text:
    William Dornfried v. October Twenty-Four, Inc.
    (14920)
    Peters, C. J., Callahan, Borden, Norcott and Katz, Js.

      Argued May 31
    decision released August 9, 1994

      Timothy C. Moynahan, for the appellant (plaintiff).

      Peter J. Zagorsky, for the appellees (defendants).
   Katz, J.

This is an action to enjoin the operation of a quarry. The plaintiff appeals from the judgment by the trial court in favor of the defendants, denying the injunctive relief. The issues on appeal are: (1) whether the verified complaint sufficiently alleged as a ground for injunctive relief that the defendants, October Twenty-Four, Inc., and A. Aiudi and Sons, were operating a quarry in a single family residential zone in violation of the town zoning regulations; and (2) if so, whether the plaintiff, William Dornfried, the zoning enforcement officer for the town of Plainville, should have been estopped from enforcing the town zoning regulation that prohibits the defendants from operating the quarry.

The following facts are undisputed. On May 20, 1992, the plaintiff filed a complaint pursuant to General Statutes § 8-12, to obtain a temporary and permanent injunction to halt the operation of a trap rock quarry-on property of October Twenty-Four, Inc., located in an R-40 single family residential zone (R-40 zone) on North Mountain Road in Plainville. In his complaint, the plaintiff alleged that in April, 1992, he had notified October Twenty-Four, Inc., to cease and desist any further earth and rock removal because such activity was not a permitted use in an R-40 zone. The plaintiff also alleged that the illegality of operating a quarry in an R-40 zone already had been determined by this court in Tomasso Bros., Inc. v. October Twenty-Four, Inc., 221 Conn. 194, 602 A.2d 1011 (1992). Finally, the plaintiff alleged that October Twenty-Four, Inc., had exceeded the approval that it had obtained in 1978 from the Plainville planning and zoning commission for a “site grading plan” that was subject to yearly review through and including September 24, 1991.

On August 25, 1992, after a full hearing on the temporary injunction, the trial court, Goldberg, J., concluded that quarrying activity was being conducted in an R-40 zone in violation of the town zoning regulations and that the equities dictated that an injunction should issue. Accordingly, the trial court entered a temporary injunction “to halt the aforesaid illegal quarrying operation in violation of the Plainville zoning ordinance.” Thereafter, on June 11, 1993, after a full hearing on the plaintiff’s request for a permanent injunction, the trial court, Berger, J., vacated the temporary injunction and denied the permanent injunction. The trial court concluded that, under § 8-12, the plaintiff, as the zoning enforcement officer, was the proper party to institute an action to prohibit conduct that was in violation of a zoning ordinance. The trial court also noted that the plaintiff had made specific reference in the complaint to this court’s opinion in Tomasso Bros., Inc. v. October Twenty-Four, Inc., supra, 221 Conn. 194. Nevertheless, the trial court concluded that the plaintiff had failed to plead as a ground for injunctive relief that the defendants had been conducting an unpermitted activity by operating a quarry in an R-40 zone in violation of the town zoning regulations. Rather, the trial court concluded that the plaintiff had pleaded as his sole ground for relief, and therefore had to prove, that the defendants had exceeded the scope of the permission granted to them by the planning and zoning commission in the 1978 site grading plan. After determining that the plaintiff had failed to prove those allegations, the trial court addressed the affirmative defense of municipal estoppel, concluded that the plaintiff was estopped from prohibiting the defendants from operating a quarry, and rendered judgment for the defendants. This appeal followed.

On appeal the plaintiff claims that the trial court improperly concluded that: (1) the complaint had failed to allege as a ground for relief that the defendants had been operating a rock quarry in an R-40 zone in violation of the town zoning regulations; (2) the defendants’ operation of a rock quarry from 1978 through 1992 had not exceeded the site grading plan approval granted by the planning and zoning commission in 1978; and (3) the plaintiff, as zoning enforcement officer, is estopped from enforcing the town zoning regulation that prohibits the defendants from operating a rock quarry in an R-40 zone. We agree with the plaintiff as to the first and third issues and, therefore, reverse the judgment of the trial court.

I

We begin with a brief overview of the law regarding pleadings. “ ‘[T]he interpretation of pleadings is always a question of law for the court . . . ” (Citation omitted.) Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985). “The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988), and cases cited therein. Although essential allegations may not be supplied by conjecture or remote implication; Cahill v. Board of Education, supra, 236; the complaint must be read in its entirety in such a way as to “give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties.” Price v. Bouteiller, 79 Conn. 255, 257, 64 A. 227 (1906). “As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery. Tedesco v. Stamford, 215 Conn. 450, 459, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992); Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 434, 534 A.2d 213 (1987); see Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 359-60, 525 A.2d 57 (1987); see also Practice Book §§ 108 and 109.” Normand Josef Enterprises, Inc. v. Connecti cut National Bank, 230 Conn. 486, 496, 646 A.2d 1289 (1994). Finally, if the parties at trial have adopted a certain construction of the pleadings; see, e.g., Milardo v. Branciforte, 109 Conn. 693, 695, 145 A. 573 (1929); we should give deference to that construction.

Applying these principles to the facts of this case, we conclude that the trial court improperly interpreted the complaint by concluding that the plaintiff had failed to allege as a ground for relief that the defendants had been illegally operating a rock quarry in an R-40 zone. The complaint specifically alleges that the subject property is “situated in an R-40 residential zone as classified by the Plainville planning and zoning regulations and shown on its zoning map.” It also alleges that “the parcel is located in an R-40 zone and quarrying or earth/rock removal is not a permitted use within this zone pursuant to § 505 of the Plainville zoning regulations.” The complaint further alleges that October Twenty-Four, Inc., operates a “quarry on its property and is continuing it[s] quarrying operation as of this date.”

Additionally, the complaint specifically alleges that the illegality of the quarrying operation at issue had already been determined in Tomasso Bros., Inc. v. October Twenty-Four, Inc., supra, 221 Conn. 194, wherein this court affirmed the finding of the trial court, O’Neill, J., that the defendants had been illegally operating a quarry on the subject property. By, in effect, asking the trial court to take judicial notice of this court’s conclusions as set forth in that case, the plaintiff squarely placed the fact of the defendants’ illegal conduct within the allegations of his complaint. Finally, the relief requested is an injunction barring the defendants from a commercial operation pursuant to § 8-12. On the basis of these allegations, the plaintiff argues, and we agree, that the complaint expressly asserts that the defendants had been operating and continue to operate a rock quarry in an R-40 zone in violation of the town zoning regulations as a basis for injunctive relief.

Moreover, there can be no serious claim of surprise or prejudice by the defendants. The record clearly reflects that the defendants were aware of the plaintiff’s reliance on the operation of a quarry in an R-40 zone in violation of the town zoning regulations as a basis for the injunctive relief requested. This was certainly the case by the time of the trial on the permanent injunction.

In granting the temporary injunction, the trial court, Goldberg, J., recognized that the complaint stated the claim of a zoning violation and based the temporary injunction solely on that ground. Referring to this court’s opinion in Tomasso Bros., Inc. v. October Twenty-Four, Inc., supra, 221 Conn. 197-98, and our review of the trial court’s factual findings in that case, the trial court, Goldberg, J., found that the defendants had been operating a quarry in an R-40 zone in violation of § 505 of the Plainville zoning regulations. Despite the defendants’ claim that the activities on the property had been carried on pursuant to a site grading plan allowing rock material to be removed, the trial court specifically found from its own review of all the exhibits that a quarrying operation was being conducted on the subject property. Judge Goldberg stated that although “crushing equipment and secondary breakers have been removed from the site, blasting is being continued to break up the rock and the rock material is then trucked from the site. Such activity still constitutes quarrying which is not a permitted use in an R-40 zone.” After rejecting the defendants’ claim of estoppel, the trial court issued the temporary injunction.

Thereafter, in their motion to dissolve or modify the temporary injunction, the defendants did not argue that Judge Goldberg had improperly entered the temporary injunction because the complaint had alleged only that the defendants had exceeded the approval granted by the planning and zoning commission in 1978 or that the plaintiff should have been confined to that claim on the basis of his limited allegations. In moving to dissolve or modify the temporary injunction, the defendants acknowledged that a claim of a zoning violation had been stated in the complaint and that it formed the basis upon which the plaintiff was seeking injunctive relief. Indeed, they specifically recounted the bases upon which the trial court had ordered a temporary injunction: “Said temporary injunction was based upon three separate findings: (1) the [named] [d]efendant’s property was zoned R-40 (residential zone), (2) the [d]efendant[s’] activities constitute quarrying, and (3) quarrying is not allowed in an R-40 zone under the Plainville regulations.”

