author: Arthur H. Healey, J.

text:
    John Malvicini v. Stratfield Motor Hotel, Inc., et al.
    (13094)
    Healey, Shea, Callahan, Covello and Hull, Js.
    Argued December 4, 1987
    decision released March 8, 1988

      Raymond F. Ross, for the appellant (plaintiff).

      Peter J. Dauk, with whom, on the brief, were Lesley Torsiello and Sheila Tierney, for the appellee (named defendant).
   Arthur H. Healey, J.

The plaintiff, John Malvicini, appeals from a judgment in favor of the defendants, Stratfield Motor Hotel, Inc., and United National Corporation, in an action for personal injuries allegedly-suffered by the plaintiff when the water in the defendants’ shower suddenly turned hot. The sole issue in this appeal is whether the trial court committed reversible error when it refused to charge the jury, as requested by the plaintiff, with respect to the doctrine of res ipsa loquitur.

The jury could reasonably have found the following facts. The plaintiff checked into the defendant Stratfield Motor Hotel, Inc., on July 6, 1977, at about 9 p.m. Before retiring that night, he took a shower. The shower was in a tub enclosed with a glass or plastic door. He awakened the next day, went into the bathroom, turned on the shower and “regulated” or “adjusted” the water. He then went to the toilet. A minute or two after he had first turned on the water he got into the shower. It is his standard procedure “all the time” to turn on the shower, adjust it, feel the water and then get in. Once he got into the shower, he did not make any adjustment to the knobs at all. At that time, the water was “pleasant,” he “soaped up,” and after “about a minute or two” he heard a “pssst” sound and he was hit with steaming hot water. He fell at least twice in the tub, hitting various parts of his body. Thereafter, having apparently opened the shower door, he found himself on the floor of the bathroom. There was a hole in the shower door and the plaintiff had “all kinds of chips on [himself].”

The plaintiff alleged that he had received first degree burns on his chest and neck, a concussion and three herniated discs. He also testified on direct examination that “there were no strips, no skid strips, no mat, no nothing,” just a shower and bathtub that was enclosed in glass on the morning of his alleged accident. On cross-examination, he testified that the night before, when he had taken his shower, there had been no skid mat on the floor and that there had been no skid strips in the tub, “but there was no problem.”

The defendants’ front office manager, Agnes Lowery, who was on duty at the desk when the plaintiff checked out, testified that after he complained about the general quality of the bathroom, she immediately went up to the plaintiff’s room with one of her fellow workers and “tried everything and everything worked.” The manager “turned on all the faucets [herself],” including checking the water in the shower room which she found “normal.” She also said that at that time she “definitely” had observed safety strips in the tub where the shower was located. She said that “is one of the things we always looked for every morning.” Lowery further said that the defendants had been in the process of renovating the hotel in connection with a sale, that in the renovation all the strips had been replaced “and [that] section had just been opened shortly before [the plaintiff] came to us.”

The jury found for the defendants and the plaintiff appealed, claiming that the trial court erred in refusing to charge the jury on the doctrine of res ipsa loquitur. The plaintiff filed a request to charge on res ipsa loquitur and took a timely exception. We find no error.

The doctrine of res ipsa loquitur, literally “the thing speaks for itself,” permits a jury to infer negligence when no direct evidence of negligence has been introduced. This doctrine was discussed by this court in the leading case of Stebel v. Connecticut Co., 90 Conn. 24, 26, 96 A. 171 (1915), where we held that “the doctrine of res ipsa loquitur is a rule of common sense and not a rule of law which dispenses with proof of negligence. It is a convenient formula for saying that a plaintiff may, in some cases, sustain the burden of proving that the defendant was more probably negligent than not, by showing how the accident occurred, without offering any evidence to show why it occurred.” Schurgast v. Schumann, 156 Conn. 471, 479, 242 A.2d 695 (1968). “Where common experience has demonstrated that no injury would ordinarily result from a situation, condition or apparatus unless there was careless construction, inspection or user, and the construction, inspection and- user were all in the control of the party charged with neglect, no voluntary action of the party injured being involved, common sense permits an inference of negligence from proof of the injury and the physical agency inflicting it, without requiring proof of facts pointing to the responsible human cause. The result is simply that such proof, without proof of further facts tending to show negligence, satisfies the plaintiffs duty of producing evidence sufficient to permit the trier, whether court or jury, to draw an inference of negligence. Ruerat v. Stevens, 113 Conn. 333, 337, 155 A. 219 [1931]. The doctrine permits, but does not compel, such an inference. Fogarty v. M.J. Beuchler & Son, Inc., 124 Conn. 325, 330, 199 A. 550 [1938]. The doctrine has no evidential force, does not shift the burden of proof and does not give rise to a presumption. Ryan v. George L. Lilley Co., 121 Conn. 26, 30, 183 A. 2 [1936]. It is but a specific application of the general principle that negligence can be proved by circumstantial evidence.” Lowman v. Housing Authority, 150 Conn. 665, 670, 192 A.2d 883 (1963); see generally W. Prosser & W.P. Keeton, Torts (5th Ed. 1984) § 349; F. Harper, F. James & O. Gray, Torts (1986) §§ 19.5 through 19.12.

“We have frequently stated the three conditions under which the doctrine might apply: (1) The situation, condition, or apparatus causing the injury must be such that in the ordinary course of events no injury would result unless from a careless construction, inspection or user. (2) Both inspection and user must have been at the time of the injury in the control of the party charged with neglect. (3) The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured.” Schurgast v. Schumann, supra; Briganti v. Connecticut Co., 119 Conn. 316, 320, 175 A. 679 (1934); Stebel v. Connecticut Co., supra, 26; 4 F. Harper, F. James & O. Gray, supra. Whether the doctrine applies in a given case is a question of law for the court. See Ryan v. Lilley Co., supra, 31; Metz v. Central Illinois Electric & Gas Co., 32 Ill. 2d 446, 449, 207 N.E.2d 305 (1965); Kaufman v. Fisher, 230 Or. 626, 639, 371 P.2d 948 (1962); Fleege v. Cimpl, 305 N.W.2d 409, 413 (S.D. 1981).

The plaintiff pleaded and claims to have proved the conditions required for invocation of the doctrine of res ipsa loquitur. He maintains that the first condition was fulfilled because water from a shower does not ordinarily become scalding hot in the absence of someone’s negligence. A number of jurisdictions agree. See, e.g., Terrell v. Lincoln Motel, Inc., 183 N.J. Super. 55, 60, 443 A.2d 236 (1982); Wolfe v. Chateau Renaissance, 141 N.J. Super. 59, 65, 357 A.2d 282 (1976); Watson v. Compagnie Generale Transatlantique, 147 Misc. 697, 699, 264 N.Y.S. 570 (1932); Brooks v. Utah Hotel Co., 108 Utah 220, 224, 159 P.2d 127 (1945); see generally annot., 93 A.L.R.3d 247, 279. The defendants argue that the weight of the evidence contradicting the plaintiff’s claims rebuts this first condition and precludes the invocation of res ipsa loquitur. This argument, however, is actually an attack upon the plaintiff’s version of the incident, and does not relate to whether, as a matter of common experience, it can be said that a shower does not ordinarily turn suddenly hot in the absence of negligence. We agree with the plaintiff that the first condition for the application of res ipsa loquitur is fairly met.

The third condition required in Connecticut is that the injury must have occurred irrespective of any voluntary action by the plaintiff. The defendants’ brief does not contest this requirement. One noted treatise observes that “[w]hat is needed here is that [the] plaintiff’s own negligence, along with that of anyone else for whom [the] defendant is not responsible, be eliminated as to the principal cause of the accident, so as to complete the basis for an inference that the negligence of which the thing speaks for itself is probably that of the defendant.” 4 F. Harper, F. James & O. Gray, supra, § 19.8, p. 58. If, for example, the water in the shower had suddenly turned hot because of a defect in the boiler, shower equipment or plumbing system, such a circumstance would not have been attributable to the plaintiff’s act of negligence. It is also worthy of note that in a jurisdiction that utilizes the doctrine of comparative negligence, such as Connecticut, the emerging rule is that any negligence by the plaintiff should not bar liability but should merely reduce damages. See, e.g., Montgomery Elevator Co. v. Gordon, 619 P.2d 66, 70 (Colo. 1980); Watzig v. Tobin, 292 Or. 645, 650 n.4, 642 P.2d 651 (1982); Turtenwald v. Aetna Casualty & Surety Co., 55 Wis. 2d 659, 665, 201 N.W.2d 1 (1972). Commentators have suggested that the doctrine of res ipsa loquitur should survive under Connecticut’s comparative negligence law. See G. Saden, “Comparative Negligence Adopted in Connecticut,” 47 Conn. B.J. 416, 426 (1973); F. James, “Connecticut’s Comparative Negligence Statute: An Analysis of Some Problems,” 6 Conn. L. Rev. 207, 215 (1973-74).

The plaintiff’s claim of the applicability of res ipsa loquitur fails, however, because it does not satisfy the requirement that the instrumentality that caused the injury be within the exclusive control of the defendants. “The purpose of that condition is to exclude the possibility of an intervening act of the plaintiff or a third party which causes or contributes to produce the accident, and it undoubtedly states a necessary precaution for a sound application of the rule in most cases.” Jump v. Ensign-Bickford Co., 117 Conn. 110, 122, 167 A. 90 (1933). Our cases have said that the term “ ‘user’ implies the idea of management and control as well as actual use.” Pollack v. Gampel, 163 Conn. 462, 474, 313 A.2d 73 (1972); Conlon v. G. Fox & Co., 165 Conn. 106, 112, 328 A.2d 708 (1973); Bluett v. Eli Skating Club, 133 Conn. 99, 103, 48 A.2d 557 (1946); see Briganti v. Connecticut Co., supra, 321; J. Wigmore, Evidence (3d Ed. 1940) § 2509. We appreciate, on the one hand, that the “exclusive control” portion of the res ipsa loquitur formulation, if applied strictly and literally, may, in a given case, lead to placing too heavy a burden upon a plaintiff. See W. Prosser, Torts (4th Ed. 1971) § 39, pp. 219-20; 4 F. Harper, F. James & O. Gray, supra, § 19.7, p. 45 et seq. On the other hand, if the doctrine is loosely extended to situations where the defendant is not in exclusive control at the time of the injury, its application in such a case might impose an almost insuperable problem of rebuttal upon a defendant. This doctrine should be applied where the conditions for its applications exist and thus support the fairness of its use.

