author: Borden, J.

text:
    Stanley J. Pac, Commissioner of Environmental Protection v. The Upjohn Company
    (7883)
    Borden, Spallone and Daly, Js.

      Argued December 15, 1989
    decision released March 20, 1990

      S. Robert Jelley, with whom was Matthew C. Brenneman, for the appellant (defendant).

      Richard F. Webb, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, and Robert E. Walsh, assistant attorney general, for the appellee (plaintiff).
   Borden, J.

The defendant, The Upjohn Company (Upjohn), appeals from the judgment of the trial court accepting an attorney trial referee’s recommendation that Upjohn pay a civil penalty to the plaintiff, the commissioner of environmental protection, for discharging wastewater containing effluents in excess of certain levels. Those levels were established in a March, 1983 order by the commissioner to Upjohn. Upjohn claims that the court erred because (1) the effluent parameters set forth in the commission’s order were meant to serve as goals or estimates, and not as enforceable effluent limitations, and (2) General Statutes § 22a-438, the forfeiture provision in Connecticut’s Water Pollution Control Act (CWPCA), does not apply to violations of orders to abate pollution issued pursuant to General Statutes § 22a-431. We find no error.

Certain facts are not in dispute. Upjohn operates a batch chemical plant in North Haven that produces specialty organic chemicals. As part of its manufacturing process, this plant discharges approximately 570,000 gallons of treated process wastewater daily into the Quinnipiac River. During February, March and April, 1985, Upjohn’s wastewater discharge contained concentrations of various pollutants in excess of the monthly average parameters contained in the March, 1983 order issued by the commissioner.

The March, 1983 order, issued pursuant to § 22a-431, was a modification of a previous order issued in November, 1981. The 1981 order was also issued pursuant to § 22a-431, since Upjohn could not be issued a state National Pollutant Discharge Elimination System (NPDES) discharge permit pursuant to § 22a-430 because its discharge existed prior to May 1,1967. The 1981 order, issued by the commissioner based on the defendant’s June 4,1979 application for a federal discharge permit, contained NPDES permit number CT0001314. This permit contained within the order was issued pursuant to General Statutes § 22a-424 (k), which authorizes the commissioner to “exercise all incidental powers necessary to carry out the purposes of this chapter and the Federal Water Pollution Control Act.”

The commissioner brought this action against Upjohn seeking, inter alia, a forfeiture pursuant to General Statutes § 22a-438. The trial court referred the case to an attorney trial referee. The referee, finding that Upjohn discharged pollutants in excess of effluent limitations imposed by the commissioner, recommended a civil penalty of $135,000. Both parties subsequently filed exceptions to the referee’s report under Practice Book § 439. The trial court, Allen, J., supplemented the referee’s report by adding four factual admissions, two by each party. Thereafter, the trial court, M. Hennessey, J., accepted the referee’s report as supplemented by the findings made by Judge Allen. This appeal followed.

I

Upjohn first claims that the trial court erred by accepting the referee’s determination that the limits contained in the March, 1983 order established enforceable effluent limitations. This claim is in two parts. First, it argues that the referee’s determination was based on an erroneous interpretation of the 1972 amendments to the Federal Water Pollution Control Act (FWPCA), and the CWPCA, General Statutes § 22a-416 et seq. Second, it claims that this determination was legally and logically inconsistent with the facts found. We disagree.

A

Upjohn claims that the referee misconstrued the Connecticut statutory scheme by failing to recognize the distinction between an order to abate pollution issued pursuant to § 22a-431, and a discharge permit issued pursuant to § 22a-430. It claims that the commissioner was not statutorily mandated to include enforceable effluent limitations in the order because the only requirement under § 22a-431 is “a time schedule for the accomplishment of the necessary steps leading to the abatement of the pollution.” We agree that the statute contains no language requiring the commissioner to include effluent limitations. The absence of any such affirmative language does not mean, however, that the commissioner was prohibited from incorporating such limitations in the abatement orders.

The 1983 order was a modification of a previous order. Section 22a-431 clearly provides that the commissioner may review “those sources of discharge which are operating pursuant to any order . . . and, if he determines that there has been any substantial change in the manner, nature or volume of such discharge which will cause or threaten pollution to any of the waters of the state, or if he finds that the system treating such discharge, or the operation thereof, no longer insures or adequately protects against pollution of the waters of the state, the commissioner may issue an order to abate such pollution to such person .... Such order shall include a time schedule for the accomplishment of the necessary steps leading to the abatement of the pollution.”

The March, 1983 order did order “The Upjohn Company to take such action as is necessary” to abate the pollution in its wastewater, and included a time schedule of pre-November 30,1983, and more stringent post-November 30, 1983, parameters with which Upjohn was ordered to comply. The authority to order abatement necessarily carried with it the authority to set the limits of the permitted pollution. The commissioner was well within his statutory bounds to have included effluent limitations in the § 22a-431 order issued to Upjohn.

Upjohn also claims that the limits contained in the order were goals or estimates. Under § 22a-430 (e), the commissioner may issue a § 22a-430 permit once he determines that the discharger is in compliance with an order issued pursuant to § 22a-431. Upjohn argues that because of this statutory linkage between orders and permits, the pollutant parameters contained in the March, 1983 order do not ripen into enforceable limitations until the commissioner issues a permit. We disagree.

There is more to the interrelation of orders and permits than Upjohn suggests. Section 22a-431 orders are as much an enforcement tool of the commissioner in regulating water pollution as are new discharge permits. Section 22a-431 expressly authorizes the commissioner to include time schedules in these orders for dischargers to follow in progressively alleviating unacceptable pollutant levels. Section 22a-431 orders, however, are not limited to that sole function.

First, the commissioner may use such orders to regulate those discharges existing prior to March 1, 1967. Under § 22a-430, state permits for a new discharge are issued only in the first instance for those discharges initiated, created or originated after that date. See footnote 5, supra. The commissioner, when issuing a § 22a-431 order for regulating these earlier discharges, has the authority to impose whatever conditions are necessary to satisfy state and federal law, including enforceable effluent limitations. See General Statutes § 22a-424 (k).

Second, under General Statutes § 22a-430 (c), “permits issued pursuant to this section shall be for a period not to exceed five years, except that any such permit shall be subject to the provisions of section 22a-431.” Thus, it is clear that the commissioner is authorized to use orders to modify existing permits whenever there is a change of circumstances, that is, when there is either a change in the manner, nature or volume of the discharge, or when the commissioner finds that the existing treatment system no longer adequately protects state waters. See footnote 4, supra. A § 22a-431 order may be used, as was done here, to modify not only permits, but also orders previously issued under the same statutory authority. General Statutes (Rev. to 1983) § 22a-431 provides that “[t]he commissioner shall periodically investigate and review those sources of discharge which are operating pursuant to any order, permit, directive or decision issued by . . . the commissioner . . . .” (Emphasis added.)

We conclude that the water pollution control statutory framework envisions a wide-ranging use of § 22a-431 orders in addressing water pollution problems that were the subject of previous orders, permits, directives or decisions of the commissioner. It would be contrary to that broad mandate if such orders became enforceable only upon their conversion into permits under § 22a-430 (e). The fact that Upjohn was in the process of installing a complex biological treatment program under a § 22a-431 order did not strip the commissioner of his statutory authority to establish the effluent limitations that he deemed necessary to effectuate the purposes of the CWPCA and the FWPCA. See General Statutes § 22a-424 (specifying the various powers and duties granted to the commissioner).

B

Upjohn also claims that the trial court’s decision was legally and logically inconsistent with the facts found. It argues that the referee’s conclusion, accepted by the court, M. Hennessey, J., that the numbers in the order were legally enforceable effluent limitations, is fatally inconsistent with certain other findings of the trial court, Allen, J. Those findings were that the purpose of the order was to require the defendant to install a system based on the best available technology, and that the effluent limitations for this system were to have been based on the operation of the system over a one year operating period. Reading Judge Allen’s findings in their entirety, together with the pertinent portion of the order, we find no such fatal inconsistency.

In connection with these findings, Judge Allen also noted that the order stated that “ ‘the effluent quality’ from the treatment system was to have been evaluated for a one year period after which time revised limitations were to be established.” Judge Allen also noted, however, that “the modification order goes on to state that ‘the Commissioner reserves the right to establish more stringent effluent limitations . . . .’ Therefore, although this exception is true, it does not bar the commissioner from changing the effluent limitation.”