Finally, apart from these earlier proceedings, the plaintiff made clear to the trial court, Berger, J., during the hearing on the permanent injunction, his position that the complaint alleged a zoning violation claim, and, therefore, that he was affirmatively requesting injunctive relief on that claim. In the argument on the defendants’ motion for judgment of dismissal under Practice Book § 302 at the close of his case, the plaintiff argued to the trial court that “we’ve established our case-in-chief, which is a violation of the zoning regulations of the town of Plainville” and “it’s not legal to have a quarry in a residential zone.” Similarly, in his posttrial brief, the plaintiff expressly argued that he was entitled to injunctive relief because “the proof conclusively establishes that the defendants were conducting a quarry in a residential zone, a violation under the Plainville zoning regulations.” Because the trial court had deferred its ruling on the motion for judgment of dismissal, the plaintiff also pointed out in the context of that motion that the claim that the defendants had exceeded the scope of their approval could be ignored because the “plaintiff’s complaint also alleges the alternative ground for injunction that [the] defendants were conducting a quarry in violation of the [zoning] regulations.” At no time did the defendants even suggest that these arguments were outside the scope of the pleadings and should be disregarded for that reason.

Because we conclude that the complaint properly alleged as a ground for injunctive relief that the defendants had been operating a quarry in an R-40 zone in violation of the town zoning regulations, we must next examine the record to determine whether those allegations were proved. The trial court, Berger, J., specifically found that the defendants had been operating a quarry: “Of course, Judge O’Neill did note the obvious, that the ‘operation is quarrying and the [named] defendant’s property contains a large quarry.’ This was noted on appeal by the Supreme Court [in 1992] as well as the fact that the defendant herein [October Twenty-Four, Inc.,] did not contest the illegality of the operation of a quarry in a residential zone. Tomasso Bros., Inc. v. October Twenty-Four, Inc., [supra, 221 Conn. 196-98].” Thereafter, the trial court concluded that the planning and zoning commission had improperly issued its original permit. In light of these findings by the trial court that the defendants had been operating a quarry in an R-40 zone in violation of the town zoning regulations, we next consider the issue of municipal estoppel.

II

The plaintiff next argues that the trial court misapplied the doctrine of municipal estoppel and improperly concluded that the plaintiff was estopped from enforcing the town zoning regulation that prohibits quarrying in a residential zone. The defendants’ claim of estoppel was based on their having operated a quarry on the property for a number of years under the authority of an approved site grading plan, with the knowledge and acquiescence of the planning and zoning commission. We agree with the plaintiff that the trial court misapplied the doctrine of municipal estoppel.

The law of equitable estoppel as applied to municipalities in the enforcement of zoning laws is well established. “In Zoning Commission v. Lescynski, 188 Conn. 724, 731-32, 453 A.2d 1144 (1982), we held that, in special circumstances, a municipality may be estopped from enforcing its zoning regulations. We recognized that, [in general,] estoppel always requires ‘proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. Bozzi v. Bozzi, 177 Conn. 232, 242, 413 A.2d 834 (1979); Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 353, 365 A.2d 1093 (1976); Pet Car Products, Inc. v. Barnett, 150 Conn. 42, 53-54, 184 A.2d 797 (1962).’ ” West Hartford v. Rechel, 190 Conn. 114, 121, 459 A.2d 1015 (1983). We further stated that “[although estoppel may not generally be invoked against a public agency in the exercise of its governmental functions; Dupuis v. Submarine Base Credit Union, Inc., supra, 353; Bianco v. Darien, 157 Conn. 548, 556, 254 A.2d 898 (1969); State v. Stonybrook, Inc., 149 Conn. 492, 501, 181 A.2d 601, cert. denied, 371 U.S. 185, 83 S. Ct. 265, 9 L. Ed. 2d 227 (1962); 6 McQuillin, Municipal Corporations (3d Ed. Rev.) § 20.13; 8A McQuillin, supra, §§ 25.349, 25.358; an exception is made where the party claiming estoppel would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents. Dupuis v. Submarine Base Credit Union, Inc., supra, 354; see 6 McQuillin, supra, [§20.13]; 9 McQuillin, supra, § 27.56. [Accordingly, we stated that estoppel] against municipalities is . . . limited and may be invoked against the enforcement of zoning regulations (1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations. Dupuis v. Submarine Base Credit Union, Inc., supra, 354.” (Emphasis added.) Zoning Commission v. Lescynski, supra, 731-32; see also Gelinas v. West Hartford, 225 Conn. 575, 590, 626 A.2d 259 (1993); T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 586-88.

As our case law makes clear, the defendants bore a substantial burden of proof in asserting the defense of municipal estoppel. West Hartford v. Rechel, supra, 190 Conn. 122. Specifically, the defendants were required to show, among other things, “so substantial a loss that the award of injunctive relief to enforce the town’s zoning regulations would, in light of all the circumstances, be highly inequitable or oppressive.” (Emphasis added.) Id., 125. In this case, the trial court found that the defendants would suffer such a loss. We disagree.

The trial court’s determination that the defendants would suffer a substantial loss unless the plaintiff was estopped from enforcing the town zoning regulation is a finding of fact; Dupuis v. Submarine Base Credit Union, Inc., supra, 170 Conn. 355; T. Tondro, supra, p. 587; that will not be overturned unless it is clearly erroneous in light of the evidence in the whole record. Practice Book § 4061; Adriani v. Commission on Human Rights & Opportunities, 228 Conn. 545, 548, 636 A.2d 1360 (1994); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). A finding of fact is clearly erroneous when there is no evidence in the record to support it; Dalia v. Lawrence, 226 Conn. 51, 71, 627 A.2d 392 (1993); or “when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948); see also Web Press Services Corp. v. New London Motors, Inc., 205 Conn. 479, 483, 533 A.2d 1211 (1987).” (Internal quotation marks omitted.) Normand Josef Enterprises, Inc. v. Connecticut National Bank, supra, 230 Conn. 504. Our review of the record persuades us that the trial court improperly found that the defendants would suffer a substantial loss from the enforcement of the town zoning regulation.

The trial court’s finding that the imposition of a permanent injunction would subject the defendants to a substantial loss was derived, in part, from the trial court’s conclusion that the plaintiff’s prayer for relief, in effect, sought to preclude the defendants from regrading, refilling, or in any way further developing their property. The trial court’s determination that an injunction would so prejudice the defendants, however, is not supported by the complaint itself. In paragraph 9 of his complaint, as amended, the plaintiff alleged that the defendants were “quarrying in [a] residential zone and [were continuing] to expand upon said illegal use in violation of § 8-12 of the Connecticut General Statutes.” In his prayer for relief, the plaintiff requested a temporary and permanent injunction barring the defendants from “a commercial operation”— namely, the illegal quarrying alleged in paragraph 9 of the complaint. Thus, it is evident from the plaintiff’s complaint that he sought only to enjoin the defendants’ illegal quarrying in the R-40 zone. Moreover, it was within the trial court’s discretion to limit the scope of the injunction to this illegal activity. O'Neill v. Caro lina Freight Carriers Corp., 156 Conn. 613, 618, 244 A.2d 372 (1968) (issuance of injunction and scope and quantum of injunctive relief rests in sound discretion of trial court). We therefore reject the trial court’s reading of the plaintiff’s request for relief, and conclude that the injunctive relief requested by the plaintiff only precludes quarrying and does not otherwise impact the defendants’ ability to regrade, refill or further develop the property in accordance with applicable zoning regulations. We accordingly conclude that the trial court’s finding that the defendants would suffer a substantial loss on the basis of the plaintiff’s requested relief is not supported by the evidence.

In concluding that the defendants would suffer a substantial loss from the imposition of a permanent injunction, the trial court also found that the unquarried rock remaining on the property had “some value.” By its own admission, however, the trial court made this finding in the absence of any evidence in the record concerning the value of the remaining rock. The trial court determined that the rock had value solely on the basis of testimony indicating that, if the illegal quarrying were enjoined, A. Aiudi and Sons would be forced to pay more to obtain rock for use in its ready-mix concrete business. The defendants, however, presented no evidence documenting, either in a dollar figure or on a percentage basis, the increase in cost to A. Aiudi and Sons. Moreover, the defendants presented no evidence indicating that October Twenty-Four, Inc., receives payment from A. Aiudi and Sons for the rock quarried on the property. Thus, at most, the evidence reveals only that A. Aiudi and Sons, and not October Twenty-Four, Inc., which is the owner of the property, might be subjected to an undetermined increase in costs if the plaintiff were not estopped from enforcing the town zoning regulation. We conclude that such an unquantified increase in cost resulting in an unspecified prospective loss of profits to A. Aiudi and Sons, which does not own or lease the property, does not constitute a loss that is sufficiently substantial to invoke the doctrine of municipal estoppel.

