Spears v. Kerars Realty Co., Inc.

Decision Date28 September 1976
CourtConnecticut Supreme Court
PartiesS. Vernon SPEARS et al. v. KERARS REALTY COMPANY, INC.

John J. Graubard, Stamford, with whom, on the brief, was Sydney C. Kweskin, Stamford, for appellants (plaintiffs).

Isadore M. Mackler, Stamford, with whom, on the brief, was Leo Gold, Stamford, for appellee (defendant).

Before HOUSE C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

LONGO, Associate Justice.

The plaintiffs have appealed from a judgment of the Superior Court accepting an appraiser's report and ordering the sale of their shares in the defendant corporation to other shareholders for the appraised value. The principal issue, and the only one which we need consider, is whether the court erred in denying the plaintiffs' withdrawal of their action.

A brief summary of the procedural history of the case will serve to place the claim of the plaintiffs in context. In August, 1968, the plaintiffs, who are directors and two of the eight shareholders of the defendant corporation, petitioned the Superior Court pursuant to § 33-382 of the General Statutes for a windup of the affairs of the corporation. The six other shareholders (hereinafter referred to as the shareholders) 1 responded on April 18, 1969, with an application for the appointment by the court, pursuant to § 33-384(b), of an appraiser to determine the fair value of the plaintiffs' shares of the corporation's stock. It does not appear of record that this application was ever acted upon. In June, 1973, the shareholders filed with the court a copy of a report by Bennett B. Kirk, a real estate appraiser, determining the value of the real estate owned by the corporation. 2 The shareholders simultaneously filed an election to purchase the plaintiffs' shares at a price computed by reference to Kirk's report, and a motion for an order directing the plaintiffs to sell at that price all in accordance with the provisions of § 33-384. The plaintiffs, on June 7, 1973, then withdrew their petition for a winding up, and the shareholders objected. The shareholders subsequently moved to correct the record to reflect the appointment, on September 12, 1972, of Kirk as appraiser. In June, 1974, the court sustained the shareholders' objection to the plaintiffs' withdrawal, granted the motion to correct the record, accepted the appraiser's report and granted the motion for an order of sale.

The withdrawal of actions is governed by § 52-80 of the General Statutes, which provides in pertinent part that '(t)he plaintiff may withdraw any action . . . 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 . . . only by leave of court for cause shown.' It is not disputed that a petition for a winding up is an 'action' to which § 52-80 applies, nor is it contended that 'a hearing on the merits' or on any 'issue of fact' was commenced by the court prior to the plaintiffs' withdrawal. The single issue, therefore, is whether the determination by the appraiser of the value of the corporate assets constituted a 'hearing' as that term is used in § 52-80.

Resolution of this issue requires a preliminary examination of the nature of the appraisal proceedings. Section 33-384 provides that after a petition for a winding up has been filed, any other shareholder may apply to the court to have the value of the petitioner's shares appraised. 'The court shall thereupon by its judgment determine the fair value of the petitioner's share as of the day prior to the date on which such petition was filed . . .. It may, if it so elects, appoint one or more persons as appraisers to receive evidence and recommend a decision on the question of fair value. The appraisers shall have such power and authority as shall be specified in the order of their appointment.' General Statutes § 33-384(b). The appraisal of the petitioner's shares is ancillary to the winding up action. Sussman v. Riverbank Motors Corporation, 154 Conn. 289, 292, 224 A.2d 716. When the report of an appraiser is sought, the procedures to be followed are, so far as applicable, those set out in §§ 349 to 365 of the Practice Book, to be followed as in cases referred to a committee or a referee. Saraceno v. Capitol Theatre Realty Corporation, 154 Conn. 669, 672, 228 A.2d 507. The court's function is limited to rendering a judgment based upon the facts found by the appraiser; Practice Book § 363; and although the court may reject the appraiser's report, it does not itself determine the facts of the case. Ibid. The procedures to be followed in challenging an appraiser's report, as set out in §§ 358 to 361 of the Practice Book, are designed to avoid a duplication of effort which would ensue if the court were to rehear the evidence presented to the appraiser. Saraceno v. Capitol Theatre Realty Corporation, supra, 673, 228 A.2d 507. Thus, the only 'hearing on an issue of fact' which is held when an appraiser's report is sought consists of the proceedings, if any, before...

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11 cases
  • Kendall v. Comm'r of Corr.
    • United States
    • Connecticut Court of Appeals
    • December 22, 2015
    ...which is held when an appraiser's report is sought consists of the proceedings, if any, before the appraiser." Spears v. Kerars Realty Co., 171 Conn. 699, 703, 372 A.2d 121 (1976). Although the informality of such proceedings might make it "difficult in some cases to determine at what point......
  • Kendall v. Comm'r of Corr.
    • United States
    • Connecticut Court of Appeals
    • December 22, 2015
    ...which is held when an appraiser's report is sought consists of the proceedings, if any, before the appraiser." Spears v. Kerars Realty Co., 171 Conn. 699, 703, 372 A.2d 121 (1976). Although the informality of such proceedings might make it "difficult in some cases to determine at what point......
  • Amica Mut. Ins. Co. v. Woods, 17150
    • United States
    • Connecticut Court of Appeals
    • May 19, 1998
    ...an attorney trial referee when no facts need be found would negate the necessity of such a reference. See Spears v. Kerars Realty Co., Inc., 171 Conn. 699, 702-703, 372 A.2d 121 (1976).6 General Statutes § 52-225b provides in relevant part: " 'Collateral sources' means any payment made to t......
  • Meadows v. Higgins, 17533
    • United States
    • Connecticut Court of Appeals
    • June 30, 1998
    ...the applicable standards of review. Attorney trial referees are empowered to hear and decide issues of fact. Spears v. Kerars Realty Co., 171 Conn. 699, 702-703, 372 A.2d 121 (1976). It is axiomatic that 'a reviewing authority may not substitute its findings for those of the trier of the fa......
  • Request a trial to view additional results
1 books & journal articles
  • Withdrawl and Reinstatement of State Court Actions
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 71, 1996
    • Invalid date
    ...with Salonia. v. Salonia, 16 Conn. Sup. 86 (Super. Ct. 1949). 10. The answer has been no. Spears v. Kerars Realty Co., 171 Conn. 699, 703, 372 A.2d 121 (1976); Sussman v. Motors Corp., 154 Conn. 289, 224 A.2d 716 (1966). 11. Courts in other states interpreting similar statutory language hav......

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