Yale Literary Magazine v. Yale University

• Decision Date: 30 July 1985
• Docket Number: Nos. 2643,2959,s. 2643
• Citation: 4 Conn.App. 592,496 A.2d 201
• Court: Connecticut Court of Appeals
• Parties: , 26 Ed. Law Rep. 1096 YALE LITERARY MAGAZINE et al. v. YALE UNIVERSITY et al.

Page 201

496 A.2d 201

4 Conn.App. 592, 26 Ed. Law Rep. 1096

YALE LITERARY MAGAZINE et al. v. YALE UNIVERSITY et al.

Nos. 2643, 2959.

Appellate Court of Connecticut.

Argued March 13, 1985.

Decided July 30, 1985.

John R. Williams, New Haven, with whom, on brief, was Sue L. Wise, New Haven, for appellants (Andrei Navrozov and American Literary Soc., Inc.).

William J. Doyle, New Haven, with whom was Mark R. Kravitz, New Haven, for appellees (defendants).

Before DUPONT, C.P.J., and BORDEN and DALY, JJ.

DUPONT, Chief Presiding Judge.

This appeal arises from a judgment rendered by the trial court in favor of Yale University and several of its officials (hereinafter Yale University) on their counterclaim, in which they sought an injunction to restrain the use of the name "Yale" in the title of a publication called "Yale Literary Magazine." To put the issues and the underlying facts in perspective, an examination of the procedural history of the present action is required. This action was originally commenced in 1982 by Andrei Navrozov and the Yale Literary Magazine. They sought injunctive relief against Yale University in connection with the continued use of the name "Yale" in the title of their publication. Specifically, an order was sought enjoining Yale University from requiring Yale Literary Magazine to register as an undergraduate organization.

Yale University answered, interposed special defenses, and counterclaimed against Navrozov and American Literary Society (hereinafter Society), the corporate publisher of Yale Literary Magazine. In 1983, the complaint was withdrawn. Thereafter, Society joined Navrozov in treating Yale University as the plaintiff in the action, by jointly filing an answer, special defenses and counterclaims to Yale University's supposed complaint. Two years prior to the commencement of this action, Yale University entered into an agreement with Navrozov and Society allowing them to continue to publish the Yale Literary Magazine provided they register as an undergraduate organization. Yale University's counterclaim was based upon the alleged breach of the terms of that agreement. Upon the trial of the action, the counterclaim of Yale University was treated as the complaint, and Yale University was considered the plaintiff. ¹

On appeal, Navrozov and Society raise and brief ten claims of error. ² They are whether the trial court erred (1) in striking the case from the jury docket, (2) in refusing to permit an attorney, licensed by another state, to be admitted pro hac vice, (3) in proceeding to trial where an appeal was taken from that refusal, (4) in granting Yale University injunctive relief in the absence of proof that an irreparable injury was sustained, (5) in applying general contract law to the agreement in question, (6) in finding that the agreement did not violate the rule against perpetuities, (7) in rulings on the evidentiary claims pressed by the parties, (8) in failing to decide whether the special defenses interposed of impossibility of performance and frustration of purpose were proven, (9) in issuing impermissibly broad injunctive relief, and (10) in finding facts not supported by the evidence. Many of the claims of error pressed do not require an extensive discussion.

Society and Navrozov claim that the trial court made various erroneous evidentiary rulings. No appellate review of those claims is possible. Practice Book § 3060F(d)(3). ³ The claim of error involving the special defenses of impossibility of performance and frustration of purpose are likewise not properly preserved for appellate review since the defendants failed to move for a further amplification or clarification from the trial court. Newington v. General Sanitation Service Co., 196 Conn. 81, 84, 491 A.2d 363 (1985). The trial court's memorandum of decision notes that Society's and Navrozov's special defenses included frustration of the contract. The trial court, in its memorandum of decision, expressly held that they failed to sustain their burden of proof as to all the special defenses. If they desired a further amplification or clarification of the trial court's decision on these points, they should have sought a further articulation from the trial court. Id. In the absence of such a request, the trial court did not err.