Although we previously have not had occasion to delineate what constitutes a substantial loss for purposes of municipal estoppel, our earlier discussions of the elements of municipal estoppel relied on Cities Service Oil Co. v. Des Plaines, 21 Ill. 2d 157, 161, 171 N.E.2d 605 (1961), for the proposition that a defendant may invoke the doctrine of municipal estoppel only when he or she “would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents.” (Emphasis added.) Dupuis v. Submarine Base Credit Union, Inc., supra, 170 Conn. 353, 354; Pet Car Products, Inc. v. Barnett, supra, 150 Conn. 53. The concept of substantial loss, as defined and discussed by the Illinois courts in Cities Service Oil Co. v. Des Plaines, supra, 161, and the cases cited therein, involved a much greater economic loss than that alleged and proved in this case. See, e.g., id., 158-59 (city estopped from enforcing ordinance prohibiting location of gas station within 300 feet of church when plaintiff purchased, made permanent improvements to, and expended large sums of money to build gas station on property within prohibited distance from church, in good faith reliance on permit and apparent acquiescence by city officials); River Forest State Bank v. Hillside, 6 Ill. 2d 451, 454-55, 129 N.E.2d 171 (1955) (ordinance prohibiting issuance of building permit for any lot, unless public sewer facilities were available, invalid in its application to plaintiffs’ property when plaintiffs already had invested $20,000 on water system to prepare premises for the construction of homes in reliance on course of conduct by village from which they could have reasonably inferred and were induced to believe that use of septic tanks would be acceptable); Hurt v. Hejhal, 259 Ill. App. 221, 228 (1930) (city estopped from interfering with construction of building on ground that it violates ordinance when defendants acted in good faith under affirmative acts of city and made “expensive and permanent improvements which it would be highly inequitable and unjust to destroy”); People ex rel. Deddo v. Thompson, 209 Ill. App. 570, 576 (1918) (city estopped from enforcing ordinance making it unlawful to build garage within 200 feet of hospital or school, when defendant built garage within prohibited distance from hospital and school in good faith reliance on affirmative acts of city).

In this case, the defendants have offered no evidence of any out of pocket investment, such as a capital investment in equipment, a building, or real property, that would be lost if the town zoning regulation were enforced. Rather, the defendants have shown only that enforcement of the town zoning regulation would terminate A. Aiudi and Son’s windfall of obtaining free rock for use in its concrete business from the operation of an illegal quarry in a residential zone. Such a loss does not constitute a substantial loss for the purposes of municipal estoppel.

The trial court properly found that the defendants had been illegally operating an active quarry in an R-40 zone. We conclude, moreover, that the defendants did not establish that the plaintiff should have been estopped from enforcing the town zoning regulation. Accordingly, the plaintiff was entitled to enforce that regulation.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment in favor of the plaintiff granting the permanent injunction prohibiting the defendants from operating a quarry on the subject property.

In this opinon the other justices concurred.

       The defendant October Twenty-Four, Inc., owns a parcel of land containing approximately thirty-eight acres on Loon Lake Road in Plainville. The defendant A. Aiudi and Sons, a partnership engaged in the manufacture of ready-mix concrete, owns a ready-mix concrete plant in Plainville. October Twenty-Four, Inc., allows A. Aiudi and Sons to operate the quarry on its property to excavate trap rock for use in the concrete business. This case was initially brought against October Twenty-Four, Inc., as owner of the property. Sometime thereafter, A. Aiudi and Sons was allowed to intervene as a party defendant. Unless otherwise noted, October Twenty-Four, Inc., and A. Aiudi and Sons hereinafter will be referred to collectively as the defendants.

       General Statutes § 8-12 provides: “procedure when regulations are violated. If any building or structure has been erected, constructed, altered, converted or maintained, or any building, structure or land has been used, in violation of any provision of this chapter or of any bylaw, ordinance, rule or regulation made under authority conferred hereby, any official having jurisdiction, in addition to other remedies, may institute an action or proceeding to prevent such unlawful erection, construction, alteration, conversion, maintenance or use or to restrain, correct or abate such violation or to prevent the occupancy of such building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises. Such regulations shall be enforced by the officer or official board or authority designated therein, who shall be authorized to cause any building, structure, place or premises to be inspected and examined and to order in writing the remedying of any condition found to exist therein or thereon in violation of any provision of the regulations made under authority of the provisions of this chapter or, when the violation involves grading of land, the removal of earth or soil erosion and sediment control, to issue, in writing, a cease and desist order to be effective immediately. The owner or agent of any building or premises where a violation of any provision of such regulations has been committed or exists, or the lessee or tenant of an entire building or entire premises where such violation has been committed or exists, or the owner, agent, lessee or tenant of any part of the building or premises in which such violation has been committed or exists, or the agent, architect, builder, contractor or any other person who commits, takes part or assists in any such violation or who maintains any building or premises in which any such violation exists, shall be fined not less than ten nor more than one hundred dollars for each day that such violation continues; but, if the offense is wilful, the person convicted thereof shall be fined not less than one hundred dollars nor more than two hundred and fifty dollars for each day that such violation continues, or imprisoned not more than ton days for each day such violation continues or both; and the superior court shall have jurisdiction of all such offenses, subject to appeal as in other cases. Any person who, having been served with an order to discontinue any such violation, fails to comply with such order within ten days after such service, or having been served with a cease and desist order with respect to a violation involving grading of land, removal of earth or soil erosion and sediment control, fails to comply with such order immediately, or continues to violate any provision of the regulations made under authority of the provisions of this chapter specified in such order shall be subject to a civil penalty not to exceed two thousand five hundred dollars, payable to the treasurer of the municipality. In any criminal prosecution under this section, the defendant may plead in abatement that such criminal prosecution is based on a zoning ordinance or regulation which is the subject of a civil action wherein one of the issues is the interpretation of such ordinance or regulations, and that the issues in the civil action are such that the prosecution would fail if the civil action results in an interpretation different from that claimed by the state in the criminal prosecution. If the court renders judgment for such municipality and finds that the violation was wilful, the court shall allow such municipality its costs, together with reasonable attorney’s fees to be taxed by the court. The court before which such prosecution is pending may order such prosecution abated if it finds that the allegations of the plea are true.”

       Section 505 of the Plainville zoning regulations provides: “uses permitted IN RESIDENCE R-40, R-20 AND R-15 ZONES
      “Buildings and land may be used and buildings may be altered or erected to be used for the following purposes:
      “1. Dwellings for one family.
      “2. Farming, raising poultry, forestry, truck or nursery gardening provided that no livestock or poultry, except for household pets, shall be kept on any lot of less than two acres. One greenhouse of no more than 500 square feet in area may be located on any lot of two or more acres or as provided under Article 4 Section 410-7.

        “3. All buildings, except dwellings, and all storage of manure or other animal refuse shall be located not less than 100 feet from any street line or property line.
      "4. The commercial raising of fur bearing animals and the commercial raising of pigs are prohibited.
      “5. The display of products, produce and nursery stock raised on the premises is permitted and for this purpose, one roadside stand not over 100 square feet in area, which may be located within the required front yard, but not nearer the side lot lines than the required side yard and not less than 20 feet from the street line.
      “6. Accessory uses customary to a permitted use with the following requirements:
      “(a) No accessory building may be used as a residence.
      “(b) One commercial vehicle of no more than % ton capacity may be parked in a private driveway or behind the building line. No other outside parking or storage of commercial vehicles shall be permitted.
      “(c) Parking or storage of commercial vehicles in a private garage shall be limited to one commercial vehicle not exceeding one ton in capacity.
      “7. Signs, subject to the provisions of Article 11.”

       In Tomasso Bros., Inc. v. October Twenty-Four, Inc., supra, 221 Conn. 197-98, this court accepted the trial court’s conclusions that the defendants had been quarrying in an R-40 zone and specifically remarked that “the defendants have not contested the illegality of the operation of a quarry in a residential zone,” only that such activity constituted a nuisance.

       The decision by the trial court, Berger, J., that the complaint failed to allege as a ground for relief that the defendants were operating an active quarry in violation of the town zoning regulations obviously contradicted the earlier ruling by the trial court, Goldberg, J., in issuing the temporary injunction.

       The trial court relied on the site grading plan to conclude that the planning and zoning commission had granted the defendants permission to operate a quarry. It recognized, along with Judge Goldberg, “the obvious”: that the defendants, in fact, had been operating a quarry and that the “[cjommission did err and should not have issued its original permit.” In determining that the plaintiff had failed to prove that the defendants had exceeded the original 1978 permission, the trial court relied upon its findings that the 1978 site grading plan was silent as to the amount of rock to be removed and the depth of the excavation. The trial court termed the site grading plan as “open ended” in that it allowed the defendants to remove rock subject only to three conditions: a southerly limitation at Connecticut coordinate line N307500; a final grade that was to be at the 360 foot elevation; and the filing of yearly reports by the defendants. The trial court also noted that the original site grading plan did not require the defendants to obtain annual permission from the planning and zoning commission in order to continue the operation.

       The trial court was not required to address the affirmative defense unless it first found either that the plaintiff had pleaded and proved that the defendants’ conduct had violated the town zoning regulation or that their conduct exceeded the scope of the site grading plan. Nevertheless, because it considered the issues to be “intertwined,” the trial court proceeded to address the applicability of the equitable doctrine.

