedings shall forthwith abate.” (Emphasis added.)

A review of the plain language of the statute as applied to the facts of this case, however, defeats the defendants’ argument. It is not disputed that the foreclosure action was not returned to court. Section 49-28 provides for a stay of “all other proceedings for the collection of the debt” only “during the pendency of the foreclosure suit.” (Emphasis added.) A suit is pending from the time that it is returned to the court because only then does it pass beyond the physical control of the litigants. See Demar v. Open Space & Conservation Commission, 211 Conn. 416, 430, 559 A.2d 1103 (1989); see also Algonquin Gas Transmission Co. v. Becker, 25 Conn. Sup. 448, 450, 206 A.2d 846 (1952). The same reasoning disposes of the defendants’ claim under § 49-1, which posits a “foreclosure of a mortgage” as a “bar to any further action upon the mortgage debt . . . .” Because the plaintiff never returned the writ to court, there was no foreclosure action pending at the time of this action, and thus no foreclosure of the mortgage in question. The trial court properly denied the motion to stay.

The judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiff has acquired the interests of the Colonial Bank, with which the defendants dealt in the underlying commercial transactions involved in this appeal. For the purpose of clarity, we shall simply refer to the “plaintiff” throughout the opinion.

       The defendants also raised two additional claims. First, they claimed that the trial court improperly granted temporary injunctive relief in connection with the prejudgment attachment. At oral argument, however, the defendants conceded that this claim is not reviewable because the granting of a temporary injunction does not ordinarily constitute a final judgment for purposes of appeal. Doublewal Corporation v. Toffolon, 195 Conn. 384, 389, 488 A.2d 444 (1985).
      Second, the defendants claimed that the plaintiff should have been estopped from introducing evidence as to the potential environmental liability that it could incur by foreclosing on the property. The trial court, in its memorandum of decision, however, did not refer to such a claim of estoppel. It is the responsibility of the appellant to seek an articulation of the trial court’s decision in order to provide this court with an adequate record for review. O’Hara v. State, 218 Conn. 628, 635, 590 A.2d 948 (1991); see also Practice Book § 4051. The defendants have failed to do so and, therefore, we decline to review this claim.

       It is undisputed that, although the initial total amount of the mortgages was $7 million, the current debt of the defendants to the plaintiff totals approximately $6.1 million.

       The defendants do not dispute that they are in default on the notes, or that the plaintiff had the right to bring an action against them.

       More specifically, the defendants argue that: (1) because their liability under the guaranty and indemnity agreement is less than the underlying debt secured by the two mortgages because of the formula, “if one assumes that the mortgages are sufficient collateral, then the Plaintiff has no need for additional collateral”; and (2) “the Plaintiff’s own recent business records indicate that it is adequately secured [by the property].”

       Edward Heberger, the plaintiffs appraiser, testified that “liquidation value [as opposed to fair market value] presumes a quick sale, a sale under duress.”

       General Statutes § 49-1 provides: “when foreclosure a bar to further action ON debt. The foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure and also against any person or persons upon whom service of process to constitute an action in personam could have been made within this state at the commencement of the foreclosure; but the foreclosure is not a bar to any further action upon the mortgage debt, note or obligation as to any person liable for the payment thereof upon whom service of process to constitute an action in personam could not have been made within this state at the commencement of the foreclosure. The judgment in each such case shall state the names of all persons upon whom service of process has been made as herein provided.”
      General Statutes § 49-28 provides: “when proceeds of sale will not pay in full. If the proceeds of the sale are not sufficient to pay in full the amount secured by any mortgage or lien thereby foreclosed, the deficiency shall be determined, and thereupon judgment may be rendered in the cause for the deficiency against any party liable to pay the same who is a party to the cause and has been served with process or has appeared therein, and all persons liable to pay the debt secured by the mortgage or lien may be made parties; but all other proceedings for the collection of the debt shall be stayed during the pendency of the foreclosure suit, and, if a deficiency judgment is finally rendered therein, the other proceedings shall forthwith abate. If the property has sold for less than the appraisal provided for in section 49-25, no judgment shall be rendered in the suit or in any other for the unpaid portion of the debt or debts of the party or parties upon whose motion the sale was ordered, nor shall the same be collected by any other means than from the proceeds of the sale until one-half of the difference between the appraised value and the selling price has been credited upon the debt or debts as of the date of sale; and, when there are two or more debts to which it is to be applied, it shall be apportioned between them.”


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    J. William Burns, Commissioner of Transportation v. Kirk A. Bennett
    (14224)
    Peters, C. J., Shea, Callahan, Covello and Borden, Js.
    Argued May 28
    decision released August 13, 1991

      Carla Ottaviano, for the plaintiff in error.

      Todd Lampert, for the defendant in error.
   Shea, J.

The defendant, J. William Burns, commissioner of transportation, has filed a writ of error with this court, claiming that the trial court erred in refusing to grant his motion to transfer the case from the Small Claims docket to the regular docket of the Superior Court.

The record discloses the following facts: On September 26, 1990, the plaintiff, Kirk Bennett, brought suit in the Small Claims division of the Superior Court alleging that the defendant was liable to him in the amount of $250 for property damage to his car that occurred while he was driving on Interstate 95 in Norwalk. In his complaint, the plaintiff alleged that the negligence of the defendant was the sole proximate cause of the accident and that he knew or should have known that the debris or defect on the highway that caused the accident existed at that time. The defendant timely filed a motion and accompanying affidavit pursuant to Practice Book § 572, to transfer the case to the regular docket. The trial court, Elaine Brajfman, state magistrate, denied the motion. A motion to reargue the motion to transfer was granted, but the trial court, Francis J. Charlton, state magistrate, again denied the motion to transfer. The trial court then proceeded to hear the merits of the case, eventually rendering judgment in favor of the plaintiff in the amount of $200. The defendant then filed this writ of error.

The defendant claims that his motion to transfer complied fully with the requirements of § 572 and, therefore, the trial court was required to transfer his case to the regular docket. The plaintiff counters that this court lacks jurisdiction to consider the defendant’s claim and that, even assuming such jurisdiction does exist, the trial court properly denied the defendant’s motion because it did not comply with § 572. We conclude that we have jurisdiction to entertain the writ of error and, further, that the trial court should have granted the defendant’s motion. Accordingly, we reverse the judgment.