“The point of requiring control by the defendant is, as indicated by Prosser, to provide the basis for an inference that whatever negligence was involved may properly be charged to the defendant.” Hoven v. Kelble, 79 Wis. 2d 444, 454, 256 N.W.2d 379 (1977); see W. Prosser, supra, § 39, pp. 219-21. For the control condition of the res ipsa loquitur doctrine to apply, the plaintiff must adduce evidence from which the court, as. a matter of law, can properly determine that a jury could reasonably draw an inference that it is more probable than not that the person whose negligence caused the injury was the defendant and not some other party or agency. To do otherwise, permitting a “less-than-fair-probability” standard on control would sanction the permissibility of drawing of an “inference” of control that was not the permissible inference required and would be mere conjecture. A permissible inference rests upon premises of fact; conjecture does not. The plaintiff contends that he satisfied the control portion of the res ipsa loquitur formulation and that it was, therefore, reversible error not to have charged the jury on the doctrine. The trial court disagreed. We agree with the trial court.

There was evidence that the plaintiff adjusted or regulated the faucets on the day in question; he also had done so the night before when he had taken a shower. There was no evidence of the nature or method of operation of these faucets. There was no evidence of any mixing valve or mixing device in this shower or the faucets. There was no evidence of the nature, method or condition of the system in this hotel that produced, heated and channeled water to showers in the rooms, including the plaintiffs room. There was mention of a boiler during Lowery’s testimony. She had never seen it. She did not know how old it was. She did not know whether it was the original boiler. There was no evidence whether the boiler, assuming it heated the water for showering, had a mixing valve or any controls on it. Lowery knew nothing when asked if she knew whether any work had been performed upon this boiler during the renovations of the hotel or if anyone had checked the boiler. She did know that renovations had been going on in the hotel itself for some time prior to July 6, 1977.

Giving the evidence that arguably points to the defendant its fairest construction, we cannot say that it rises to the quality of “more probable than not” on the control condition of the doctrine to justify submitting the issue of res ipsa loquitur to the jury. We have pointed out the evidence that was introduced, as well as relevant matters on which there was no evidence. Certainly the evidence that was before the trial court was not, as it decided, such that it could properly support a jury inference that “[b]oth inspection and user must have been at the time of the injury in control of the party charged with neglect.” Schurgast v. Schumann, supra.

Moreover, the trial court, in viewing all of the evidence, could not reasonably assume that the lack of evidence going to the control condition of the doctrine could be supplied by the jurors from their own experience. It is true that the trier of fact is entitled to draw all reasonable and logical inferences from the evidence. See Hennessey v. Hennessey, 145 Conn. 211, 214-15, 140 A.2d 473 (1959). “Jurors are not ‘expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.’ ” Frankovitch v. Burton, 185 Conn. 14, 22, 440 A.2d 254 (1981), quoting Chicago, M. & St. P. Ry. Co. v. Moore, 166 F. 663, 666 (8th Cir. 1909). It has been said that a jury may consider the nature of the property involved. Sentry Ins. v. Henderson, 138 Ga. App. 495, 498, 226 S.E.2d 759 (1976). We recognize that trials do not take place in a vacuum and justice correctly relies on the common sense and common experience of jurors. See Wood v. Mobil Chemical Co., 50 Ill. App. 3d 465, 478, 365 N.E.2d 1087 (1977). This is one factor, along with all of the other evidence, that the trial court was entitled to consider in deciding whether there was sufficient evidence on the control condition of the res ipsa loquitur formulation to permit the permissible inference to be drawn by the trier of fact. If there was sufficient evidence, it mattered not whether the trial court deemed it credible; that issue would be for the jury to decide. The trial court decided, as a matter of law, that there was not sufficient evidence to require an instruction on res ipsa loquitur. We agree.

There is no error.

In this opinion the other justices concurred.

       There was a conflict in the testimony about whether the plaintiff called the desk for assistance as the result of his alleged accident. He maintains that he did so. The defendants’ front officer manager, Agnes Lowery, testified no such request was received. The plaintiff testified that, in response to his request for medical assistance, a bellboy came up and picked up his bag and started to leave his room. The plaintiff followed him. He also maintained that he had asked the woman on the desk, who was the front office manager, for medical help but all that she kept saying was that someone was going to have to pay for the broken door in the shower. She testified that he had never said that he had had an accident but that he had said: “Well, you have lousy bathrooms. I don’t like your bathrooms. I’ll never stay here again.”

       The plaintiff’s amended complaint alleged that the defendants “owned, controlled, operated and/or maintained a hotel in the City of Bridgeport.” The defendants admitted this allegation.
      It also alleged seven acts of negligence against the defendants, each of which was denied.
      A later paragraph of the plaintiffs amended complaint alleged: “The water heating facilities, shower facilities and plumbing facilities were within the sole and exclusive control and management of the [named] defendant, its agent and employees and said occurrence and consequent injuries would not have occurred but for the negligence of the defendants.” This allegation was denied.

       We note that the trial court did charge the jury on the allegations of negligence in the amended complaint and that its charge also included instructions on circumstantial evidence.


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    City of Norwalk v. Connecticut State Board of Labor Relations et al.
    (13105)
    (13106)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued December 8, 1987
    decision released March 8, 1988

      Joseph M. Celentano, assistant counsel, for the appellant in the first case (named defendant).

      Jackson T. King, with whom, on the brief, was Frank J. Raccio, for the appellants in the second case (defendant Norwalk Police Union, Local 1727, et al.).

      M. Jeffry Spahr, assistant corporation counsel, with whom, on the brief, was Mary Summer, for the appellee in both cases (plaintiff).
   Covello, J.

The defendants, the Connecticut state board of labor relations and Norwalk Police Union, Local 1727, and Council 15, American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO, appeal from the judgment of the Superior Court sustaining the plaintiffs appeal from a decision by the named defendant ordering the plaintiff to reinstate Officer James Dolan to the Norwalk police department. We find no error.

On April 7, 1983, during the course of an arbitration hearing before the Connecticut board of mediation and arbitration (hearing panel) a recess was called. Counsel for the city of Norwalk, the city’s representative at the arbitration hearing, telephoned the chairman of the city’s board of police commissioners during the recess to discuss the status of the hearing. Counsel for the city then returned and announced to the hearing panel that the city would settle the matter by reinstating the police officer on whose behalf the union had filed the grievance underlying the arbitration hearing. Related issues such as back pay and seniority were to be reserved for later negotiation.

On April 13, 1983, the city’s counsel wrote to the board of police commissioners requesting that the board vote on the “proposed settlement.” That same day, he also wrote to the attorney for the defendant union, stating that the board of police commissioners had advised him that the action taken by the commissioner whom counsel had telephoned during the April 7 hearing recess “was unilateral on his part and without authority.” On April 18, 1983, the board of police commissioners voted unanimously “not to negotiate the proposed settlement . . . and to continue on with the hearings.”

On May 22, 1983, the defendant union filed a complaint with the Connecticut state board of labor relations (labor board), alleging that the city was refusing to comply with a grievance settlement in violation of General Statutes § 7-470 (a) (6). On April 24, 1985, following hearings, the labor board ruled that the city’s counsel was clothed with apparent authority to negotiate a settlement with the union, and that “the agreement [reached after the recess] ... at the April 7, 1983 hearing was a valid, final and binding settlement of the Union’s grievance.” The labor board ordered the city to comply with the terms of the April 7 agreement.

On May 8, 1985, the city of Norwalk petitioned the Superior Court to set aside the decision and order of the labor board. After a review of the record, the court concluded that the city’s representative was without authority, apparent or otherwise, to conclude a settlement with the union at the April 7, 1983 arbitration hearing, and that the decision of the labor board was therefore in error. Accordingly, the court granted the city’s petition to set aside the decision and order of the labor board.

The rules that govern the determination of apparent authority in an agent require an examination of the acts of the principal, rather than of the agent. Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 140, 464 A.2d 6 (1983); Lettieri v. American Savings Bank, 182 Conn. 1, 8, 437 A.2d 822 (1980). “ ‘ “Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses.” . . .’” Beckenstein v. Potter & Carrier, Inc., supra, quoting Lewis v. Michigan Millers Mutual Ins. Co., 154 Conn. 660, 665, 228 A.2d 803 (1967). The parameters of this doctrine, however, are sharply circumscribed when the principal is a municipal corporation. 3 E. McQuillin, Municipal Corporations (3d Ed. Rev.) § 12.52a, pp. 209-10, and vol. 10, § 29.02, pp. 199-200; see also Pepe v. New Britain, 203 Conn. 281, 293-94, 524 A.2d 629 (1987).

The Norwalk city charter provides that only the police commission is empowered to reinstate terminated employees of the police department. By charter as well as by statute, the police commission may take action only at a public meeting that has been properly noticed. The city charter further requires a concurrence of two votes among the three members of the police commission for the transaction of business. “Where the municipal charter prescribes a particular procedure by which a specific act is to be done or a power is to be performed, that procedure must be followed for the act to be lawful.” Caldrello v. Planning Board, 193 Conn. 387, 391, 476 A.2d 1063 (1984).