       Because this decision permitted the defendants to continue indefinitely to operate an active trap rock quarry in an R-40 zone, the plaintiff filed a motion to continue the temporary injunction pursuant to General Statutes § 52-476. Following the denial of this motion by the trial court, the plaintiff filed a motion for review with the Appellate Court, which granted the motion, granted the relief requested, and reinstated the temporary injunction.

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       Because of our disposition of the first claim, we need not reach the issue of whether the trial court reasonably could have concluded that the defendants’ operation of a quarry from 1978 until 1992 had not exceeded the site grading plan approval granted by the planning and zoning commission in 1978.

       Practice Book § 108 provides in pertinent part: “[general rules OF PLEADING]-FACT PLEADING
      “Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved .... If any such pleading does not fully disclose the ground of claim . . . the court may order a fuller and more particular statement; and, if in the opinion of the court the pleadings do not sufficiently define the issues in dispute, it may direct the parties to prepare other issues, and such issues shall, if the parties differ, be settled by the court.” Practice Book § 109 provides in pertinent part: “[general rules of PLEADING]-PLEADING LEGAL EFFECT
      “Acts . . . may be stated according to their legal effect, but in so doing the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove.” (Emphasis added.)

       In that case, because the plaintiffs plan for development of its adjoining property originally had called for the construction of a hotel and the plaintiff subsequently altered its application to the town of Plainville to substitute an office building in its place, we remanded the case to the trial court to assess the impact that the quarry would have on the plaintiff’s proposed office building and to reexamine the plaintiffs claim for injunctive relief. Tomasso Bros., Inc. v. October Twenty-Four, Inc., supra, 221 Conn. 194.

       We note that Judge Goldberg in issuing the preliminary injunction also reached a similar conclusion: “This court also believes the defendants’ actions to be quarrying and, notwithstanding the Commission or the other municipal officials’ beliefs, finds that a portion of the premises contains a quarry. . . .”

       Practice Book § 4061 provides: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “If the court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s factual findings or decision.
      “It is the responsibility of the appellant to provide an adequate record for review.”

       The trial court stated: “First, the [plaintiffs] prayer for relief presumably bars all development activity (‘all commercial activity’). The request has never been refined and thus, the injunction would preclude the defendants from filling the hole and further development. Second, the site grading plan was premised on a regrading of the land from [a] 360 foot elevation to about a 370 foot elevation, east to west. . . . The requested injunction would bar this.”

       The trial court stated: “[W]hile there was no evidence as to the value of the remaining rock, the testimony indicated there was at least 100,000 cubic yards ... of rock remaining. This court is sure that it has some value.”
      At the January 10,1978 meeting of the planning and zoning commission, it was noted that “[t]he amount of rock to be removed [was] estimated to be approximately 300,000 to 400,000 yards.” It is worth noting that Elmo Aiudi testified before Judge Berger that A. Aiudi and Sons probably had removed approximately 300,000 cubic yards of rock from the property. Aiudi, however, admitted that he previously had testified before Judge Goldberg that the defendant already had removed 400,000 cubic yards of rock from the property.

       Because we conclude that the defendants have failed to prove that enforcement of the town zoning regulation would subject them to a substantial loss, we need not address whether the defendants have proved adequately the other elements of municipal estoppel.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Tomasso Brothers, Inc. v. October Twenty-Four, Inc., et al.
    (14642)
    Peters, C. J., Callahan, Borden, Norcott and Katz, Js.

      Argued May 31
    decision released August 9, 1994

      Peter J. Zagorsky, for the appellants (defendants).

      John R. Fornaciari, pro hac vice, with whom were James H. Throwe and, on the brief, Stephen J. Anderson and Carl R. Ficks, Jr., for the appellee (plaintiff).
   Borden, J.

The principal issue in this appeal is whether a permanent prohibitory injunction is automatically stayed by the filing of an appeal by the enjoined party. This case returns to us after the trial court, on remand, determined that a permanent prohibitory injunction should issue in order to protect the plaintiffs use of its property from a nuisance arising from the defendants’ use of their adjoining property.

The plaintiff, Tomasso Brothers, Inc., brought an action against the defendants, October Twenty-Four, Inc. (October Twenty-Four), and A. Aiudi and Sons (Aiudi), alleging that the defendants’ operation of a quarry on property abutting that of the plaintiff violated applicable zoning regulations and constituted a nuisance. The trial court, O’Neill, J., issued an injunction that prohibited the defendants from continuing to operate the quarry. The defendants appealed from the judgment granting the injunction. While the appeal was pending in this court, the plaintiff modified its development plans for the property. Although we ruled on some of the issues raised on appeal; see footnote 3; we remanded the case to the trial court to determine the continued propriety of the injunction in light of the plaintiff’s modified plans. Tomasso Bros., Inc. v. October Twenty-Four, Inc., 221 Conn. 194, 203, 602 A.2d 1011 (1992) (Tomasso I).

After additional hearings, the same trial court again enjoined the defendants from further quarrying. The defendants appealed from this judgment, claiming that the trial court had improperly: (1) found that the defendants’ activities constituted a nuisance; and (2) enjoined the defendants from further quarrying. The defendants continued to quarry while the appeal was pending, however, and consequently the trial court held them in contempt. The defendants then amended their appeal by adding claims that the trial court had improperly: (1) concluded that Practice Book § 4046 did not automatically stay the injunctive order pending resolution of their appeal; and (2) found the defendants in contempt. We affirm the judgments of the trial court.

The trial court’s memoranda of decision reveal the following facts. October Twenty-Four owns a thirty-eight acre parcel of land in Plainville, on which it permits Aiudi to drill, blast, excavate and remove trap rock for use in Aiudi’s concrete business. This parcel of land abuts a twenty-eight acre parcel owned by the plaintiff. The plaintiff’s property is zoned for a technology park and October Twenty-Four’s property is zoned for residential use.

The plaintiff had originally intended to develop its property into an office park with a 100 room hotel. In its original memorandum of decision, the trial court found that the quarrying activity on October Twenty-Four’s property constituted a common law nuisance and adversely affected the plaintiff’s plans for development. The trial court therefore enjoined the defendants from further quarrying.

While the appeal from that first judgment was pending, the plaintiff modified its development plan. Specifically, the plaintiff deleted the building intended to be used solely as a hotel and substituted a building intended to be used only partly for residential purposes. The planned substitute building is a four story office conference center with forty small rooms for overnight accommodations, in addition to training rooms, conference rooms and food service with dining facilities. The substitute building would be located approximately 130 feet closer to October Twenty-Four’s property line than the hotel would have been, and approximately fifty feet closer than the hotel to the site of the blasting operation.

In Tomasso I, we determined that these changes in the plaintiff’s plan had caused the defendants’ appeal from the injunctive order to become moot. Rather than reviewing the trial court’s assessment of an outdated development plan, we remanded the case to the trial court to reexamine the equitable considerations relevant to the issuance of the injunction in light of the changed circumstances. See footnote 3.

In its memorandum of decision following the remand, the trial court found that, with respect to the proposed development of the property, the plaintiff had received approvals from certain municipal authorities and that it had applied for the remaining necessary approvals. Furthermore, the court found that the plaintiff had reached agreements concerning the provision of electrical, telephone and natural gas utilities, and had made progress towards the provision of sewer and water utilities. The court also found that financing for the project would still be available if the defendants’ quarrying operation was terminated. The court had previously found that halting the defendants’ quarrying activity was necessary to permit the plaintiff to seek and secure financing and tenants.

The court further found that the defendants’ quarrying activity was continuing at about the same frequency and intensity as it had before Tomasso I, and that in view of the material available it could continue at that level for another seven or eight years. The court also found, however, that the defendants had taken measures to reduce the noise. Specifically, it found that the machine that had been used to break large rocks had been removed and alternative methods were being used to break rocks on the site. The trucks used to transport rocks had been lined with steel and rubber belts, and sand had been placed in their beds. Further, the freestanding compressors had been removed from the property and a new hydraulic drill had replaced the old pneumatic drill. Moreover, the defendants proposed to the court additional steps that could further reduce the noise emanating from the quarry.

The trial court reviewed substantial evidence of the effect of the defendants’ quarrying operation on the plaintiff’s development plans. The court viewed the site and site plans, compared noise levels while quarrying activity was occurring with ambient noise levels, and made detailed findings of fact. The trial court concluded that the sound from the quarry remained “annoying and unacceptable to persons who would be expected to use the [substitute building] for meetings, conferences and meals.” The court therefore reaffirmed its conclusion that the quarry constituted a nuisance to the plaintiff.

Regarding the injunction, the court found that the plaintiff was irreparably harmed by the nuisance and that it had no adequate remedy at law. After hearing evidence concerning the effect that closing the quarry would have on Aiudi’s business, the court “balance[d] the harms and benefits to all the parties.” The court concluded that “the equities are overwhelmingly in favor of the plaintiff” and issued an injunction virtually identical to the injunction issued in Tomasso I. This appeal followed.

