text:
    Patrick R. Gil v. Inland Wetlands and Watercourses Agency of the Town of Greenwich et al.
    (14144)
    Peters, C. J., Shea, Callahan, Borden and P. X. Hennessy, Js.
    Argued April 30
    decision released July 9, 1991

      Eugene F. McLaughlin, Jr., assistant town attorney, for the appellant (named defendant).

      James D’Alton Murphy, for the appellee (plaintiff).

      Richard Blumenthal, attorney general, and Joseph Rubin, Janet P. Brooks and Kimberly P. Massicotte, assistant attorneys general, filed a brief for Leslie A. Carothers, commissioner of environmental protection, as amicus curiae.

      Katharine H. Robinson filed a brief for the Connecticut Fund for the Environment as amicus curiae.
   Peters, C. J.

The primary issue in this appeal is the standard to be applied in determining whether an inland wetlands agency’s denial of a building permit has effected an unconstitutional taking of an applicant’s property. The plaintiff, Patrick R. Gil, is the owner of residentially zoned property subject to wetlands regulations. After the named defendant, the inland wetlands and watercourses agency of the town of Greenwich (agency), denied his fourth application for a building permit because of the perceived adverse impact that the proposed development would have had on the wetlands portion of his property, the plaintiff appealed to the Superior Court. He claimed, inter alia, that the agency’s action in denying his fourth application amounted to a taking of his property in violation of the fifth amendment to the constitution of the United States and article first, § 11, of the constitution of Connecticut. The Superior Court sustained the appeal on those grounds. The agency thereupon appealed to the Appellate Court, which affirmed the judgment. Gil v. Inland Wetlands & Watercourses Agency, 23 Conn. App. 379, 580 A.2d 539 (1990). The agency, on the granting of certification, then appealed to this court. Gil v. Inland Wetlands & Watercourses Agency, 216 Conn. 829, 582 A.2d 206 (1990). We conclude that the plaintiff has failed to show that the agency will not allow any reasonable residential development of his property and, therefore, that a decision on the merits of his takings claim would be premature. Accordingly, we reverse the judgment of the Appellate Court.

I

As the United States Supreme Court has observed, whether a claim that a particular governmental regulation or action taken thereon has deprived a claimant of his property without just compensation is an “essentially ad hoc factual inquirfy].’’ Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1977), reh. denied, 439 U.S. 883, 99 S. Ct. 226, 58 L. Ed. 2d 198 (1978); see also Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 473-74, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S. Ct. 158, 67 L. Ed. 322 (1922). Our review of the plaintiff’s takings claim is no less fact-dependent.

The relevant facts are as follows. The property at issue is a nonconforming 3.36 acre lot located in a four acre residential zone in the town of Greenwich. The plaintiff purchased this property for $50,000 by warranty deed in November, 1982. Significantly, the property was classified, at the time of the purchase, not only as a residentially zoned building lot, but also as wetlands subject to the authority of the agency. Ninety to ninety-five percent of the property contains wetlands soil, although the town wetlands map at the time of purchase indicated that only approximately one half of the property was wetlands. Most of the nonwetlands property is inaccessible from the side of the property that is closest to Bedford Road, which provides access to the lot. Although the plaintiff once held a right of first refusal to purchase property owned by an adjoining landowner, the conditions precedent to the exercise of this right have not occurred and the plaintiff has apparently transferred the right.

The plaintiff filed his first application for a building permit shortly after purchasing the property. Through this application, the plaintiff sought to construct a single family residence with a driveway and a septic system. The agency denied this application and an appeal to the Superior Court ensued. On November 3, 1987, the court dismissed the appeal, concluding that the agency’s decision was supported by substantial evidence and that the denial of a single permit application did not constitute a taking. An appeal to the Appellate Court was similarly unavailing. Gil v. Inland Wetlands & Watercourses Agency, 19 Conn. App. 801, 560 A.2d 992 (1989), cert. denied, 212 Conn. 818, 565 A.2d 535 (1989).

In 1984, the plaintiff filed a second application making certain changes from the first one. The agency denied the application as incomplete and did not render a final decision on its merits. Subsequently, in August, 1985, the plaintiff filed his third application for a building permit. This application proposed: (1) to reduce the wetlands area that the residence would infringe upon; (2) to place fill for a septic system on one corner of the property and surround the system with a curtain drain; (3) to enhance the wetlands area by replanting previously cleared parts of the property; and (4) to set aside one and one-half acres as permanent open space. The application also challenged the agency’s determination that the area of the property upon which the plaintiff proposed to build the residence contained wetlands soils. The agency denied this application and the Superior Court dismissed the plaintiff’s appeal of that denial on nonconstitutional grounds. The plaintiff filed, but later withdrew, an appeal to the Appellate Court.

On December 24, 1987, the plaintiff submitted his fourth application, which forms the foundation of this appeal. The development plan submitted with this application contemplated a proposed residence with a footprint of 1800 square feet. Gil v. Inland Wetlands & Watercourses Agency, supra, 23 Conn. App. 382-83. Although the third application had incorporated a residence with a footprint of 2100 square feet, the fourth application nonetheless represented an increase from the 1500 square feet footprint of the plaintiff’s initial application. The fourth application also relocated the position of the residence twenty-two feet to the east, away from the wetter portion of the lot. This relocation shortened the length of the driveway in an effort to reduce further the adverse impact on wetlands. The application proposed to create an open area in a previously disturbed part of the lot and to increase the amount of the property that would be set aside as permanent open space.

The agency denied the plaintiff’s fourth application on August 22,1988, finding, inter alia, that it presented no significant changes from earlier applications. Pursuant to General Statutes § 22a-43, which governs appeals taken under the Inland Wetlands and Watercourses Act, the plaintiff appealed the denial to the Superior Court, claiming that the action of the agency in denying his application for a building permit amounted to a taking of his property without just compensation, in violation of the state and federal constitutions. In his complaint, the plaintiff specifically alleged that he had purchased the property with the reasonable expectation of developing it as a residential lot, that such a use, as well as all other reasonable uses, had been frustrated by the agency’s actions, and, consequently, that the value of the property had been diminished from $280,000 to $0.

