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****************************************************** The ``officially released'' date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ``officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ``officially released'' date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** DENNIS HACKBARTH ET AL. v. ROBERT HACKBARTH (AC 19752)
Lavery, C. J., and Dranginis and Dupont, Js. Argued January 17--officially released March 27, 2001 Counsel

Thomas F. Brown, for the appellant (defendant). Kristen S. Rufo, for the appellees (plaintiffs).
Opinion

DUPONT, J. The plaintiffs, Dennis Hackbarth and Arlene Hackbarth, a majority of the trustees of a trust, sought an injunction requiring the third trustee, their brother, the defendant, Robert Hackbarth, to comply with a use arrangement that the plaintiffs had adopted for the management of the trust res, a summer cottage. The plaintiffs also sought damages. A temporary injunction issued, and subsequently, after a trial to the court, the court rendered judgment granting a permanent injunction.1 On appeal, the defendant claims that (1) the plaintiffs should not have brought the action against him as a

trustee, (2) the court should have joined all of the beneficiaries as defendants, (3) the exclusive use arrangement contravenes the clear language of the trust agreement, (4) the court improperly concluded that the plaintiffs did not have to prove the allegations of the complaint when seeking injunctive relief and (5) the court abused its discretion in granting injunctive relief. We affirm the judgment of the trial court. The resolution of this appeal hinges on the interpretation of the trust agreement (agreement), and on the allegations of the complaint and the special defenses. The settlor of the trust was the father of the plaintiffs and the defendant. The plaintiffs' complaint was accompanied by a copy of the agreement and referred to it in some of the paragraphs of the complaint. The one count complaint alleged the following: The plaintiffs and the defendant were the three trustees; the trust's purpose was to allow the members of the Hackbarth family, as beneficiaries, to use a summer cottage; the administration of the trust was by a vote of the majority of the trustees; the trustees were to manage the trust property; an arrangement that allowed all beneficiaries full and unrestricted access to the property, was unworkable and inequitable because of overcrowding, unpredictability of use, lack of privacy and lack of quiet enjoyment and caused disagreements and dissatisfaction among the beneficiaries; the plaintiffs, as a majority of the trustees, adopted an exclusive use arrangement for the duration of the trust during July and August to ensure an equitable opportunity for all beneficiaries to use the cottage, which arrangement divided July and August into four segments of two weeks each during which the families of four siblings, namely, the two plaintiffs, the defendant and the heirs of a deceased sibling, would have exclusive use of the cottage. The defendant asserted seven special defenses. They were (1) the plaintiffs should not have brought the action against the defendant as a trustee, (2) the plaintiffs as trustees did not act fairly and in the best interests of the beneficiaries, (3) the plaintiffs acted in their own self-interest, contrary to their fiduciary responsibilities as trustees, (4) the plaintiffs have to prove fair dealing with the property of the trust and the beneficiaries by clear and convincing evidence, (5) the plaintiffs as trustees did not act in good faith, (6) the beneficiaries of the trust are indispensable parties and were not made parties, and (7) the adoption of the arrangement violates the constitutional rights of the beneficiaries.2 The dispute centers around whether the trust allowed a majority of the trustees, namely, the plaintiffs, to enter into the exclusive use arrangement and, if so, whether the arrangement comported with the agreement and with the principles governing the action of trustees. The defendant also claims that the plaintiffs did not

prove the irreparable harm necessary for the granting of injunctive relief. The facts as alleged in the plaintiffs' complaint, other than those relating to the use arrangement, are undisputed. The following additional facts are also undisputed and relevant to the issues. At any time other than July and August, all beneficiaries may use the cottage, which is not winterized. The defendant lives in Madison, one plaintiff lives in Connecticut and the other plaintiff lives in California. The trust term is fifteen years unless sooner terminated or extended by the unanimous vote of the settlor and the trustees. Upon termination of the trust, the property shall be sold and divided into four shares, one share each to the two plaintiffs and to the defendant, and one share to the living issue of a fourth sibling who had died before the execution of the agreement. The cottage has four rooms, two porches, no heat, water from a tank that collects rainwater and a chemical toilet. The cottage is located on a beach and at high tide, the water comes up to the house. The living room is approximately fifteen feet by twenty feet, and the kitchen is approximately fifteen feet by fifteen feet. The two bedrooms are on the second story. The cottage can sleep three people. I The defendant's first two claims on appeal are that the plaintiffs should not have brought the action against him as a trustee, and that the beneficiaries of the trust are indispensable parties ``to this action and they have not been served and made parties.'' According to the defendant, those claims are interrelated, because if the plaintiffs should have sued the defendant as a beneficiary and did not, we should either dismiss the case or conclude that the plaintiffs should have made all the other beneficiaries parties. We agree with the court in its conclusion that the plaintiffs sued the defendant individually as a beneficiary and that they can maintain a suit without suing all of the beneficiaries of the trust. A The defendant claims that he asserts a right to use the cottage at will because he is a beneficiary, and not in his capacity as a trustee. The temporary injunction ordered the defendant, as trustee, to ``comply fully with the exclusive use arrangement'' and to ``refrain from interfering in any way with the implementation of the exclusive use arrangement as adopted by the majority of the trustees.'' The permanent injunction, which is the subject of this appeal, however, enjoins the ``defendant from using the cottage . . . during the months of July and August . . . except in accordance with the arrangements adopted by the majority of the trustees.'' The permanent injunction does not, therefore, describe the defendant as trustee. In his testimony at trial, the defendant stated that it

was in his capacity as a beneficiary that he refused to follow the exclusive use arrangement without a court issuing an injunction against him. We have examined the entire transcript of the defendant's testimony. The pleadings and his testimony lead us to conclude that the plaintiffs sued the defendant as a beneficiary and not as a trustee. See United Components, Inc. v. Wdowiak, 239 Conn. 259, 264, 684 A.2d 693 (1996). The interpretation of pleadings is a question of law to be determined by the language of the pleadings and the basic nature of the underlying factual situation. Id. Here, the defendant's own testimony and the words of the complaint indicate that the plaintiffs sued the defendant individually, as a beneficiary of the trust. The complaint does not seek to prevent the defendant from acting or refusing to act as a trustee, but seeks to prevent him from refusing to comply with the majority of the trustees' action and from defying the trustee's action ``to the detriment of the remaining beneficiaries.'' (Emphasis added.) Although another paragraph of the complaint states that the defendant's behavior violates his responsibility as a trustee to abide by the terms of the trust, that language can be read to mean that he refuses to abide by the majority rule of the trustees as required by the trust agreement, thereby irreparably harming the beneficiaries of the trust. The plaintiffs litigated the case on its merits against the defendant as a beneficiary, and any variance between the allegations of the complaint and the proof at trial are deemed waived. Tedesco v. Stamford, 215 Conn. 450, 462

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