Moreover, these determinations by Judge Allen must be read together with the language of the order on which they were based. The order acknowledged that the treatment facilities to be constructed by Upjohn “represent the best available technology economically feasible,” and that “[t]he effluent quality from the treatment facilities will be evaluated for a one year operating period beginning on December 1,1983 after which time revised effluent limitations will be adopted, if necessary to reflect the actual ability of the treatment facility to remove the permitted pollutants.” This language, however, immediately preceded the following: “Notwithstanding the above sentence, the Commissioner specifically reserves the right to establish more stringent limitations pursuant to Chapter [446k] of the Connecticut General Statutes and the Federal Water Pollution Control Act should it be determined that these limitations will not protect the water quality of the receiving waters.” Thus, although the order contemplated that Upjohn would construct a pollution abatement system using the best available technology, it also made clear that the commissioner retained his statutory authority to protect water quality.

Further, nowhere in the order are the effluent limitations identified as effluent “goals” or effluent “estimates.” “Effluent limitations” is a term of art. It is defined in 33 U.S.C. § 1362 (11) as “any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters . . . . ” A term with a specific statutory meaning used repeatedly in the commissioner’s order is inconsistent with Upjohn’s argument that the order contained only unenforceable goals or estimates. This is especially true given the similarity of the wording and format of this order to the prior, November, 1981 order issued to Upjohn.

In addition, the mandatory language of the order supports the commissioner’s position that these limits were enforceable. The order states in part: “The Commissioner . . . orders The Upjohn Company to take such action as is necessary to: . . . [ijnsure that all discharges described in this order shall not exceed and shall otherwise conform to the specific terms and general conditions specified herein.” This language simply does not comport with Upjohn’s claim that the order was meant to be construed as containing unenforceable goals or estimates during the interim stage of installing the treatment facility.

Finally, if Upjohn did not understand the March, 1983 order to contain legally enforceable obligations, it should have objected to the language of the order when it was issued to rectify any inconsistencies between Upjohn’s understanding and the specific terminology of the order. Cf. Connecticut Fund for the Environment, Inc. v. Job Plating Co., 623 F. Sup. 207, 216-17 (D. Conn. 1985) (defendant is precluded from challenging the validity of its NPDES permit in an enforcement proceeding); see also Connecticut Fund for the Environment, Inc. v. Upjohn Co., 660 F. Sup. 1397, 1413 (D. Conn. 1987). In that private enforcement action against Upjohn involving the same violations of the March, 1983 order, Upjohn argued, inter alia, that the order established only goals and not enforceable limitations. Connecticut Fund for the Environment, Inc. v. Upjohn Co., supra, 1409. The federal district court found that the terms of the order under the Connecticut statutes pursuant to which it was issued, constituted enforceable limitations. Id., 1410. In addition, the court noted that the defendant should have pursued its objections through an administrative challenge under General Statutes §§ 22a-436 and 22a-437, or by filing for review in the court of appeals, rather than after the fact in defense to an enforcement action. Id., 1413.

II

Upjohn next claims that the trial court erred in concluding that General Statutes § 22a-438 authorized a forfeiture for violating a § 22a-431 order issued by the commissioner. Upjohn argues that because § 22a-438 authorizes forfeitures only against “[a]ny person who . . . violates any provision of this chapter,” it does not apply to one who violates the provisions of an order by the commissioner. Upjohn claims that the legislature did not expressly make violations of orders subject to the forfeiture provision, and that, therefore, § 22a-438 should apply only to the express statutory prohibitions in chapter 446k, such as General Statutes § 22a-417 (prohibiting the discharge of sewage into tributaries of water supply impoundments or the Salmon River), § 22a-427 (prohibiting the discharge of wastes in violation of any provision of chapter 446k), and § 22a-430 (prohibiting any discharge without a permit). Upjohn contends that a § 22a-438 forfeiture cannot be imposed for violations of orders issued by the commissioner in his administrative capacity. See General Statutes § 22a-428 (orders to municipalities to abate pollution); General Statutes § 22a-430 (d) (orders to abate pollution for discharges without a permit or in violation of a permit); General Statutes § 22a-431 (orders to abate pollution after an investigation of the discharge); General Statutes § 22a-432 (orders to correct potential sources of pollution); General Statutes § 22a-433 (orders to the owner of the land from which the pollution is emanating).

Further, Upjohn contends that this distinction between legislative prohibitions and orders by the commissioner for purposes of applying § 22a-438 is consistent with General Statutes (Rev. to 1983) § 22a-435, which provides for injunctive relief for failure to comply with orders issued pursuant to §§ 22a-418, 22a-428, 22a-429 and 22a-431. It argues that because § 22a-435 refers, inter alia, to § 22a-431 and not to § 22a-430, it evinces an intent by the legislature that the commissioner, when addressing violations of abatement orders is limited to seeking injunctive relief, and is not statutorily empowered to seek forfeiture under § 22a-438 as well.

The commissioner argues that the stay of a continuing violation when a hearing on an order or an appeal is pending demonstrates that the legislature intended § 22a-438 to apply to violations of administrative orders, and any statutory interpretation to the contrary would render this language unnecessary. Upjohn, in reply, argues that to interpret § 22a-438 as applying only to the express legislative violations of chapter 446k, does not make the stay provision unnecessary. It claims that if the commissioner, acting pursuant to § 22a-430 (d), issues an order to abate to a person who has initiated a discharge without a permit in violation of § 22a-430, and that person then requests a hearing or takes an appeal, the stay provision would prevent the continued accrual of any penalties during the pendency of the hearing or appeal. We agree with the commissioner.

It is true that an order to abate issued under § 22a-430 (d) would trigger the § 22a-438 stay if the dis-charger utilizes the review provisions of either § 22a-436 or § 22a-437. This does not mean, however, that the application of the stay provision is limited to this one instance where the commissioner can issue an abatement order. The legislative history of § 22a-438, and the statutory scheme of the CWPCA, convince us that the forfeiture statute was meant to apply to violations of any administrative order issued under the authority of chapter 446k, in addition to violations of the statutes in the CWPCA that contain express prohibitions.

Regarding the legislative history, there are two amendments to § 22a-438 that show the legislature intended the forfeiture statute to apply to violations of the commissioner’s various chapter 446k administrative orders, including the type of order that is the subject of this appeal, namely, a § 22a-431 order to abate. The first amendment, Public Acts 1969, No. 486, entitled “An Act Concerning Forfeiture for Violations of the Water Pollution Control Statutes,” added the following sentence relating to instances of nonapplication of the forfeiture provision: “The provisions of this section shall not apply to a person or municipality during the time when a hearing pursuant to section [22a-436] or an appeal pursuant to section [22a-437] is pending.” The legislature passed this amendment so that a penalty could not be applied during the pendency of a hearing before the commissioner or an appeal to the Superior Court. The second amendment, Public Acts 1986, No. 86-239, entitled, “An Act Concerning Protection of the Waters of Connecticut,” made a technical change clarifying the 1969 stay provision. The last sentence of § 22a-438 was amended to read as follows: “The provisions of this section concerning a continuing violation shall not apply to a person or municipality during the time when the hearing on the order pursuant to section 22a-436 ... or an appeal pursuant to section 22a-437 is pending.” (Emphasis on amended language.) This amendment clarified that the stay during the pendency of a hearing or an appeal applies to continuing violations and not to first time violations, and, in addition, that the stay applies to the order of the commissioner that is being appealed.

Further, in the context of the CWPC A in its entirety, we do not view General Statutes § 22a-435, which provides for injunctive relief, as an exclusive remedy for violations of § 22a-431. Upjohn argues that the fact that this section does not refer to § 22a-430 shows that abatement orders issued under § 22a-431 were intended to be subject to enforcement processes separate from those for permits issued under § 22a-430. We are not persuaded that the failure of § 22a-435 to refer to § 22a-430 indicates that the commissioner, when seeking redress for violations of abatement orders, is limited to injunctive relief. Since § 22a-430 has its own injunctive relief provision, § 22a-430 (d), for dischargers operating either without a permit or in violation of a permit, it is hardly surprising that § 22a-435 does not refer to § 22a-430.