Society and Navrozov also claim that the trial court erred in granting Yale University injunctive relief in the absence of evidence establishing irreparable injury. Tied to this argument is the notion that the plaintiff is proceeding pursuant to a common law cause of action for unfair competition. See Yale University v. Benneson, 147 Conn. 254, 159 A.2d 169 (1960). Yale University's action sounds in contract and the special defenses interposed thereto concern contracts. Cases are reviewed on the theory upon which they are tried and decided. Fuessenich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985). The decisional law relevant to this matter involves the enforcement of contractual provisions restricting the use of a trade name. Injunctive relief in such situations has been granted. Overhead Door Corporation v. Nathanson, 291 F.Supp. 961, 963 (W.D.N.C.1968); see T & T Mfg. Co. v. A.T. Cross Co., 449 F.Supp. 813, 823-26, (D.R.I.1978), aff'd, 587 F.2d 533 (1st Cir.1978), cert. denied sub nom. A.T. Cross Co. v. Quill Co., 441 U.S. 908, 99 S.Ct. 2000, 60 L.Ed.2d 377 (1979); Mozzochi v. Luchs, 35 Conn.Sup. 19, 391 A.2d 738 (1977).

Society and Navrozov argue that clause 10 of the certificate of incorporation of Society, by which Yale University has the right to revoke Society's permission to use the "Yale" name, violates the rule against perpetuities. Society and Yale University are charitable organizations and as such the rule against perpetuities does not apply to them. City National Bank v. Bridgeport, 109 Conn. 529, 544, 147 A. 181 (1929); Pierce v. Phelps, 75 Conn. 83, 86, 52 A. 612 (1902).

Society and Navrozov contend that the trial court misapplied the relevant law of contracts since it failed to account for the fiduciary capacity in which Yale University dealt with the other parties. This argument was not distinctly raised below and need not be reviewed. Practice Book §§ 3063, 285A; Farmington Savings Bank v. Zoning Board of Appeals, 189 Conn. 727, 739-40, 458 A.2d 1151 (1983).

Navrozov and Society claim the trial court erred in finding facts not supported by the evidence. Wholesale attacks on the trial court's finding of facts have been repeatedly criticized by this state's appellate courts. Toffolon v. Avon, 173 Conn. 525, 527, 378 A.2d 580 (1977); Dick v. Dick, 167 Conn. 210, 212, 355 A.2d 110 (1974); American Frozen Foods, Inc. v. International Brotherhood of Teamsters, 3 Conn.App. 300, 301-302, 487 A.2d 570 (1985). In this case, the facts found by the trial court were supported by the evidence.

Society and Navrozov argue that the trial court was divested of its jurisdiction in the present action when they appealed the trial court's refusal to admit an out of state attorney to appear pro hac vice. Their claim is that the trial court committed error in proceeding to a trial on the merits. Yale University claims that the refusal to admit an out of state attorney to appear pro hac vice is not an immediately appealable order and that, even if the order was immediately appealable, the stay of execution provided in Practice Book § 3065 does not apply to this situation. It further argues that even if an appellate stay applied to this situation, the trial of the action was harmless error since the trial court held that the appeal was frivolous and taken only to delay the proceedings.

The threshold question of the immediate appealability of such an order must first be addressed because challenges to the trial court's jurisdiction to hear a matter must be resolved before considering the other issues presented on appeal. See Sullivan v. Board of Police Commissioners, 196 Conn. 208, 213, 491 A.2d 1096 (1985).

Society and Navrozov rely on Silverman v. St. Joseph's Hospital, 168 Conn. 160, 363 A.2d 22 (1975), as authority for the proposition that the denial of a motion for an attorney to appear pro hac vice is immediately appealable. Our Supreme Court's denial of a motion to dismiss for lack of a final judgment filed in response to an appeal from the denial of a pro hac vice motion is also relied upon. Penebre v. Eli Lilly & Co., No. 11864 (1983) (unreported order on motion to dismiss, appeal later withdrawn); see Moller & Horton, Connecticut Practice (8th Ed.1985), p. 44.

In Silverman v. St. Joseph's Hospital, supra, 169-70, 363 A.2d 22, the court expressed its reluctance to entertain an appeal from the denial of such a motion but addressed the merits of the claim due to the unique circumstances involved in that action. That Silverman is not authority for the proposition that the denial of a motion to appear pro hac vice is immediately appealable is revealed by the court's following comment: "If that judgment was a final judgment, then the time for filing the appeal was under the provisions of § 601 of the Practice Book limited to twenty days. If, on the other hand, the appeal is considered to be permissible under the provisions of § 604 of the Practice Book as a judgment disposing of part of the issues, it was incumbent upon the plaintiff to file notice of the appeal within twenty days. A notice of appeal was not filed until May 23, 1973, almost exactly a year late. Despite the existence of all of these complications, we have, not without considerable hesitation and reluctance, decided to entertain the present appeal." Id., 169-70, 363 A.2d 22.

The reliance on the summary denial of a motion to dismiss an appeal taken from a trial court's refusal to admit an attorney pro hac vice is misplaced. Our Supreme Court, just recently, summarily denied a motion to dismiss appeals for lack of final judgments, but decided to dismiss those appeals because of the absence of...