I

The defendants first claim that the trial court improperly granted the plaintiff injunctive relief. Specifically, the defendants contend that the trial court improperly: (1) concluded that the plaintiff was irreparably harmed and had no adequate remedy at law; (2) balanced the benefits to the plaintiff against the hardships to the defendants; and (3) exceeded its authority by issuing an unduly restrictive injunction. We disagree.

The defendant correctly states the law germane to the granting of injunctive relief. “ ‘A party seeking injunctive relief has the burden of proving irreparable harm and lack of an adequate remedy at law.’ ” Berin v. Olson, 183 Conn. 337, 340, 439 A.2d 357 (1981). The request for injunctive relief is addressed to the sound discretion of the trial court. Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992). “In exercising its discretion, the court, in a proper case, may consider and balance the injury complained of with that which will result from interference by injunction.” Moore v. Serafin, 163 Conn. 1, 6, 301 A.2d 238 (1972). “The issuance of an injunction and the scope and quantum of injunctive relief rests in the sound discretion of the trier.” (Internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 90, 527 A.2d 230 (1987). “[T]he court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion.” Walton v. New Hartford, supra, 165.

The trial court in this case acted well within its discretion in determining that the plaintiff was irreparably injured and had no adequate remedy at law. The court determined that the plaintiff had progressed significantly towards accomplishing its development plans, and that its plans were legally and financially feasible. Indeed, the court heard testimony that the plaintiff’s property was even more marketable with the proposed conference center than it had been with the proposed hotel. Furthermore, the court found that the noise emanating from the quarry was one of the major remaining obstacles to the plaintiffs project because the plaintiff needed to build the basic infrastructure before it could seriously market the project, and the undertaking of such expenditures could not be expected while the quarry remained in operation.

Continuing nuisances, such as the production of noise to the detriment of one’s neighbor, have traditionally been considered suitable grounds for equitable relief. See, e.g., Cummings v. Tripp, supra, 204 Conn. 90; Maykut v. Plasko, 170 Conn. 310, 314, 365 A.2d 1114 (1976). This is true even if, as in the context of this commercial development, the losses are also measurable in pecuniary terms. See Berin v. Olson, supra, 183 Conn. 342.

The court, moreover, acted within its discretion in balancing the hardships and determining the scope of the injunction. On the one hand, the court reasonably concluded that permitting the quarry to remain in operation would significantly harm the plaintiff’s development efforts. On the other hand, testimony revealed that Aiudi could obtain trap rock elsewhere in the marketplace, that other concrete companies had done so without going out of business, and that Aiudi intended to do so when the Plainville quarry becomes exhausted. Therefore, the trial court did not abuse its discretion by issuing an injunction that demanded complete cessation of all quarrying activities.

II

The defendants next claim that the trial court improperly: (1) concluded that Practice Book § 4046 did not automatically stay the injunctive order pending the appeal from the order; and (2) held the defendants in contempt for disobeying the order. We disagree.

The following facts are necessary for the resolution of these claims. In issuing its injunctive order, the court stated that, although many of the plaintiff’s various permits necessary for final approval of the plaintiff’s project were subject to appeal, the injunctive order was not to be stayed pending those appeals. The court reasoned that the plaintiff had the right to attempt to develop its property and that its development plans were reasonable and should not be stymied by appeals of permit approvals. The court also stated, however, that its conclusion did not apply to possible stays under Practice Book § 4046, which pertains to appeals from the injunctive order itself.

By its own terms, the injunction went into effect upon its issuance. See footnote 7. The defendants, however, immediately filed the current appeal from the judgment without moving in the trial court for an order staying the injunction pending the appeal’s resolution. Moreover, the defendants continued their quarrying activity.

On August 20, 1992, the plaintiff moved the court for an order of “immediate enforcement of the . . . injunction.” The court denied the motion, advising the plaintiff that the appropriate remedy was an order of contempt. In July, 1993, the plaintiff moved for a judgment of contempt against the defendants for violation of the injunction. The defendants contended that the filing of the appeal had automatically stayed the injunctive order. The trial court concluded that the injunctive order had not been stayed by the filing of the appeal, and granted the plaintiff’s motion for contempt. The court ordered the defendants to pay a fine of $100 per day from August 28, 1992, to December 14, 1992, $200 per day from December 15, 1992, to the date of the issuance of the contempt order, and $2000 per day thereafter if the defendants continued to maintain the quarrying operation.

A

The defendants claim that Practice Book § 4046 automatically stayed the operation of the trial court’s injunc-tive order pending the resolution of their appeal. Section 4046 provides: “In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired; if an appeal is filed, such proceedings shall be stayed until the final determination of the cause. . . .” (Emphasis added.) See footnote 10. Thus, the question is whether a permanent prohibitory injunction is among the exceptions contemplated by § 4046; that is, whether a permanent prohibitory injunction is an order of the trial court that is not stayed pending an appeal from it because such a lack of a stay is “otherwise provided by statute or other law.” We have not found any authority in Connecticut that specifically addresses this question.

As a preliminary matter, it is necessary to distinguish between a prohibitory and a mandatory injunction. A prohibitory injunction is an order of the court restraining a party from the commission of an act. A mandatory injunction, on the other hand, is a court order commanding a party to perform an act. Black’s Law Dictionary (6th Ed. 1990); H. McClintock, Principles of Equity (2d Ed. 1948) § 15, p. 32.

The prevailing view under the case law of many jurisdictions was that a prohibitory injunction was not automatically stayed pending an appeal from the order granting the injunction, whereas a mandatory injunction was automatically stayed pending appeal. See, e.g., Hovey v. McDonald, 109 U.S. 150, 161, 3 S. Ct. 136, 27 L. Ed. 888 (1883); 42 Am. Jur. 2d 1156, Injunctions § 348 (1969); annot., 93 A.L.R. 710, 715 (1934). The primary purpose of these rules was to preserve the status quo during the pendency of the appeal. Helbig v. Phillips, 109 N.J. Eq. 546, 158 A. 441 (1932). Under this view, therefore, in the case of a prohibitory injunction, the enjoined party was prevented from doing irreparable harm to the party that successfully sought the injunction; in the case of a mandatory injunction, the enjoined party was not required to assume a burden until the equities had been conclusively established. Id.

A review of our early rules of practice indicates that, in the past, permanent prohibitory injunctions have not been stayed automatically. Under the rules set forth in the 1934 edition of the Practice Book, the execution of a judgment was stayed pending an appeal “in a civil action providing for the recovery of damages or requiring the performance of an act.” Practice Book, 1934, § 366. A judgment “requiring the performance of an act” is, by definition, a mandatory injunction, not a prohibitory injunction. The exclusion of prohibitory injunctions from the Practice Book indicates that our early rules of practice were in accordance with the general rule that mandatory injunctions, but not prohibitory injunctions, were automatically stayed pending the resolution of an appeal.

Our case law also suggests that the stay of a prohibitory injunction is not automatic. In O’Neill v. Carolina Freight Carriers Corp., 156 Conn. 613, 244 A.2d 372 (1968), this court reviewed the trial court’s issuance of a permanent prohibitory injunction. Earlier in the procedural history of the same case, however, we had denied review of the trial court’s denial of a stay of the injunction pending appeal. O’Neill v. Carolina Freight Carriers Corp., 155 Conn. 714, 229 A.2d 701 (1967). More recently, in Connecticut Employees Union “Independent,” Inc. v. Connecticut State Employees Assn., Inc., 183 Conn. 235, 439 A.2d 321 (1981), we had heard an appeal from, inter alia, the granting of a permanent prohibitory injunction. In deciding the appeal, we noted that the trial court had denied a motion for a stay of the injunction pending our final decision in the matter. Id., 243 n.12. These cases implicitly recognize that permanent prohibitory injunctions generally have not been considered to be automatically stayed pending appeal, because had they been, the enjoined party would not have perceived a need to move for a stay. Furthermore, in Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 7, 469 A.2d 778 (1984), we stated that “injunctions continue in effect pending appeal unless the trial court, upon application, orders their stay.” This statement is not dispositive, however, because it was dictum and it was predicated on a statute pertaining to mandatory injunctions.

We reach a similar conclusion as to prohibitory injunctions by reasoning from the applicable General Statutes. General Statutes §§ 52-477 and 52-476 govern the stay of injunctions pending appeal, and although neither addresses our specific concern, neither statute provides for an automatic stay. Under both statutes, a party must apply for a stay and the trial court must make a determination whether to stay the judgment. Thus, it is unlikely that the legislature intended permanent prohibitory injunctions to be stayed automatically pending appeal.

