194 Conn. 400 | Conn. | 1984
The principal issue in this case is whether the trial court, Maiocco, J., erred when it overruled the defendants’ objection to the plaintiff’s withdrawal of his complaint. The following salient facts are not in dispute: The plaintiff, Douglas Barra, filed a complaint on April 21,1982, seeking a judicial winding up of the defendant corporation, Ridgefield Card & Gift Gallery, Ltd. (Ridgefield), pursuant to General Statutes § 33-382. The plaintiff and the defendant Loretta O’Hare were shareholders and directors of Ridgefield. O’Hare then filed an application for appraisal of the plaintiff’s shares of stock pursuant to General Statutes § 33-384. This application was granted after a hearing before the trial court, Ford, J., and at that time John P. O’Byrne, a certified public accountant, was appointed as the appraiser.
On July 16, 1982, O’Byrne filed his appraisal report with the court. This report stated that the plaintiff’s shares of stock were worth $0.00 as of April 20,1982, the day preceding the filing of the plaintiff’s complaint.
Subsequently, on September 27, 1982, the plaintiff filed a motion to reargue the motion for order of sale entered on September 7,1982, and, on September 28, 1982, the plaintiff filed a motion to “reopen” that order of sale. The gravamen of both of these motions was that the court was without jurisdiction to enter the order of sale on September 7 because the plaintiff had filed a withdrawal of his complaint on September 3. On October 14,1982, the defendants filed their motion objecting to the plaintiff’s motions to “reopen” and reargue. The trial court, Moraghan, J., after a hearing, granted both motions on November 1,1982. Thereafter, on December 20,1982, the trial court, Maiocco, J., after a hearing, overruled the defendants’ objection to the withdrawal, and the defendant O’Hare then appealed.
On appeal, the defendant claims that the trial court erred in overruling her objection to the plaintiff’s with
Initially, we point out, as both parties now acknowledge, that a “hearing on an issue of fact” within the meaning of § 52-80 had “commenced” in this case prior to the plaintiffs filing of his withdrawal on September 3,1982. Spears v. Kerars Realty Co., supra, 701-704. Quite clearly, the plaintiff’s right to withdraw his action without leave of court terminated “with the commencement by the [court appointed] appraiser of the procedures to be followed in arriving at his appraisal.”
At this point, we refer to the language of the memorandum of decision by the trial court, Maiocco, J., on the defendants’ objection to the plaintiff’s withdrawal. We may examine the trial court’s memorandum of decision to understand better the basis of its decision and to determine the reasoning used by it in reaching its conclusion. McGaffin v. Roberts, 193 Conn. 393, 408, 479 A.2d 176 (1984). After pointing out the apparent clerical error which prevented the inclusion of the plaintiff’s withdrawal in the court file at the time when the trial court, Moraghan, J., heard and decided the defendant’s motion for the sale of the plaintiffs stock,
The trial court then stated that “[t]hese arguments were all addressed and countered by the plaintiff in his memorandum in support of the motions” which Judge Moraghan granted and, “[i]n effect, Judge Moraghan by his ruling appears to have accepted the arguments advanced by the plaintiff and rejected those offered by the defendant.” The trial court then pointed out that “the defendant [was coming] before the court a second time proposing the same objections to the with-drawl of [the] action, [that the defendant was] asking for a new ruling on the matter, [and that] [i]n effect, she is asking the court to overrule the prior decision.”
Finally, the trial court stated that “[i]n addition to the above consideration, i.e., the prior court ruling, this court adopted the argument advanced by the plaintiff that the appointment of an appraiser and his filing of his report did not, in and of itself, constitute a hearing ... on an issue of fact as contemplated by Sec. 52-80 ... so as to prevent the plaintiff from withdrawing his action without prior approval from the court.”
It is plain, in view of what we have already stated concerning the plaintiffs inability to withdraw as of right under our holding in Spears which interpreted § 52-80, that the trial court, Maiocco, J., erred in its conclusion that the plaintiff could withdraw without leave of court. It is clear, however, that its judgment was not predicated on only that conclusion but also on the independent ground relating to the previous ruling of Judge Moraghan. A trial court’s judgment may
The thrust of the defendant’s position on this appeal is that the issue of cause was never addressed in the proceedings before either Judge Moraghan or Judge Maiocco. We cannot accept this claim. There is no question that the defendants’ objection to the plaintiff’s motions to “reopen” and reargue, as well as their objection to the plaintiff's withdrawal, were both filed with the trial court prior to the time when the court granted the plaintiff’s motions to “reopen” and reargue. Both of these objections as filed clearly stated, inter alia, the defendants’ argument that the withdrawal was improper, untimely, and without leave of court for cause shown. After a hearing, Judge Moraghan granted the plaintiff’s motions to “reopen” and reargue, despite these claims, without a written memorandum of decision. As already stated, 'Judge Maiocco, in denying the defendants’ objection to the plaintiff’s withdrawal, referred to Judge Moraghan’s previous order and pointed out that all of the claims then being made before him had already been made and rejected by the court’s, Moraghan, J., previous action. In view of this chronology, the defendant’s claim essentially must center on whether Judge Maiocco erred in construing Judge Moraghan’s order as having addressed, inter alia, the issue of cause and having resolved it in the plaintiff’s favor.
As we have noted, there is no written memorandum of decision setting forth the basis of Judge Moraghan’s
The significant gap in the record, i.e., the absence of a transcript of the proceedings before Judge Moraghan, before both Judge Maiocco and this court limits our review and presents obstacles to reviewing the defendant’s claim of error on this appeal. See Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713-14, 462 A.2d 1037 (1983); H. B. Sanson, Inc. v. Tax Commissioner, 187 Conn. 581, 586, 447 A.2d 12 (1982). It is the appellant’s burden to ensure that we are provided with an adequate appellate record to support his claims of error. See DeMilo v. West Haven, 189 Conn. 671, 681, 458 A.2d 362 (1983). It is important to recognize that a claim of error cannot be predicated on an assumption that the trial court acted incorrectly. Long
There is no error.
In this opinion the other judges concurred.
General Statutes § 33-384 (b) requires valuation of a petitioner’s shares as of the day prior to the date on which a petition under General Statutes § 33-382 is filed.
The plaintiff’s withdrawal stated: “The Complaint in the above entitled action is hereby withdrawn.”
In its memorandum of decision on the defendants’ objection to withdrawal, the trial court, Maiocco, J., stated that the filing of the withdrawal “was erroneously coded on the computer printout entries for the file and appears not to have been placed in the file when the court, Moraghan, J., entertained [the defendants’] motion for order of sale of the stock . . . .”
Both Loretta O’Hare and Ridgefield Card & Gift Gallery were named as defendants in the plaintiffs complaint. It is apparent, however, that only O’Hare has appealed.
General Statutes § 52-80 provides in pertinent part: “The plaintiff may withdraw any action . . . returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof. After the commencement of a hearing on an issue of fact in any such action, the plaintiff may withdraw such action, or any other party thereto may withdraw any cross complaint or counterclaim filed therein by him, only by leave of court for cause shown.”
There is no question raised on this appeal concerning the trial court’s order appointing John P. O’Byrne as appraiser under General Statutes § 33-384 (b). See, e.g., Spears v. Kerars Realty Co., 171 Conn. 699, 704, 372 A.2d 121 (1976).
See footnote 3, supra.