Finally, § 22a-438 expressly applies to any provision in chapter 446k. The common theme among the various order and permit statutes in chapter 446k is the delegation of authority from the legislature to the commissioner. The commissioner’s task is to transform generally applicable effluent limitations and other standards provided by the CWPCA and the FWPCA into specific obligations of the individual discharger. The defendant’s argument that orders to abate are exempt from forfeiture because the obligations created thereunder are established by the commissioner, would undercut the viability of that scheme of delegation. Under Upjohn’s suggested construction of § 22a-438, dis-chargers who operated in violation of an administrative order would be subject only to prospective remedies, and would be immune from the monetary sanctions authorized by § 22a-438. Given the remedial nature of the CWPCA to prevent, control and abate pollution of the waters of the state; General Statutes § 22a-424 (b); it would defy reason if dischargers could violate administrative orders and not be penalized under § 22a-438 for their past conduct. Under that scenario, a discharger could violate any such order without risk of penalty until the commissioner sought to enjoin it from maintaining the pollution. We conclude, therefore, that violations of orders to abate issued under § 22a-431 are subject to forfeiture.

There is no error.

In this opinion the other judges concurred.

       Throughout this opinion, “order” refers to an order to abate pollution issued pursuant to General Statutes § 22a-431, and “permit” refers to a permit for a new discharge issued pursuant to General Statutes § 22a-430.

       Upjohn claims that the commissioner is now for the first time asserting that the March, 1983 order was issued pursuant to § 22a-424 (k), and not § 22a-431, in contravention of the finding made by the referee. It asserts that under § 22a-431, the commissioner is not authorized to include a permit within an order issued thereunder. This is incorrect. It was the November, 1981 order that contained the permit; the March, 1983 order modified that prior order. In any event, the defendant is precluded from raising the validity of its NPDES permit in an enforcement proceeding. See Connecticut Fund for the Environment, Inc. v. Job Plating Co., 623 F. Sup. 207, 216-17 (D. Conn. 1985).

       The FWPCA Amendments of 1972, § 101 et seq., as amended; 33 U.S.C. § 1251 et seq.; established the National Pollutant Discharge Elimination System (NPDES), a system that makes it unlawful to discharge pollutants into navigable waters unless a permit is obtained and its terms are complied with. 33 U.S.C. § 1311 (a); Environmental Protection Agency v. State Water Resources Control Board, 426 U.S. 200, 205, 96 S. Ct. 2022, 48 L. Ed. 2d 578 (1976); Mianus River Preservation Committee v. Administrator, Environmental Protection Agency, 541 F.2d 899, 901 (2d Cir. 1976). A state may issue NPDES permits if the federal environmental protection agency (EPA) approves a state’s proposal to administer its own program; 33 U.S.C. § 1342 (b); Environmental Protection Agency v. State Water Resources Control Board, supra, 208; Mianus River Preservation Committee v. Administrator, Environmental Protection Agency, supra. On September 26,1973, the federal EPA approved and authorized the request by the Connecticut department of environmental protection to administer its own NPDES permit program in lieu of the federal program.

       General Statutes (Rev. to 1983) § 22a-431 provides: “The commissioner shall periodically investigate and review those sources of discharge which are operating pursuant to any order, permit, directive or decision issued by the water resources commission or the commissioner before or after May 1, 1967, and, if he determines that there has been any substantial change in the manner, nature or volume of such discharge which will cause or threaten pollution to any of the waters of the state, or if he finds that the system treating such discharge or the operation thereof, no longer insures or adequately protects against pollution of the waters of the state, the commissioner may issue an order to abate such pollution to such person or municipality. Such order shall include a time schedule for the accomplishment of the necessary steps leading to the abatement of the pollution.” This case was briefed and argued on the basis that Connecticut’s Water Pollution Control Act, revised to 1983, applied to the order in question, presumably because that was the statute in effect at the time of the issuance of the March, 1983 order. We therefore decided the case accordingly.

       General Statutes (Rev. to 1983) § 22a-430 provides in pertinent part: “(a) No person shall, after May 1, 1967 . . . initiate, create or originate any new discharge of water, substance or material into the waters of the state without first obtaining a permit for such discharge from the commissioner.”

       The parties disagree as to whether the FWPCA and the federal EPA’s regulations promulgated thereunder required that enforceable effluent limitations be imposed in the March, 1983 order. We need not reach the issue of whether federal law required that the March, 1983 order contain enforceable effluent limitations because, even if we assume that federal law did not so require, we conclude that the limits contained in the order constituted effluent limitations and not merely goals.

       General Statutes (Rev. to 1983) § 22a-438 provides in pertinent part: “(a) Any person who . . . violates any provision of this chapter shall forfeit to the state a sum not to exceed ten thousand dollars, to be fixed by the court, for each offense. Each violation shall be a separate and distinct offense and, in case of a continuing violation, each day’s continuance thereof shall be deemed to be a separate and distinct offense. The attorney general, upon complaint of the commissioner, shall institute a civil action to recover such forfeiture. The provisions of this section shall not apply to a person . . . during the time when a hearing [by the commissioner] pursuant to section 22a-436 or an appeal [to the superior court] pursuant to section 22a-437 is pending.”

       General Statutes (Rev. to 1983) § 22a-435 provides in pertinent part: “If any person . . . fails to comply with any order to abate pollution, or any part thereof, issued pursuant to the provisions of section 22a-418, 22a-428, 22a-429 or 22a-431 . . . the commissioner may . . . bring an action ... to enjoin such person . . . from maintaining such pollution

       “[Wjhere there has been a violation of the water pollution statute, the violator, during the period of time that an appeal is pending, will have the statute toll insofar as he is running up damages. In other words, once he files an appeal the damages will be stayed until the appeal is heard.” 13 H.R. Proc., Pt. 7, 1969 Sess., p. 3472, remarks of Representative Peter W. Gillies. “It is our clear intention that the provision of this section providing for a thousand dollars per day forfeiture should not apply to anybody [who] is taking an appeal on a matter involved under purview of these statutes.” 13 S. Proc., Pt. 5,1969 Sess., p. 2344, remarks of Senator John F. Pickett.

       The amendment “clarifies that the state [sic] provisions of section 22a-438 apply only to the order which was appeals [sic] and makes the bill effective on passage.” 29 H.R. Proc., Pt. 14, 1986-Sess., p. 5328, remarks of Representative John J. Tiffany. “The third change puts in—concerning a continuing violation which was of concern when the original legislation was passed on by the Committee that this only applied to a continuing violation and not the first time violation.” 29 S. Proc., Pt. 5, 1986 Sess., p. 1740 remarks of Senator Eric R. Benson. “Commissioner of Environmental Protection may enforce the water pollution statutes by instituting a suit for civil penalty or issuing an order to comply with the provisions of the water pollution chapter. General penalty provision of the water pollution chapter states that the penalty shall not apply during a hearing or an appeal. In some instances the same company will be fined $10,000 for violation of a statute of the chapter and will be in noncompliance of an order to clean up the pollution. It is not clear whether the [stay] provisions of the statute apply to both the fine and the order when the company appeals the order. This proposal clarifies that the [stay] provisions will only apply to such orders of the commissioner which have been appealed or which the company has requested a hearing.” Id., p. 1743, remarks of Senator Eric R. Benson.
      Upjohn claims that because their claim is to be reviewed under General Statutes (Rev. to 1983) § 22a-438, the added language from the 1986 amendment; Public Acts 1986, No. 86-239; is not applicable to the present case. This is incorrect. This amendment was meant to clarify the legislature’s earlier intent; it did not change existing law. An amendment that merely clarifies statutory language can be considered retroactively in construing the meaning of a statute. See, e.g., State v. Magnano, 204 Conn. 259, 277-78, 528 A.2d 760 (1987).


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Henry DeBarros v. A. L. Singleton et al.
    (7456)
    Borden, Daly and Norcott, Js.
    Argued November 8, 1989
    decision released March 27, 1990

      Bruce L. Levin, with whom, on the brief, was Serge G. Mihaly, for the appellant (plaintiff).

      Michael J. Belzer, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, attorney general, and Charles Overend, assistant attorney general, for the appellee (defendant Second Injury and Compensation Assurance Fund).
   Daly, J.

The plaintiff appeals from the decision of the compensation review division affirming the workers’ compensation commissioner’s (commissioner) dismissal of the plaintiff’s request for permanent partial disability benefits. The plaintiff claims that the review division erred in refusing to disturb the commissioner’s conclusions. We disagree.