“[A]ll who contract with a municipal corporation are charged with notice of the extent of . . . the powers of municipal officers and agents with whom they contract, and hence it follows that if the . . . agent had in fact no power to bind the municipality, there is no liability on the express contract . . . .” 10 E. McQuillin, supra, § 29.02, pp. 199-200. “The city attorney cannot go beyond the powers conferred upon him. ... Generally he has no authority to compromise claims, so that such an unauthorized compromise is not binding on the municipality.” 3 E. McQuillin, supra, § 12.52a, p. 210.

The defendant union is charged as a matter of law with knowledge of the prescribed mechanism by which the police commission may reinstate discharged police department employees and bind the city to its actions. “ ‘[E]very person who deals with [a municipal corporation] is bound to know the extent of its authority and the limitations of its powers . . . .' " John J. Brennan Construction Corporation, Inc. v. Shelton, 187 Conn. 695, 704, 448 A.2d 180 (1982). Because the required affirmative vote had not been taken at a duly called meeting, the trial court was correct in concluding that counsel was without authority to bind the city to a settlement negotiated with the union.

A municipality may become bound to an agreement, despite its agent’s lack of authority, by a subsequent ratification of the agreement. Ratification by the municipal body with power to do so has the equivalent effect of a prior authorization and binds the municipality just as though authority had been given initially. Id., 712; Loomis v. Fifth School District, 109 Conn. 700, 703-704, 145 A. 571 (1929). In the present case, however, the board of police commissioners took no steps that arguably could be construed as ratifying the April 7, 1983 agreement reached by city counsel and the union. On the contrary, the police commission formally rejected the proposed settlement when it learned of its terms.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 7-470, the Municipal Employees Relations Act, provides in part: “prohibited acts of employers and employee organizations. (a) Municipal employers or their representatives or agents are prohibited from ... (6) refusing to comply with a grievance settlement, or arbitration settlement, or a valid award or decision of an arbitration panel or arbitrator rendered in accordance with the provisions of section 7-472.”

       The Connecticut Freedom of Information Act, codified as General Statutes §§ 1-7 through 1-21K, and the Norwalk City Charter, article VIII, §§ 1-297 and 1-298, govern proceedings of the Norwalk board of police commissioners.


author: Glass, J.

text:
    Texaco, Inc. v. Thomas J. Golart et al.
    (13093)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued December 8, 1987
    decision released March 8, 1988

      Thomas B. Wilson, with whom was James J. Courtney, for the appellants (defendants).

      Leeland J. Cole-Chu, for the appellee (plaintiff).
   Glass, J.

The plaintiff, Texaco, Inc., brought an action against the defendants, Thomas J. Golart and Marion D. Golart, seeking specific performance of an option to purchase a parcel of real property located in Groton. The defendants asserted eight special defenses, and by their amended counterclaim sought damages, including punitive damages, attorney’s and expert fees and equitable relief. The trial court, Schaller, J., found for the plaintiff and ordered specific performance under the fixed price purchase option of the lease. The defendants now appeal, claiming that the trial court erred in: (1) removing the case from the jury docket; (2) refusing to admit into evidence a 1960 lease between the plaintiff and a third party; (3) finding that there was no fraud by the plaintiff; (4) concluding that the lease was not unconscionable; and (5) ordering specific performance of the option to purchase. At oral argument, the plaintiff reasserted a motion for sanctions for a frivolous appeal, pursuant to Practice Book § 4184 and General Statutes § 51-84, requesting that the defendants’ appeal be adjudged frivolous and that the plaintiff therefore be awarded attorney’s fees incurred in defending the appeal. We conclude that the defendants’ appeal was not frivolous but find no error.

The trial court found the following facts. The defendants are the owners of property located at the southwest corner of state route 12 and Crystal Lake Road in Groton. The defendant Thomas Golart has operated a retail gasoline service station on the property since late 1951, when he entered into a lease agreement with the plaintiff, and built the service station pursuant to the lease agreement. The defendant first considered purchasing this property only after he had been approached by the plaintiff which was interested in developing the property. The plaintiff and the defendant had previously conducted business together. In 1950 they had entered into a lease agreement for a service station located on Coleman Street in New London. That lease included a $40,000 fixed price purchase option which could be exercised by the plaintiff.

The property in question was subject to a number of lease agreements between the plaintiff and the defendant. The first lease was signed in 1951, and included an option to purchase the property, in favor of the plaintiff, for $40,000. During the negotiations for this lease, the defendant expressed concern about the option clause to the plaintiff’s representative, Howard Clancy. Clancy indicated that the option clause had to be accepted, or there would be no agreement. He also indicated that the defendant did not need to worry about the clause unless the plaintiff exercised it. In 1952, another lease agreement was executed between the parties to correct an error in the original lease.

Prior to the expiration of the 1952 lease, a new lease was executed in 1961, which also contained the option clause. The purchase price was increased to $55,000. During the negotiations for the 1961 lease, the defendant again expressed concern about the option clause, and asked Clancy to delete it from the lease. The defendant sought the advice of an attorney before signing the lease, and knew from his prior negotiations with the plaintiff that the option would not be deleted. He was aware that the lease would not be approved by the plaintiffs central offices without the option clause. The defendant signed the 1961 lease, and later the fixed price purchase option clause was modified in writing to bar its exercise until after the ninth year of the lease’s operation. The defendant initialed the document that modified the 1961 lease.

I

The defendants’ first claim is that the trial court erred in removing the case from the jury docket. Specifically, the defendants argue that: (1) the ruling that the defendants were not entitled to a jury trial violated the law of the case; and (2) they were entitled to a jury trial as the matter was essentially legal as opposed to equitable. We disagree.

The defendants argue that the law of this case was established in a prior ruling by the trial court, Conway, J., denying the plaintiff’s motion to strike the case from the jury docket. Judge Conway indicated that the decision whether to strike the case from the jury docket “[fell] within the discretion of the court,” because the case was “essentially equitable in nature.” When the case was called for trial, the trial court, Vasington, J., granted the plaintiff’s motion for trial by the court. Subsequently, the trial court, Schaller, J., tried the case.

We have stated that “ ‘[a] judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had made the original decision.’ Santoro v. Kleinberger, 115 Conn. 631, 638, 163 A. 107 (1932).” Breen v. Phelps, 186 Conn. 86, 98, 439 A.2d 1066 (1982). Thus, we have held that “ ‘[f]rom the vantage point of an appellate court it would hardly be sensible to reverse a correct ruling by a second judge on the simplistic ground that it departed from the law of the case established by an earlier ruling. 18 Wright, Miller & Cooper, [Federal Practice and Procedure: Jurisdiction] § 4478; Parmelee Transportation Co. v. Keeshin, 292 F.2d 794, 797 (7th Cir.), cert. denied, 368 U.S. 944, 82 S. Ct. 376, 7 L. Ed. 2d 340 (1961). In an appeal to this court where views of the law expressed by a judge at one stage of the proceedings differ from those of another at a different stage, “the important question is not whether there was a difference but which view was right.” Dawson v. Orange, 78 Conn. 96, 129, 61 A. 101 (1905).’ Breen v. Phelps, supra, 100. See also Schwarzchild v. Martin, 191 Conn. 316, 325, 464 A.2d 774 (1983).” Barnes v. Schlein, 192 Conn. 732, 734, 473 A.2d 1221 (1984); see also Rosenblit v. Danaher, 206 Conn. 125, 537 A.2d 145 (1988); Mac’s Car City, Inc. v. American National Bank, 205 Conn. 255, 532 A.2d 1302 (1987).

Therefore, our inquiry is directed to whether it was erroneous to deny a jury trial. It is well settled that the right to a jury trial under article first, § 19, of the Connecticut constitution, as amended, does not include a right to a jury trial in an equitable action. Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 76, 523 A.2d 486 (1987); United States Trust Co. v. Bohart, 197 Conn. 34, 44-45, 495 A.2d 1034 (1985); Franchi v. Farmholme, Inc. 191 Conn. 201, 209-11, 464 A.2d 35 (1983). We have stated that “[w]hen legal and equitable issues are combined in a single action, whether the right to a jury trial attaches depends upon the relative importance of the two types of claims. ‘Where incidental issues of fact are presented in an action essentially equitable, the court may determine them without a jury in the exercise of its equitable powers. Doris v. McFarland, 113 Conn., 594, 608, 156 Atl. 52 [1931].’” United States Trust Co. v. Bohart, supra, 45. To determine whether the action is essentially legal or essentially equitable, we must examine the pleadings in their entirety.

The plaintiff’s revised complaint sought specific performance of the fixed price purchase option. Specific performance is an equitable remedy. Dick v. Dick, 167 Conn. 210, 221-22, 335 A.2d 110 (1974). The defendants’ amended counterclaim essentially sought to invalidate the option clause of the contract between the plaintiff and the defendant by showing fraud. In this factual scenario, fraud in the inducement is an equitable defense. Yale Literary Magazine v. Yale University, 4 Conn. App. 592, 607, 496 A.2d 201 (1985); 27 Am. Jur. 2d, Equity § 20. The defendants also claimed damages, including attorney’s fees, exemplary damages, punitive damages and court costs. Despite these claims, the essence of the defendants’ counterclaim is that the plaintiff fraudulently induced the defendant to enter into the lease with the option clause. “[T]he mere claim of damages does not make the action essentially one at law.” Dick v. Dick, supra, 222. The trial court did not err in removing this case from the jury docket despite the existence of these legal issues, as they were ancillary to the main issues in the counterclaim.

II

The defendants’ second claim is that the trial court erred in excluding evidence of a lease between the plaintiff and a third party. The defendants, however, did not except to the trial court’s ruling that the lease was irrelevant; therefore, this claim was not “ ‘distinctly raised at trial’ ”; Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 750, 535 A.2d 1287 (1988); Holbrook v. Casazza, 204 Conn. 336, 354, 528 A.2d 774 (1987); State v. Rogers, 199 Conn. 453, 508 A.2d 11 (1986); and we need not address it further.