The Superior Court tried the plaintiff’s takings claim de novo, in accordance with General Statutes § 22a-43a. Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 551, 552 A.2d 796 (1989). The parties having declined an opportunity to supplement the administrative record, the court determined on the basis of that record that the plaintiff had purchased the property with the reasonable expectation of building a single family home thereon. The court then concluded, on two independent grounds, that the agency’s refusal of a building permit to the plaintiff amounted to a taking. The court held that the agency’s action had left the plaintiff with no economically viable use of his property, and therefore amounted to a practical confiscation. Alternatively, the court also undertook to balance the impact of the agency’s action on the value of the plaintiffs properly against the benefit to the public that would result from enforcement of the town’s wetlands regulations. Measuring the diminution in the value of the plaintiff’s property against its value as a residential building lot, the court concluded that the agency’s action also constituted a taking under the balancing test.

The Appellate Court affirmed the judgment of the trial court that there had been a taking under both the practical confiscation and the balancing tests. Gil v. Inland Wetlands & Watercourses Agency, supra, 23 Conn. App. 379. We then granted the agency’s request for certification to appeal to this court in order to consider the standard by which a taking based on the agency’s denial of a building permit application is to be measured. Gil v. Inland Wetlands & Watercourses Agency, supra, 216 Conn. 829.

II

As an analytic matter, before a court can review a landowner’s claim that he has been deprived of his property without just compensation, the court must first define the property interest that has allegedly been taken. Keystone Bituminous Coal Assn. v. DeBenedictis, supra, 497; F. Michelman, “Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law,” 80 Harv. L. Rev. 1165, 1192 (1967). In their arguments concerning the appropriate standard for evaluation of a takings claim, the parties in this case have focused on their disagreement over the reasonableness of the plaintiff’s expectations of improving his property through residential development when he bought it subject to existing wetlands regulation. The plaintiff maintains that the legal effect of the denial of his application for a building permit should be measured by its impact on the value of his property as a building lot, while the agency contends that the relevant diminution of value, if any, should be measured against the value of the property in its natural state as wetlands.

The first issue before us is whether to affirm the Appellate Court’s conclusion that the record contains sufficient evidence to support the trial court’s fact-bound determination that the plaintiff had a reasonable investment-backed expectation that he could build upon the lot he had purchased. The agency makes two arguments to the contrary, neither of which we find persuasive.

The agency contends, as a matter of fact, that testimony from the plaintiff’s own appraiser that, three months after the plaintiff’s purchase, the property would have had a value of $80,000 if buildable, demonstrates the speculative nature of the plaintiff’s purchase for only $50,000. The trial court might reasonably have found, however, that even so substantial a discount from market value reflected nothing more than a prudent evaluation of the foreseeable difficulties of resolving the tension between the property’s listing on a residential subdivision map and the wetlands constraints with which it was burdened.

The agency further contends, as a matter of law, that our decision in Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 433 A.2d 999 (1980), requires a claim of diminution of value to be appraised by the “injury to or loss of value of the property ... in its natural state; not as applied to the property as the applicant might wish to change it.” Id., 696, citing Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 (1972).

It is plausible that the natural state standard should govern a takings claim based on the impact of a regulation on property that was purchased as wetlands without any reasonable investment-backed expectation of development. In such instances, the landowner could hardly be heard to complain that his “interest” in developing the property was of such a nature as to merit constitutional protection against uncompensated regulatory takings. On the present record, however, that question is not before us.

We disagree with the agency, however, to the extent that it relies upon Manor Development Corporation for the proposition that the natural state standard should govern even when, as in this case, an individual purchased property with a reasonable investment-backed expectation of development. The landowner in Manor Development Corporation asserted a takings claim based on the conservation commission’s refusal to permit development of seven of thirty-three building lots because the seven lots were totally in wetlands areas. Although the commission’s decision adversely affected the value of the landowner’s property, we denied the landowner’s takings claim because the diminution in value was not so great as to have left it without any economically viable use of its property. We did not rely on Just v. Marinette County, supra, to establish for this state a new standard of what would constitute a taking, but listed that case only as part of our survey of state court decisions that had held that a diminution in the value of property alone does not justify the conclusion that an unconstitutional taking has occurred. Id., 695.

It is worth noting that Manor Development Corporation referred with approval to prior cases in which we have held that zoning reclassifications can constitute an unconstitutional taking when they leave a property owner with no economically viable use of his land other than exploiting its natural state. For example, in Bartlett v. Zoning Commission, 161 Conn. 24, 282 A.2d 907 (1971), we applied the practical confiscation standard to a takings claim based on the zoning commission’s adoption of a new zoning regulation that limited the use of the landowner’s tidal marshlands property to uses such as wooden walkways, wharves and duck blinds. We concluded that such restrictions were tantamount to an unconstitutional taking of his property without just compensation. Similarly, in Dooley v. Town Plan & Zoning Commission, 151 Conn. 304, 197 A.2d 770 (1964), the zoning commission changed the zoning classification of the landowner’s property from a residential to a flood plain district allowing as permitted uses only parks, marinas, wildlife sanctuaries, nursery gardening and the like. Id., 306 n.l. This court affirmed the ruling of the trial court that the permitted uses were either nonviable with respect to the landowner’s property, or would not provide the landowner with any reasonable or practicable means of obtaining income from his property. Id., 310. We concluded, therefore, that the zoning regulations, as applied to the landowner’s property, amounted to a practical confiscation of his land. Id., 311.

It is evident from these cases that a landowner, who purchased property with a reasonable expectation of residential or commercial development, has suffered a taking if regulatory constraints allow him to use his land only in its natural state without any economically viable alternative use thereof. While the state is unquestionably entitled to protect wetlands from potentially harmful development, it is not entitled to impose the entire cost of such protection upon a landowner who purchased property with the reasonable expectation of developing it for residential or business purposes. As Justice Holmes remarked, “a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Pennsylvania Coal Co. v. Mahon, supra, 416. Indeed, the legislature recognized as much when it specifically provided that if, on appeal from an action of the agency, a court finds that the action “constitutes the equivalent of a taking without compensation, it shall set aside the action or it may modify the action so that it does not constitute a taking.” General Statutes § 22a-43a. The legislature has also empowered the commissioner of environmental protection and municipalities to purchase wetlands property. General Statutes § 22a-42.

