Opinion
(6620)
Argued March 16, 1989
Decision released May 9, 1989
Action to recover damages for the defendants' failure to release a certain mortgage, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the named defendant et al. and the defendant Laurence V. Parnoff filed separate counterclaims; thereafter, the matter was referred to Hon. Irving Levine, state trial referee; judgment for the plaintiff on the complaint and the counterclaims, from which the named defendant et al. appealed and the plaintiff cross appealed to this court. No error.
Mary Ann Barile, with whom, on the brief, was Raphael Korff for the appellants-appellees (named defendant et al.).
Mathew D. Newman, with whom, on the brief, was Noel R. Newman, for the appellee-appellant (plaintiff).
The defendants, Ida Kuhn and Anthony Caltabiano, appeal the judgment rendered for the plaintiff, Lorraine S. Koehm, in an action for damages and release of mortgage brought pursuant to General Statutes 49-8 (c). The plaintiff has cross appealed.
Laurence V. Parnoff, one of the defendants in the trial court, has not taken an appeal. As used in this opinion, "defendants" refers to Kuhn and Caltabiano.
The defendants claim that the trial court erred (1) in finding that the amount due in satisfaction of the debt was delivered to the defendant, (2) in finding that the plaintiffs met the notice requirements of General Statutes 49-8 (c), (3) in finding that the restrictive endorsement placed on the check by the plaintiff effected an accord and satisfaction when the defendants cashed the check, (4) in failing to find that General Statutes 49-8 superseded the holding in Scripture v. Johnson, 3 Conn. 211 (1819), and (5) in awarding damages. The plaintiff in her cross appeal claims that the trial court erred in not awarding her counsel fees under General Statutes 49-8 (c). We find no error on the appeal or on the cross appeal.
This claim is not reviewable because the defendants failed to raise it in the trial court. See Practice Book 4185.
The defendants raised two additional issues. Those issues relate, however, to the defendant Parnoff's counterclaim and therefore cannot be raised in this appeal.
General Statutes 49-8 (c) provides: "If the mortgagee or plaintiff or his attorney, as the case may be, fails to execute and deliver a release after thirty days from the date of a written request for a release of such encumbrance sent to him to his last-known address by registered mail or by certified mail, postage prepaid, return receipt requested, the mortgagee or plaintiff shall be liable for damages to any person aggrieved at the rate of one hundred dollars for each week after the expiration of such thirty days but not exceeding in the whole the sum of five thousand dollars or in an amount equal to the loss sustained by such aggrieved person as a result of such failure to execute and deliver a release, whichever is greater."
The trial court filed a complete and legally sound memorandum of decision incorporating the facts found and setting forth legal conclusions made in conformity with applicable law. The trial court's decision so completely articulates the issues involved and so adequately explains the legal basis for its conclusions that it may be referred to for a detailed discussion of the facts and applicable law. See Faith Center, Inc. v. Hartford, 192 Conn. 434, 436, 472 A.2d 16, cert. denied, 469 U.S. 1018, 105 S.Ct. 432, 83 L.Ed.2d 359 (1984); Hinchcliffe v. American Motors Corporation, 192 Conn. 252, 253, 470 A.2d 1216 (1984); Cantor v. Department of Income Maintenance, 12 Conn. App. 435, 438, 531 A.2d 606 (1987).
Accordingly, the trial court's memorandum of decision, reported in Koehm v. Kuhn, 41 Conn. Sup. 130, 558 A.2d 1042 (1987), should be referred to for a detailed discussion of the facts and legal conclusions in the case.