I

The plaintiff relies on General Statutes § 51-197a, which excepts small claims judgments from those for which a statutory right of appeal is created, to support his argument that this court lacks jurisdiction to entertain the defendant’s action. The defendant correctly notes, however, that we rejected an identical argument in Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 48, 478 A.2d 601 (1984), where we held that “§ 51-197a . . . does not preclude us from entertaining a writ of error pursuant to General Statutes § 52-272 from the Small Claims division of the Superior Court . . . .”

The plaintiff counters that Cannavo Enterprises, Inc., is distinguishable because, in that case, the writ of error had been brought from a default judgment, while in the present case the writ of error has been brought from a final judgment on the merits of the plaintiff’s claim. The plaintiff contends that the defendant should either have brought the writ when his motion to transfer was denied or have waited until a default judgment was granted and then brought the writ. These arguments are without merit.

Practice Book § 4143 (a) expressly provides that “[wjrits of error for errors in matters of law only may be brought from a final judgment of the superior court to the supreme court.” (Emphasis added.) In the present case, there was no final judgment until the trial court rendered judgment on the merits of the plaintiff’s claim. See Cannavo Enterprises, Inc. v. Burns, supra, 45 n.4, 47 n.8. Furthermore, in Cannavo Enterprises, Inc., we held that a defendant could bring a writ of error from a default judgment in the Small Claims division despite precedent that a failure to contest the action implied consent to the judgment; we did not hold that a default judgment was a condition precedent to bringing such a writ. Id., 46-47. We conclude, therefore, that the defendant properly brought his writ of error after a judgment on the merits had been rendered.

II

Having determined that we have jurisdiction to entertain the defendant’s writ of error, we now turn to his primary argument, that his motion to transfer complied with § 572 (2) (b) and that the trial court’s denial of that motion was, therefore, improper. The plaintiff asserts that the contrary is true. Specifically, he contends that the defenses raised in the defendant’s motion and affidavit were not “good” defenses. He further asserts that because the defendant’s motion did not set out the legal theory and underlying factual basis of his defenses, the nature of those defenses was not set forth with the degree of specificity required by § 572 (2) (b). We hold that the defendant’s motion adequately complied with § 572 (2) (b).

Pursuant to § 572, the defendant’s motion to transfer stated in relevant part: “Pursuant to sec. 572 of the Conn. Rules of Practice the defendant hereby moves to transfer the above referenced matter to the regular docket of the Superior Court. The defendant claims that good defenses exist to this matter. Said defenses include but are not limited to: (a) sovereign immunity[;] (b) sole proximate cause[;] (c) contributory negligencef; and] (c)lack of timely notice.” In the accompanying affidavit, required under § 572 (2) (b), the defendant stated that “good legal defenses exist to this action” and again set forth those defenses raised in his motion to transfer.

We find no deficiency in these documents that would render them insufficient to satisfy the demands of § 572 (2) (b). By its terms, the subsection requires only that a motion to transfer be accompanied by an affidavit that first, states that a good defense exists, and second, sets forth with specificity the nature of that defense. In passing on a motion made pursuant to this subsection, a court is not required to review the legal sufficiency of any defenses asserted, but, rather, is limited to determining whether those defenses have been raised in good faith, not frivolously.

Furthermore, because § 572 (2) (b) directs a defendant to state with specificity the nature of a defense, not the defense itself, compliance does not necessitate a detailed statement of the legal theory underlying the defense, including its underlying facts. Instead, a defendant’s motion to transfer need only specify generally the particular defenses upon which he intends to rely. Compare Jennings v. Parsons, 71 Conn. 413, 417, 42 A. 76 (1899) (statement of the nature or substance of defense may be made in “very general terms and in the most informal manner”).

In light of this discussion, it is readily apparent from the record that the defendant’s motion and affidavit were executed in full compliance with the relevant rule of practice. Because the transfer provisions of § 572 are mandatory once its formal requirements have been satisfied; Cannavo Enterprises, Inc. v. Burns, supra, 51; we conclude that the trial court should have granted the defendant’s motion to transfer.

The plaintiff argues, however, that this construction of § 572 (2) (b) will enable a defendant to obtain a transfer of a case from the Small Claims division merely by raising defenses to a plaintiff’s claim, with little regard for their viability. Such a low threshold for obtaining a transfer, the plaintiff contends, will undercut the effectiveness of the Small Claims division as a low-cost forum for the resolution of relatively minor civil disputes.

We do not consider such a concern to be warranted. General Statutes § 52-251a provides that “[wjhenever the plaintiff prevails in a small claims matter which was transferred to the regular docket in the superior court on the motion of the defendant, the court may allow to the plaintiff his costs, together with reasonable attorney’s fees to be taxed by the court.” Section 52-251a thus creates a substantial and effective disincentive for a defendant who might otherwise raise defenses bordering on the frivolous in an effort to gain a tactical advantage over a plaintiff by obtaining a transfer of a case from the Small Claims division.

Our construction of § 572 also finds support in the very purposes that it is designed to serve. Those purposes include providing a defendant with the means of avoiding the “informal procedure of Small Claims Court and [opting] for the more structured procedure of the regular docket, including the right of jury trial and appeal.” Cannavo Enterprises, Inc. v. Burns, supra, 51. The interpretation of the section that the plaintiff urges us to adopt would tend to undermine one of these purposes by creating an unacceptable tension with a defendant’s statutory right of appeal.

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion to transfer and for further proceedings.

In this opinion the other justices concurred.

       The writ of error was filed pursuant to General Statutes §§ 52-273 and 52-275 and Practice Book §§ 4143 and 4144.

       Practice Book § 572 provides in pertinent part: “A case duly entered on the small claims docket of a geographical area or housing session court location shall be transferred to the regular docket of the superior court or to the regular housing docket, respectively, if the following conditions are met:
      “(1) The defendant, or the plaintiff if the defendant has filed a counterclaim, shall file a motion to transfer the case to the regular docket. This motion must be filed on or before the answer date.

