author: PER CURIAM.

text:
    JAMES SANSONE ET AL. v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY
    (AC 20165)
    Schaller, Mihalakos and Hennessy, Js.
    Argued January 9
    officially released March 27, 2001

      Timothy J. Lee, for the appellants (plaintiffs).

      Charles E. Hickey, with whom, on the brief, was Michael Feldman, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiffs, James Sansone and Roberta Sansone, appeal from a summary judgment rendered by the trial court in favor of the defendant, Nationwide Mutual Fire Insurance Company. On appeal, the plaintiffs claim that the court improperly concluded that (1) the evidence, when viewed in the light most favorable to them, does not establish, as a matter of law, that termite infestation proximately caused the damage to their residence and (2) their loss was excluded from coverage under their homeowners policy. We affirm the judgment of the trial court.

In their complaint, the plaintiffs alleged that the defendant breached its insurance contract when it refused to indemnify them under their homeowners policy for property damage sustained when one of the walls of their residence collapsed. The plaintiffs also allege that the defendant breached the covenant of good faith and fair dealing when it “intentionally and maliciously” rejected their claim, and that it acted in bad faith in denying coverage “without a reasonable basis.” The defendant denied liability and raised a special defense, alleging that insect infestation caused the loss complained of by the plaintiffs and that losses of this type were excluded from coverage under the plaintiffs’ homeowners policy. The plaintiffs denied the special defense.

The defendant, thereafter, filed a motion for a summary judgment, in which it argued that the plaintiffs’ homeowners policy did not afford coverage under the facts of the case and that it, consequently, was not liable. The plaintiffs filed a memorandum in opposition. The court rendered summary judgment for the defendant, ruling that the evidence, when viewed in the light most favorable to the plaintiffs, established as a matter of law that termites had caused the damage to the plaintiffs’ property. The court also held that the plaintiffs’ homeowners policy excluded losses that were proximately caused by insect infestation.

Our review of the record, the briefs and oral argument persuades us to conclude that the judgment should be affirmed. The court’s memorandum of decision is detailed, thoughtful and comprehensive. Its analysis is consistent with our applicable law and precedents, and we, therefore, adopt the court’s well reasoned decision. See Sansone v. Nationwide Mutual Fire Ins. Co., 47 Conn. Sup. 35, 770 A.2d 500 (1999). It would serve no useful purpose to repeat the discussion contained therein. See Keyes v. Pennsylvania General Accident Ins. Co., 45 Conn. App. 140, 142, 695 A.2d 548 (1997); McCommic v. Commissioner of Correction, 44 Conn. App. 470, 471, 689 A.2d 526 (1997).

The judgment is affirmed.


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    OTTY NORWOOD ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF BRANFORD ET AL.
    (AC 19717)
    Landau, Spear and Daly, Js.
    Argued November 29, 2000
    officially released March 27, 2001

      Richard D. Patterson, with whom was Max F. Brunswick, for the appellants (defendant Linda MacArthur Anderson et al.).

      Roger Sullivan and Geoffrey A. Hecht, for the appellees (plaintiffs).
   Opinion

LANDAU, J.

The defendants Linda MacArthur Anderson and Ruth MacArthur appeal from the judgment of the Superior Court sustaining the plaintiffs’ zoning appeal and reversing the decision of the defendant zoning board of appeals of the town of Branford (board) that granted the defendants variances for their respective lots. On appeal, the defendants claim that the court improperly concluded that the record does not contain substantial evidence to support the board’s decision to grant the variances. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for our resolution of this appeal. In 1956, the town of Branford (town) adopted zoning regulations regarding nonconforming lots. The intent of the regulations was not to permit the expansion of nonconforming lots but rather to change such lots into conforming lots. Under the zoning regulations, the board may grant a variance provided, inter alia, that the owner of the nonconforming lot does not also own a contiguous lot that, when combined with the nonconforming lot, creates a conforming lot or a lot that more nearly conforms to the regulations.

MacArthur acquired the real property designated as 2 Esther Place (lot 8) in the town in 1967. In 1974, she acquired the adjacent lot of real property designated as 6 Esther Place (lot 9). In 1979, MacArthur filed an application for a building permit to allow her to build an addition to her dwelling that rested entirely on what had been lot 9. In the application, MacArthur represented that lots 9 and 8 were a single parcel of land. The addition was approved, and MacArthur added an enclosed porch to her dwelling. The addition extended onto what had been lot 8.