III

The factual reasonableness of the plaintiffs expectations does not, however, end our inquiry. Even if the plaintiffs interest is measured by the value of his building lot, he cannot prevail unless the agency’s denial on the merits of his fourth application for a building permit constituted a taking, either as a practical confiscation of his property; Bartlett v. Zoning Commission, supra, 31; Dooley v. Town Plan & Zoning Commission, supra, 311-12; or by application of a balancing test. Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 151, 365 A.2d 387 (1976); Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 356, 362 A.2d 948 (1975).

As we have recently reiterated, however, the plaintiff is not entitled to judicial review of the merits of his regulatory takings claim until he has met the requirement of establishing the finality of the agency determination. Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 604, 587 A.2d 126 (1991); see also McDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348-49, 106 S. Ct. 2561, 91 L. Ed. 2d 285 (1986); Agins v. Tiburon, 477 U.S. 255, 260, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980); Williamson Planning Commission v. Hamilton Bank, 473 U.S. 172, 186, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985); Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264, 297, 101 S. Ct. 2352, 69 L. Ed. 2d 1 (1981). To demonstrate the requisite finality, a property owner asserting a regulatory takings claim bears the burden of proving that the relevant government entity will not allow any reasonable alternative use of his property. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 553, 525 A.2d 940 (1987).

The trial court in this case determined that the agency’s denials of the plaintiff’s four applications, three on their merits, were sufficient to show that the agency had reached a final, authoritative decision on how it would apply the wetlands regulations to the plaintiff’s property. The Appellate Court implicitly accepted the trial court’s determination on the finality issue.

Our review of the record, however, convinces us that the plaintiff has not met his burden of demonstrating finality. A number of factors lead us to this conclusion. First, although we agree with the Appellate Court that the plaintiff had a reasonable expectation of developing the property for residential purposes, the wetlands status of a portion of the property should also have warned the plaintiff that development would be difficult and that repeated applications might be necessary before the agency would approve an application for a building permit. In this case, although the plaintiff submitted four applications, only three were actually reviewed on their merits.

Additionally, the record discloses that whereas neighboring homes on similarly sized lots varied in footprint size from 800 to 900 square feet, each of the plaintiff’s applications proposed single family houses with footprints exceeding 1500 square feet. Furthermore, although the plaintiff’s final application reduced the footprint of the proposed house to 1800 square feet from the 2100 square feet of the preceding application, the final application nonetheless represented an increase from an earlier application’s 1500 square feet proposed residence. In light of these factors, we cannot say that the agency would have rejected a more modest proposal if one had been offered by the plaintiff.

Our conclusion is not inconsistent with our decision in Port Clinton Associates v. Board of Selectmen, supra. We there stated that although repeated applications and denials are not necessary to show finality, “in most cases, a property owner must do more than submit one plan to an agency in order to establish that the agency’s decision is ‘final’ for the purposes of the takings clause.” Id., 607. We further noted that the “ ‘[^ejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews.’ ” Id., 608, citing McDonald, Sommer & Frates v. Yolo County, supra, 353 n.9.

The decision of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court with direction to render judgment for the agency on the plaintiff’s takings claim.

In this opinion the other justices concurred.

       Although the commissioner of environmental protection was a party at the trial level, she failed to file a timely appeal. She therefore was not a party to this appeal. The commissioner, however, has filed a brief as amicus curiae.

       The fifth amendment to the United States constitution provides in relevant part: “[N]or shall private property be taken for public use, without just compensation.” Article first, § 11, of the Connecticut constitution similarly provides: “The property of no person shall be taken for public use, without just compensation therefor.”

       We granted certification, limited to the following question: “In considering whether the action of an inland wetlands agency denying a building permit amounts to an unconstitutional taking of the applicant’s property, what is the proper standard for determining a taking?”

       The Appellate Court’s opinion incorrectly states that no part of the plaintiffs property had been included on the wetlands map. At oral argument, however, the plaintiff conceded that the map reflected that approximately one half of the property was wetlands.

       General Statutes § 22a-43a provides: “findings on appeal, setting ASIDE OR MODIFYING ACTION. AUTHORITY TO PURCHASE LAND, (a) If upon appeal pursuant to section 22a-43, the court finds that the action appealed from constitutes the equivalent of a taking without compensation, it shall set aside the action or it may modify the action so that it does not constitute a taking. In both instances the court shall remand the order to the inland wetland agency for action not inconsistent with its decision.
      “(b) To carry out the purposes of sections 22a-38, 22a-40, 22a-42 to 22a-43a, inclusive, 22a-401 and 22a-403, the commissioner, district or municipality may at any time purchase land or an interest in land in fee simple or other acceptable title, or subject to acceptable restrictions or exceptions, and enter into covenants and agreements with landowners.”

       Although the United States Supreme Court has, on occasion, invoked the reasonable investment-backed expectation standard in its regulatory takings cases; see, e.g., Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1977), reh. denied, 439 U.S. 883, 99 S. Ct. 226, 58 L. Ed. 2d 198 (1978); the court has not expressly defined the meaning of that phrase, choosing instead to define it by example. The court has identified its decision in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922), as the leading case for the proposition that a regulation that frustrates distinct investment-backed expectations may amount to a taking. In Pennsylvania Coal Co., the claimant had sold the surface rights to property, yet had reserved the right to remove the coal thereunder. A Pennsylvania statute, enacted after the sale and reservation of these rights, forbade, with certain exceptions, any mining of coal that would cause the subsidence of surrounding houses. The statute rendered it commercially impracticable for the claimant to mine coal, and thus effectively destroyed the rights that the claimant had expressly reserved. The court found a taking of the claimant’s rights to the coal under these circumstances.

       Unlike Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 433 A.2d 999 (1980), this case does not involve a zoning reclassification. A deprivation of reasonable investment-backed expectations may occur, however, when a wetlands agency denies a permit for land zoned as a residential building lot and purchased solely for such a use just as it may occur when a landowner’s property is reclassified as wetlands after it has been purchased for residential development.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    James H. McClintock et al. v. Rene R. Rivard et al.
    (14009)
    Peters, C. J., Callahan, Glass, Covello and Borden, Js.