        “(2) The motion to transfer must be accompanied by (a) a counterclaim in an amount greater than the jurisdiction of the small claims court; or (b) an affidavit stating that a good defense exists to the claim and setting forth with specificity the nature of the defense, or stating that the case has been properly claimed for trial by jury.
      “(3) The moving party shall comply with such terms as are fixed by the court, which shall at least provide for not less than the amount of an entry fee of a case in the superior court. . . .”

       The record before us does not disclose the reasons for the denials of the motion.

       General Statutes § 51-197a provides in relevant part: “(a) Appeals from final judgments or actions of the superior court shall be taken to the appellate court in accordance with section 51-197c, except for small claims which are not appealable . . . .”

       The plaintiff baldly asserts that, for the purposes of a writ of error, the denial of a motion to transfer should be considered a final judgment. He cites no statutory or decisional law in support of that assertion, however. This claim is without merit in view of the abundance of precedent holding that the denial of similar motions prior to a judgment on the merits does not constitute a final judgment in the absence of statutory provisions to such effect. See, e.g., State v. Atkins, 203 Conn. 33, 34, 522 A.2d 1234 (1987) (finding of probable cause at probable cause hearing is not a final judgment); State v. Coleman, 202 Conn. 86, 92, 519 A.2d 1201 (1987) (denial of motion to dismiss is not a final judgment); In re Juvenile Appeal (85-AB), 195 Conn. 303, 307, 488 A.2d 778 (1985) (juvenile transfer not a final judgment for purposes of appeal, but see General Statutes §§ 46b-126, 46b-127, which now provide for appeal of such judgments).

       As an alternative to stating in an affidavit that good defenses exist and specifying the nature of those defenses, Practice Book § 572 (2) (b) also provides that a defendant may obtain a transfer from the Small Claims division by stating in an affidavit that he is claiming the case for jury trial. The plaintiff asserts that the defendant failed to satisfy this requirement of the Practice Book. Because this is an alternate method of obtaining a transfer, our conclusion that the defendant satisfied the former method renders a decision on the plaintiff’s jury trial claim unnecessary.

       Our decision is based in part on the holding in Jennings v. Parsons, 71 Conn. 413, 42 A. 76 (1899). Therein, this court considered the scope of a trial court’s review of an analogous Practice Book section which empowered the plaintiff in a civil action to require the defendant “ ‘to state to the court whether he has satisfactory reasons to believe, and does in truth believe, that there exists a bona fide defense to the plaintiff’s action, and whether such defense will be made, together with the nature or substance of it . . . .’” Id., 415. We held that a trial court reviewing the defenses disclosed under this rule was limited to a determination of whether they were raised in good faith. Significantly, we stated that “[i]f the disclosed defense in a given case is clearly and palpably untruthful, or irrelevant, or utterly frivolous, it would indicate bad faith on the part of the counsel, and might warrant the court in holding that it was not satisfied either that the attorney believed that a bona fide defense existed, or that he intended to make it; but that is a very different thing from passing upon the legal sufficiency of an apparently good defense, believed in good faith to exist, and honestly intended to be made.” Id.

       The plaintiff also argues that the defendant has not complied with Practice Book § 572 (3) which states that “[t]he moving party shall comply with such terms as are fixed by the court, which shall at least provide for not less than the amount of an entry fee of a case in the superior court.” Because the defendant has not, to date, filed a transfer fee, the plaintiff claims that his motion to transfer was properly denied. We note, however, that it is apparently the sensible practice of the Norwalk Small Claims division to require payment of the fee only at the time that a transfer motion is granted. Consequently, the defendant’s failure to have paid the transfer fee at the time that he filed his motion to transfer is an insufficient ground for denial of that motion.


author: Callahan, J.

text:
    State of Connecticut v. Richard T. Carpenter, Jr.
    (14173)
    Shea, Callahan, Glass, Covello and Borden, Js.

      Argued May 31
    decision released August 20, 1991

      John R. Williams, for the appellant (defendant).

      Steven M. Sellers, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Callahan, J.

The issue in this appeal is whether a criminal defendant’s right to due process is violated when he is resentenced on a lesser included offense after a successful appeal of the greater offense and receives a sentence which, while thirty years less than his original sentence, is the maximum sentence allowed for the lesser offense, when he had received only five-sixths of the maximum sentence allowed for the greater offense.

The defendant, Richard T. Carpenter, Jr., was convicted of the crime of murder in violation of General Statutes § 53a-54a and sentenced to a term of imprisonment of fifty years. The maximum prison term for murder is imprisonment for “life,” which is defined to mean “a definite sentence of sixty years.” General Statutes §§ 53a-35a and 53a-35b. After the defendant appealed his conviction to this court, we vacated his murder conviction and remanded the case for resentencing on the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). State v. Carpenter, 214 Conn. 77, 87, 570 A.2d 203 (1990). On remand, the trial court sentenced the defendant to a term of imprisonment of twenty years, the maximum allowable sentence for manslaughter in the first degree. General Statutes § 53a-35a. The defendant has appealed, claiming that the maximum sentence of twenty years that he received for manslaughter in the first degree violates principles of due process and double jeopardy.

The defendant was convicted of causing the death of eighteen month old Cassandra Demming, who died from injuries she suffered when the defendant forcefully threw her into a bathtub. The underlying facts surrounding that tragic event are fully set forth in the opinion of this court in State v. Carpenter, supra. As a result of the death of the child, the defendant was charged with murder in violation of § 53a-54a. He was tried and convicted of murder by a jury and was sentenced to a term of imprisonment of fifty years. Thereafter, the defendant appealed to this court claiming that his conviction was based on insufficient evidence to prove beyond a reasonable doubt that he had intended to cause the child’s death. We reversed the trial court, finding that the evidence concerning the defendant’s intent was insufficient, and remanded the case for sentencing on the lesser included offense of manslaughter in the first degree in violation of § 53a-55 (a) (3).

At the resentencing hearing, the defendant argued to the trial court that principles of due process limited the maximum allowable sentence that could be imposed. Specifically, the defendant claimed that he was constitutionally protected from receiving a term of imprisonment greater than five-sixths of the twenty year maximum sentence for manslaughter in the first degree, or sixteen and two-thirds years, because the court originally had sentenced him to fifty years imprisonment, only five-sixths of the maximum sentence for murder of sixty years allowed by General Statutes § 53a-35b. The trial court was unpersuaded by the defendant’s argument and resentenced him to the maximum term of imprisonment of twenty years.