In March, 1989, MacArthur quitclaimed what had been lot 8 to her daughter, Anderson. Lot 8 is a nonconforming, nonbuildable lot, and MacArthur’s transfer and division of the merged property was made without subdivision approval. In June, 1997, Anderson entered into a contract to sell lot 8, as a buildable lot, to the defendant Salvatore Marrotoli. Shortly thereafter, Anderson applied to the board for a variance to allow a dwelling to be constructed on lot 8. In January, 1998, the board denied Anderson’s application for a variance without prejudice. In March, 1998, Anderson and MacArthur applied for variances for their respective lots. They each sought a reduction in the minimum lot area so as to accommodate a dwelling on each lot and claimed hardship if the variances were not granted. Anderson claimed as a hardship the profit that she would lose if she were unable to sell lot 8 to Marrotoli because it was not a buildable lot. For her hardship, MacArthur claimed that she had overpaid property taxes because the town has taxed lots 8 and 9 as separate lots for more than fifty-six years. The board granted the variances on the ground of hardship in May, 1998. The board gave no reasons for its decision.

The plaintiffs appealed to the trial court, which concluded that the board had acted arbitrarily, capriciously and in abuse of its discretion. Accordingly, the court sustained the plaintiffs’ appeal and reversed the decision of the board. This appeal followed.

The defendants claim that the court improperly concluded that the evidence contained in the record does not provide a valid basis for granting the respective variances. Specifically, the defendants claim that the court improperly concluded that (1) Anderson’s hardship is insufficient in that it merely alleges financial loss and (2) MacArthur’s hardship is insufficient in that it also alleges financial loss and that it was self-created. We disagree.

Our standard of review is well established. “[C]ourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . .” (Internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 547, 684 A.2d 735 (1996). The trial court’s function is “to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board’s] findings. . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Where the board states its reasons on the record we go no further.” (Citations omitted; internal quotation marks omitted.) Id., 547-48. Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board’s decision. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988); Parks v. Planning & Zoning Commission, 178 Conn. 657, 662, 425 A.2d 100 (1979). More specifically, the trial court must determine whether the board has “acted fairly or with proper motives or upon valid reasons.” (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). We, in turn, must determine whether the court properly concluded that the board’s decision to grant the variance was arbitrary, illegal or an abuse of discretion. Id., 205-206.

General Statutes § 8-6 (a) (3) provides that zoning boards of appeal may “vary the application of zoning regulations if (1) the variance is shown not to affect substantially the comprehensive plan and (2) adherence to the strict letter of the zoning regulation is shown to cause unusual hardship unnecessary to carrying out the general purpose of the plan.” Pike v. Zoning Board of Appeals, 31 Conn. App. 270, 273, 624 A.2d 909 (1993), citing Grillo v. Zoning Board of Appeals, supra, 206 Conn. 368. “The statute provides that the board may grant variances with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured. ... To support a variance, therefore, a hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner’s control. . . . The applicant bears the burden of demonstrating the existence of ahardship.” (Citations omitted; internal quotation marks omitted.) Pike v. Zoning Board of Appeals, supra, 273-74.

I

The defendants first claim that the court improperly concluded that the financial loss Anderson claimed if she were unable to sell lot 8 as a buildable lot is not a valid hardship for the granting of her variance. We disagree.

The following additional facts are necessary for our resolution of the defendants’ claim. In support of her claim of hardship, Anderson introduced into evidence a contract for the sale of lot 8. The sale is contingent upon Anderson’s obtaining a variance to permit the building of a dwelling on the lot. The evidence, therefore, merely shows that without the variance, Anderson will lose the profit that she would have realized from the sale of lot 8 to Marrotoli. There is no evidence in the record that indicates that the application of the zoning regulations to lot 8 greatly decreases or practically destroys the lot’s value. A review of the memorandum of decision reveals that the court concluded that Anderson’s claimed hardship is not a valid basis for granting her variance because it merely alleged financial loss. The court further concluded that denial of Anderson’s variance would not amount to confiscation, as lot 8 remains an attractive potential lot for an abutting landowner’s property.

“Disadvantage in property value or income, or both, to a single owner of property, resulting from application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of . . . unnecessary hardship. . . . Financial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect.” (Citations omitted; internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, supra, 206 Conn. 369. Zoning regulations have such an effect in the extreme situation where the application of the regulations renders the property in question practically worthless. Giarrantano v. Zoning Board of Appeals, 60 Conn. App. 446, 453, 760 A.2d 132 (2000).

Applying our standard of review, we conclude that the court properly concluded that Anderson’s claimed hardship is not a valid basis for granting her variance because it merely alleges financial loss. See Bloom v. Zoning Board of Appeals, supra, 233 Conn. 208. Furthermore, because lot 8 could have value as an addition to an abutting lot, we agree with the court’s conclusion that denial of Anderson’s variance does not amount to a confiscation of lot 8. See Grillo v. Zoning Board of Appeals, supra, 206 Conn. 370-71 (fact that unimproved lot would be more valuable as buildable lot does not mean it is valueless because lot could be used as side yard to enhance value of adjoining property). Accordingly, we conclude that the court properly determined that there is not a valid basis for granting Anderson’s variance.