      Argued April 23
    decision released July 9, 1991

      Walter A. Twachtman, Jr., for the appellants (plaintiffs).

      Bruce J. Comollo, for the appellees (defendants).
   Borden, J.

The plaintiffs, James H. McClintock and Mary J. McClintock, brought this action for specific performance and damages against the defendants, Rene R. Rivard and Jenney T. Rivard, for failure to purchase certain real property from the plaintiffs pursuant to a contract. The defendants filed a counterclaim. The trial court rendered judgment and awarded damages on the plaintiffs’ complaint, and found for the plaintiffs on the defendants’ counterclaim. The plaintiffs appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023.

The plaintiffs claim that the trial court: (1) should have found certain facts that were either admitted or undisputed; (2) improperly rejected their claims of fraudulent and negligent misrepresentation; and (3) improperly calculated the award of damages. We affirm.

The material facts are as follows. On July 2, 1988, the plaintiffs and the defendants executed a contract for the sale of real property located at 223 Woodfield Crossing, Rocky Hill, for $265,000. The agreement provided that the closing would take place on September 30, 1988. The defendants agreed to pay specified deposits in advance of the closing and the agreement stipulated that if the defendants defaulted and the plaintiffs were not in default, the defendants’ deposits would be retained by the plaintiffs as liquidated damages.

The defendants paid the plaintiffs $500 as a deposit, as agreed. The defendants failed, however, to pay an additional deposit in the amount of $9500 on or before July 12,1988, as required by the agreement. The plaintiffs accepted, in lieu thereof, $5500 in cash and a promissory note for $4500 to be paid at or before the closing.

The contract also contained a mortgage contingency clause, whereby the defendants had the right to terminate the agreement on or before August 1,1988, if they were unable to obtain a mortgage to finance their purchase of the plaintiffs’ property. On July 21,1988, the defendants received a mortgage commitment from the Dime Savings Bank (Dime) in the amount of $140,000 and, thus, the mortgage contingency period expired without an exercise by the defendants of their right to terminate the agreement. When the plaintiffs pointed out to the defendants that the mortgage commitment agreement from Dime provided that the commitment was conditioned upon the sale of the defendants’ existing home, the defendants, having overlooked the pertinent provision, inquired about the condition with a representative of Dime. The representative informed the defendants that it was standard practice to use a preprinted mortgage commitment form, which contained a prior sale condition, but assured them that Dime would not enforce the condition in their case. The defendants related the substance of this conversation to the plaintiffs.

After receiving the mortgage commitment, the defendants sought to obtain a bridge loan, which they needed in order to purchase the plaintiffs’ property prior to selling their existing home. The financial institutions that the defendants contacted initially declined to consider the defendants’ application for a bridge loan until they had a purchase and sale agreement for their existing home. The defendants informed the plaintiffs that they were having difficulty obtaining interim financing.

In late August, the defendants contacted the Tower Mortgage Company (Tower). Tower’s loan officer, Mary Alford, agreed to meet with the defendants and to consider their application for a bridge loan. Because it was Tower’s practice in granting a bridge loan to encumber both the existing property and the property to be purchased, at the outset of the application process Alford contacted Bob Hoffman, the originator of the loan at Dime, to ensure that Dime would permit a second mortgage of the purchased property. Hoffman informed Alford that Dime would not permit the second mortgage of the purchased property but that it would not have a problem with the bridge loan if the purchased property were unaffected. Alford then began trying to secure a bridge loan for the defendants from financial sources other than Tower.

In late September, due to the defendants’ inability to close as they initially had intended, the parties agreed to postpone the closing from September 30 until October 21,1988. Because the plaintiffs had recently moved into a new home with the expectation of closing on September 30,1988, the defendants agreed to assume the “carrying costs” of the Rocky Hill property that the plaintiffs would incur as a result of the postponement; those costs were estimated at $85.33 per day. This agreement was confirmed in a letter from the plaintiffs’ attorney, Joseph Marino, to the defendants’ attorney, Walter Sidor, Jr. In mid-October, the parties agreed to postpone the closing until October 31,1988, and further agreed that the defendants would pay the carrying costs incurred by the plaintiffs until the date of closing. This agreement was confirmed in a second letter from Marino to Sidor.

When Alford’s various attempts to obtain financing for the defendants proved unsuccessful, she approached her superior officers at Tower and requested that Tower grant the defendants a bridge loan secured solely by their existing property. The superior officers agreed and on October 28, 1988, Tower drafted a mortgage commitment letter.

October 31, 1988, passed, but the closing did not occur. Thereafter, the parties agreed to extend the closing until December 1,1988. In addition, the defendants agreed to pay the plaintiffs $3400 before November 11, 1988, to cover the carrying costs incurred for the months of October and November. This agreement was memorialized in a third letter from Marino to Sidor.

During the first week of November, Alford informed Hoffman that Tower had drafted a commitment letter for a second mortgage of the defendants’ existing home. Hoffman, however, then told Alford that Dime had recently discovered a problem with the defendants’ credit and that, therefore, although Dime would still honor its mortgage commitment, it would oppose any further encumbrances of the defendants’ existing property. On November 11, 1988, because the defendants were unable to purchase the plaintiffs’ property without a bridge loan, Sidor informed Marino that the defendants would not purchase the plaintiffs’ property. The plaintiffs ultimately sold the Rocky Hill house to another purchaser on November 1, 1989.

The plaintiffs instituted this action against the defendants, seeking specific performance and monetary damages. The plaintiffs’ complaint set forth four counts as follows: (1) breach of contract; (2) fraudulent misrepresentation; (3) negligent misrepresentation; and (4) failure to pay a promissory note. The defendants denied the plaintiffs’ claims and, by way of special defense, claimed that even if the plaintiffs were entitled to damages, the amount of damages recoverable was limited by the liquidated damages provision of the contract. The defendants’ counterclaim sought return of their deposit and release of their obligation under the promissory note. The trial court rendered judgment for the plaintiffs on the first and fourth counts of the complaint and on the counterclaim, and rendered judgment for the defendants on the second and third counts of the complaint. On the motion of the plaintiffs, the trial court subsequently modified the judgment by increasing the award of damages.