In this appeal, the defendant, relying on North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), and its progeny, claims that his resentencing to a twenty year period of incarceration violated principles of due process and double jeopardy. He claims that because the sentence he received on remand was greater, in proportion to the maximum sentence statutorily available, than the sentence he originally received for murder, it is a more severe sentence for due process purposes than his original sentence. Further, he claims that because the sentence is more severe, the trial court had a duty to articulate its reasons for the sentence on the record in order to avoid a presumption of unconstitutional vindictiveness under Pearce. Because we conclude that the defendant did not receive a more severe sentence on remand, we find the defendant’s argument unpersuasive.

Due process requires that “vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives” after prevailing on appeal. North Carolina v. Pearce, supra, 725; State v. Sutton, 197 Conn. 485, 499, 498 A.2d 65 (1985), cert. denied, 474 U.S. 1073, 106 S. Ct. 833, 88 L. Ed. 2d 804 (1986). Therefore, “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear” and be made part of the record. (Emphasis added.) North Carolina v. Pearce, supra, 726; State v. Sutton, supra, 500. Initially then, before undertaking a Pearce analysis, we must determine whether the sentence imposed on remand was, in fact, greater than the sentence originally imposed. If it is not, application of the presumption of vindictiveness is not required. United States v. Vontsteen, 910 F.2d 187, 192, reh. granted, 919 F.2d 957 (5th Cir. 1990); United States v. Bay, 820 F.2d 1511,1513-14 (9th Cir. 1987).

In determining whether the sentence was more severe, “[i]t is the actual effect of the new sentence as a whole on the total amount of punishment lawfully imposed by [the judge] on the defendant . . . which is the relevant inquiry . . . .” United States v. Markus, 603 F.2d 409, 413 (2d Cir. 1979). Further, “[i]n determining whether the second sentence is harsher than the first, we look not at the technical length of the sentence but at its overall impact on [the defendant].” United States v. Williams, 651 F.2d 644, 647 (9th Cir. 1981).

In determining the overall impact of a sentence on defendants, courts have found a wide range of resentencing possibilities to be more severe than the initial sentence. Certainly, a sentence on remand that imposes a longer sentence to serve in terms of actual years than did the original sentence would be considered more severe. North Carolina v. Pearce, supra; United States v. Williams, supra; State v. Sutton, supra. Similarly, courts have determined that a sentence on remand requiring a defendant to remain on parole for a longer period of time; United States v. Albanese, 554 F.2d 543, 549 (2d Cir. 1977); or to serve consecutive rather than concurrent sentences constitutes a greater punishment than the sentence originally imposed. State v. Macumber, 119 Ariz. 516, 522-23, 582 P.2d 162, cert. denied, 439 U.S. 1006, 99 S. Ct. 621, 58 L. Ed. 2d 683 (1978); Kinney v. State, 458 So. 2d 1191, 1192 (Fla. App. 1984).

In this case, the defendant makes no claim that his sentence was increased in severity in any way remotely similar to the cases previously cited. He claims rather that the sentence he received on remand is more severe than his original sentence because, although his sentence on remand was thirty years less than his original sentence, it was greater in proportion to the maximum sentence statutorily available than was his original sentence.

The defendant, however, has failed to provide any authority, and we have not located any, in support of the validity of his proportionality claim. Nor can we perceive any reason or policy for such a claim. It is clear to us, as it apparently was to the trial court, that certain criminal conduct may fairly be considered as falling somewhat short of the extreme end of the murder spectrum, but be at the most extreme end of the manslaughter spectrum, and deserving of the maximum punishment for that crime. In light of the fact that due process concerns the actual impact of resentencing on a defendant, not percentages, the defendant’s foray into mathematical comparisons is inapposite.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       General Statutes § 53a-55 (a) (3) provides: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       Defense counsel stated: “In this case your Honor imposed a sentence that was exactly five-sixths of the maximum that was available or permissible. Accordingly, I would submit that the due process clause of the Fourteenth Amendment to the Federal Constitution as well as the provisions from Article One of the Connecticut Constitution effect a maximum permissible in this case of five-sixths of the maximum that is available on the charge of manslaughter, and that has to be sixteen and two-thirds years.” He further stated, “I would submit to the Court that I think that a fair sentence in this case would be certainly no greater than ten years and a legal sentence in this case must be, I submit, no greater than sixteen and two-thirds years.”

       Because the defendant has failed to articulate any cognizable double jeopardy claim either in his brief or at oral argument, we limit our review in this case to the due process claim.


author: Glass, J.

text:
    Anne Barnett Zauner v. Leonie Sullivan Brewer et al.
    (14268)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.
    Argued June 6
    decision released August 20, 1991

      Lisa J. Damon, with whom was Gregory A. Hayes, for the appellant (plaintiff).

      J. Michael Sconyers, with whom were Stuyvescent K. Beams and Keith E. Krusz, for the appellee (named defendant).
   Glass, J.

In this will construction case, the plaintiff, Anne Barnett Zauner, challenges the judgment of the Superior Court in favor of the defendant, Leonie Sullivan (Walker) Brewer, following the granting of the defendant’s motion for summary judgment. Because we conclude that genuine issues of material fact exist as to the intended meaning of a disputed provision of the will of the testatrix, Virginia R. Ward, and as to whether the defendant had committed waste actionable by the plaintiff under General Statutes § 52-563 and subject to immediate relief in damages, we reverse.

The plaintiff was the wife and is the sole devisee of the testatrix’ now deceased only son, John S. Barnett. The defendant was the wife of the testatrix’ physician and friend, Eddie Brewer. The focus of the present dispute is a will executed by the testatrix in July, 1967, which provided in article three for the disposition of a thirty-three acre parcel of property known as “Beaver Dam” (property). The property at that time consisted of a newly constructed house and recently landscaped grounds, as well as a clear and swimmable man-made pond complete with a boat house and dock for recreational purposes. Article three provided: “I devise to my friend, Leonie Sullivan Walker [Brewer], for and during the term of her natural life my residence real estate [the property] in the town of Salisbury, and, at her death, or if she surrenders the premises prior thereto, the remainder interest therein to my son, JOHN S. BARNETT.”