We note, however, that at oral argument, the defendants argued that although the talismanic word “exception” was not used, the arguments and objections raised by the defendants constituted the “functional equivalent of an exception.” Under Practice Book § 4185, it is within our discretion to entertain an issue that was not properly preserved below. Although there have been some instances where we have exercised our discretion and considered such issues as plain error, review of these cases indicates that they commonly implicate a constitutional right or an important, general interest. See, e.g., Cahills v. Board of Education, 187 Conn. 94, 99, 444 A.2d 907 (1982), and Kavanewsky v. Zon ing Board of Appeals, 160 Conn. 397, 401, 279 A.2d 567 (1971) (implicating public welfare); Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982) (implicating judicial integrity). The facts in this case, however, do not warrant such an exercise of our discretion. Accordingly, we need not address the issue of the relevancy of the third party lease.

This conclusion, in addition, forecloses the defendants’ third claim of error. At oral argument the defendants acknowledged that the trial court’s factual finding that there was no fraud by the plaintiff cannot be challenged in this proceeding. Their claim, however, is that if the third party lease had been admitted into evidence, they would have prevailed on the issue of fraud in the trial court. Because the defendants did not properly preserve the issue of the relevancy of the third party lease, the claim regarding fraud is without substance.

Ill

The defendants’ next claim is that the trial court erred in finding that the lease between the parties was not unconscionable. This claim is closely linked with the defendants’ final claim that the trial court erred in ordering specific performance of the fixed price purchase option in the lease. We find that the lease was not unconscionable and that specific performance was an appropriate remedy.

At the outset, we note that “ ‘[t]he question of unconscionability is a matter of law to be decided by the court based on all the facts and circumstances of the case.’ Iamartino v. Avallone, 2 Conn. App. 119, 125, 477 A.2d 124 (1984); see Hamm v. Taylor, 180 Conn. 491, 493, 429 A.2d 946 (1980).” Fairfield Lease Corporation v. Romano’s Auto Service, 4 Conn. App. 495, 498, 495 A.2d 286 (1985). Thus, our review on appeal is “unlimited by the ‘clearly erroneous’ standard.” Iamartino v. Avallone, supra. Previously, we have used the standards set forth in the Uniform Commercial Code as a useful guide in examining a claim of unconscionability. See Conference Center Ltd. v. TRC, 189 Conn. 212, 225, 445 A.2d 857 (1983); Hamm v. Taylor, supra, 495. “As Official Comment 1 to § 2-302 of the Uniform Commercial Code suggests, ‘[t]he basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract.’ ” Hamm v. Taylor, supra, 495-96.

Under this test, the lease was not unconscionable. Review of the record reveals the following facts that are relevant to the issue of unconscionability: (1) the defendant was an experienced business person who was reasonably knowledgeable regarding the business of owning, operating, developing and maintaining service station properties; (2) the defendant had bargaining power with the plaintiff; (3) the defendant understood the terms of the lease; (4) the defendant had a meaningful choice regarding the execution of the 1961 lease; (5) there was no fraud with regard to the 1961 lease; (6) the plaintiff did not coerce or threaten the defendant regarding the 1961 lease; (7) the $55,000 fixed price option price was fair and reasonable in 1961 and in 1962, when the lease took effect; and (8) the 1961 lease was not unreasonably favorable to the plaintiff, either standing alone or in the context of the 1952 lease it superseded.

From our conclusion that the lease was not unconscionable, it follows that specific performance was an appropriate remedy. We have stated that “[a]s a general rule, equity, in deciding whether to grant specific performance in enforcing a contract, will consider the fairness of an agreement in accordance with the circumstances as they existed at the time of the execution of the contract even though the property contracted to be sold becomes considerably more valuable at the time performance is due. . . . Specific performance of a contract will not be refused because there has been an increase in the value of the property contracted for between the date of the contract and the time when execution is demanded where . . . the contract at the time it was made was a reasonable and fair one. Willard v. Tayloe, 75 U.S. (8 Wall.) 557, 570-71, 19 L. Ed. 501 [1869].” Robert Lawrence Associates v. Del Vecchio, 178 Conn. 1, 19, 420 A.2d 1142 (1979). It was within the trial court’s equitable discretion to order specific performance.

IV

Finally, we consider the plaintiff’s renewed motion for sanctions for a frivolous appeal, and its request for attorney’s fees incurred in defending the appeal. Deciding the motion as a matter of first impression, we find that the defendants’ appeal was not frivolous.

Practice Book § 4184 provides that “the presentation to the court of a frivolous appeal or frivolous issues and defenses on appeal . . . will subject an offender, at the discretion of the court, to appropriate discipline, including the imposition of a fine pursuant to General Statutes sec. 51-84, and costs and payment of expenses including attorney’s fees to the opposing party.” As this section does not set forth a standard for determining whether an appeal is frivolous we find it necessary to fashion one ourselves. With this in mind, we look to Rule 3.1 of the Rules of Professional Conduct and comments thereto for guidance. The definition of a frivolous appeal is set forth in the comment to Rule 3.1, wherein it is stated that “[t]he action is frivolous . . . if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.”

We hereby adopt this test, and further hold that the burden of proof lies on the moving party to establish the frivolity of the appeal. On the present record, we find that the plaintiff has not met that burden of proof. As to the first prong, the plaintiff has not established facts tending to show that the defendants brought this appeal for the purpose of harassing or maliciously injuring the plaintiff. As to the second prong, we have concluded that the defendants’ arguments on appeal did have some merit, even though they did not warrant a reversal.

We find no error and also deny the plaintiff’s motion for sanctions for a frivolous appeal.

In this opinion the other justices concurred.

       The eight special defenses asserted by the defendants are: (1) untimely exercise of the option in violation of General Statutes § 47-33a; (2) violation of the rule against perpetuities; (3) unreasonable restraint on alienation; (4) fraud; (5) unfairness and unconscionability; (6) violation of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act; (7) failure to comply with the federal Petroleum Marketing Practices Act, 15 U.S.C. § 2801 et seq.; and (8) the lease was no longer in effect due to alleged breaches of it by the plaintiff. Subsequent to trial the defendants withdrew the first and seventh special defenses. In their appellate brief the defendants also abandoned the second, third, sixth and eighth special defenses.

       See text, infra, at pp. 463-64.

       “[General Statutes] Sec. 51-84. attorneys subject to rules, (a) Attorneys admitted by the superior court shall be attorneys of all courts and shall be subject to the rules and orders of the courts before which they act.
      “(b) Any such court may fine an attorney for transgressing its rules and orders an amount not exceeding one hundred dollars for any offense, and may suspend or displace an attorney for just cause.”

       Subsequent to the signing of the 1961 lease, the defendant Thomas J. Golart conveyed a one half interest in the property to the defendant Marion D. Golart. Thomas Golart has acted on behalf of Marion Golart in all respects relating to this action. Hereinafter, reference to “the defendant” will refer to Thomas Golart because the negotiations surrounding the execution of the 1961 lease occurred prior to the conveyance to Marion Golart.

       The determination of whether a defense of fraudulent inducement is equitable or legal depends on whether there is an adequate remedy at law. See 27 Am. Jur. 2d, Equity § 20; 37 Am. Jur. 2d, Fraud and Deceit §§ 324, 326. The relief sought by the defendants in their counterclaim was a decree declaring title in the defendant, injunctive relief, an order directing the plaintiff’s removal from the property with back rent, and various damages. We have stated that “fraud in the inducement of a contract ordinarily renders the contract merely voidable at the option of the defrauded party, who also has the choice of affirming the contract and suing for damages. If he pursues the latter alternative, the contract remains in force. . . .” A. Sangivanni & Sons v. F. M. Floryan & Co., 158 Conn. 467, 472, 262 A.2d 159 (1969). By his special defense of fraudulent inducement the defendant has sought to rescind the contract, and his remedy is equitable.

       Practice Book § 4185 provides in relevant part: “errors considered
      “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interest of justice notice plain error not brought to the attention of the trial court.”

       “[Rules of Professional Conduct] Rule 3.1 meritorious claims and CONTENTIONS
      “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
      “COlitMENT:
      “The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the propor scope of advocacy, account must be taken of the law’s ambiguities and potential for change.
      “The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.”


text:
    American Federation of State, County and Municipal Employees, AFL-CIO, Council 15, et al. v. City of New Britain et al.
    (13096)
    Healey, Callahan, Glass, Covello and Hull, Js.
    Argued December 9, 1987
    decision released March 8, 1988

      Jackson T. King, with whom, on the brief was Frank J. Raccio, for the appellants (plaintiffs).

      Joseph E. Skelly, Jr., for the appellee (named defendant).
   Covello, J.

This is an appeal from the denial of the plaintiff unions’ application to vacate an award made by the Connecticut state board of mediation and arbitration. The plaintiff unions and Louis Marino claim that the board’s action should have been vacated because: (1) its decision was not timely rendered as required by General Statutes § 31-98; (2) a de novo hearing was not held as required by General Statutes § 31-97 (a); (3) the arbitrators failed to abide by their interlocutory ruling of September 15, 1982; and (4) the arbitrators considered evidence not presented at the arbitration proceedings. We conclude that these claims are without merit and find no error.

Examination of the record discloses that on March 7, 1981, the New Britain board of police commissioners disciplined Louis Marino following hearings into allegations that municipal personnel examinations for the positions of police sergeant and police lieutenant had been fixed so that Marino would achieve high scores. The matter ultimately came before a panel of the state board of mediation and arbitration which conducted eight hearings between September 29, 1982, and April 26, 1985. Since the parties could not agree as to the issue, the panel adopted the plaintiffs proposal, i.e., “Was Louis Marino disciplined for just cause? If not, what shall be the remedy?”