I

The plaintiffs first claim that the trial court should have found certain facts that were either admitted or undisputed. According to the plaintiffs, because the findings were essential to a proper determination of the case, the trial court improperly failed to find certain facts set forth in their trial memorandum. We disagree.

After the trial court rendered its judgment, the plaintiffs filed a motion to open the judgment, requesting, inter alia, that the trial court find the facts set forth in their trial memorandum. Although the trial court granted the motion, in part, it denied the plaintiffs’ request to find the alleged facts. Pursuant to Practice Book § 4051, the plaintiffs filed a motion for articulation, once again requesting that the trial court find the alleged facts. The trial court denied the motion. Pursuant to Practice Book § 4054, the plaintiffs filed a motion for review of that decision in this court, requesting that this court order the trial court to find the alleged facts. We granted the motion for review but denied the relief requested.

The plaintiffs’ claim on appeal, that the trial court should have made certain findings of fact, is identical to the claim raised in their motion for review. The plaintiffs, therefore, for the second time, seek our review of the trial court’s denial of their request for articulation. Such a second review is not required except “when plenary review of the case on the merits of the appeal discloses that our earlier decision was ill considered, and that further articulation is necessary for the just determination of the appeal. Cf. Rostain v. Rostain, 213 Conn. 686, 694-95, 569 A.2d 1126 (1990) (sua sponte remand for articulation).” State v. Holloway, 22 Conn. App. 265, 276, 577 A.2d 1064, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990).

We conclude that no further review is necessary in the present case. Contrary to the plaintiffs’ assertion, explicit findings on their factual allegations are not necessary for this court to review the trial court’s determination that the defendants made no fraudulent or negligent misrepresentations. The majority of the factual allegations concern the plaintiffs’ claim of reliance on the defendants’ representation that they had the financial ability to purchase the property. The defendants, however, did not dispute that the plaintiffs had relied on their representations. Rather, the defendants argued that, in view of the assurances made by Dime and Tower, they had not misrepresented their financial ability to purchase the property. Consequently, it was unnecessary for the trial court to address the question of the plaintiffs’ reliance.

Furthermore, the trial court’s memorandum of decision adequately sets forth its factual findings and its conclusions of law in light of those facts. The trial court’s decision, therefore, provides an adequate basis for meaningful appellate review without the necessity of further factual findings.

II

The plaintiffs next claim that the trial court should have determined that the defendants fraudulently or, at the least, negligently misrepresented to the plaintiffs that they had the financial ability to purchase the plaintiffs’ property and that the defendants were, therefore, liable for any damages resulting from the plaintiffs’ detrimental reliance on that misrepresentation. We disagree.

The trial court determined that “the proof offered by the plaintiffs falls far short of that necessary to sustain their burden” on the issue of misrepresentation and that, on the basis of the evidence, “there were no fraudulent or negligent representations made by the defendants.” In support of this conclusion, the trial court noted that the defendants’ “failure to close, both at the earlier and later dates, was due primarily to actions of the Dime Savings Bank which, at first, gave the defendants a false sense of security as to their ability to consummate the transaction and then abruptly and without warning effectively prohibited them from doing so.”

“ ‘On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book [§ 4061]. 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).” Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 618, 495 A.2d 1006 (1985).

Whether evidence supports a claim of fraudulent or negligent misrepresentation is a question of fact. J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983); Miller v. Appleby, 183 Conn. 51, 55, 438 A.2d 811 (1981). Thus, we will disturb the trial court’s determination that the defendants made no fraudulent or negligent misrepresentations only if, in light of the evidence and the pleadings on the whole record, such a conclusion could not reasonably have been reached. Robert S. Weiss & Co. v. Mullins, supra, 619. We conclude that because the defendants’ representation that they had the financial ability to purchase the plaintiffs’ property was made in reasonable reliance upon the assurances of Dime and Tower and because the defendants kept the plaintiffs informed of their progress in securing financing for the purchase of their property, the trial court reasonably determined that the defendants made no fraudulent or negligent misrepresentations to the plaintiffs.

When the defendants represented to the plaintiffs that they had the financial ability to consummate the purchase of their property, they had a mortgage commitment from Dime in addition to the bank’s assurance that it would not require, as a condition to the mortgage commitment, the sale of the defendants’ existing home. In addition, the defendants were negotiating with Tower to secure a bridge loan. In fact, as Alford testified, Tower intended to grant the defendants a bridge loan until Dime opposed a second mortgage of the defendants’ existing property. The defendants continuously apprised the plaintiffs of their problems in securing financing for the purchase of the plaintiffs’ property. Not until November 11, 1988, when Alford informed the defendants that Dime opposed the second mortgage, were the defendants aware of their financial inability to purchase the plaintiffs’ property. Thereafter, the defendants promptly notified the plaintiffs of this fact through their attorney.

The plaintiffs appear to argue that, despite the favorable assurances that the defendants received from Dime and Tower, because the defendants were in the best position to know their financial condition, they should have known that, ultimately, Dime would oppose the bridge loan from Tower. The plaintiffs have failed to apprise us of anything in the record and our search has revealed nothing, however, that suggests that the defendants had cause to disbelieve the representatives of Dime and Tower.

Ill

The plaintiffs next claim that the trial court improperly calculated the measure of damages. According to the plaintiffs, the trial court should have included in the award of damages the amount of the carrying costs incurred by the plaintiffs until November 1,1989, the date that they sold their property. We disagree.

In response to the defendants’ claim that the amount of damages recoverable by the plaintiffs was limited by the liquidated damages provision of the contract, the plaintiffs claimed that the liquidated damages provision had been abrogated by the parties’ subsequent modification of their agreement postponing the closing. The trial court rejected the plaintiffs’ claim, having determined that, by their subsequent agreements, the parties had merely modified the liquidated damages provision to include the payment of carrying costs. Pursuant to the liquidated damages provision of the contract, therefore, the trial court ordered the defendants to pay the plaintiffs damages in the amount of $9584.65, which included the $4500 deposit due under the promissory note and the carrying costs of $5084.65 incurred by the plaintiffs during the period from October 1,1988, through November 30, 1988, the final proposed closing date.