Upon the testatrix’ death in October, 1967, the defendant, in accordance with article three of the testatrix’ will, entered into possession of the property and made her home there. The defendant resided on the property until September, 1988, when she purchased and began to occupy a home elsewhere and leased the property to a third party. To date, a third party remains in possession of the property pursuant to a lease executed by the defendant.

After learning of the defendant’s leasing of the property, the plaintiff commenced this action in the Superior Court alleging that, under article three of the testatrix’ will, such leasing constituted a “surrender” of “the premises” that entitled the plaintiff to immediate possession of and title to the property in fee simple. The plaintiff further alleged that by permitting the buildings and grounds of the property to become out of repair, the defendant had committed “waste” within the meaning of § 52-563 that had greatly diminished the value of the property. In addition to possession and title, the plaintiff sought relief in the form of money damages and “such other and appropriate equitable relief as the court may deem appropriate.”

Upon completion of discovery, the defendant moved for summary judgment pursuant to Practice Book § 384 on the grounds that: (1) because the phrase “surrenders the premises” in the testatrix’ will unambiguously meant the “yielding up of an estate for life or years to him who has an immediate estate in reversion or remainder”; Black’s Law Dictionary (5th Ed.); she had not, as a matter of law, effected a “surrender” of “the premises” by leasing the property to a third party; and (2) the plaintiff could not maintain a claim of waste under § 52-563 because she had failed to allege that the defendant’s waste had substantially and permanently damaged the property, and, alternatively, § 52-563 did not authorize relief in the form of damages for waste before the termination of the defendant’s tenancy. After hearing the parties and considering the evidence proffered in support of their respective claims, the court rendered summary judgment in favor of the defendant. The plaintiff then appealed to the Appellate Court, and we transferred the appeal to this court in accordance with Practice Book § 4023.

On appeal, the plaintiff argues that the trial court improperly determined that no genuine issue of material fact existed as to whether: (1) the defendant’s leasing of the property constituted a “surrender” of “the premises” within the intended meaning of that phrase in the testatrix’ will; and (2) the defendant committed waste actionable by the plaintiff and subject to immediate relief in damages under § 52-563. We agree.

I

The plaintiff first claims that the trial court improperly determined that no genuine issue of material fact existed as to whether the defendant’s leasing of the property constituted a “surrender” of “the premises” within the intended meaning of article three of the testatrix’ will. According to the plaintiff, the phrase “surrenders the premises” was an ambiguous expression of testamentary intent that required the trial court to consider extrinsic evidence in order to determine whether the testatrix intended that a leasing of the property constitute a surrender of the premises. The defendant counters that the testatrix’ use of the word “surrender” in the will unambiguously evinced her intent that a surrender of the premises mean a “surrender” as defined in the law of estates: “A yielding up of an estate for life or years to him who has an immediate estate in reversion or remainder . . . .” Black’s Law Dictionary (5th Ed.). Consequently, the defendant maintains that, as a matter of law, she did not surrender the premises when she leased the property to a third party. We agree with the plaintiff.

“ ‘Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” ’ ” Gurliacci v. Mayer, 218 Conn. 531, 561-62, 590 A.2d 914 (1991). The issue, therefore, is whether the trial court properly determined that the testatrix’ will so unambiguously expressed her intent that the phrase “surrenders the premises” carry the technical meaning accorded the term “surrender” in the law of estates that, as a matter of law, the defendant’s leasing of the property to a third party did not constitute a surrender of the premises.

In construing a will, the “meaning of language used cannot be determined by an arbitrary rule of legal definition, but depends in each case on the peculiar provisions and character of the special will in question, which must to a large extent be its own interpreter.” Wolfe v. Hatheway, 81 Conn. 181, 185, 70 A. 645 (1908). The proper contextual examination of a word carrying a technical legal meaning, for example, may indicate that the testatrix used the word in a nontechnical or otherwise more restricted sense. Id.; see Stanton v. Stanton, 140 Conn. 504, 515, 101 A.2d 789 (1953); see also Canaan National Bank v. Peters, 217 Conn. 330, 336, 586 A.2d 562 (1991). In such instances, the expressed intent of the testatrix must be effectuated by construing the particular word accordingly. Stanton v. Stanton, supra. Moreover, testamentary language “susceptible of different meanings is to be given that meaning which will most nearly effectuate the [testatrix’] intention.” Middletown Trust Co. v. Gaffey, 96 Conn. 61, 67, 112 A. 689 (1921). “This requires the court, at times, to resort to extrinsic facts as an aid in explaining any language whose meaning the [testatrix] has left uncertain.” Ministers Benefit Board v. Meriden Trust Co., 139 Conn. 435, 444, 94 A.2d 917 (1953); see Cornell v. Cornell, 165 Conn. 376, 382, 334 A.2d 888 (1973).

An examination of the word “surrender” in its context in article three of the testatrix’ will discloses that she employed the word as a transitive verb, followed by the object “the premises.” Although the “usual and appropriate meaning” of the word premises in the law of estates denotes an interest or estate, the word “is used in common parlance to signify land, with its appurtenances” and the “buildings thereon.” Black’s Law Dictionary (5th Ed.); see Webster’s Ninth New Collegiate Dictionary. The susceptibility of the word premises to “a duplicity of meaning”; Cornell v. Cornell, supra, 382; creates an ambiguity as to the precise act that the testatrix intended to amount to a surrender of the premises when she used those words in her will. This ambiguity is further compounded by the susceptibility of the word surrender to a similar duplicity of meaning. Specifically, the technical meaning of the word surrender in the law of estates, “as referring to the transfer of an estate, has been somewhat obscured by its frequent use in an untechnical sense, as referring to the relinquishment or yielding up, not of an estate, but of the physical possession of the premises . . . .” 4 H. Tiffany, Real Property § 960.