On December 11,1985, the panel filed its arbitration award in which it concluded that “Louis Marino was disciplined for just cause.” On January 2, 1986, the plaintiffs applied to the Superior Court for orders vacating the award and directing a rehearing. On June 20, 1986, the court, Higgins, J., denied the plaintiffs’ application and granted the named defendant’s cross application to confirm the award.

The plaintiffs’ first claim is that the court should have vacated the arbitration award because it was untimely-filed, being 229 days after the last hearing and 133 days after the time allowed by the board for the submission of briefs. The plaintiffs argue that it was, therefore, outside of the fifteen day filing period set forth in § 31-98; see footnote 2, supra; dealing with arbitration decisions.

We have previously concluded that the time limitation in this statute’s predecessor was directory and not mandatory. See International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 67, 82 A.2d 345 (1951). We have also held that “[i]n the absence of a mandatory time limitation [in either the collective bargaining agreement or the submission to the arbitrators], an award of arbitrators may be made within a reasonable time.” Danbury Rubber Co. v. Local 402, 145 Conn. 53, 59, 138 A.2d 783 (1958); see also Middletown v. Police Local, No. 1361, 187 Conn. 228, 231-32, 445 A.2d 322 (1982).

We do not have to reach those issues in the present case, however, because the plaintiffs’ failure to raise the issue of timeliness prior to the issuance of the arbitration award operates as a waiver of their right to assert the lack of timeliness in the board’s decision. The record discloses that the only challenge to timeliness is contained in the post-decision application to vacate the award.

“Courts favor arbitration as a means of settling differences . . . .” Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 290, 377 A.2d 323 (1977). “[I]ts autonomy requires a minimum of judicial intrusion.” Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 583, 440 A.2d 774 (1981). “In view of the slow pace of the proceedings up to the time the hearings were concluded, and the failure of either party to object or claim prejudice because of it, the court’s conclusion was not erroneous as a matter of law.” (Emphasis added.) Danbury Rubber Co. v. Local 402, supra, 59-60.

The plaintiffs next claim that the arbitration panel did not conduct a “de novo hearing” as required by § 31-97. The specific objection raised is that the panel weighed and considered, among other submissions, the complete transcript of the hearings before the New Britain board of police commissioners. The plaintiffs argue that, by accepting the transcript, the panel failed to conduct an independent inquiry but rather carried out a record inquiry contrary to the statutory mandate. We do not agree.

The statutory mandate of § 31-97 is general in nature and calls for the panel to “fully investigate and inquire into the matters in controversy, take testimony . . . in relation thereto and . . . issue subpoenas . . . for the production of books and papers.” (Emphasis added.) See footnote 7, supra. Further, § 31-91-37 (a) and (b) of the Regulations of Connecticut State Agencies provide in relevant part that “[c]onformity to legal rules of evidence shall not be necessary. . . . Documents, records and other pertinent data, when offered by either party, may be received in evidence by the panel.” (Emphasis added.) Receipt of the challenged transcripts is thus , clearly authorized by the agency regulations, which we may presume to be an accurate reflection of the legislative intent articulated in the statute’s more general language. Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 599-600, 522 A.2d 771 (1987). Within the confines of the limited review to be accorded an arbitration award, and the presumption in favor of the award’s validity, we are satisfied that the panel did not err in reviewing the transcripts of the hearings conducted before the board of police commissioners. Hartford v. Local 308, 171 Conn. 420, 431, 370 A.2d 996 (1976).

The plaintiffs next claim that the arbitration panel violated the terms of its own interlocutory ruling. As already explained, the plaintiffs objected to the introduction into evidence, at the arbitration hearing, of the transcript of the earlier proceedings before the board of police commissioners. They especially objected to those portions of the transcript that sought to implicate Marino in the fixing of the sergeant’s examination, as the police commissioners had concluded that as to this issue, “the evidence as to whether he had knowledge of the fixing is inconclusive.”

In response to this objection, the arbitration panel issued an interlocutory ruling concluding that the testimony pertaining to Marino’s knowledge “must be excised from the transcript.” Despite this holding, the final arbitration award made reference to the testimony of Paul Manafort and Sebastian Bianca, both of whom had testified on this very issue. The plaintiffs claim that Marino’s rights were thus prejudiced in violation of General Statutes § 52-418 (a) (3). See footnote 8, supra. We disagree.

Witnesses Manafort and Bianca testified on both the issue of examination fixing and the issue of Marino’s knowledge of the fixing. By their very nature, the two questions were significantly interrelated. The arbitration award specifically stated that the panel had excised the challenged material and had made a distinction in evaluating the testimony, having accepted the former while excising the latter. There is nothing in the record or the award that suggests otherwise.

Further, even if this allegation is assumed to be correct, the plaintiffs do not show how this fact prejudiced Marino. The arbitration award stated that Marino “received a promotion to which he was not entitled.” It further stated: “This Panel, or at least a majority thereof, is also of the conviction that no one should benefit from a fixed examination, whether he is aware of it or not. Therefore, it seems the action taken by the Board [of police commissioners] . . . was most reasonable.” (Emphasis added.) Thus, the fact that the examination was fixed emerges as the panel’s paramount consideration, rather than the matter of Marino’s knowledge.

“It is the established policy of the courts to regard awards with liberality. Every reasonable presumption and intendment will be made in favor of the award and of the arbitrators’ acts and proceedings. Hence, the burden rests on the party attacking the award to produce evidence sufficient to invalidate or avoid it.’ Von Langendorff v. Riordan, 147 Conn. 524, 527, 163 A.2d 100 [1960].” Hartford v. Local 308, supra, 431. The plaintiffs have not met that burden and the trial court did not err in concluding as it did.

Finally, the plaintiffs contend that the arbitration panel considered evidence not formally introduced at one of the hearings. Specifically, they object to the panel’s consideration of a study commissioned by the city of New Britain and entitled “Report on Merit System Abuses and Remedial Action Taken” that was appended to the city’s post-hearing brief.

We are again confronted with an issue that was never raised until the post-decision application to vacate the award. The board’s regulations not only authorized the reopening of hearings to receive and consider new evidence, but also provided a specific mechanism for formal, post-hearing communications with the panel. Having used neither of these procedures, we conclude that there was a waiver of the right to challenge the arbitration panel’s consideration of this material. Danbury Rubber Co. v. Local 402, supra, 59-60.

There is no error.

In this opinion the other justices concurred.

       In response to the plaintiffs’ application to vacate the award; General Statutes § 52-418; the named defendant filed a cross application to confirm the award pursuant to General Statutes § 52-417.

       General Statutes § 31-98 provides in part: “oral or written decision. REDUCTION OF ORAL DECISION TO WRITING. COMPENSATION OF MEMBERS. The panel, or its single member if sitting in accordance with section 31-93, may, in its discretion and with the consent of the parties, issue an oral decision immediately upon conclusion of the proceedings. If the decision is to be in writing, it shall be signed, within fifteen days, by a majority of the members of the panel or by the single member so sitting, and the decision shall state such details as will clearly show the nature of the decision and the points disposed of by the panel. Where the decision is in writing, one copy thereof shall be filed by the panel in the office of the town clerk in the town where the controversy arose and one copy shall be given to each of the parties to the controversy. The panel or single member which has rendered an oral decision immediately upon conclusion of the proceedings shall submit a written copy of the decision to each party within fifteen days from the issuance of such oral decision. In all cases where a decision is rendered orally from the bench, the secretary shall cause such oral decision to be transcribed, approved by the panel or single member as applicable and filed with the records of the board proceedings. . . .”

       “[General Statutes] Sec. 31-97. submission of grievance or dispute; procedure, claim OF nonarbitrability of issue, (a) Whenever a grievance or dispute arises between an employer and his employees, the parties may submit the same directly to said board and notify said board or its clerk in writing and upon payment by each party of a filing fee of twenty-five dollars. Whenever a single public member of the board is chosen to arbitrate a grievance or dispute, as provided in section 31-93, the parties shall each be refunded the filing fee. Wfhenever such notification is given, a panel of said board, as directed by its chairman, shall proceed with as little delay as possible to the locality of such grievance or dispute and inquire into the causes thereof. The parties shall thereupon submit to said panel in writing, succinctly, clearly and in detail, their grievances and complaints and the causes thereof, and severally promise and agree to continue in business or at work without a strike or lockout until the decision of the panel is rendered; but such agreement shall not be binding unless such decision is rendered within ten days after the completion of the investigation. The panel shall fully investigate and inquire into the matters in controversy, take testimony under oath in relation thereto and may administer oaths and issue subpoenas for the attendance of witnesses and for the production of books and papers.”

       The labor contract between the plaintiffs and the defendant provided in relevant part that “[i]f a grievance is not settled ... it may be submitted at the request of the Union to arbitration before the Connecticut State Board of Arbitration. . . . The arbitrators . . . shall hear and decide only one (1) grievance at a time. Their award shall be final and binding as provided by law. The Arbitrators shall be bound by and must comply with all the terms of this Agreement and shall have no power to add to, subtract from, or in any way, modify the provisions of this agreement.”

       Section 31-91-42 of the Regulations of Connecticut State Agencies provides in relevant part: “If briefs or other documents are to be filed, the hearings shall be declared closed as of the final date set by the panel members for the filing of said summary briefs or documents with the board.”

       “[General Statutes (1949 Sup.)] Sec. 608a. decision to be in writing. After a matter has been fully heard, the * * * panel, by a majority of its members, shall, within * * * fifteen days, render a decision thereon in writing, signed by a majority of the members of the * * * panel, stating such details as will clearly show the nature of the decision and the points disposed of by said * * * panel. One copy of the decision shall be filed by the * * * panel in the office of the town clerk in the town where the controversy arose and one copy shall be given to each of the parties to the controversy. Effective June 24, 1949.” (Emphasis in original.)