II

MacArthur claims that the court improperly concluded that her claimed hardship is not valid in that it is (1) based on financial loss and (2) self-created. We disagree.

The following additional facts are necessary for our resolution of this claim. MacArthur claims as a hardship that while the lots are treated as one for zoning purposes, they are taxed separately. MacArthur presented evidence that she pays a higher amount of property taxes because the lots are taxed separately than she would pay if the lots were taxed as one. Put more simply, MacArthur argues that she is burdened with the town’s separate taxation of the lots without the benefit of having separate buildable lots. The court, in its memorandum of decision, came to the following conclusions regarding MacArthur’s application for a variance: (1) pursuant to zoning regulations §§ 5.1 and 5.11.4, lots 8 and 9 merged when they came under the common ownership of MacArthur; (2) by extending her dwelling from lot 9 onto lot 8, MacArthur confirmed the merger; (3) the separate taxation is not a basis for a hardship such as will support a variance; and (4) even if separate taxation was an otherwise valid basis for finding a hardship, the hardship was self-created by MacArthur’s merger of the properties and, therefore, not a basis for granting her variance.

As noted previously, a hardship that merely involves financial loss is not a valid basis for granting a variance. Bloom v. Zoning Board of Appeals, supra, 233 Conn. 208. Here, MacArthur’s hardship is based on an alleged financial loss she suffered as a result of the town’s separate taxation of the lots. In Spencer v. Zoning Board of Appeals, 15 Conn. App. 387, 390, 544 A.2d 676 (1988), the plaintiff owned a dwelling that was situated partially on two adjoining lots. She sought a variance to allow for the construction of a dwelling on each of the lots. The plaintiff claimed as a hardship the town’s practice of taxing her parcel of real property as two separate lots but refusing to allow her to construct a dwelling on each lot. Id., 391. This court characterized the plaintiffs claimed hardship as simply “an argument that the zoning regulations [prevented] maximum economic utilization of the parcel.” Id. Accordingly, this court concluded that the plaintiffs hardship was not a sufficient justification for granting a variance. Id., 392.

Here, MacArthur owns a dwelling that is partially situated on two lots, and she claims that the town’s practice of separately taxing the lots without allowing for dwellings on both lots is a hardship. Applying our standard of review, we conclude that the court properly concluded that MacArthur’s claimed hardship is insufficient in that it merely alleges the financial loss occasioned by the town’s separate taxation of the lots. See id., 391-92.

Because we conclude that the nature of the hardship itself is insufficient to support the granting of MacArthur’s variance, we need not consider the defendants’ claim that the court improperly concluded that the hardship is insufficient because it was self-created.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants in this appeal are Linda MacArthur Anderson and Ruth MacArthur, who own the lots in question. The defendant Salvatore Marrotoli, a prospective buyer of Anderson’s lot, and the defendant zoning board of appeals of the town of Branford are not involved in this appeal. We refer in this opinion to the defendants Anderson and MacArthur as the defendants.

       There are three plaintiffs in this matter: Otty Norwood, Perdita Norwood and Margaret Montelius, who own real property that abuts the real property at issue in this appeal.

       In their brief, the defendants also argue that it was an abuse of discretion for the trial court to search the record to determine if there was a basis for the board’s decision. The defendants argue that the court improperly found facts not found by the board. The board, however, did not find any facts as it did not provide a basis for its decision. “Where a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for abasis for the board’s decision.” (Emphasis added.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995); see also Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988). We believe that the defendants have mischaracterized their argument and that they take issue not with the court’s review of the record and findings of fact, but rather with its reversal of the board’s decision on the basis of the evidence in the record. We will, therefore, address the defendants’ claims accordingly.

       Zoning regulation § 5.1 (1956) provides: “It is the intent of these Regulations that nonconformities are not to be expanded, that they should be changed to conformity as quickly as the fair interest of the owners permit and that the existence of any existing nonconformity shall not of itself be considered grounds for the approval of a variance for any other property.”

       Zoning regulation § 5.11.4 (1956) provides that a variance may be granted where, inter alia, “the owner of the parcel shall not also have been, at any time since the enactment of the Zoning Regulations on December 3, 1956, the owner of contiguous land which in combination with such parcel that fails to conform would make aparcel that conforms or more nearly conforms to the area requirements of these Regulations pertaining to lots.”