In view of these ambiguities, we conclude that the intended meaning of the entire phrase “surrenders the premises” in article three of the testatrix’ will is not discernible from the language of the will alone. The issue of the legal effect of the defendant’s act of leasing the property, therefore, cannot be resolved without resort to “extrinsic evidence as an aid in removing the doubt and in finding the [testatrix’] true intention from the language through which [she] expressed [herself].” Hoenig v. Lubetkin, 137 Conn. 516, 519, 79 A.2d 278 (1951). The trial court should not have summarily adjudicated that issue.

II

The plaintiff next argues that the trial court improperly determined that no genuine issue of material fact existed as to whether the defendant committed waste actionable by the plaintiff and subject to immediate relief in damages under § 52-563. The defendant responds with two alternative contentions. First, she contends that the plaintiffs claim of waste was not actionable under § 52-563 because the plaintiff failed to allege or produce evidence demonstrating that the defendant’s waste had caused “permanent and substantial” injury to the property. Second, the defendant contends that § 52-563 authorizes only equitable relief, and not relief in damages, before the termination of her life tenancy. We consider the defendant’s alternative contentions in turn.

A

Section 52-563 provides: “Any person who, having no greater interest in real property than an estate for years, or for life, created by the act of the parties and not by the act of the law, commits waste upon the premises, beyond what tenants for years or life created by operation of law may do, shall be liable to the party injured in an action on this section, unless he was expressly authorized, by the contract under which the interest is created, to do the acts complained of.” With respect to the defendant’s contention that the plaintiff’s claim of waste was not actionable under § 52-563 in the absence of substantial or permanent injury to the property, the plaintiff directs our attention to the following evidence that she submitted in opposition to the defendant’s motion for summary judgment: building inspector William Conrad’s affidavit asserting that the defendant had neglected to make a number of “ordinary repairs” necessary “to preserve the property”; the defendant’s deposition testimony acknowledging her failure to maintain particular areas of the property and certain of the structures thereon and photographs depicting the property in its original condition in approximately 1969 and its comparatively deteriorated condition in approximately 1989. The plaintiff asserts that this evidence raised a genuine and material factual issue as to whether the defendant committed waste by failing to make ordinary repairs to the property, thus entitling her to bring an action against the defendant under § 52-563.

The defendant concedes that the plaintiff’s evidence disclosed that “some ordinary repairs were needed to preserve the property and keep it in a reasonable state of repair.” In addition, the defendant acknowledges that she was “responsible” for making such repairs. See Hooker v. Goodwin, 91 Conn. 463, 471, 99 A. 1059 (1917). The defendant nonetheless contends that the evidence was insufficient to preclude summary judgment because it did not show that her failure to make ordinary repairs had resulted in permanent and substantial injury to the property. Although the defendant does not attempt to ground this contention upon the language of § 52-563, an endorsement of her position would require that we construe the word injured in the statute to require permanent and substantial injury, in the absence of which, as the defendant asserts, a claim of waste does not “rise to the level of an actionable claim” under the statute. Because such a construction of § 52-563 to a large extent would absolve the defendant of her acknowledged duty to make ordinary repairs, we reject it.

A life tenant is bound to keep the land and the structures comprising the estate “ ‘in as good repair as they were when he took them, not excepting ordinary or natural wear and tear . . . .’” Ferguson v. Rockford, 84 Conn. 202, 205, 79 A. 177 (1911); see 4A G. Thompson, Real Property § 1900, p. 30; 5 R. Powell, Real Property § 640[3], p. 56-23. The obligation to make ordinary repairs is twofold. The tenant not only has the duty to make the ordinary repairs required to remedy a presently existing condition of substantial disrepair that may have injured the property substantially or permanently, but also has the duty to make any ordinary repairs necessary to prevent the property from progressively declining to the point where its deterioration, and the resultant injury to the inheritance, is substantial or permanent. See 1 Restatement, Property § 139, comment (c); 5 R. Powell, supra, p. 56-22 (“duty to keep the premises in repair to prevent serious injury to the property”). In discharging the latter duty to make preventive ordinary repairs, for example, “ ‘if a new roof is needed, [the tenant] is bound to put it on; if paint wears off, he is bound to repaint.’ ” Ferguson v. Rochford, supra.

Like a tenant who fails to repair a presently existing condition of substantial disrepair, a tenant who fails to make preventive ordinary repairs “commits waste” of the permissive variety within the meaning of § 52-563. Id., 204-205; see 4 G. Thompson, supra, § 1853, p. 400 (“[p]ermissive waste, as the name implies, consists in the mere neglect or omission to do what will prevent injury”). If, as the defendant urges, a claim of waste were not actionable under the statute until permissive waste produced substantial and permanent injury to the property, a tenant effectively would be relieved of the preventive aspect of the duty to make ordinary repairs because no right of action would exist to enforce that duty. Because it would have been irrational for the legislature to mismatch the scope of a life tenant’s duty to make ordinary repairs and the scope of the right to enforce that duty, thereby rendering the tenant less than fully accountable for inaction that unquestionably constitutes “waste” under § 52-563, we conclude that the legislature intended that such duty and such right be correlative in scope. The party to whom the life tenant owes the duty to make ordinary repairs is therefore actionably “injured” within the meaning of § 52-563 if the tenant “commits waste” by failing fully to discharge either aspect of that duty. The relief furnished to redress permissive waste proved to have been committed necessarily will reflect the degree of injury to the property occasioned by such waste. See generally Ratner v. Willametz, 9 Conn. App. 565, 580-87, 520 A.2d 621 (1987); D. Dobbs, Remedies §5.1.

Construing the plaintiffs evidence in the light most favorable to her; Connell v. Colwell, 214 Conn. 242, 247, 571 A.2d 116 (1990); we conclude that the plaintiff established a sufficient factual predicate from which it could be determined, as a matter of law, that a genuine and material factual dispute existed as to whether the defendant had committed permissive waste by neglecting to perform preservative acts comprehended within both aspects of her duty to make ordinary repairs. See id., 251. The declarations in the affidavit by Conrad indicated that the defendant had not made preventive ordinary repairs in that the front posts supporting the boat dock were “splitting and must be replaced,” the mortar on a retaining wall had “cracked” and the wall had “moved,” and “the wall coverings throughout the house [had] begun to come off the walls.” With respect to the defendant’s failure to remedy presently existing conditions of substantial disrepair, Conrad asserted that “the support for the boat house [had] been seriously damaged and it appeared to be sinking at one corner,” and further, “the pond . . . [had] grown in on all sides and is essentially unusable.”