In the case of mandatory injunctions, § 52-477 creates a presumption in favor of granting an application to stay the mandatory injunction pending appeal. This presumption reflects the burden imposed by a mandatory injunctive order, and the legislature’s intention to maintain the status quo by not imposing the injunctive burden prematurely. If it is necessary to apply for a stay of a mandatory injunction, then a fortiori it ought to be necessary to apply for a stay of a prohibitory injunction, because the reason to stay a mandatory injunction, namely, to save a party from assuming undue burdens pending appeal, is stronger than the reason to stay a prohibitory injunction, which is simply to preserve the previously existing rights and obligations of the parties pending the appeal’s resolution. These are the policies that underlie the common law distinction between stays of mandatory and prohibitory injunctions pending appeal. See Helbig v. Phillips, supra, 109 N.J. Eq. 546.

In the context of temporary injunctions, § 52-476 employs the opposite presumption in order to advance similar policies. Section 52-476 provides that if a temporary injunction was initially granted and later dissolved after a final hearing on the merits, and either party intends to appeal, there is a presumption in favor of granting an application to continue the temporary injunction pending appeal. Thus, the statute reflects the importance placed by the legislature on maintaining the status quo pending appeal. See Stamford v. Kovac, 228 Conn. 95, 101, 634 A.2d 897 (1993); H.O. Canfield Co. v. United Construction Workers, 134 Conn. 358, 362-63, 57 A.2d 624 (1948) (discussing predecessor to General Statutes § 52-476); Olcott v. Pendleton, 128 Conn. 292, 22 A.2d 633 (1941) (same).

Furthermore, practical considerations lead us to conclude that in the case of both prohibitory and mandatory injunctions, the enjoined party ought to be required to request the trial court to rule on a stay pending appeal, and that absent such a request, the injunction ought to be considered in effect. Although, as we have noted, different portions of the same injunction may be treated differently for some purposes; see footnote 12; the fact that the same injunction may have both prohibitory and mandatory aspects counsels that both aspects be treated similarly for purposes of whether the injunction is automatically stayed pending appeal.

We therefore conclude that the permanent prohibitory injunction in this case was not automatically stayed pending appeal. The trial court therefore acted within its authority when it held the defendants in contempt of court for failing to obey the injunction, despite the pendency of the defendants’ appeal.

B

The defendants also claim that the trial court improperly held them in contempt for disobeying the injunc-tive order because the contempt finding was made in violation of their due process rights and lacked factual support. We disagree.

We first note that this appeal is from a finding of civil contempt and, therefore, “our review is technically limited to questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt.” (Internal quotation marks omitted.) Papa v. New Haven Federation of Teachers, 186 Conn. 725, 731, 444 A.2d 196 (1982). “Although Papa recognizes that plenary review of civil contempt orders extends to some issues that are not truly jurisdictional, its emphasis on fundamental rights underscores the proposition that the grounds for any appeal from a contempt order are more restricted than would be the case in an ordinary plenary appeal from a civil judgment.” Commissioner v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 666, 594 A.2d 958 (1991); Dunham v. Dunham, 217 Conn. 24, 29-30, 584 A.2d 445 (1991).

Recognizing the limited appellate review of the contempt order, the defendants first cast their arguments in terms of constitutional due process. Specifically, they contend that they were not sufficiently advised of the charges against them because the plaintiff’s motion for contempt only charged them with contempt from July 1, 1993, but the trial court found the defendants in contempt from August 28, 1992.

Although it is undisputed that a civil contemnor has a due process right to be advised of the charges against him; Bryant v. Bryant, 228 Conn. 630, 637, 637 A.2d 1111 (1994); we conclude that the defendants’ rights were adequately protected in this case. First, there can be no doubt that the defendants were on notice that they were enjoined from further quarrying when the injunction was issued in August, 1992. Second, the issues, including the relevant dates, were fully aired in the hearings on the plaintiff’s motion for immediate enforcement and the plaintiff’s motion for contempt. Indeed, in the first hearing, the trial court warned the defendants by apprising the plaintiff: “If I’ve got an injunction outstanding and there is no stay and you come in for contempt, I’m going to give you contempt.” Third, the trial court’s memorandum of the decision on the plaintiff’s motion for immediate enforcement, which it issued on December 14, 1992, indicated that a stay of the injunctive order was unlikely and that contempt was an appropriate remedy for the plaintiff. The defendants thus had adequate notice that they were at risk of being held in contempt if they continued to quarry. The time increments in the order of contempt reflect the development of the case.

The defendants also contend that the contempt order was not authorized by law because it lacks factual support that the defendants continued to quarry. This claim fails in light of the defendants’ stipulation, in the contempt hearing, that they were still quarrying: “We do stipulate that my clients’ activities are ongoing. They were ongoing when the motion for immediate enforcement was heard before the court on September 8th 1992.1 think everybody was fully aware of that.” The trial court’s factual findings and ultimate conclusion are adequately supported by the record and are not clearly erroneous. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The judgment is affirmed.

In this opinion the other justices concurred.

       The individual partners of A. Aiudi and Sons are officers and principal shareholders of October Twenty-Four, Inc.

       We transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       This claim exceeds the scope of our remand to the trial court and is not properly part of the current appeal. In Tomasso I, the defendants alleged that the trial court had not only improperly ordered the injunction, but also had improperly: (1) found that the defendants’ activity constituted a nui-sanee; and (2) excluded certain evidence. We affirmed the trial court’s judgment on the nuisance and the evidentiary issues. Tomasso I, supra, 221 Conn. 194.
      Regarding the injunction, we stated: “Without limiting the scope of the trial court’s authority upon remand, we deem it likely that the trial court will want to consider evidence about the impact of the defendants’ quarry operations on the plaintiff’s new plan of development. Taking into account whatever circumstances it deems relevant, the trial court should then exercise its equitable discretion to reexamine the plaintiff’s claim for injunc-tive relief and the obligations that an injunctive order imposes upon the defendants.” Id., 203.
      Although we did not intend to “[limit] the scope of the trial court’s authority upon remand”; id.; we also did not intend to reopen the question of nuisance. In the context of the entire opinion, it is clear that the remand was limited to the equitable question of the issuance of the injunction. We disposed of the nuisance issue in part I of Tomasso I. The defendants may not resurrect issues that were resolved in the previous appeal. Dacy v. Connecticut Bar Assn., 184 Conn. 21, 441 A.2d 49 (1981).
      Moreover, even if reexamination of the nuisance issue were appropriate, we would conclude that the trial court’s determinations regarding nuisance were not clearly erroneous. See Dalia v. Lawrence, 226 Conn. 51, 71-72, 627 A.2d 392 (1993). This deference to the trial court is especially warranted in this case, in which the same trial court, O’Neill, J., heard both stages of the trial level proceedings, and therefore was undoubtedly aware of the evidence introduced at both stages.

       The order of December 21, 1990, stated: “The defendants shall cease all quarrying activity including but not limited to all blasting and rock removal from [October Twenty-Four’s] property within ten (10) days after the plaintiff’s plan of development for a technology park development is approved by the appropriate authority or authorities of the town of Plain-ville. This order is not applicable to any development plan approved for only industrial or light industrial development. This order shall not be stayed from the date of such municipal approval for any reason including any possible appeals from such municipal authorization, whether successful or not.”
      The trial court did not base the injunction upon, and expressly declined to address, the purported illegality of the defendants’ use of the property. In deciding the nuisance issue in Tomasso I, supra, 221 Conn. 197-98, however, we held the defendants to the uncontroverted allegation that the use of the property was illegal.

       Currently on appeal. October Twenty-Four, Inc. v. Planning & Zoning Commission, Appellate Court, Docket No. 12655, argued April 25, 1994.

       In 1989, the defendants removed about 180,000 tons of rock, generating about 18,000 truck trips past the plaintiffs property.

       The order of August 7, 1992, stated: “Defendants shall cease all quarrying activity including but not limited to all blasting and rock removal from the Corporation’s property within ten (10) days after the plaintiff’s plan of development for a technology park development is approved by the appropriate authority of the town of Plainville. This does not include filing of any plan or plans with the town clerk.”
      The relevant approval had been obtained by operation of law on March 20, 1992. See General Statutes § 8-7d. In addition, the Plainville authorities voted approval of the application on May 12, 1992. Thus, nothing further was needed to trigger the injunction.

       In the trial underlying Tomasso I, the plaintiffs vice-president testified that forty million dollars would compensate the plaintiff for the loss of the ability to develop the property into the technology park.

       The plaintiff claims that the judgment of contempt does not constitute a final judgment for purposes of appeal. Specifically, the plaintiff contends that the trial court’s judgment is not final because it fixes only the fine schedule and not the amount of the fine itself. The plaintiff relies for authority on Perry v. Perry, 222 Conn. 799, 804, 611 A.2d 400 (1992), and In re Dodson, 214 Conn. 344, 361, 572 A.2d 328, cert. denied, 498 U.S. 896, 111 S. Ct. 247, 112 L. Ed. 2d 205 (1990). We disagree.
      In Bryant v. Bryant, 228 Conn. 630, 636, 637 A.2d 1111 (1994), we concluded that a civil contempt finding based upon the determination of an arrearage under a dissolution decree is an appealable final order. We reasoned that such a finding so substantially resolves the rights and duties of the parties that further proceedings relating to the judgment of contempt could not affect them. Id. To the degree that Perry was inconsistent with this conclusion, it was overruled. In re Dodson involved a criminal contempt, implicating somewhat different policies, and it held that the judgment was not appealable until the trial court imposed the fine.
      In this case, the trial court has already determined the fine. All that remains is the purely ministerial act of calculating the fine after the defendants begin to abide by the judgment. The judgment is therefore final for purposes of appeal.