The plaintiffs no longer contest the validity and enforceability of the liquidated damages provision and they concede that, by their subsequent agreements, the parties intended merely to modify the provision to include carrying costs. The plaintiffs disagree, however, with the trial court’s conclusion that the provision was modified to include only the carrying costs incurred until November 30, 1988, the proposed date of the closing involving the plaintiffs and the defendants. According to the plaintiffs, because payment of the carrying costs “would be the only protection for the plaintiffs in the face of the defendants’ breach,” the parties must have intended that, if the defendants failed to purchase the property, they would pay the plaintiffs’ carrying costs until the property was purchased by another buyer.

The intention of the parties in executing a contract is a question of fact. See Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 482 n.7, 586 A.2d 1157 (1991); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981). Consequently, we will not disturb the trial court’s conclusion that the parties intended to include only those carrying costs incurred until the proposed date of closing unless the conclusion is unsupported by the evidence and, therefore, could not reasonably have been reached. See Robert S. Weiss & Co. v. Mullins, supra, 618-19.

The trial court determined that the parties’ modification of their agreement was memorialized in the three letters that Marino sent to Sidor. The first letter states that the plaintiffs had agreed to postpone the date of closing “upon the following conditions: Reimbursement as an adjustment at time of closing for their ‘carrying costs’ in the total amount of $85.33 per day. . . . The per diem shall commence on October 1,1988.” (Emphasis in original.) The second letter provides in pertinent part -.“CLOSING DATE OF OCTOBER SI, 1988 . . . as per my letter to you dated September 29, 1988, in the event we do close, ‘carrying costs’ in the amount of $85.33 per day will be collected from October 1,1988, to date of closing.” (Emphasis in original.) The third and final letter provides that “[the defendants] shall pay directly to [the plaintiffs] before November 11, 1988, the sum of $3,400.00, representing ‘carrying charges’ incurred by [the plaintiffs] for the months of October and November. If said payment is made in full and in a timely fashion, then the closing date is extended to December 1, 1988 . . . .”

Both the second and third letters specify that the plaintiffs and the defendants had agreed that the defendants would pay the carrying costs incurred for the months of October and November, 1988. None of the letters implies that the parties had agreed that the defendants would pay additional carrying costs in the event that they failed to consummate the purchase. The plaintiffs agree with the trial court that the three letters from Marino to Sidor adequately represent the terms of the parties’ modification of their agreement. We conclude, therefore, that the trial court reasonably determined that the parties modified the liquidated damages provision to include, in addition to the amount of the deposits, those carrying costs incurred by the plaintiffs from October 1,1988, through November 30, 1988.

The judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiffs do not challenge on appeal the trial court’s failure to award specific performance of the contract.

       Dime subsequently increased the amount of this commitment to $160,000.

       The plaintiffs’ carrying costs included the following daily expenses associated with ownership of the Rocky Hill property: (1) $35.63 for a first mortgage; (2) $21 for a second mortgage; (3) $27.33 for a bridge loan mortgage; and (4) $1.37 for homeowner’s insurance.

       The defendants’ credit history revealed a stream of late mortgage payments. The defendants were unaware, however, that the payments had been untimely.

       In its memorandum of decision on the plaintiffs’ motion to open the judgment, the trial court also altered the description of the purchase property. In its earlier memorandum of decision, the trial court had mistakenly described the purchase property as 33 Country Lane, Hebron, the property where the plaintiffs had moved following the execution of the contract for the sale of 223 Woodfield Crossing, Rocky Hill.

       The pertinent facts are as follows: “19. The defendant, RENE RIVARD, assured the plaintiffs that the Dime Savings Bank was not going to exercise the contingencies but rather, this was a standard form that they used in all real estate closings and further, he stated that the bank had promised to allow the defendants to ‘bridge’ money if he could not sell his home. . . .
      “23. Based solely on their purchase and sale contract with the defendants which was now without any contingencies, the plaintiffs were able to obtain bridge financing and to close on their new home, all of which was done with the knowledge and approval of the defendants.
      “24. The plaintiffs moved into their new home on August 25, 1988, with the expectation of carrying two homes until the closing date scheduled to be September 30, 1988.
      “25. The plaintiffs did not hear from the defendants during the first several weeks of September of 1988, and as the closing date approached, they contacted the defendants by telephone.
      “26. In late September, a meeting was scheduled at 223 Woodfield Crossing in Rocky Hill at which meeting the defendants told the plaintiffs that they could not close on September 30th but were working on interim financing. . . .
      “33. As October 21st neared, a closing was still not scheduled and the plaintiff, MARY J. McCLINTOCK, went to the home of the defendants during the final week of the extension.
      “34. The plaintiff, MARY J. McCLINTOCK, told the RIVARDS the financial urgency of the situation and the defendants indicated that they were packing to move and needed just a little more time to work out the interim financing and that they would be willing to close very, very soon. . . . “38. October 31st came and went and no closing was scheduled or took place. “39. On November 7th, the plaintiffs had a telephone conversation with the defendants regarding the cash flow problems confronting the plaintiffs since they had been paying on two houses since August of 1988. . . . “43. The defendants, especially RENE RIVARD, for the entire period up to November 11,1988, consistently indicated to the plaintiffs that they were financially capable of closing and willing to close and that all they needed was just a little more time to work out their arrangements.”

       Practice Book § 4051 provides in pertinent part: “A motion for rectification or articulation shall be filed in triplicate with the chief clerk of the supreme court and forwarded by such clerk to the trial judge. The trial judge shall file the ruling on the motion with the chief clerk of the supreme court.
      “Any motion seeking corrections in the transcript or the trial court record which depend on proof of matters not of record or seeking an articulation or further articulation of the decision of the trial court shall be determined by the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may make such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues or for the proper presentation of questions reserved; or the trial court may approve a stipulation of counsel that such a correction or addition be made, provided the motion or stipulation is presented before the appeal is ready to be assigned for hearing and only by leave of the supreme court thereafter. The action of the trial judge as regards such a correction or addition may be reviewed by the supreme court under Sec. 4054. Nothing herein is intended to affect the existing practice with respect to opening and correcting judgments and the records on which they are based . . . .”