The defendant similarly acknowledged in her deposition testimony that she had ceased efforts to control the vegetation that had begun growing in the swimming area when it “got the better of [her],” and that while the island in the center of the pond had experienced “tremendous growth” during her tenancy, she had taken no action to control that growth since 1983. Notwithstanding the affidavit submitted by the defendant wherein real estate broker and appraiser Robinson Leach, Jr., contrarily alleged that his inspection of the property revealed “nothing other than ‘normal wear and tear/ ” this evidence can hardly be characterized as excluding “any real doubt as to the existence of any genuine issue of material fact” concerning the defendant’s commission of permissive waste. Batick v. Seymour, 186 Conn. 632, 637, 443 A.2d 471 (1982). The court, therefore, should not have rendered summary judgment for the defendant on the plaintiff’s claim that the defendant had committed permissive waste under § 52-563.

B

With respect to the defendant’s alternative contention that § 52-563 authorizes only equitable relief and not relief in money damages for waste before the termination of her life tenancy, we initially note that even if we were to agree with her, we nevertheless would conclude that summary judgment on the plaintiff’s claim of waste was improper. The plaintiff’s prayer for relief not only included a request for money damages, but also a request for “such other and appropriate equitable relief as the court may deem appropriate.” Because § 52-563, as the defendant concedes, clearly authorizes immediate equitable relief for the commission of permissive waste; see Brainerd v. Arnold, 27 Conn. 617, 625-26 (1858); summary judgment should not have been rendered on the ground that no relief presently was available to the plaintiff even if she were to have proved her claim of waste. We nonetheless address the issue of whether § 52-563 authorizes relief in the form of damages before the termination of a life tenancy because it is likely to arise on remand.

In support of her claim that a life tenant is not “liable” under § 52-563 to pay damages for waste before the termination of the tenancy, the defendant principally relies upon an American Law Reports annotation reporting a number of cases from other jurisdictions so limiting a contingent remainderman’s right to collect damages for waste. See annot., 56 A.L.R.3d 677, 681. The jurisdictions noted in the annotation relieve a life tenant from legal liability to a contingent remainderman on various grounds, each tied to the uncertainty that the future interest ever will become possessory. In order to prevent a contingent remainderman’s collection of damages “ ‘for that which may not be his’ ”; Sermon v. Sullivan, 640 S.W.2d 486, 487 (Mo. App. 1982); such jurisdictions limit contingent remaindermen to equitable remedies “ ‘to prevent the destruction of that which may become his.’ ” Id., 487-88; see Strickland v. Jackson, 261 N.C. 360, 361, 134 S.E.2d 661 (1964); see also 2 Restatement, Property § 188, comment (a); but see L. Simes & A. Smith, Law of Future Interests § 1652.

The comparative certainty of possession attendant to ownership of an indefeasibly vested future interest in fee simple absolute, the type of interest owned by the plaintiff, entitles the owner thereof to the maximum protection available both in equity and at law. See 2 Restatement, Property § 187, comment (a); see also 5 R. Powell, supra, § 642[1], p. 56-31. It has been said that such an owner “may secure compensatory damages for injuries sustained. ... He may enjoin threatened acts of waste, or secure a mandatory injunction to compel the performance of a duty by the life tenant with respect to the care of the premises.” L. Simes & A. Smith, supra, § 1654 (c); see C. Smith & R. Boyer, Survey of Property c. XIII, p. 238. Accordingly, in Hamden v. Rice, 24 Conn. 350, 357 (1856), this court held that, under General Statutes (1854 Rev.) § 284, the first statute authorizing the action now provided for under § 52-563, a life tenant was liable in damages to an indefeasibly vested reversioner before the termination of the tenancy “to the extent of the injury” to the inheritance occasioned by an act of voluntary waste. Cf. Ratner v. Willametz, supra.

While we have not previously considered whether a life tenant likewise is “liable” under § 52-563 to pay damages for any injury to the inheritance caused by permissive waste, we see no principled reason why the immediacy of an indefeasibly vested future interest owner’s remedy in damages should turn upon the variety of waste committed by the tenant. The variety of waste committed does not diminish the certainty of such an owner’s future possession of the wasted property, nor does the inaction that constitutes permissive waste necessarily produce less damage to the inheritance than an act of voluntary waste, which, under Hamden v. Rice, supra, gives rise to an immediate right of action for damages under § 52-563 irrespective of whether the life tenant remains in possession. Furthermore, the possibility that the tenant may choose to repair the damage caused by permissive waste before the termination of the tenancy does not, as the defendant claims, justify the suspension of such an owner’s ability to obtain relief in damages under § 52-563 until such termination. Voluntary waste does not consist solely of acts irrevocably destructive, but includes acts subject to reparation at the tenant’s election such as the unjustified removal of “anything which has been fixed, or in any manner fastened, to the house,” such as “doors, floors, or wainscot.” 2 Z. Swift, Digest of the Laws of the State of Connecticut p. 517; see C. Smith & R. Boyer, supra, pp. 238-39. Because the prospect of possible restoration does not prevent an indefeasibly vested future interest owner from obtaining immediate relief in damages “to the extent of the injury” to the inheritance caused by an act of voluntary waste; Hamden v. Rice, supra; that prospect should not bar the owner from obtaining similarly immediate relief for any injury caused by the inaction of permissive waste.

Having discerned no sound basis for distinguishing between the remedies immediately available to the owner of an indefeasibly vested future interest in fee simple abolute insofar as voluntary and permissive waste are concerned, we conclude that the available remedies should be coextensive. A life tenant, therefore, may be “liable” under § 52-563 to pay damages to such an owner for either voluntary or permissive waste before the termination of the tenancy. See 2 Restatement, Property § 187, comment (b) (“[w]hen the right of the owner of the [indefeasibly vested] future interest is that the owner of the estate for life shall . . . make repairs . . . this right is made effective through compelling by judicial action the specific doing of the act in question, or through giving to the owner of the future interest a judgment for the damages caused to him by the omission to act”). Consequently, the trial court should not have rendered summary judgment in the defendant’s favor on the ground that § 52-563 does not authorize immediate relief in damages even if the plaintiff were to have proved that the defendant had committed permissive waste. Both equitable and legal relief, in the court’s discretion, presently are available to the plaintiff under § 52-563. See generally D. Dobbs, supra.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other justices concurred.