       Practice Book § 4046 provides in relevant part: “[AUTOMATIC STAY OF EXECUTION]-IN GENERAL
      “In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired; if an appeal is filed, such proceedings shall be stayed until the final determination of the cause; and, if the case goes to judgment on appeal, until ten days after the decision is announced; but if the judge who tried the case is of the opinion that an extension to appeal is sought or the appeal is taken only for delay or that the due administration of justice so requires that a judge may at any time, upon motion and hearing, order that the stay be terminated. This section shall not apply to actions concerning attorneys pursuant to chapter 2, to periodic alimony and support orders, as well as to custody or visitation orders in domestic relations matters brought pursuant to chapter 17, to criminal matters brought pursuant to chapter 22 through 30 or to juvenile matters brought pursuant to chapters 31 through 40 other than any transfer orders to the regular criminal docket. . . .” (Emphasis added.)

       In the time between the two motions, the plaintiff sought an order of contempt in a related case for violation of a preliminary injunction ordering the defendants to stop quarrying. See Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 646 A.2d 772 (1994). In accordance with that preliminary injunction, the defendants stopped quarrying for a brief period.

       It is sometimes difficult in practice to distinguish between mandatory and prohibitory injunctions. If an injunction is of dual or mixed character, it is possible to treat different portions of the order differently. See annot., 93 A.L.R. 723 (1934).

       Practice Book, 1934, § 366 provides: “stay OF EXECUTION
      “In all civil actions, execution shall be stayed for two weeks after final judgment; and if an appeal be filed, or a notice of appeal as provided in Sec. 368, then execution shall be stayed until the final determination of the cause; but if the judge trying the same is of the opinion that the appeal is taken only for delay, or that the due administration of justice requires it, he may order execution at any time upon motion and hearing.
      “If a stay of execution has been ordered by a trial court and [the supreme court] shall, upon appeal, advise that no new trial be granted, or decide that there has been no error, any judge of the court which ordered the stay may release it by giving a written order to that effect to the clerk, who shall file it with the papers in said cause, and thereupon issue such execution.

        “Such stay applies to every judgment in a civil action providing for the recovery of damages or requiring the performance of an act. ” (Emphasis added.)
      This section was the predecessor to § 4046 of the current Practice Book. See also Practice Book, 1922, § 17; Practice Book, 1908, § 16. The 1934 Practice Book was drafted shortly after the legislature enacted legislation purporting to grant authority to the courts to adopt rules of practice. Public Acts 1929, c. 301, §§ 12, 14; Northeastern Gas Transmission Co. v. Benedict, 139 Conn. 36, 39-40, 89 A.2d 379 (1952).

       The reference to damages or the performance of an act was eliminated from the Practice Book in 1951. Practice Book, 1951, § 411.

       The defendants contend that Cologne v. Westfarms Associates, 197 Conn. 141, 142, 496 A.2d 476 (1985), provides an example of a party moving to lift a stay of a permanent prohibitory injunction, which would only have been necessary if the stay were automatic. After the court issued the injunction in Cologne, the plaintiffs, apparently uncertain whether the existing version of Practice Book § 4046 automatically stayed the injunction, filed a “motion for contempt and/or motion to vacate stay.” The trial court granted the motion and subsequently held the defendants in contempt. The question of the stay was not, however, part of the appeal and the uncertainty was never resolved.
      The defendants also contend that Cott Beverage Corp. v. Canada Dry Ginger Ale, Inc., 21 Conn. Sup. 244, 154 A.2d 140 (1959), and H.O. Canfield Co. v. United Construction Workers, 134 Conn. 358, 362-63, 57 A.2d 624 (1948), hold that permanent prohibitory injunctions are stayed pending appeal. Although Cott Beverage Corp. states that the injunction in that case was stayed pending appeal pursuant to the rules of practice, it does not indicate whether the injunction was prohibitory or mandatory, thus providing us with little guidance. H.O. Canfield Co. pertains to the application for a continuance of a temporary injunction under the predecessor to General Statutes § 52-476. See discussion that follows. Therefore neither case supports the defendants’ cause.

       General Statutes § 52-477 provides: “permanent injunction; stay pending appeal. When judgment has been rendered for a permanent injunction ordering either party to perform any act, the court, upon an application similar to that mentioned in section 52-476, shall stay the operation of such injunction until a final decision in the court having jurisdiction, unless the court is of the opinion that great and irreparable injury will be done by such stay or that such application was made only for delay and not in good faith.”
      This statute, in various forms, has been in existence for many years. See General Statutes (1949 Rev.) § 8213; General Statutes (1930 Rev.) § 5904; General Statutes (1918 Rev.) § 6046; Public Acts 1884, c. 24.

       The defendants argue that this statute is superfluous and inconsistent with our rules of practice. Relying on Professor Stephenson’s treatise on civil procedure; 2 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1971) § 269, p. 1113; they contend that under General Statutes § 52-477 the injunction may be stayed only upon application, whereas under the rules of practice the injunction is stayed automatically. Stephenson’s treatise, however, was written before the January, 1985 amendment to the Practice Book added the clause “except where otherwise provided by statute or other law” to the provision governing stays pending appeal. See footnote 10. This amendment arguably resolved any inconsistency between the Practice Book and the General Statutes. See Cologne v. Westfarms Associates, 197 Conn. 141, 143 n.4, 496 A.2d 476 (1985); see also Barber v. Barber, 15 Conn. Sup. 271, 272 (1948) (holding that predecessor to General Statutes § 52-477 and preamendment predecessor to Practice Book § 4046 are not inconsistent).

       The legislature’s decision to require an application to stay a mandatory injunction could arguably be read to imply that no application is necessary to stay a prohibitory injunction. We decline, however, to read such an implication into the statute. The plain language of General Statutes § 52-477 applies only to permanent mandatory injunctions and we see no reason why it should affect other provisions relating to other kinds of injunctions.

       General Statutes § 52-476 provides: “continuance pending appeal. When a temporary injunction has been granted and upon final hearing judgment has been rendered adverse to its continuance, either party may apply to the court rendering the judgment, representing that he intends to appeal the case to the court having jurisdiction and praying that the temporary injunction may be continued until the final decision therein. Unless the court is of the opinion that great and irreparable injury will be done by the further continuance of the injunction, or that the application was made only for delay and not in good faith, the court shall continue the injunction until a final decision is rendered in the court having jurisdiction.”
      This statute has also been in existence for many years. See General Statutes (1949 Rev.) § 8212; General Statutes (1930 Rev.) § 5903; General Statutes (1918 Rev.) § 6045; Public Acts 1884, c. 24.

       We note that if the defendants had wished to clarify this issue without risking the judgment of contempt, they could have filed a motion to stay the injunction. They chose instead to continue to quarry and risk vindication on appeal. We have held, however, that a party has a duty to obey a court order even if the order is later held to have been unwarranted. Mulholland v. Mulholland, 229 Conn. 643, 649, 643 A.2d 246 (1994); Cologne v. Westfarms Associates, 197 Conn. 141, 147, 496 A.2d 476 (1985).

       We note that the plaintiffs motion actually charges contempt from “at least” July 1, 1993.


author: Palmer, J.

text:
    Water and Way Properties v. Colt’s Manufacturing Company, Inc., et al.
    (14888)
    Peters, C. J., Borden, Norcott, Katz and Palmer, Js.

      Argued June 2
    decision released August 9, 1994

      Elena M. Gervino, with whom were Katherine A. Burroughs and, on the brief, Elliot N. Solomon, for the appellant (defendant Coltec Industries, Inc.).

      Richard P. Kuzmak, for the appellee (plaintiff).
   Palmer, J.

This case requires us to decide the extent and specificity of a lessee’s obligations under a lease that had been assigned to another party with the consent of the lessor. The lessor, Water and Way Properties (plaintiff), brought this action against the lessee, Coltec Industries, Inc. (defendant), and the assignee under the lease, Colt’s Manufacturing Company, Inc. (Colt), to recover unpaid rent and utility charges due under a lease agreement. The trial court granted the plaintiff’s motion for summary judgment against the defendant on counts two and three of the complaint, concluding that the defendant was liable for rent and utility charges under the lease. The defendant appeals from the judgment of the trial court, claiming that the trial court improperly rendered summary judgment for the plaintiff on the issue of the defendant’s liability for utility charges. We affirm.