       Practice Book § 4054 provides in pertinent part: “Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Sec. 4051 may make a written motion for review to the supreme court, to be filed with the chief clerk of the supreme court, and the supreme court may, upon such a motion, direct any action it deems proper . . . .”

       Although the defendants’ credit history revealed a stream of late mortgage payments, because the plaintiffs do not dispute that the untimeliness was a result of a misunderstanding and that, furthermore, the defendants were unaware of this flaw in their credit history until notified by Alford, this evidence does not alter our conclusion that the defendants had no reason to believe that Dime would ultimately oppose the bridge loan from Tower.

       In their brief, the plaintiffs also argue that the trial court should have awarded consequential damages as a result of the defendants’ fraudulent and negligent misrepresentation. In light of our conclusion that the trial court reasonably determined that the plaintiffs failed to prove their claim of misrepresentation, we need not decide whether the provision that limited damages for breach of the agreement also limited the amount of damages recoverable by the plaintiffs for misrepresentation.

       In its memorandum of decision modifying the judgment, the trial court stated that, by their agreements postponing the closing, the parties had modified the liquidated damages clause of the contract to include the carrying costs associated with the postponement and that such costs had, in fact, been incurred by the plaintiffs and became due as a natural consequence of the defendants’ breach. Citing West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 319, 514 A.2d 734 (1986), the trial court further stated that “[sjuch damages may be properly awarded to place the plaintiffs in the same position as if the contract were performed.” The court then proceeded to award damages in the amount that had been liquidated by the parties. Although it is unclear why the trial court made reference to the contract measure of damages after determining that the parties’ agreement contained a valid liquidated damages provision; see Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 64, 485 A.2d 1296 (1985) (party may not recover liquidated damages and also recover actual damages); because we must read the decision of the trial court in the context of its entire decision; Fisher v. Fisher, 4 Conn. App. 97, 100, 492 A.2d 525 (1985); and because we ordinarily resolve any ambiguities in the trial court’s language in favor of the judgment it rendered; Powel v. Burke, 178 Conn. 384, 391, 423 A.2d 97 (1979); we conclude that this ambiguity in the memorandum of decision does not vitiate the trial court’s judgment upholding the validity and enforceability of the liquidated damages provision.

       Although the trial court did not expressly include in the award of damages the $5500 that the defendants had paid to the plaintiffs as a deposit, the trial court noted that this amount was “properly due to the plaintiffs.” Furthermore, although in their counterclaim the defendants sought return of this deposit, they have not challenged the trial court’s implicit conclusion that the plaintiffs are entitled to retain the deposit.

       In their brief, the plaintiffs discuss the general rule of damages for breach of contract; see West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 319, 514 A.2d 734 (1986); and assert that this measure of damages “should be utilized if the court sees fit to apply [it] to this case.” To the extent that the plaintiffs implicitly claim that the trial court should have awarded damages according to the general rule of contract damages, we disagree. It is well settled that a plaintiff may not recover both liquidated damages and actual damages. Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 64, 485 A.2d 1296 (1985).

       James McClintock testified that $3400 represented only a portion of the carrying costs incurred from October 1, 1988, through November 30, 1988. The defendants have not challenged the trial court’s conclusion that, during this period, the plaintiffs’ carrying costs totalled $5084.65.


author: Covello, J.

text:
    New Haven Firebird Society et al. v. Board of Fire Commissioners of the City of New Haven et al.
    (14187)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued April 25
    decision released July 9, 1991

      Joseph D. Garrison, with whom, on the brief, was JoNel Newman, for the appellants (plaintiffs).

      MartinS. Echter, deputy corporation counsel, for the appellees (named defendant et al.)
   Covello, J.

This is an appeal from a judgment of the trial court denying the plaintiffs’ application for injunctive relief and a declaratory judgment. The issue presented is whether the trial court properly denied the plaintiffs’ claim for injunctive relief and a declaratory judgment for the reason that an adequate remedy at law was available through quo warranto or mandamus proceedings. We reverse and remand to the trial court for further proceedings.

The plaintiffs introduced evidence tending to establish the following. The plaintiffs, the New Haven Fire-bird Society (Firebirds) and its individual members, are firefighters in the city of New Haven who are challenging certain promotional practices of the defendant New Haven fire department (fire department). Promotion^ in the fire department are made from eligibility lists prepared by the civil service commission of the city of New Haven after competitive examinations. The candidates are ranked by score and promotions are then made from among the top three candidates. The choice of which of the top three ranked individuals should be appointed to the next available promotion is entirely within the discretion of the city. According to civil service rules, eligibility lists remain in effect for a period of at least one year but not more than two years from the date of their promulgation. When a list expires, a new test must be administered in order to assemble a pool of candidates for any further promotions.

For approximately thirty years, the fire department’s promotional system has included a mechanism whereby those on a given promotion list are appointed, just prior to expiration of the eligibility list, to positions that are not yet vacant. This procedure is called “promoting subject to assignment” or “stockpiling.” Once a position becomes available, after expiration of the list, those on the “subject to assignment” list are selected as needed for the newly available positions. The trial court found that the appointing authority, the board of fire commissioners, made appointments from the eligibility list, on the eve of its expiration, to positions that were not then vacant. Subsequently, some candidates from the stockpile list were placed in jobs while others remained on the list. The trial court further found that the eligibility list based on the fire lieutenant and fire battalion chief exams expired on March 31, 1988, and that the eligibility list for fire captain expired on December 31, 1989.

The plaintiffs, claiming that the existing promotion method effectively deprived them of equal employment opportunities, filed this suit in August, 1989, on behalf of themselves and all others similarly situated. The complaint sought a declaratory judgment that promotions subject to assignment violate the city charter and civil service rules and that promotions after March 31,1988, were illegal and void, and must be vacated. The suit further sought preliminary and permanent injunctions pursuant to General Statutes § 52-471 et seq. enjoining the defendants from implementing promotions from the expired lists.

