497 A.2d 93
(2543) (2544)Appellate Court of Connecticut
DUPONT, C. J., HULL and SPALLONE, Js.
The plaintiff tenants in the first case sought, inter alia, to enjoin the defendant landlords, C, E and H Co., from evicting them from certain premises owned by C and E, who were officers of H Co. C and E filed a counterclaim alleging trespass by the tenants. In the second case, the landlords brought a summary process action to regain possession of the subject premises. From the trial court’s judgments denying injunctive relief on the complaint and awarding damages to C and E on the counterclaim in the first case, and granting possession to the landlords in the second case, the tenants appealed to this court. Held: 1. The trial court erred in awarding C and E damages for use and occupancy of the premises since the counterclaim did not contain an allegation of use and occupancy. 2. Since the tenants failed to post a bond pending appeal as ordered by the trial court and were evicted from the subject premises, their appeal from the judgment in the summary process action was moot.
Argued June 5, 1985
Decision released September 3, 1985
Action, in the first case, to enjoin the defendants from evicting the plaintiffs from certain premises, and for other relief, and, in the second case, summary process action, brought to the Superior Court in the judicial district of Stamford-Norwalk, Housing Session at Norwalk, where, in the first case, the defendants Arthur Collins and Arthur Emil filed a counterclaim to recover damages for trespass; the cases were consolidated and tried to the court, Driscoll, J.; judgment in the first case for the defendants on the complaint and on the counterclaim, from which the plaintiffs appealed to this court and judgment in the second case for the plaintiffs,
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from which the defendants appealed to this court. Error in the first case, judgment directed; appeal dismissed in the second case.
Daniel W. Moger, Jr., for the appellants (plaintiffs in the first case, defendants in the second case).
James R. Fogarty, for the appellees (named defendant et al. in the first case, named plaintiff et al. in the second case).
SPALLONE, J.
In an attempt to impose some measure of clarity upon the complicated factual situation presented in these combined appeals, the first action, entitled Yankee Sailing Co. v. Yankee Harbor Marina, Inc., will be referred to hereinafter as the “equitable action,” and the second action, entitled Arthur Collins v. Yankee Sailing Company, will be referred to as the summary process action.” Unless otherwise denoted, Yankee Sailing Company, Inc., Alco Holdings, Ltd., doing business as Offshore Yachts, and A. A. Constantine[1] will be referred to as the tenants. Yankee Harbor Marina, Inc., Arthur Collins, Arthur Emil, and John Freitag[2] will be referred to as the landlords.
These cases arise out of the use of a building owned by Collins and Emil. This building was occupied by the tenants from the summer of 1982 until they were evicted in the fall of 1983. During this period, the tenants did not pay rent for the use and occupancy of the building but, instead, compensated the landlords for the use of the building by making improvements to the property under an alleged oral agreement.
The procedural history of these actions is complex. By notice to quit, dated January 5, 1983, the landlords
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demanded that the tenants vacate the premises on or before January 16, 1983. In response to this notice to quit, the tenants instituted the equitable action in which they sought, inter alia, temporarily and permanently to enjoin the landlords from evicting them. In the equitable action, the landlords Collins and Emil counterclaimed, seeking, inter alia, damages for trespass. The tenants moved to dismiss the summary process action because of alleged deficiencies in the notice to quit. The trial court granted the tenants’ motion to dismiss the summary process action because the reasons contained in the landlords’ notice to quit were mutually contradictory.[3] It denied the tenants a temporary injunction in the equitable action.
The landlords then instituted a new summary process action[4] which was consolidated for trial with the equitable action. The trial court rendered judgment for the landlords on both the complaint and the counterclaim in the equitable action, and awarded them damages on the counterclaim for use and occupancy. In the summary process action, the court awarded the landlords immediate possession. The tenants have appealed from the judgments in both actions.
On appeal, the tenants claim that the trial court erred: (1) in rendering judgment for the landlords in the summary process action on the basis of an allegedly defective notice to quit; and (2) in awarding the landlords
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damages for use and occupancy in the equitable action on the counterclaim which did not allege use and occupancy.
At oral argument, the landlords conceded that the trial court erred in the equitable action in finding for them on their counterclaim on the basis of use and occupancy.
In the summary process action, we find that the appeal is moot. The tenants failed to post bond as ordered by the court; see General Statutes 47a-35
and 47a-35a;[5] and, as a result, the automatic stay pending
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appeal was terminated and they were evicted. Although a writ of restoration may issue upon a reversal of a summary process judgment; Du Bouchet v. Wharton, 12 Conn. 533, 539 (1838); such a writ can only issue if the lease has not expired by its terms. Id. In this case, the trial court found not only that there was no lease, but also that the tenants’ possession was wrongful.
“[I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944); quoted in Bridgeport Jai Alai, Inc. v. Gaming Policy Board, 3 Conn. App. 254, 256, 487 A.2d 208 (1985). Since the question presented to us in the appeal from the judgment in the summary process action is purely academic, we refuse to entertain it. See Bridgeport Jai Alai, Inc. v. Gaming Policy Board, supra, 257.
In the summary process action (2544), the appeal is dismissed; in the equitable action (2543), there is error, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiffs, Yankee Sailing Company, Inc., et al., on the counterclaim.
In this opinion the other judges concurred.