       General Statutes § 31-97 does not specifically mandate a “de novo hearing” but requires that “[t]he panel shall fully investigate and inquire into the matters in controversy, take testimony under oath in relation thereto and may administer oaths and issue subpoenas for the attendance of witnesses and for the production of books and papers.” See footnote 3, supra.

       General Statutes § 52-418 (a) provides in relevant part: “[A]ny judge . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       The arbitration award stated: “The panel makes a distinction as to testimony regarding the fixing of the Sergeant’s examination and testimony regarding the alleged knowledge of Officer Marino as to its being fixed. Since the Board of Police Commissioners found the evidence inconclusive as to the latter, such testimony must be excised from the transcript. Testimony referring directly to the fixing of the examination may be accepted.”

       “[Regs., Conn. State Agencies] Section 31-91-43. reopening of HEARINGS
      “Prior to the rendering of an award, a party may move to reopen a hearing for good cause shown such as the emergence of new evidence, but a hearing shall be reopened contingent solely upon the discretion of the panel chairman.”

       “[Regs., Conn. State Agencies] Section 31-91-49. communication with PANEL MEMBERS
      “There shall be no communication concerning the pending case between the parties and the panel members after the chairman of the panel has declared the arbitration hearing or hearings closed. Any other oral or written communications from the parties to the panel members shall be directed to the secretary of the board for transmittal to the respective panel members. It shall be the duty of the board to notify a party of any communication of the other party.”


author: Shea, J. Arthur H. Healey, J.,

text:
    Thaddeus P. Ozyck et al. v. David D’Atri et al.
    (13258)
    Peters, C. J., Healey, Shea, Callahan and Hull, Js.
    Argued January 6
    decision released March 8, 1988

      Hanon W. Russell, for the appellants (plaintiffs).

      Frank J. Dumark, for the appellees (defendants).
   Shea, J.

In this action the plaintiffs sought to quiet their title with respect to a right of way claimed over the defendants' land, to enjoin the acts of the defendants in obstructing their use of it, and to obtain other related relief. Acting as the trial court, Hon. Philip R. Pastore, state trial referee, found the issues for the defendants and rendered judgment in their favor. The plaintiffs have appealed, presenting as the principal issue whether this court should abandon or modify the ancient doctrine that “[n]o right of way appurtenant can be created without a dominant as well as a servient estate” and that “[t]he way can become legally attached to the dominant estate only if the same person has unity of title to both the way and the dominant estate.” Curtin v. Franchetti, 156 Conn. 387, 389, 242 A.2d 725 (1968). We conclude that this case does not provide a sufficient factual basis to warrant consideration of any modification of the rule and, therefore, decline the plaintiffs’ invitation to resolve the primary issue they have raised.

We also leave undecided the remaining issue raised by the plaintiffs, whether the trial court erred in deciding that they had failed to prove their allegation that the disputed right of way is the only legal access they have to a portion of their land. This issue need not be addressed because its resolution is immaterial to the only basis alleged in the complaint for the existence of the easement, the conveyances made by the defendants’ predecessors in title. Accordingly, we find no error.

The facts essential to our determination of the appeal are not disputed. The plaintiffs, Thaddeus and Pamela Ozyck, as well as Eleanor Harris, own land in the town of Guilford, approximately 100 feet wide and 200 feet deep, which has been referred to in this appeal as the “Harris” parcel. This land is bounded on the south by Long Island Sound and on the west by land of Walter and Susan Spigelman, which is also bounded by Long Island Sound on the south. Adjoining the Spigelman parcel on the west is the land of the defendants, David and Constance D’Atri, which also borders Long Island Sound on the south. To the west of the D’Atri parcel is the easterly end of Vineyard Avenue, a street upon which the plaintiff Ozycks have a residence. They claim to hold a right of way extending easterly along the sea shore from the terminus of Vineyard Avenue across the D’Atri and Spigelman parcels to provide access to the Harris parcel. The defendants have obstructed the use of the claimed right of way across their land by the construction of a stone fence.

The Harris, Spigelman and D’Atri parcels were once part of a tract of approximately thirty-one acres owned by Herbert Benton, the common grantor of the parties. In 1906, Benton conveyed a piece of this acreage, 100 feet by 100 feet, bordering Long Island Sound, to Aaron Hull without reserving any right of way, although he continued to own the remainder of the thirty-one acres, which included the Harris parcel. The land conveyed to Hull included a portion of the D’Atri parcel and the westerly forty feet of the Spigelman parcel.

In 1910, Hull transferred the land he had acquired from Benton to John Hawley by a warranty deed containing a reference to “a right of way across the south end of said described lot.” When Hawley in 1917 conveyed the same tract to H. Leonard Beadle, the warranty deed also mentioned this right of way. Of the land he had acquired, with 100 feet of frontage on Long Island Sound, Beadle in 1919 transferred to Nathan Schatz, without reference to any right of way, the easterly forty feet, which presently comprises the westerly forty feet of the Spigelman parcel. The remainder, with sixty feet of frontage on the Sound, by virtue of several intervening transfers containing references to a right of way over the southerly part of the land, was acquired by the defendants in 1981, and constitutes the D’Atri parcel over which the plaintiffs claim an easement.

Of the balance of the land remaining after the conveyance to Hull in 1906 of the piece that included the D’Atri parcel, Herbert Benton retained until his death a portion that included the Harris parcel. In 1929, this land was transferred from his estate to Elliot Benton, who in 1959 conveyed the portion known as the Harris parcel to James and Martha Shryock. After several intervening transfers, the plaintiffs acquired the property in 1976 and 1977.

The plaintiffs claim that they are entitled to an easement over the southern portion of the defendants’ land principally by virtue of the warranty deed from Hull to Hawley in 1910 of the 100 feet by 100 feet parcel that Hull had acquired in 1906 from Herbert Benton. In this deed, after the description of the land conveyed, the following language appears: “There is a right of way across the south end of said described lot known as the extension of Vineyard Avenue.” This provision of the deed has been repeated in each subsequent conveyance of the land of the defendants over which the easement is claimed to exist, including the deeds by which they acquired title in 1981.

The plaintiffs claim that the reference to the right of way in the 1910 deed from Hull to Hawley sufficiently indicates that Hull intended to create a right of way across the land of the defendants extending from the Harris parcel to the easterly end of Vineyard Avenue. They maintain that the intended beneficiary of the easement Hull had created was Herbert Benton, who then owned, in addition to the Harris parcel, land bounding on the north and east the piece he had conveyed to Hull. They surmise that, even after Benton in 1908 had transferred the 100 feet by 100 feet piece to Hull without reserving any right of way, “Benton undoubtedly continued to cross the southerly portion of Hull’s land and Hull must have acknowledged Benton’s right, indeed, Benton’s necessity to cross his land to reach Benton’s own land.” (Emphasis in original.) The right of way language in the deed from Hull to Hawley the plaintiffs characterize as “a formal acknowledgment of this right.”

The only evidence supporting the plaintiffs’ conjecture is that after the 1910 conveyance from Hull to Hawley, Benton may have been the only person whom the right of way mentioned in the deed would benefit. Even if this were true, the mere reference to the existence of the right of way cannot be construed to indicate an intention on the part of Hull to create an easement for Benton’s benefit. The purpose of the reference to the right of way may well have been to protect Hull from any claim by Hawley based upon the warranty deed in the event that Benton or anyone else should assert a right to cross the land conveyed. “Its object evidently was to save the [grantor] contingently from any liability on [his] covenants. . . . Aside from the fact that the [person claiming the easement] is a stranger to that deed, it is impossible for us to construe its language as conveying any right to him.” Butterfield v. McNamara, 54 Conn. 94, 99, 6 A. 188 (1886). The postulated use of the right of way by Benton might be of significance if the plaintiffs were claiming an easement by prescription or upon some other ground than the express grant in the deed to Hull from Hawley that they rely upon. An acknowledgement of the existence of an easement is not equivalent to an intent to create one.

The plaintiffs also have relied upon a clause appearing in the deeds constituting the chain of title to the Harris parcel, beginning with the first conveyance thereof from Elliot Benton to James and Martha Shryock in 1959. This provision, which followed clauses transferring as appurtenances to the land conveyed two rights of way unrelated to the subject of this action and identified by specific deed references, was as follows: “together with all the right title and interest in and to any other rights of way which may exist.” Although this general appurtenance clause was sufficient to give the plaintiffs, through intervening conveyances repeating it, whatever rights over the defendants’ land Elliot Benton may have acquired from Herbert Benton for the benefit of the Harris parcel, it does not create any right not already in existence. Herbert Benton relinquished the power, to create an easement over the D’Atri parcel when he sold it to Hull in 1906 without reserving any such right. Obviously Elliot Benton, his successor in title to the land that included the Harris parcel, could have no greater rights, nor could the plaintiffs.

The trial court in rendering judgment for the defendants relied upon our statement in Curtin v. Franchetti, supra, that “[t]he way can become legally attached to the dominant estate only if the same person has unity of title to both the way and the dominant estate.” It is clear that even if Hull had actually intended to create a right of way for the benefit of Benton’s land, this rule would prevent him from doing so, because Hull had no interest in Benton’s land, the presumed “dominant estate.” Though the unity of title doctrine is of ancient origin, Curtin appears to be the first case in which this court has followed it. We also approved the rule, without any necessity for invoking it, more recently in Stankiewicz v. Miami Beach Assn., Inc., 191 Conn. 165, 170, 464 A.2d 26 (1983). We note that the unity of title doctrine has fallen into disfavor with contemporary commentators as an obsolete vestige of feudalism that frustrates the intentions of the grantor. H. Harris, “Reservations in Favor of Strangers to the Title,” 6 Okla. L. Rev. 127 (1953); 2 American Law of Property (Casner Ed. 1952) § 8.29; 5 Restatement, Property § 472, comment a. It has been rejected in several jurisdictions that had formerly followed the rule. Willard v. First Church of Christ, Scientist, 7 Cal. 3d 473, 498 P.2d 987, 102 Cal. Rptr. 987 (1972); Townsend v. Cable, 378 S.W.2d 806, 808 (Ky. 1964); Garza v. Grayson, 255 Or. 413, 467 P.2d 960 (1970). In these cases that have abandoned the doctrine, however, the intention of the grantor to create an easement or other interest in the “stranger to the title” had been clearly expressed in the instrument, unlike the deed from Hull to Hawley, which does not purport to create an easement but merely acknowledges the possible existence of one without indicating the person or the land to be benefited. Under these circumstances we have decided to defer any reconsideration of the rule adopted in Curtin until we are presented with an appropriate case where the intention of the grantor to create in his deed an interest in someone other than the grantee is reasonably clear.