At the close of the plaintiffs’ evidence, the defendants moved for a dismissal for failure to make out a prima facie case pursuant to Practice Book § 302. The trial court granted the motion. In its decision, the trial court determined that the plaintiffs had an adequate remedy through another form of procedure, specifically by a quo warranto or mandamus action. The plaintiffs appealed to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

The plaintiffs first argue that the trial court improperly concluded that quo warranto and mandamus actions are available and provide adequate remedies at law. Both parties agree that mandamus is not available. The present dispute, therefore, concerns the availability and adequacy of a quo warranto action.

Actions in quo warranto are governed by General Statutes § 52-491. A successful quo warranto action unseats an illegal office holder and declares the position vacant. It does not place the rightful claimant into the office. If the claimant can thereafter establish his clear right to the position, he may bring an action in mandamus to seek his own appointment. Beccia v. Waterbury, 185 Conn. 445, 456-57, 441 A.2d 131 (1981).

In a quo warranto proceeding, the title to be challenged must be a public office. State ex rel. State v. Mackie, 82 Conn. 398, 400, 74 A. 759 (1909). Quo warranto may not be used to challenge the appointment of a mere government employee. State ex rel. Neal v. Brethauer, 83 Conn. 143, 146, 75 A. 705 (1910). Brethauer established two criteria to determine whether a governmental position constitutes a public office within the meaning of the quo warranto statute: (1) It must have its source in a sovereign authority speaking through the constitution or legislation; and (2) its incumbent, by virtue of his incumbency, must be invested with some portion of the sovereign power which he is to exercise for the benefit of the public. Id. The plaintiffs argue that firefighters are not public officers and that quo warranto, therefore, will not lie. We do not agree.

We have previously held that rank and file firefighters and the closely analogous position of police officers are public officers. Bartlett v. Rockville, 150 Conn. 428, 430, 190 A.2d 690 (1963) (police officers are public officers); McKeithen v. Stamford, 149 Conn. 619, 622, 183 A.2d 280 (1962) (police officers are public officers); McDermott v. New Haven, 107 Conn. 451, 453, 140 A. 826 (1928) (police officers are public officers); McDonald v. New Haven, 94 Conn. 403, 412, 109 A. 176 (1920) (firefighters and police officers are public officers). The plaintiffs have provided no reasoned argument why we should depart from this long standing line of cases.

The plaintiffs further claim that even if firefighters are held to be public officers for the purposes of quo warranto, they cannot obtain the relief they seek through the quo warranto mechanism. They argue that since quo warranto is only available retrospectively, once a position has been illegally occupied, the relief which would enjoin future illegal appointments from expired lists cannot be obtained through quo warranto. The plaintiffs contend that the quo warranto action would reach only their claim for retrospective relief, i.e., the request for a declaratory judgment that promotions after March 31,1988, are illegal and void and must be vacated. They argue that quo warranto would not address their requests for preliminary and permanent injunctions enjoining the defendants from implementing promotions from the expired lists and for a declaratory judgment holding that the defendants’ actions violate the city charter and civil service rules. We agree.

Quo warranto is available to the plaintiffs but it is not an adequate remedy in this case. While the positions that are held by persons promoted from the stockpile list certainly are of concern to the plaintiffs, the hiring process itself is the root of the problem. Quo warranto may oust individuals illegally occupying public offices but it lacks the efficacy of an injunction in preventing the defendants from continuing this practice in the future. It is not reasonable to compel the plaintiffs to bring an action in quo warranto each time a promotion from the “subject to assignment” list occurs. The tenets of judicial economy dictate a more efficient procedural path.

The defendants’ reliance on State ex rel. Gaski v. Basile, 174 Conn. 36, 381 A.2d 547 (1977), to establish that declaratory and injunctive relief should be denied when quo warranto is available is misplaced. In Basile, the dispute was limited to two persons eligible for the position of fire chief of the city of Bristol. We concluded that the defendant had been appointed illegally by the mayor rather than by the city council and the board of fire commissioners. We held that he should be ousted from the position in accordance with the quo warranto action. Since quo warranto was available and an adequate remedy at law, the demand for declaratory and injunctive relief was denied. Basile is distinguishable from the present case. In Basile, there was no evidence of anything but a single, discrete dispute between two candidates for the position of fire chief. The New Haven fire department, on the other hand, has allegedly practiced stockpiling for over thirty years and has, allegedly, consistently violated the hiring guidelines delineated in the city charter. While quo warranto was appropriate in Basile, because of the continuing nature of the present allegations of wrongdoing, quo warranto is not an adequate remedy at law in this action.

Since quo warranto is available but is not an adequate remedy at law, the trial court should not have granted the defendants’ Practice Book § 302 motion.

The judgment is reversed and the matter is remanded for a determination on the merits.

In this opinion the other justices concurred.

       The defendants moved for a dismissal for failure to make out a prima facie case pursuant to Practice Book § 302 at the close of the plaintiffs’ evidence. As required by Practice Book § 302, the trial court considered the evidence introduced by the plaintiffs in the light most favorable to them. Berchtold v. Maggi, 191 Conn. 266, 271, 464 A.2d 1 (1983).
      Practice Book § 302 states: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.”

       General Statutes § 52-471 provides: “granting of injunctions, (a) Any judge of any court of equitable jurisdiction may, on motion, grant and enforce a writ of injunction, according to the course of proceedings in equity, in any action for equitable relief when the relief is properly demandable, returnable to any court, when the court is not in session. Upon granting of the writ, the writ shall be of force until the sitting of the court and its further order thereon unless sooner lawfully dissolved.
      “(b) No injunction may be issued unless the facts stated in the application therefor are verified by the oath of the plaintiff or of some competent witness.”

       A party seeking mandamus must establish: “(1) that the plaintiff has a clear legal right to the performance of a duty by the defendant; (2) that the defendant has no discretion with respect to performance of that duty; and (3) that the plaintiff has no adequate remedy at law.” Vartuli v. Sotire, 192 Conn. 353, 365, 472 A.2d 336 (1984). Since promotions from even legally promulgated lists were subject to a number of conditions, e.g., the city’s discretionary choice among the top three candidates, all parties agreed that mandamus was not available here.

       General Statutes § 52-491 provides: “When any person or corporation usurps the exercise of any office, franchise or jurisdiction, the superior court may proceed, on a complaint in the nature of a quo warranto, to punish such person or corporation for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law.”