Franc v. Planning Zoning Commission, No. 31 07 85 (Oct. 13, 1993)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION This matter comes before the court on a motion by the defendants, Bethel Holding Company and D'Agostino's Nurseries, Inc., to have this matter stricken from the jury docket.

The underlying cause of action by the plaintiffs is a claim for injunctive relief against enforcement of a judgment in a prior administrative appeal.

The defendants claim that since the plaintiffs seek injunctive relief, this is in essence an equitable proceeding, and therefore a jury is improper.

In Franchi v. Farmholme, Inc., 191 Conn. 201 (1983), our Supreme Court addressed similar issues and in a split decision the court concluded that where incidental issues of fact are presented in an action essentially equitable, the court may determine those issues without a jury. However, when the essential basis of the action is such that the issues presented are properly cognizable in an action at law, either party has a right to have the legal issues tried by a jury even though equitable relief is claimed. The form of relief demanded makes little difference on the question of whether a case is entitled to a jury trial. The court must look to the pleadings in making its determination. CT Page 8317

A review of the complaint indicates the gravamen of the complaint is that the judgment of the Commission was egregious and plain error and not supported by the record.

Here the plaintiff seeks to enjoin a prior judgment. This is clearly a request for equitable relief.

The motion to strike from the jury list is granted.

Mihalakos, J.