Although the trial court undoubtedly relied to a large extent upon the unity of title doctrine in rendering judgment for the defendants, the facts relevant to Hull’s intention in inserting the language pertaining to the right of way in his deed to Hawley are undisputed. The only evidence of his intent was the deed itself and any circumstances surrounding the transfer that could be ascertained from the numerous deeds introduced and the location of the various parcels. We conclude that none of these circumstances, taken in conjunction with the language in the deed relied upon, is sufficient to sustain the plaintiffs’ burden of proving that Hull intended to create an easement for the benefit of the Harris parcel or other land of Herbert Benton over the land conveyed to Hawley, including the parcel now owned by the defendants.

With respect to the second claim of error, that the trial court failed to find that the only legal access the plaintiffs have to the Harris parcel is through the disputed right of way, the plaintiffs have failed to point out how such a finding would have any significant bearing upon Hull’s intention to create a right of way in 1910 when he deeded the land to Hawley. At that time Herbert Benton owned land bounding the piece conveyed on the north and east, over which he presumably had access to the Harris parcel as a portion of the land he retained. In any event, the plaintiffs in their complaint and at trial relied wholly upon a claim of an easement by grant and, even on appeal, do not maintain that they have proved an easement by necessity. If they have no legal access to the Harris parcel as claimed, that circumstance does not enhance the basis for an easement relied upon in this case.

There is no error.

In this opinion, Peters, C. J., Callahan and Hull, Js., concurred.

Arthur H. Healey, J.,

concurring. I concur in the result reached by the majority. I do, however, have considerable difficulty with its approach and the rationale that yields that result.

The visceral issue squarely presented to us by the plaintiffs is that the trial court erred when it applied the rule of Curtin v. Franchetti, 156 Conn. 387, 242 A.2d 725 (1968), to find against them. The defendants agreed that this was the issue here. There is no question that the plaintiffs knew, at trial, on appeal and in argument on appeal, that the rule of Curtin was fatal to their claim when they argued that we overrule Curtin, which recognized the unity of title doctrine.

The rationale of the majority for the result reached can fairly be read as having all but exsanguinated Curtin. This has been done in a case where the result should have been dictated by Curtin, a case involving real property decided less than twenty years ago. It is quite one thing not to adopt the new rule proposed by the plaintiffs because the factual pattern of this case does not quite fit into the factual pattern of those jurisdictions that have rejected the unity of title doctrine. But it is quite another thing, having sown the seeds of Curtin’s demise, to dispatch the holding of Curtin in the manner which the majority chooses to do so. The suggestion is made that “we have decided to defer any reconsideration of the rule adopted in Curtin until we are presented with an appropriate case . . . .” I submit that simply means that this court will then announce, as the plaintiffs ask in their brief, that “Connecticut should declare the ‘unity of title’ principle dead and buried forever more.” This period of interregnum until the time Curtin is unequivocally overruled is troublesome. It is particularly so because of the signal it sends to those who now may have “interests” in real property that are not cognizable under Curtin but may soon germinate into cognizable interests. If so, what will this do by way of its effect on such properties? Will it start to aid and abet the execution and recording of instruments that in effect create post -Curtin easements?

“ ‘A decision of this court is a controlling precedent until overruled or qualified. Daury v. Ferraro, 180 Conn. 386, 389, 143 A. 630 [1928].’ Herald Publishing Co. v. Bill, 142 Conn. 53, 61-62, 111 A.2d 4 (1955).” Burger & Burger, Inc. v. Murren, 202 Conn. 660, 662, 522 A.2d 812 (1987). We should not overrule one of our earlier decisions “unless the most cogent reasons and inescapable logic require it.” Herald Publishing Co. v. Bill, supra; Cummings v. Tripp, 204 Conn. 67, 76-77, 527 A.2d 230 (1987). We have properly recognized that “ ‘[e]xperienee can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better . . . [t]he adaptability of the common law to the changing needs of passing time has been one of its most beneficent characteristics. A court, when once convinced that it is in error, is not compelled to follow precedent. Smith v. Allwright, 321 U.S. 649, 655, 64 S. Ct. 757, 88 L. Ed. 987 [1944].’ Herald Publishing Co. v. Bill, supra.” Cummings v. Tripp, supra, 77. Despite the majority’s statement of deferring any reconsideration of Curtin, its decision does reconsider it; any fair reading of the majority opinion demonstrates that the formal act of overruling Curtin has, at the very least, been deferred. Yet no cogent reason or inescapable logic for doing so is easily detected; however, the harbingers are easily detected. Cf. Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 538 A.2d 219 (1988).

The majority’s serious undermining of Curtin raises grave concerns not only as to that eminently desirable and essential doctrine of stare decisis, but it does so in an area of the law that commands particular stability, i.e., real property. While it is always crucial in justifying adherence to precedent to require that those who engage in matters based on the existing law be able to rely on its stability, it is very more much so in cases involving property rights as Curtin does. See State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363, 381, 97 S. Ct. 582, 50 L. Ed. 2d 550 (1977); United States v. Title Ins. & Trust Co., 265 U.S. 472, 486-87, 44 S. Ct. 621, 68 L. Ed. 1110 (1924); Confederated Salish & Kootenai Tribes v. Namen, 665 F.2d 951, 960 (9th Cir. 1982); Heyert v. Orange & Rockland Utilities, Inc., 17 N.Y.2d 352, 218 N.E.2d 263, 271 N.Y.S.2d 201 (1966). I recognize that stare decisis is not a rule of law but a matter of judicial policy and that it does not have the same kind of force in each kind of case so that “adherence to or deviation from that general policy may depend upon the kind of case involved, especially the nature of the decision to be rendered that may follow from the overruling of a precedent.” See Heyert v. Orange & Rockland Utilities, Inc., supra. The reason that stare decisis applies with special force to decisions affecting titles to land is the special reliance that such decisions mandate. They have “become rules of property, and many titles may be injuriously affected by their change.” Minnesota Co. v. National Co., 70 U.S. (3 Wall.) 332, 334, 18 L. Ed. 42 (1866).

The vitality of common law courts to respond to reasoned need for change and not to perpetuate demonstrably archaic views constitutes one of their fundamental strengths in an evolving society. Stare decisis accommodates that rubric. Given the special place of judicial pronunciations on real property in our system for the reasons set out earlier, the issue of the continuing validity of Curtin should be met now—and decisively so.

I, therefore, concur in the result for the reasons stated.

       The plaintiff Eleanor Harris died during the pendency of this action and the executor of her estate was substituted for her as a plaintiff.

       Walter and Susan Spigelman are not parties to this action and, therefore, are not affected by its determination.

       Although the concurring opinion is critical of our failure to resolve the continuing viability in this state of the unity of title doctrine as approved in Curtin v. Franchetti, 156 Conn. 387, 242 A.2d 725 (1968), we have followed our usual practice of avoiding the reconsideration of earlier decisions in the absence of some necessity arising in the case before us. In Broadway Bank & Trust Co. v. Longley, 116 Conn. 557, 560-62, 165 A. 800 (1933), this court questioned the long-standing common law rule followed in earlier decisions that a part payment by one joint debtor will toll the running of the statute of limitations as to the other, but did not resolve the issue. “If the exigencies of this case required, we should feel compelled to consider carefully whether the rule announced in our earlier cases should, in the light of these considerations, now be followed.” Id., 562. The rule was abandoned and the earlier cases were overruled, however, when a later case “squarely presented] this question for determination.” Apuzzo v. Hoer, 125 Conn. 196, 201-202, 4 A.2d 424 (1939).

       The plaintiffs framed this issue on appeal as follows: “When the trial court applied the ‘Unity of Title’ rule, it was applying an archaic rule rooted in feudal English property law which no longer has any justification in modem real property law inasmuch as it gives full weight and significance to form over substance, ignoring the intent of the parties involved.”

       The defendants met the plaintiffs’ statement of the issue by framing their position as follows: “1. Did the trial court err in applying the rule of cases such as Curtin v. Franchetti, 156 Conn. 387, 389 [242 A.2d 725] (1968), and Stankiewicz v. Miami Beach Assn., Inc., 191 Conn. 165, 170 [464 A.2d 26] (1983), which holds that no right of way appurtenant can be created without a dominant as well as a servient estate and that the way can only become legally attached to the dominant estate if the same person holds unity of title to both the way and to the dominant estate?”

       We have recognized this proposition. For example, in Hartford National Bank & Trust Co. v. Harvey, 143 Conn. 233, 243, 121 A.2d 276 (1956), a will construction case, we said: “In the field of testamentary construction, precedents are usually inconclusive, since the same or substantially similar expressions seldom occur in different wills.” In contrast, however, when the case before us involves, as Curtin does, the doctrine of unity of title, obviously the matter is quite the contrary. Curtin v. Franchetti, 156 Conn. 887, 242 A.2d 725 (1968).


text:
    The Fidelity Trust Company v. Betty Irick et al.
    (13190)
    Peters, C. J., Healey, Shea, Glass and Covello, Js.
    Argued January 12
    decision released March 8, 1988

      Robert A. Nagy, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (defendant state of Connecticut).