The issue before the commissioner was whether the plaintiff had suffered permanent partial disability of the brain as the result of an accident that occurred on July 21,1981, in which a fellow worker .plummeted nine stories to his death, striking the plaintiff. The medical reports of L. M. Davey, a neurosurgeon, constituted the only medical evidence in the case.

In the first of two reports, Davey stated that the plaintiff continued to complain of various symptoms as a result of the accident, including severe headaches and a fear of heights. He stated that it would be difficult to estimate permanent partial disability, but that “considering the psychological problems” of the plaintiff, he offered an estimate of a 5 to 10 percent permanent partial disability of “the whole person.” The plaintiffs attorney informed Davey that the Workers’ Compensation Act requires that any disability be expressed in terms of a particular organ, and cannot be ascribed simply to the whole person. The doctor responded in his second report that, “since the [plaintiff’s] main residual disability is on a psychological basis, it might be fair to apply the five to ten percent rating to the brain.”

The commissioner found that the plaintiff suffered posttraumatic headaches, but concluded in a separate finding that there was “no evidence presented that proves within the parameters of reasonable medical probability that the claimant suffered permanent partial disability to his brain as a result of the accident of [July 21, 1981].” The compensation review division adopted the factual conclusions of the commissioner. The review division stated in its opinion that although there “was certainly evidence on which the commissioner could have found a partial permanent disability of the brain . . . the commissioner did not conclude that such testimony satisfied the ‘parameters of reasonable medical probability.’ ” The review division concluded that it could not disturb the commissioner's conclusions.

The plaintiff appeals from the decision of the compensation review division. See General Statutes § 31-301b. In reviewing the factual determinations of the commissioner, the review division’s scope of review is limited. The review division may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Fair v. People’s Savings Bank, 207 Conn. 535, 538-39, 542 A.2d 1118 (1988). Our scope of review of the actions of the review division is similarly limited. See Bucko v. New London, 13 Conn. App. 566, 570, 537 A.2d 1045 (1988). The decision of the review division must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed. Kevorkian v. Peter Paul, Inc., 3 Conn. App. 335, 488 A.2d 102 (1985) (per curiam). Moreover, no case under the Workers’ Compensation Act should be finally determined when this court is of the opinion that through inadvertence or otherwise the facts have not been sufficiently found to render a just judgment. Dombach v. Olkon Corporation, 163 Conn. 216, 228, 302 A.2d 270 (1972).

The plaintiff had the burden of proving his claim of a permanent partial disability of the brain. See Domback v. Olkon Corporation, supra, 221. The only evidence he produced was Davey’s two reports. Those reports were ambiguous and tentative with respect to that claim.

On the basis of this evidence, the commissioner concluded that the evidence did not bring the plaintiffs claimed disability within the realm of reasonable medical probability. The commissioner was entitled to make that conclusion, particularly since the opinion of the neurosurgeon was based largely on what he concluded was the psychological residue of the accident. The review division upheld the commissioner’s conclusions in this case. We conclude that that decision was correct in law and was firmly based on the record before the compensation review division.

There is no error.

In this opinion the other judges concurred.

       The plaintiff had already been awarded all the benefits due under the provisions of chapter 568 of the General Statutes based on the commissioner’s finding that the plaintiff’s injuries arose out of and in the course of his employment.

       The doctor submitted the following report:
      “Mr. DeBarros was seen at the office on March 17, 1983 for evaluation of his complaints of headaches and numbness of the right side of the face and stiffness of the neck.
      “This forty-one year old painting contractor stated that on July 21,1981 a worker fell from nine stories high and the patient was struck by this falling worker. He was knocked to the ground and when he came to he was bleeding from the head and his fellow worker was lying dead next to him, judging from the conversation that he overheard among the police at the scene. Within two to five days he had developed stiffness of his neck and was out of work for four months. He then worked for three months, but continued to have headaches and strange feelings as if he were going through a concrete floor.
      “The patient stated that as a result of that, he has been out of work for the past year, has gained twenty-five pounds and has a fear of heights.
      “His present complaints also include numbness of the right temporal area, intermittent stiffness of his neck and headaches starting in the back of the head radiating to the right temple and right frontal area. These headaches are described as being constant and throbbing. Occasionally, he has a rippling feeling at the top of his head with a sharp pain, but these last only for seconds.
      “There is nothing in the past history, family history or review of systems of a contributory nature.
      “On examination the patient was a well developed, colored, male who was sixty-eight inches tall and weighed 206 pounds. The patient stated that he was left handed. Examination of the head revealed a 2.5 cm. thick scar on the right anterior temporal area. There was diminished sensation to pin prick from the edge of this scar to the ear and also of the area of the neck just behind the right jaw.
      “Neurological examination showed a fully oriented mentally alert, person who showed no difficulty with memory, but seemingly still affected by the emotional impact of his fellow worker’s death. Cranial nerves were intact. He showed no motor, sensory or reflex deficits. There were no pathological reflexes.
      “Examination of the neck and upper extremities showed a normal range of motions with no elicitation of pain at the extremes of motion. There were no motor, sensory or reflex deficits in either upper extremity.
      “It is my impression that this patient sustained a mild concussion of the brain as a result of his injury of July 21, 1981. He also probably suffered a musculoligamentous strain of the neck which probably contributed through the mechanism of muscular spasm to his post-traumatic headaches. His main objective residual of the injury is a scar in the right temporal area. Subjectively, the patient apparently still has a fear of heights.
      “It is my further opinion that the patient is capable of performing Ms job as a painter, except for the limitation of not working at heights.
      “Estimate of permanent partial residual disability in this case would be difficult, but considering the psychological aspects of the problem, I would offer a figure of five to ten percent of the whole person.”


author: Dupont, C. J.

text:
    John H. Grady et al. v. Robert A. Schmitz et al.
    (7900)
    Dupont, C. J., Daly and Norcott, Js.

      Argued November 9, 1989
    decision released March 27, 1990

      Ridgely W. Brown, with whom, on the brief, was Bracken C. O’Neill, for the appellants (named defendant et al.).

      Philip R. McKnight, for the appellees (plaintiffs).
   Dupont, C. J.

This case was previously decided by this court and remanded to the trial court, after a judgment for the defendants was set aside, with direction to render judgment for the plaintiffs. Grady v. Schmitz, 16 Conn. App. 292, 547 A.2d 563, cert. denied, 209 Conn. 822, 551 A.2d 755 (1988). The defendants appeal, claiming that the trial court erred because it (1) rendered a judgment that exceeded the scope of the remand, (2) denied the defendants’ request for an evidentiary hearing, and (3) ordered explicit injunctive relief for or against persons who are not proper parties.

At the initiation of the action, seven plaintiffs sought an injunction against seven defendants to bar subdivision of the defendants’ respective properties by requesting judicial enforcement of a certain restrictive covenant. The first appeal to this court was taken by the plaintiffs Clifford C. Woods, Jr., and Mary Louise Woods. The action had been withdrawn as to other defendants and the appeal involved only the defendants Robert A. Schmitz and Marion B. Schmitz. After the decision in Grady v. Schmitz, supra, the defendants petitioned the Supreme Court for certification claiming that we had erred as to the location of the defendants’ property, which error allegedly caused us to reach an erroneous result. The petition to the Supreme Court was denied. Grady v. Schmitz, 209 Conn. 822, 551 A.2d 755 (1988).

On remand, the trial court held a hearing on the plaintiffs’ motion for judgment, at which time counsel for the plaintiffs filed a draft of a proposed judgment. The trial court rendered a judgment of permanent injunction against the defendants, prohibiting them from conveying their property “in violation of the restrictive covenant barring the subdivision of their property for the purpose of erecting more than one house thereon ...” and from “in any way or manner, either directly or indirectly, dividing or subdividing or building upon or permanently improving the real property presently occupied” by the defendants. The language used in the judgment file is, with minor exceptions, identical to that proposed by the plaintiffs in their draft judgment filed with the court. The court also denied the defendants’ motion for an evidentiary hearing.

The defendants claim that the injunctive relief ordered by the trial court exceeded the bounds of the remand order by ordering broad and permanent injunctive relief. A trial court on remand must “ ‘ “comply strictly with the mandate of the appellate court according to its true intent and meaning. No judgment other than that directed or permitted by the reviewing court may be rendered, even though it may be one that the appellate court might have directed. The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein.” . . .’” (Emphasis in orginal.) West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 312, 541 A.2d 858 (1988), quoting Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 794-95, 462 A.2d 1043 (1983).