       William Powell was also named as a defendant, but the action against him was later withdrawn. We will refer to Leonie Sullivan Brewer as the defendant throughout this opinion.

       “[General Statutes] Sec. 52-563. liability for waste by tenant for life or years. Any person who, having no greater interest in real property than an estate for years, or for life, created by the act of the parties and not by the act of the law, commits waste upon the premises, beyond what tenants for years or life created by operation of law may do, shall be liable to the party injured in an action on this section, unless he was expressly authorized, by the contract under which the interest is created, to do the acts complained of.”

       While the court confined its ruling on the defendant’s motion for summary judgment to the plaintiff’s claim that the leasing of the property constituted a “surrender” of “the premises” under article three of the testatrix’ will, we treat the court’s subsequent order denying the plaintiffs timely motion to open the judgment for the purpose of reinstating her claim of waste as an implicit rendering of summary judgment in the defendant’s favor on the latter claim.

       The defendant asserts that even if we were to find ambiguity in the phrase “surrenders the premises,” that ambiguity must be resolved in her favor because an established tenet of will construction “forbids the cutting down of an express and positive devise in fee, or bequest absolute in terms, in one clause, to an inferior or lesser estate by another clause, unless the second clause expressing the lesser estate indicates a clear intention that the greater estate shall be cut down to the lesser estate.” Hull v. Hull, 101 Conn. 481, 486, 126 A.2d 699 (1924). Because the defendant herself claims that the testatrix devised a life estate to her, rather than a “fee, or bequest absolute in terms,” the above principle is inapposite to this case.

       The record indicates that the plaintiff offered such evidence on the defendant’s motion for summary judgment, namely, that the attorney who drafted the will advised the defendant, upon the testatrix’ death, that it was necessary to occupy the property in order to take advantage of the life estate devised to her.

       See footnote 2, supra.

       The drafters of the Restatement illustrate the dual aspects of a tenant’s duty “to preserve the land and structures in a reasonable state of repair” as follows: “A, owning Blackacre in fee simple absolute, transfers Blackacre ‘to B for life.’ At the time of the transfer, a house is located on Blackacre. I. B permits the exterior wood of this house to go without repainting until the boards are exposed to weather. The repainting of this exterior woodwork is necessary to prevent a progressive weathering of the structure. Such repainting is within the duty ‘to preserve the land and structures in a reasonable state of repair.’ II. B permits the interior woodwork to go without repainting and the walls to go without repapering for a period of fifteen years. These omissions amount to substantial deterioration of the structure. Repainting and repapering the interior of such house is within the duty ‘to preserve the land and structures in a reasonable state of repair.’ ” 1 Restatement, Property § 139, comment (c), illustration 3.

       The defendant argues that Ferguson v. Rockford, 84 Conn. 202, 79 A. 177 (1911), is inapposite to the present case since that case involved a tenant in dower, and because the decision in Ferguson accordingly rested on the statute then setting forth certain of a dower tenant’s obligations regarding permissive waste, including the duty to “maintain and keep in repair the buildings, fences, and lands set out to her for her dower, and in case she, or her assigns, shall neglect so to do, the persons entitled to the land at her decease, may complain to the superior court . . . General Statutes (1902 Rev.) § 388. A dower tenancy, however, was one of two species of tenancies formerly created by operation of Connecticut law. See Moore v. Ellsworth, 3 Conn. 483, 487-88 (1821); Wilford v. Rose, 2 Root 20, 21 (1793); see generally 2 Z. Swift, Digest of the Laws of the State of Connecticut pp. 519-20; 5 R. Powell, Real Property § 637. Because General Statutes § 52-563 authorizes an action against a life tenant whose interest is “created by the act of the parties and not by the act of the law,” if the tenant “commits waste upon the premises, beyond what tenants for . . . life created by operation of law may do,” we infer that the obligations of such a tenant respecting permissive waste were intended at the very least to be commensurate with those imposed upon dower tenants by statute or under the common law. Accord Hamden v. Rice, 24 Conn. 350, 356 (1856). Ferguson is therefore apposite authority regarding the obligations of the defendant, whose tenancy was “created by the act of the parties,” namely, the testatrix’ creation of the tenancy in her will. See id., 356-57; see also Lyon v. Robbins, 45 Conn. 513, 526-27 (1878).

       Because the plaintiff owns an indefeasibly vested future interest in the property in fee simple absolute; see footnote 10, infra; the defendant owes her a duty to make ordinary repairs. See 2 Restatement, Property § 187 (a) (owner of indefeasibly vested future interest in fee simple absolute possesses “a right correlative to each of the duties of the owner of an estate for life,” including the “duty not to permit deterioration of land or structures”); see also L. Simes & A. Smith, Law of Future Interests § 1654 (“the right of the owner of the future interest to recover from the life tenant for waste is the converse of the duty of the life tenant to refrain from waste. While a life tenant may be under a duty to refrain from waste when a contingent remainderman may have no right of action against him, the owner of an indefeasibly vested reversion or remainder would always have a right where the sole life tenant is under a duty; there being no other owner of a future interest in whom the right could be vested”).

       As the drafters of the annotation note, however, many jurisdictions afford contingent remaindermen a legal remedy that reflects the tenuous nature of their interests. The Oregon Supreme Court, for example, has adopted a rule that “if the contingency is fairly certain, and, therefore, the likelihood of damage to the remainderman is high,” the contingent remainderman is “entitled to a determination of the amount of damages and to an impounding of the proceeds . . . .” Pedro v. January, 261 Or. 582, 596-98, 494 P.2d 868 (1972), following Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, 24-25, 128 S.W. 581 (1910).

       The plaintiff’s interest in the property is an indefeasibly vested future interest in fee simple absolute because, pursuant to the terms of the testatrix’ will, “[i]t is an interest certain to become present at a time not more distant than the end of a single present estate for life.” 2 Restatement, Property § 187, comment (a).