      James D'Alton Murphy, with whom was Frederick M. Tobin, for the appellee (plaintiff).
   Glass, J.

The sole issue in this appeal is whether the Appellate Court erred in finding no abuse of discretion in the trial court’s decision to order a strict foreclosure rather than a foreclosure by sale of property owned by the named defendant, Betty Irick. The following facts are relevant to our consideration of this issue: On November 22,1983, the named defendant, Betty Irick, executed a mortgage on property located in Norwalk to the plaintiff Fidelity Trust Company (bank). The mortgage was security for a loan made to Irick in the amount of $60,000. In consideration for public assistance grants, Irick gave a second mortgage to the Connecticut department of income maintenance (state). In addition to these encumbrances, the bank had a junior lien because of an attachment on the property arising out of an independent debt due to the bank from Irick.

Irick defaulted in payment of her mortgage loan from the bank. On January 25, 1985, the bank instituted foreclosure proceedings against Irick, the state as second mortgagee, and itself as third encumbrancer by virtue of an attachment against the property. Irick was defaulted for failure to appear and all the defendants were defaulted for failure to disclose a defense. The bank then moved for judgment, but did not specify whether it sought strict foreclosure or foreclosure by sale. The state moved for foreclosure by sale.

At the hearing on October 15, 1985, the bank’s appraiser testified that the value of the property was $96,750. The court found the bank’s debt to be $71,996.70, allowed attorney’s fees of $1662.50 and allowed other costs of $944.60, for a total of $74,603.80. The total of estimated accrued municipal real estate taxes was $5000, increasing the total of the obligation having priority over the state’s second mortgage to $79,603.80. The court denied the state’s motion for' foreclosure by sale and granted the bank’s motion for judgment. The court then rendered a judgment of strict foreclosure. Thereafter, the state moved to open the judgment, again seeking a foreclosure by sale. This motion was denied. The state appealed to the Appellate Court, claiming that the trial court had abused its discretion in denying its motion for foreclosure by sale. The Appellate Court upheld the trial court’s decision. We granted certification to review the judgment of the Appellate Court. We reverse and remand for further proceedings.

Initially, we note the limited scope of our review of the issue on appeal. In a similar situation, we stated that “ ‘[i]n this appeal the focus of our review is not the judgment of the Superior Court but of the Appellate Court. We do not hear the appeal de novo. The only questions we need consider are those squarely raised by the petition for certification and the appellee’s preliminary statement of issues, and we will ordinarily consider these issues in the form in which they have been framed in the Appellate Court. See Practice Book §§ 3012 (a), 3154; State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985); State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985).’ Petrowski v. Norwich Free Academy, 199 Conn. 231, 234, 506 A.2d 139 (1986).” Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 634, 513 A.2d 52 (1986).

The state claims that the Appellate Court erred in upholding the judgment of strict foreclosure rendered by the trial court, and challenges the method of computation used by the trial court to determine whether to grant strict foreclosure or foreclosure by sale. The trial court added the indebtedness due the bank as first mortgagee to allowed fees, costs and estimated taxes, for a total of $79,603.80. Next, it added the second mortgage debt of the state in the amount of $24,976.42, and $12,000 due the bank on account of its attachment, making a total of $116,580.22. Fidelity Trust Co. v. Irick, 11 Conn. App. 53, 55, 525 A.2d 551 (1987). Because the total of all liens, taxes, costs and fees, plus the estimated expenses of a forclosure by sale of $7000, amounted to $123,580.22, and the appraiser valued the property at $96,750, the trial court concluded, in the exercise of its discretion, and the Appellate Court agreed, that strict foreclosure was proper in this case. We disagree.

In a foreclosure proceeding the authority of the trial court to order either a strict foreclosure or a foreclosure by sale is clear. General Statutes § 49-24 provides: '“All liens and mortgages affecting real property may, on the written motion of any party to any suit relating thereto, be foreclosed by a decree of sale instead of a strict foreclosure at the discretion of the court before which the foreclosure proceedings are pending.” In interpreting this statute, we have stated that “[i]n Connecticut, the law is well settled that whether a mortgage is to be foreclosed by sale or by strict foreclosure is a matter within the sound discretion of the trial court. General Statutes § 49-24; City Savings Bank v. Lawler, 163 Conn. 149, 155, 302 A.2d 252 (1972); Hartford Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 463, 217 A.2d 694 (1966). ‘The foreclosure of a mortgage by sale is not a matter of right, but rests in the discretion of the court before which the foreclosure proceedings are pending.’ Bradford Realty Corporation v. Beetz, 108 Conn. 26, 31, 142 A. 395 (1928).” Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 184, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985).

The amount due the bank, plus allowable fees, costs and taxes is $79,600 and the appraised value of the property is $96,750, for a difference of $17,150. Given the estimate of $7000 of expenses for conducting the foreclosure by sale, there would be a remainder of approximately $10,000 available for distribution to the subsequent encumbrancer. Payment of $10,000 on the $25,000 debt to the second mortgagee would amount to a payment of 40 percent of the mortgagor’s indebtedness. Under the order of strict foreclosure the bank as foreclosing mortgagee may receive property the value of which exceeds by $17,150 the amount of its mortgage debt and expenses. The state, notwithstanding its status as second mortgagee, is excluded from the payment of its mortgage debt even though there is substantial equity in excess of the first mortgagee’s debt. In another context, we have stated that “a mortgagee is only entitled to the payment of the debt owing him, including such incidental charges as he may add to it . . . .” Lomas & Nettleton Co. v. DiFrancesco, 116 Conn. 253, 258, 164 A. 495 (1933).

We recognize that the state, as a junior lienholder under strict foreclosure, may protect its interest because of its right to redeem the property. The state argues that the legislature has not allocated to it the finances necessary to redeem under the circumstances presented by this case. The bank argues to the contrary that notwithstanding the state’s lack of financial resources for redeeming the property, the court is precluded from according the state any preferential treatment under General Statutes § 49-31. We find it unnecessary to consider these arguments. The state’s lack of financial resources to redeem the property does not affect the fact that a substantial equity in the property exists in excess of the first mortgagee’s loan. The substantial excess equity is controlling, not the financial circumstances of the subsequent encumbrancer. Whether the subsequent encumbrancer is another lien-holder, the state or the owner, is of no material significance.

A foreclosure by sale may result in bids not only less than the appraised value of the property, but even less than the foreclosing mortgagee’s loan, allowable expenses and taxes. Because the trial court has control of the foreclosure proceedings, it can, in the exercise of its discretion, accept or reject a proposed sale. “[A] court of equity in a foreclosure suit would have full authority to fix the terms and time of the foreclosure sale and to refuse to confirm sales upon equitable grounds where they were found to be unfair or the price bid was inadequate. ... In this control over the foreclosure sale under its decree, the court could consider and determine the value of the property sold to the mortgágee and what the mortgagee would thus realize upon the mortgage debt if the sale were confirmed.” (Citations omitted.) Honeyman v. Jacobs, 306 U.S. 539, 543, 59 S. Ct. 702, 83 L. Ed. 972 (1938).

In a foreclosure proceeding the trial court must exercise its discretion and equitable powers with fairness not only to the foreclosing mortgagee, but also to subsequent encumbrancers and the owner. The state as second mortgagee invoked the statutory discretionary power of the trial court when it filed a motion for foreclosure by sale as authorized by General Statutes § 49-24. We have stated: “The remedy of the second mortgagee in such a case as this, if he cannot or does not wish to redeem, is by application for an order of sale under the statutes; General Statutes, § 5112, et seq.; and we have suggested that one purpose of this statutory remedy was to meet just such a situation as is here present. Staples v. Hendrick, [89 Conn. 100, 93 A. 5 (1915)]. It is true that the grant of such an application rests in the sound discretion of the court; Bradford Realty Corporation v. Beetz, [supra, 31]; but if there is need of a sale to protect the just rights of the parties, we have little fear that the court will not order it.” New Haven Bank v. Jackson, 119 Conn. 451, 455, 177 A. 387 (1935). The trial court abused its discretion in denying the state’s motion, and the Appellate Court erred in upholding the judgment of the trial court.

There is error, the judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       The state does not challenge the reasonableness of the appraiser’s valuation of the property at $96,750. In fact the property has been sold for $100,000. The parties to this appeal agreed that a sale was in the best interests of all concerned. After the Appellate Court denied the motion for permission to sell the property, the trial court granted the motion, allowing the property to be sold free and clear of all encumbrances with the proceeds to be used to pay the first mortgage debt, costs and accrued municipal real estate taxes. The balance of the proceeds are being held in escrow pending the resolution of this appeal.

       The Appellate Court used the figure of $116,600 for all liens, taxes, allowed attorney’s fees and allowed costs, plus estimated expenses for a foreclosure by sale of $7000, which would make a total of $123,600. See Fidelity Trust Co. v. Irick, 11 Conn. App. 53, 54-55, 525 A.2d 551 (1987). The plaintiff’s brief used the following figures:
      “(a) City of Norwalk, unpaid taxes, approximate $5,000.00
      “(b) Plaintiff’s first mortgage with costs and fees 74,603.80

        “(c) Mortgage due to Defendant, State of Connecticut 24,976.42
      “(d) Attachment of The Fidelity Trust Company as Defendant 12,000.00
      “Total $116,580.[22]”
      Plaintiff’s estimated foreclosure by sale expenses 7.000.00
      Plaintiff’s total $123,580.22

       “[General Statutes] Sec. 49-31. actions against the state. In any action to foreclose a mortgage or lien on any land in which the state, or any officer or agent thereof, claims to have an interest subordinate to that of the party seeking the foreclosure, the state, or such officer or agent, as the case may be, may be made a party defendant, and such interest may be foreclosed in the same manner and with the same effect as if such interest were held by an individual, except that no judgment may be rendered against the state or any officer or agent for money or costs of suit.”