In Grady v. Schmitz, supra, we directed the trial court to render judgment for the plaintiffs. The trial court concluded correctly that injunctive relief was the proper subject of the judgment to be rendered since that was the relief originally sought by the plaintiffs and the relief contemplated by this court’s decision in the first appeal. The trial court proceeded in conformity, therefore, with our remand order by rendering judgment for the plaintiffs and issuing an injunction. It is the scope of the injunction, however, that is the question to be resolved by this appeal. The defendants argue that the breadth of the injunction exceeds the scope of the remand order. We agree.

Although the language of the judgment of injunction closely follows that of the plaintiffs’ prayer for relief in the complaint, the scope of that language goes beyond both the relief to which the plaintiffs are entitled under the terms of the restrictive covenant and the true intent and meaning of the language of this court’s opinion in the first appeal. The language of the covenant in each relevant deed is nearly identical, and states: “[T]he said Grantee hereby covenants and agrees for himself, his heirs, executors, administrators and assigns that he will not erect, or cause to be erected, on said premises a dwelling house costing less than six thousand dollars, nor cause or permit the same premises to be used for any business purpose whatsoever, or for any purpose other than for a strictly private residence, or sub-divide said premises for the purpose of erecting more than one house thereon. These covenants and agreements shall run with the land hereby conveyed, and be binding upon said grantee, his heirs, executors, administrators and assigns.” The wording of the covenant differs, however, from that of the prayer for relief in the plaintiffs’ complaint and from that of the judgment of injunction as rendered by the trial court. The restrictive covenant, upon which the relief here must be based, does not forbid building upon the premises or the permanent improvement of the defendants’ property, as does the judgment. Nor does the opinion of this court in the first appeal refer to any such limitation. This court’s remand order was not intended to give the plaintiffs more than that to which they were entitled under the terms of the covenant. The judgment of injunction, therefore, exceeds the bounds of the remand order, and it must be rewritten to prohibit only those actions that are forbidden by the restrictive covenant.

The defendants next claim that it was error for the trial court, on remand, to deny their motion for an evidentiary hearing (1) because of our alleged error in the decision of the first appeal as to the relative location of the properties in question, (2) because six years have passed since the litigation originally began, during which time the neighborhood surrounding the property in question allegedly had changed, necessitating another trial court review of the efficacy of the covenant, and (3) because, in the case of injunctive relief, the trial court had continuing jurisdiction, allowing it to conduct such a postappellate review hearing.

The defendants argue that because the defendants’ property was described by this court in its opinion, in the first appeal, as being within a tract of land bordered by Brookside Drive, Glenville Road, Dearfield Drive and Grove Lane, the only proper judgment on remand would have been an injunction concerning land of the defendants in a tract bounded by the aforementioned roads. They claim that their reasoning is based on Contegni v. Payne, 18 Conn. App. 47, 59, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989), which holds that a judgment must be rendered in accordance with the facts proved. They further argue that such a judgment would have been a nullity because the defendants own no property within those boundaries, but, rather, own property across the street and south of that tract. It is their contention that any judgment that was true to the appellate remand could be only a nullity, and that, therefore, the trial court should have held an evidentiary hearing to locate the land of the defendants properly. They also wanted the opportunity to show that intervening events such as the subdivision and development of a lot next to the defendants’ lot created changed circumstances that made it inappropriate to render permanent injunctive relief.

This court’s conclusion in the first appeal was that conditions had not changed sufficiently to obviate the purpose of the covenant. This conclusion was based, not on the relative geographical location of the various parcels, but on the fact that much of the property orginally benefited by the covenant was still being used for the purpose contemplated by the original covenant. We held that it, therefore, could not “reasonably be said that the circumstances show[ed] an abandonment of the original plan sufficient to make enforcement of the covenant inequitable. At best, withholding of enforcement of the covenant would make the defendants’ property more valuable, but that [was] insufficient to justify withholding equitable relief.” Grady v. Schmitz, supra, 302-303.

Even if this court, at one point in its opinion, did inaccurately describe the location of the defendants’ property, that is irrelevant. The salient facts are that the properties of both the plaintiffs and the defendants were within the parcel of land originally conveyed to a common grantor, that the restrictive covenant was applicable to both properties and that some of the original tract, in addition to that owned by the defendants, had not, to date, been subdivided. It was on the basis of these facts that we found that the covenant should still be enforced.

After the release of this court’s opinion containing the alleged geographical error, the defendants had the right, which they chose not to exercise, to file with this court a motion to correct. They did, however, file a petition for certification with the state Supreme Court, explaining in great detail, as the defendants’ counsel assured us at oral argument, the alleged geographical error. The Supreme Court denied certification. When this alleged geographical error was raised to the trial court on remand, that court correctly found any error in the stated description to be irrelevant.

In remanding the case to the trial court, we did not order an evidentiary hearing, and our decision did not contemplate further proceedings in the trial court. The defendants are attempting to resurrect issues that died during the first appeal.

Finally, the defendants argue that the trial court on remand erred in ordering explicit injunctive relief for or against persons who are not proper parties. Although it is true that the name of the case as it existed at the time of trial was retained in the first appeal, the wording of the judgment of permanent injunction is clear. The words are that the “defendants Robert A. Schmitz and Marion B. Schmitz now and hereafter are permanently enjoined . . . .” It is unmistakable that these are the only parties who are being enjoined. The names of plaintiffs who did not join in the first appeal were included in the caption on the judgment file, and the defendants argue that this inclusion in the caption raises the possibility of a res judicata effect in any subsequent litigation. No original plaintiff not a party to this appeal, however, has attempted, thus far, to enforce on his or her own behalf, the injunction against the defendants, and this eventuality may never occur. If, in the future, any such effort is made, it may be appropriate at' that time for the courts to decide this question.

There is error in part, the judgment is set aside and the case is remanded to the trial court with direction to render judgment as on file except that the injunction presently in effect shall be modified to conform to the language of the restrictive covenant.

In this opinion the other judges concurred.


author: Spallone, J.

text:
    William K. Cawley v. Harry Schochat
    (8100)
    Spallone, Daly and Norcott, Js.
    Argued January 2
    decision released March 27, 1990

      Harry Schochat, pro se, the appellant (defendant).

      Noah Eisenhandler, with whom, on the brief, was Frank J. Kolb, Jr., for the appellee (plaintiff).
   Spallone, J.

The defendant appeals from the money judgment rendered by the trial court for the plaintiff and from the dismissal of his counterclaims. The defendant claims that the trial court erred (1) in granting the plaintiff’s motion for summary judgment on the issue of liability despite unresolved issues of law and fact, (2) in dismissing his counterclaims, and (3) in granting a money judgment where the plaintiff sought foreclosure of a mortgage. We find no error.

The following facts are undisputed. The defendant contracted to purchase from the plaintiff a multi-unit house at 383-385 Poplar Street, New Haven, for $119,900. At the closing in June, 1987, the plaintiff accepted the defendant’s promissory note for $20,000 in partial payment of the purchase price, secured by a subordinated mortgage on the property. By the terms of the note, the defendant was to make thirty-six monthly payments of $166.67, after which the balance of the note was due in full. The note contained an acceleration clause allowing the plaintiff to demand full payment upon the occurrence of certain conditions, including the defendant’s failure to make timely installment payments.

After the defendant made four timely payments, a disagreement arose between the parties about property maintenance expenses. The defendant’s November, 1987 payment was late and he made no further payments until April, 1988, after which his payments were intermittent and untimely. The plaintiff did not cash any checks sent by the defendant after October, 1987.

The plaintiff instituted suit in January, 1988, seeking both a foreclosure of the mortgage and a money judgment on the note. The defendant failed to answer the plaintiff’s request for admissions, and the plaintiff moved for summary judgment on the debt liability. On the basis of the defendant’s failure to file an opposing affidavit, the court granted the plaintiff’s motion for summary judgment, finding that there was no genuine issue of material fact as to the defendant’s liability on the debt and that as a matter of law the plaintiff was entitled to judgment. In a separate hearing on damages, the trial court rendered a money judgment for the plaintiff in the amount of $25,833.35 and subsequently dismissed the defendant’s counterclaims. This appeal followed.