The relevant facts and procedural background are as follows. In 1975, Holt Associates, Inc., leased certain premises located at 150 Huyshope Avenue in Hartford, more commonly known as the Colt Industrial Park, to Colt Industries Operating Corporation (CIOC). In 1979, the plaintiff acquired title to both the premises and the lease. The defendant is the successor in interest to CIOC under the lease. The parties amended the lease on three separate occasions, agreeing to extend its terms to June, 1996. The defendant also agreed to make certain tax, water, steam and parking payments, in addition to paying the base rent.

In March, 1990, the defendant transferred its firearms division to Colt. Included in this transfer was an assignment to Colt of the defendant’s interest in its lease with the plaintiff. The plaintiff consented to the assignment, on the specific condition that the assignment did not relieve the defendant of its obligations under the lease.

In January, 1992, the plaintiff brought this action, alleging that the defendant was responsible for various obligations under the lease due to Colt’s failure to have made certain payments thereunder. The plaintiff sought to recover unpaid rent and other charges due under the lease, including rent for the premises, tax payments, rent for the parking lot, parking lot tax payments, and payments for water and steam consumption (utility charges).

After the plaintiff and the defendant filed motions for summary judgment, the trial court granted in part the plaintiff’s motion and rendered summary judgment against the defendant on the issue of liability, concluding that the defendant was liable to the plaintiff for all payments that Colt had failed to make under the lease. Thereafter, the parties entered into a stipulation on the amount of damages due the plaintiff from the defendant. The trial court rendered judgment for the plaintiff, on the basis of the stipulation, and this appeal followed.

On appeal, the defendant disputes only its liability for utility charges under the lease. The defendant acknowledges its responsibility to pay rent under the lease, but contends that the trial court improperly concluded that the utility charges constituted “rent” thereunder. The defendant further claims that summary judgment was inappropriate because the language of the lease was susceptible of at least two reasonable interpretations, thereby demonstrating the existence of an issue that required resolution by the trier of fact. We disagree.

The 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.” “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 106, 639 A.2d 507 (1994). “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” (Internal quotation marks omitted.) Scinto v. Stamm, 224 Conn. 524, 530, 620 A.2d 99, cert. denied, U.S. , 114 S. Ct. 176, 126 L. Ed. 2d 136 (1993). “It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Internal quotation marks omitted.) Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984).

Article eighth of the lease agreement provides that upon the assignment of the lease, the defendant “shall remain primarily responsible for the payment of the rent and the performance of all of the terms and conditions of the within Lease.” The trial court concluded that the utility charges constituted rent within the meaning of article eighth based on the express provisions of article sixth of the lease, which state that the utility charges “shall be due when bills therefor are rendered, and, if not promptly paid, the amount thereof shall be deemed additional rent and may be added to the next, or any subsequent, installment of rent and may be collected in the same manner as rent.” The defendant does not dispute the fact that Colt has failed to pay the utility charges. Because of nonpayment by Colt, the assignee, such charges became additional rent under article sixth. The trial court properly concluded that under the plain terms of articles sixth and eighth, additional rent is rent for which the defendant remained liable.

The defendant claims that because the lease distinguishes between “rent” and “additional rent,” the parties must have intended to treat them as separate and unrelated obligations. From this premise, the defendant concludes that it is responsible only for “rent” and not for “additional rent.” This strained construction urged by the defendant is not reasonable in view of the clear and unambiguous language used by the parties. “In determining the meaning and effect of the controverted language in the lease, the inquiry must focus on the intention expressed in the lease and not on what intention existed in the minds of the parties.” Hatcho Corp. v. Della Pietra, 195 Conn. 18, 21, 485 A.2d 1285 (1985). Therefore, “[t]he controlling factor is the intent expressed in the lease, not the intent which the parties may have had or which the court believes they ought to have had.” Ingalls v. Roger Smith Hotels Corp., 143 Conn. 1, 6, 118 A.2d 463 (1955). Article sixth explicitly provides that unpaid utility charges are to be treated as rent under the lease and, as such, are to be added to the rent and collected as rent. As the trial court concluded, such charges are plainly rent as that term is used in article eighth. The use of the adjective “additional” before the noun “rent” did nothing to alter the otherwise plain meaning of article sixth.

Even if the provisions of articles sixth and eighth did not definitively resolve the issue of the defendant’s responsibility for the utility payments, we would still conclude, on the basis of the terms of article eighth of the lease and the plaintiff’s consent to the assignment, that the trial court properly rendered summary judgment for the plaintiff. Article eighth expressly provides that upon the assignment of the lease, the defendant “shall remain primarily responsible for . . . all of the terms and conditions” of the lease (emphasis added), and the consent agreement states that “neither the Assignment Agreement nor this Consent shall relieve . . . [the defendant] from full performance of its obligations under the . . . [lease].” (Emphasis added.) Construed according to its ordinary meaning, the language of article eighth and the consent agreement clearly reflects the parties’ understanding that the defendant would continue to be responsible under the lease for all of its terms and conditions, including the utility charges, after the lease had been assigned.

The defendant claims nonetheless that the trial court should not have granted the plaintiff’s motion for summary judgment because the defendant’s interpretation of articles sixth and eighth of the lease, even if not definitive, is a reasonable interpretation that a trier of fact might find persuasive. For the reasons we have already stated, we do not agree with the defendant’s contention that its construction of the lease is reasonable. Although ordinarily the question of contractual intent presents a question of fact for the ultimate fact finder, where the language is clear and unambiguous it becomes a question of law for the court. Connecticut National Bank v. Douglas, 221 Conn. 530, 545, 606 A.2d 684 (1992); Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 130-31, 523 A.2d 1266 (1987); Kakalki v. Bernardo, 184 Conn. 386, 393, 439 A.2d 1016 (1981). “When the plain meaning and intent of the language is clear, a clause in a written lease cannot be enlarged by construction. There is no room for construction where the terms of a writing are plain and unambiguous, and it is to be given effect according to its language. . . . [We] will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Citation omitted; internal quotation marks omitted.) Collins v. Sears, Roebuck & Co., 164 Conn. 369, 373-74, 321 A.2d 444 (1973); Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702-703, 569 A.2d 1131 (1990). Because the language in the lease is plain and unambiguous, the defendant is liable for utility charges under the lease. The trial court, therefore, properly granted the plaintiff’s motion for summary judgment.

The judgment is affirmed.

In this opinion the other justices concurred.

       The original complaint, dated January 14, 1992, named both Coltec Industries, Inc., and Colt as defendants. The first count of the complaint was directed at Colt. The second count was directed at Coltec Industries, Inc., and the third count was directed at both defendants. On March 18, 1992, Colt filed for bankruptcy under chapter 11 of the United States Bankruptcy Code. Consequently, all proceedings against it, including the action brought by the plaintiff, were stayed by order of the United States Bankruptcy Court. Colt, therefore, is not a party to this appeal.

       The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The court rendered partial summary judgment ibr the plaintiff on count two of the complaint. The defendant had also been named, with Colt, in count three of the complaint. Count three was resolved by stipulation of the parties and is not, therefore, the subject of this appeal.
      The trial court also granted summary judgment against the defendant on count one, a count in which only Colt, and not the defendant, had been named. The error appears to have been brought to the attention of the trial court, however, because the judgment contains no reference to count one. The plaintiff’s claim against Colt in count one has been stayed pending a resolution of the Colt bankruptcy proceedings. See 11 U.S.C. § 362 (a) (1).

       The stipulation contains an express reservation by the defendant of its right to appeal the summary judgment rendered against it on the issue of liability.

       The summary judgment rendered in favor of the plaintiff on count two of the complaint, which is the subject of the defendant’s appeal, is a final judgment. Because of Colt’s petition for bankruptcy under chapter 11, the plaintiff’s claim against it on count one has been stayed and is still pending. See footnote 3. The continued pendency of count one as to Colt, however, does not affect the finality of the judgment from which the defendant has appealed because the defendant is not named in count one. See Practice Book § 4002 (c).

       The complete text of article eighth of the lease is as follows: “[Coltec Industries, Inc.,] or any subtenant may sublet all or any part of the leased premises or assign the within Lease with the prior written consent of [Water and Way Properties], which consent will not be unreasonably withheld, provided, however that [Coltec Industries, Inc.,] shall remain primarily responsible for the payment of the rent and the performance of all of the terms and conditions of the within Lease.”

       We also note that article twenty-eighth of the lease agreement provides that the lease terms “shall be construed and performed in accordance with the laws of the State of Connecticut.” It is settled law in this state that the assignment of a lease presumptively does not release the lessee from responsibility to the lessor for all of its obligations under the lease. Carrano v. Shoor, 118 Conn. 86, 94, 171 A. 17 (1934). In view of this general rule, it strains credulity that the corporate parties to this commercial lease would not have expressed in clear and certain terms their intention that the defendant be released from responsibility for the utility charges, had that in fact been their intent.