In his first two claims of error, the defendant argues that the court improperly granted the plaintiff’s motion for summary judgment and improperly dismissed his counterclaims because material questions of fact and law remained to be decided. The defendant’s claims must fail because the court’s rulings on liability and damages and the dismissal of the defendant’s counterclaims were dictated by the defendant’s own failures to follow the rules of practice. We recognize that the defendant represented himself at these hearings, but he is an attorney admitted to the bar of New York and not ignorant of the existence of procedural requirements. Even pro se litigants must comply with our rules of practice. See Schaffer v. Schaffer, 187 Conn. 224, 227-28 n.3, 445 A.2d 589 (1982); In the Matter of Presnick, 19 Conn. App. 340, 345, 563 A.2d 299, cert. denied, 213 Conn. 801, 567 A.2d 833 (1989).

The court was not required to resolve any of the allegedly undecided issues before rendering a judgment of liability. The court granted the motion for summary judgment solely upon the defendant’s failure to introduce a memorandum in opposition to the motion or to file counteraffidavits as required by Practice Book § 380. Such failure to provide supporting documents is fatal to a claim that the court erred in granting the motion for summary judgment on the debt. See Sheridan v. Board of Education, 20 Conn. App. 231, 238, 565 A.2d 882 (1989); DeLucia v. Burns, 11 Conn. App. 439, 442-43, 527 A.2d 1234, cert. denied, 205 Conn. 803, 531 A.2d 935 (1987). Although the defendant now argues that the court erred in dismissing his counterclaims, the record indicates that the defendant did not even appear for the scheduled hearing on these claims. The defendant has made no attempt to demonstrate that the court rulings here present an extraordinary situation compelling our review of his forfeited claims. See Williamson v. Commissioner of Transportation, 209 Conn. 310, 317, 551 A.2d 704 (1988).

In his third claim of error the defendant asserts that the plaintiff was seeking the equitable remedy of foreclosure and received the incompatible legal remedy of a money judgment. The defendant, however, raises this allegation for the first time on appeal, and his brief contains a bare three sentence argument on the issue without citations of authority or references to the record. This court is not bound to review unpreserved claims of error or issues inadequately briefed. See Practice Book § 4065; State v. Fudge, 20 Conn. App. 665, 666 n.1, 569 A.2d 1145 (1990); State v. Luca, 19 Conn. App. 668, 671, 563 A.2d 752 (1989). Accordingly, we decline to review this claim.

There is no error.

In this opinion the other judges concurred.


author: Foti, J.

text:
    A.D.A.M. Land Development Corporation v. Conservation Commission of the Town of Chester et al.
    (7827)
    Daly, Norcott and Foti, Js.
    Argued December 11, 1989
    decision released March 27, 1990

      E. A. Augustine, for the appellant-appellee (defendant).

      David M. Royston, for the appellee-appellant (plaintiff).
   Foti, J.

This appeal concerns the denial by the defendant Chester Conservation Commission (commission) of the plaintiffs application to construct a proposed roadway that would cross an inland wetland at two separate locations (hereafter referred to as the western crossing and the eastern crossing), and the plaintiff’s subsequent appeal to the Superior Court from that denial. The commission claims error in that portion of the Superior Court’s judgment that overruled its denial of the plaintiff’s application for the western crossing. The plaintiff has cross appealed from that portion of the judgment that upheld the commission’s denial of its application for the eastern crossing.

The commission claims that the trial court erred (1) in substituting its judgment for that of the defendant, (2) in failing to remand the matter for further proceedings, and (3) in concluding as it did on the evidence before it. The plaintiff, in its cross appeal, alleges that the trial court erred (1) in determining that General Statutes § 22a-41 (b) applies to municipal inland wetlands agencies, and (2) in determining that General Statutes § 22a-41 (b) was legally applicable to the plaintiffs application. We find error in the trial court’s failure to remand.

On March 1, 1987, the plaintiff filed an application with the commission to construct a roadway that would cross an inland wetland at two separate locations some distance apart. The plaintiff asserts that this roadway would provide the only access to ten residential building lots on a piece of property containing approximately thirty-seven acres.

On July 1,1987, while the plaintiff’s application was pending, Public Acts 1987, No. 87-533, came into effect, making changes to the Wetlands and Watercourses Act including the addition of subsection (b) to General Statutes § 22a-41. The commission, acting as an inland wetlands agency, held a public hearing on July 6,1987. In its decision dated September 8,1987, following the guidelines of § 22a-41 (b), the commission held that it was unable to find that feasible and prudent alternatives to the proposed roadway did not exist.

The trial court dismissed the plaintiff’s appeal of the commission’s decision. Thereafter, however, the same court granted the plaintiff’s motion to open or set aside the judgment, and sustained the plaintiffs appeal as to the western crossing, but maintained its dismissal of the appeal as to the eastern crossing.

I

The Defendant’s Appeal

A

The commission first claims that the court erred in substituting its judgment for that of the commission. The commission asserts that the court usurped its function in finding that it had acted illegally, arbitrarily or so unreasonably as to have abused its discretion in not having divided the application itself.

The record indicates that the commission and the soil conservation service made site inspections. After these inspections, the public hearing on the plaintiff’s application was held open for three weeks to allow written comments to be submitted by the commission’s engineers, Christman Associates, Inc, On August 5,1987, the plaintiff agreed to an extension of the commission’s thirty day deadline. On September 8,1987, Christman submitted a report based on a review of the applicant’s plans. The report briefly described four alternative routes over the eastern portion of the land with varying degrees of impact on the inland wetlands that were located within the subdivision. The route proposed by the plaintiff in his application was listed as the first alternative. The report indicated, however, that the fourth alternative would be the preferred route for the eastern crossing if the primary objective was to conserve inland wetlands.

The plaintiff’s application clearly sought two inland wetland crossings, however. It was not until the court reviewed the entire record a second time that it determined that the commission had considered only the alternate routes to the eastern crossing, and that the western crossing had received no separate consideration in spite of the apparent approval of this crossing by the commission’s own engineer.

Clearly, the application was never severed by the trial court as claimed by the commission. Rather, the court correctly found that the plaintiff sought permission for a single road that would make two separate crossings across an inland wetland. It further recognized that the commission’s own engineer had come to different conclusions as to each of the proposed crossings and, consequently, that the engineer’s report was, “in fact, evidence that no other prudent and feasible alternative existed with regard to this second or westerly most crossing of the wetlands.” The court finally determined that there are, in fact, two separate crossings, that the commission should have made a separate decision as to each of the wetland crossings and that, because the commission did not do so, its action was illegal.

It is our conclusion that the trial court properly based its holding on the record before it, and that, because the commission had never considered the feasibility of the western crossing, the court did not err when it sustained the plaintiff’s appeal as to the western wetland crossing.

B

The commission next claims that the trial court erred when it failed to remand the matter to the commission for further proceedings. We agree. After finding that the commission had failed to consider the western crossing, the trial court should have remanded the matter to the commission with direction to consider and decide that wetland crossing separately, or, in other words, to remand for the commission to take action consistent with the trial court’s decision.

It is the function of the commission, first, to find facts as to whether evidence of the unavailability of possible and prudent alternatives was sufficiently persuasive to satisfy General Statutes § 22a-41 (b), second, in light of the criteria enumerated under § 22a-41 (a), to decide whether to grant or deny the application for the western wetland crossing, and, if granted, to determine whether that permit should contain special terms, conditions, limitations or modifications of the regulated activity, as provided for in § 22a-42a (d).

C

The commission’s final claim of error is that the trial court exceeded its authority by substituting its judgment for that of the commission. Specifically, the commission claims that the court erred when it concluded that the evidence supported a finding that no prudent and feasible alternative existed with respect to the western crossing. We cannot agree. The trial court’s decision does not “find as a fact” that no feasible and prudent alternative existed. Rather, the court merely concluded that the commission failed to consider separately specific evidence, i.e., its own engineer’s report as to the western wetland crossing, and, consequently, that it failed to decide separately that it could not find, on the basis of § 22a-41 (b), “that feasible and prudent alternatives do not exist” to that crossing before it denied the application.

The trial court properly discharged its duty to both parties by its review of the actions of the commission with respect to each crossing requested in the plaintiff’s application.

II

The Plaintiff’s Cross Appeal

A

The plaintiff claims that the trial court erred in determining that the provisions of General Statutes § 22a-41 (b) are applicable to municipal inland wetlands agencies, such as the commission. Specifically, the plaintiff asserts that § 22a-41 (b) applies only to the commissioner of environmental protection.

Although the plaintiff agrees that Public Acts 1987, No. 87-533, which added subsection (b) to § 22a-41, is comprehensive in nature, it claims that because the legislature did not add corresponding changes to the provisions of § 22a-42a (d), the power vested in the environmental protection commissioner by this act does not apply to local inland wetlands agencies. To support its claim, the plaintiff points out that the legislature did not specifically add the identical language to § 22a-42a (d).

While it is true that § 22a-41 is entitled “Factors for consideration of commissioner” and that both subsections (a) and (b) speak in terms of what “the commissioner” is required to do, § 22a-42a (d) makes it clear that § 22a-41 applies to the commissioner as well as to municipal inland wetlands agencies. Further, the express language of Public Acts 1987, No. 87-533, § 6 (d), makes it obvious that by using the phrase “as amended by section 4 of this Act/’ the legislature intended that § 22a-41 would apply both to the commissioner and to municipal inland wetlands agencies.

B

The plaintiff next claims that the court erred in determining that § 22a-41 (b) applied to its permit application. On February 1,1988, while the plaintiffs appeal of the commission’s opinion was pending in the Superior Court, the commission adopted a regulation identical to the provisions of General Statutes § 22a-41 (b). In weighing the commission’s denial of the plaintiff’s application, the court held the commission to the standard of review encompassed in its newly adopted regulation. The court held that the regulations in effect at the time of the Superior Court’s decision controlled under the rule of McCallum v. Inland Wetlands Commission, 196 Conn. 218, 492 A.2d 508 (1985). We agree.

In its appeal to this court, the plaintiff has attempted to distinguish McCallum from the present case by asserting that, unlike the plaintiff in McCallum, it is being subjected to a more stringent standard of review on appeal. We do not agree.

It was well within the province of the commission in this case to adopt a regulation that provides for “criteria and procedures for the review of applications . . . .” See General Statutes § 22a-42a (a) (4). Further, the regulation in question neither extended nor expanded the jurisdiction of the commission over the plaintiff. Where the original regulations are no longer of any force, determination of their effect and validity would be futile because no actual relief could follow. McCallum v. Inland Wetlands Commission, supra, 223.

There is error in part on the appeal and no error on the cross appeal, that portion of the judgment dealing with the western crossing is set aside and the case is remanded to the trial court with direction to remand the case to the commission for further consideration of the plaintiffs application as to the western crossing not inconsistent with the trial court’s decision.

In this opinion the other judges concurred.

      A second defendant, the commissioner of the department of environmental protection, did not file an appearance at trial and is not a party to this appeal. We will refer in this opinion to the Chester Conservation Commission as the defendant.

       General Statutes § 22a-41 provides in pertinent part: “(b) In the case of an application which received a public hearing, a permit shall not be issued unless the commissioner finds that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record.”

       In this regard, the report stated: “There are no feasible alignment alternatives to access the western portion of the property that would not cross a wetland, due to the narrow wetland extending across the property. An existing crossing of this wetland would involve major reconstruction of the area to be used. The proposed crossing of this wetland appears to be in the optimum location.”

       General Statutes § 22a-42a (d) provides: “In granting, denying or limiting any permit for a regulated activity the inland wetlands agency shall consider the factors set forth in section 22a-41, and such agency shall state upon the record the reason for its decision. In granting a permit the inland wetlands agency may grant the application as filed or grant it upon such terms, conditions, limitations or modifications of the regulated activity, designed to carry out the policy of sections 22a-36 to 22a-45, inclusive. No person shall conduct any regulated activity within an inland wetland or watercourse which requires zoning or subdivision approval without first having obtained a valid certificate of zoning or subdivision approval, special permit, special exception or variance or other documentation establishing that the proposal complies with the zoning or subdivision requirements adopted by the municipality pursuant to chapter 124 to 126, inclusive, or any special act. The agency may suspend or revoke a permit if it finds after giving notice to the permittee of the facts or conduct which warrant the intended action and after a hearing at which the permittee is given an opportunity to show compliance with the requirements for retention of the permit, that the applicant has not complied with the conditions or limitations set forth in the permit or has exceeded the scope of the work as set forth in the application. The applicant shall be notified of the agency’s decision by certified mail within fifteen days of the date of the decision and the agency shall cause notice of their order in issuance, denial, revocation or suspension of a permit to be published in a newspaper having a general circulation in the town wherein the wetland and watercourse lies.”

       Public Acts 1987, No. 87-533, § 6 (d), provides: “In granting, denying or limiting any permit for a regulated activity the inland wetlands agency shall consider the factors set forth in section 22a-41, AS AMENDED BY SECTION 4 OF THIS ACT, and such agency shall state upon the record the reason for its decision. In granting a permit the inland wetlands agency may grant the application as filed or grant it upon such terms, conditions, limitations or modifications of the regulated activity, designed to carry out the policy of sections 22a-36 to 22a-45, inclusive, AS AMENDED BY THIS ACT, AND SECTIONS 12 AND 13 OF THIS ACT. NO PERSON SHALL CONDUCT ANY REGULATED ACTIVITY WITHIN AN INLAND WETLAND OR WATERCOURSE WHICH REQUIRES ZONING OR SUBDIVISION APPROVAL WITHOUT FIRST HAVING OBTAINED A VALID CERTIFICATE OF ZONING OR SUBDIVISION APPROVAL, SPECIAL PERMIT, SPECIAL EXCEPTION OR VARIANCE OR OTHER DOCUMENTATION ESTABLISHING THAT THE PROPOSAL COMPLIES WITH THE ZONING OR SUBDIVISION REQUIREMENTS ADOPTED BY THE MUNICIPALITY PURSUANT TO CHAPTER 124 TO 126, INCLUSIVE, OR ANY SPECIAL ACT. The agency may suspend or revoke a permit if it finds after giving notice to the permittee of the facts or conduct which warrant the intended action and after a hearing at which the permittee is given an opportunity to show compliance with the requirements for retention of the permit, that the applicant has not complied with the conditions or limitations set forth in the permit or has exceeded the scope of the work as set forth in the application. The applicant shall be notified of the agency’s decision by certified mail within fifteen days of the date of the decision and the agency shall cause notice of their order in issuance, denial, revocation or suspension of a permit to be published in a newspaper having a general circulation in the town wherein the wetland and watercourse lies. [A copy of such permit and order shall be sent to the commissioner of environmental protection no later than ten days after the issuance of the permit and order provided failure to submit such permit and order shall not impair the validity of such permit and order.]”

       Section 4 of Public Acts 1987, No. 87-533, amended General Statutes § 22a-41 by adding the present subsection (b).

       We recognize that Public Acts 1989, No. 89-311, which provides in part that “any appeal from the decision of [an inland wetlands agency] with respect to . . . [an] application shall not be dismissed by the superior court on the grounds that such a change has taken effect on or after the date of such decision,” may at some later date be held to overrule that portion of the McCallum decision that we rely on in this case. It must be noted, however, that this public act did not become effective until October 1,1989. Because the trial court’s final decision was rendered on January 30,1989, that court was not bound by the dictates of this enactment. In addition, Public Acts 1989, No. 89-311, was a new enactment rather than an act that was passed to clarify an existing statute. While it may well have been enacted to change a rule engrained in nearly five years of case law, “[s]uch a change in the law must presumptively be applied prospectively.” Darak v. Darak, 210 Conn. 462, 473, 556 A.2d 145 (1989).


text:
    Greglon Industries, Inc. v. A. Hunter Bowman et al.
    (7365)
    Borden, Daly and O’Connell, Js.

      Argued January 17
    decision released April 3, 1990

      A. Hunter Bowman and Carolyn R. Bowman, pro se, the appellants-appellees (defendants).

      Myra L. Graubard, for the appellee-appellant (plaintiff).
   Borden, J.

The plaintiff brought this action against the defendants, A. Hunter Bowman (Bowman) and his wife, Carolyn R. Bowman, to recover money loaned on a promissory note. In their answer, the defendants alleged several special defenses, including that the interest rate charged on the promissory note was usurious. The defendants appeal from the judgment of the trial court accepting an attorney trial referee’s recommendation that a $50,000 judgment, the face amount of the challenged promissory note, be rendered for the plaintiff. The defendants claim that, with respect to their special defense of usury, the trial court erred (1) in considering whether the plaintiff intended to violate General Statutes § 37-4, and (2) in finding an absence of such intent by the plaintiff. We find no error.

The referee found the following facts. In April, 1982, W. Patrie Gregory, president of the plaintiff corporation, advanced $50,000 to Bowman. This advance was evidenced by a promissory note in the face amount of $50,000, executed and delivered by both defendants, and payable to Gregory or his assigns. The note was prepared by a third party who was not instructed as to the interest rate. Gregory assigned the note to the plaintiff. The maturity date of the note was fifteen days from the date of execution, and its stated interest rate was 18 percent per annum. Shortly after the due date, Bowman wrote a check to the plaintiff for $50,000, which would have been accepted in full payment of the loan. Payment on this check was stopped, however, and the loan has not been repaid. At no time was there any discussion of interest between Gregory and the defendants. The plaintiff was not seeking interest on the loan, and Gregory had no intent to exact a usurious rate of interest.

I

The defendants first claim that the trial court erred in denying their special defense under General Statutes § 37-8. They argue that under General Statutes § 37-4; see footnote 2, supra; a stated interest rate of more than 12 percent is per se usurious, and a lack of intent by the lender to charge in excess of the lawful rate of interest is irrelevant. The defendants contend that a lender’s intent to exact more than the legal rate of interest is applicable only for violations of General Statutes § 37-5. We disagree.

Connecticut’s usury statutes provide a particularly severe penalty. Stelco Industries, Inc. v. Zander, 3 Conn. App. 306, 308-309, 487 A.2d 574 (1985); see also Scientific Products v. Cyto Medical Laboratory, 457 F. Sup. 1373, 1377-78 (D. Conn. 1978). Under General Statutes § 37-8, a lender who loans money at an illegal rate of interest is barred from recovering both interest and principal. Because of the penal nature of this forfeiture, the statute has been strictly construed; see Stelco Industries, Inc. v. Zander, supra, 309 (usury statutes do not apply to sale of goods on credit); and our cases have made the issue of the lender’s intent a relevant inquiry. “[A] lender can evade the usury bar by showing that he had no intent to extract more than the lawful rate of interest.” Maresca v. DeMatteo, 6 Conn. App. 691, 696, 506 A.2d 1096 (1986).

The relevance of intent in transactions involving usurious noninterest-bearing notes, where the illegal interest is embedded in the face amount of the note, is well-settled. A showing of lack of intent has been considered in various lending arrangements otherwise violative of § 37-5, including notes with no stated rate of interest; see, e.g., Wesley v. DeFonce Contracting Corporation, 153 Conn. 400, 405-406, 216 A.2d 811 (1966); Atlas Realty Corporation v. House, 123 Conn. 94, 100-102, 192 A. 564 (1937); notes in which the stated interest is at or below the legal rate; see, e.g., Bochicchio v. Petrocelli, 126 Conn. 336, 339, 11 A.2d 356 (1940); Mutual Protective Corporation v. Palatnick, 118 Conn. 1, 4-5, 169 A. 917 (1934); and notes that include payments characterized by the lender as something other than interest. See, e.g., Community Credit Union, Inc. v. Connors, 141 Conn. 301, 307, 105 A.2d 772 (1954) (interest described as a fine); Douglass v. Boulevard Co., 91 Conn. 601, 604-605, 100 A. 1067 (1917) (interest described as a commission).

The defendants argue that this line of cases does not extend to violations under § 37-4. They claim that because § 37-4 applies to notes that are clear and unambiguous on their faces, the lender’s intent in these circumstances is irrelevant. We are not persuaded.

Section 37-4 is a blanket prohibition against lending money at a rate in excess of 12 percent. Section 37-5 prohibits a lender from circumventing the § 37-4 interest cap by accepting either a noninterest-bearing note or a low interest-bearing note whose actual rate of interest is greater than 12 percent. These statutes read together, therefore, operate to prohibit usurious loans no matter what their form. Under our usury laws, it is of no import whether the illegal rate is explicit on the face of the note or included in its face value.

Because of the relation between these provisions, a violation of § 37-5 is also a violation of § 37-4. As a result, cases addressing noninterest-bearing notes in violation of § 37-5 have referred to both §§ 37-4 and 37-5; see Wesley v. DeFonee Contracting Corporation, supra; Mutual Protective Corporation v. Palatnick, supra; Contino v. Turello, 101 Conn. 555, 126 A. 725 (1924); and solely to § 37-4. See Atlas Realty Corporation v. House, supra.

A particularly instructive case on the relevance of intent under § 37-4 is Golden v. Lyons, 151 Conn. 21, 193 A.2d 487 (1963). In Golden, a note evidencing a $13,970 loan had a face value of $20,000. Id., 23. The note called for monthly payments of interest at 12 percent per annum and quarterly repayments of principal. Id. The plaintiff accepted payments on the note according to its terms, and also demanded full payment of the note. Id., 25. The court, finding the note to be usurious and in violation of § 37-4; id., 23; held that where a lender has actually charged, demanded or accepted interest in excess of the legal rate, “his action [is] per se usurious and cannot be condoned by any declaration of lack of intent to violate the law.” Id., 27.

The court in Golden distinguished that case, where the lender by his actions had already declared his intent to exact usurious interest, from a situation where the lender “never assessed, collected or intended to collect” the usurious interest. Id., 26. A lender who has not acted to negate any stated intent, however, may explain why the loan is not usurious. Id.; see also Maresca v. DeMatteo, supra (lack of intent acknowledged as a basis to evade the usury bar to a deficiency judgment that was usurious on its face under § 37-4); Community Credit Union, Inc. v. Connors, supra (usurious intent relevant to a note claiméd to be usurious under General Statutes [1949 Rev.] § 6779 [now § 37-4]).

Here, the referee found that there was no discussion of interest at any time between the parties, that the note was prepared by a third party who had no instructions regarding the interest provision, and that the plaintiff was not seeking any interest on the loan. The referee also found that Bowman’s $50,000 check, on which a stop payment order was issued, would have been accepted by the plaintiff in full payment of the loan. We conclude, therefore, that the court properly considered whether the plaintiff lacked usurious intent under % 37-4 so as to exculpate it from forfeiture under § 37-8.

II

The defendants next claim that the court erred in finding that the plaintiff lacked the intent to charge a usurious interest rate. They argue that such a finding was contrary to the weight of the evidence based on the terms of the note itself, and based on the facts that the plaintiff was a sophisticated businessman who read the note and knew of the interest provision, and that the plaintiff obtained a prejudgment remedy in the sum of $80,000. We disagree.

On the basis of the findings discussed above, the referee concluded the plaintiff lacked the requisite intent. These findings are not clearly erroneous. All American Pools, Inc. v. Lato, 20 Conn. App. 625, 628, 569 A.2d 562 (1990).

Regarding the prejudgment remedy, the supporting affidavit indicates that the plaintiff sought an attachment of $80,000 to secure the $50,000 note and accrued statutory interest of approximately $28,000. No accrued interest on the note, based on an 18 percent rate, was included.

There is no error on the appeal; the cross appeal is dismissed.

In this opinion the other judges concurred.

       The plaintiff filed a cross appeal contesting the propriety of certain actions taken by the trial court, Cioffi, J., after judgment was initially rendered. Because we find no error on the appeal, we need not reach the cross appeal.

       General Statutes $ 37-4 provides in pertinent part that “[n]o person and no firm or corporation or agent thereof . . . shall, as guarantor or otherwise, directly or indirectly, loan money to any person and, directly or indirectly, charge, demand, accept or make any agreement to receive therefor interest at a rate greater than twelve per cent per annum.”

       General Statutes § 37-8 provides that “[n]o action shall be brought to recover principal or interest, or any part thereof, on any loan prohibited by sections 37-4, 37-5 and 37-6, or upon any cause arising from the negotiation of such loan.”

       General Statutes § 37-5 provides that “[n]o person and no firm or corporation, or agent thereof, shall, with intent to evade the provisions of § 37-4, accept a note or notes for a greater amount than that actually loaned.”

       Under General Statutes § 37-9, numerous loans are not subject to the usury statute including, inter alia, loans made by banks or savings and loan associations, real property mortgages in excess of $5000, and commercial loans in excess of $10,000.