       General Statutes § 8-6 (a) (3) provides in relevant part that a zoning board of appeals shall have the power and duty “to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result, in exceptional difficulty or unusual hardship so that substantial justice will be done . . . .”

       Anderson and MacArthur submitted a single brief. They do not make any specific claims with respect to the court’s reversal of the board’s decision to grant Anderson a variance. They do, however, make a generalized claim that there was sufficient evidence in the record to support the board’s decision to grant Anderson’s variance. Thus, the defendants implicitly claim that the court improperly reversed the board’s decision to grant the variance, and we have framed the issue accordingly.

       In fact, the evidence shows that Anderson obtained lot 8 by way of a quitclaim deed and that she paid at least $1 for the property but less than $100. It is difficult to imagine how Anderson can make a colorable claim that she will suffer a financial loss on the property if she is not granted a variance.


text:
    LISA BISHEL v. CONNECTICUT YANKEE ATOMIC POWER COMPANY, INC.
    (AC 19464)
    Landau, Spear and Hennessy, Js.
    Argued September 13, 2000
    officially released April 3, 2001

      Matthew Shafner, with whom was Amy M. Stone, for the appellant (plaintiff).

      John R. Horvack, Jr., with whom, on the brief, was Maureen Danehy Cox, for the appellee (defendant).
   Opinion

LANDAU, J.

In this negligence action, the plaintiff, Lisa Bishel, appeals from the summary judgment the trial court rendered in favor of the defendant, Connecticut Yankee Atomic Power Company, Inc. The essence of the plaintiffs claim on appeal is that the court improperly concluded that there was no genuine issue of material fact that the defendant was immune from civil liability as a matter of law because it had paid the plaintiff workers’ compensation benefits pursuant to General Statutes § 31-291. The plaintiff claims that there is a genuine issue of material fact as to whether there is an agency relationship between the defendant and Northeast Utilities Service Company (Northeast). We affirm the trial court’s judgment.

The plaintiff commenced this action on September 3, 1997. The complaint alleges, in part, that on December 15, 1995, the plaintiff was employed by Burns International Security Services (Burns) at the defendant’s power plant in East Hampton when she slipped and fell on the defendant’s sidewalk due to an accumulation of ice. As a result of the defendant’s alleged negligence, the plaintiff sustained serious and permanent injuries to her left knee, and she incurred damages for medical treatment and lost wages. She also alleged that she had been paid medical and compensation benefits pursuant to our Workers’ Compensation Act (act), General Statutes § 31-275 et seq. The plaintiff sought damages pursuant to General Statutes § 31-293, which permits employees and employers to recoup damages from third parties who are liable for injuries that an employee sustains during the course of employment.

The plaintiff subsequently amended her complaint, and the defendant filed an answer, two revised special defenses and a claim for setoff. The defendant’s second special defense alleged that it was immune from liability because it was the plaintiffs principal employer and because it had paid workers’ compensation benefits to the plaintiff pursuant to § 31-291 for the injuries that she alleged in her complaint. The defendant attached to its pleading four exhibits itemizing the benefits that it had paid the plaintiff as of September 15, 1998. The defendant also alleged, by way of a claim for setoff, that, pursuant to the act, it had provided the plaintiff with medical and compensation benefits, and that it may be obligated to provide benefits in the future. The plaintiff filed a single general denial of the defendant’s special defenses and claim for setoff.

The defendant also intervened in the action as a plaintiff, alleging in a substitute complaint that “[pjursuant to a contract between Bums and [the defendant] and [the defendant’s] obligations under General Statutes § 31-291, [the defendant], through Liberty Mutual Group, provided [the plaintiff] with medical attention and has expended significant sums for said medical attention” and compensation.

In April, 1998, the plaintiff filed an unsuccessful motion for summary judgment with respect to the defendant’s intervening complaint, arguing primarily that the defendant was not her principal employer. In support of its objection to the motion for summary judgment, the defendant submitted an affidavit of John H. Ireland. Ireland attested that he was employed by Northeast as the director of claims and insurance, and that he had personal knowledge of the facts contained in the affidavit. He also attested that through Northeast, the defendant retained Liberty Mutual Group (Liberty Mutual) to administer an owner controlled insurance program and that to date, Liberty Mutual had directed the payment of workers’ compensation benefits to the plaintiff in excess of $74,000. Under the owner controlled insurance program, Northeast, on behalf of the defendant, supplied the funds to Liberty Mutual by which it compensated the plaintiff.

In November, 1998, the defendant moved for summary judgment on the basis of the plaintiffs amended complaint and its revised second special defense. The defendant claimed that there was no genuine issue of material fact that because it had paid the plaintiffs compensation benefits, it was immune from civil liability pursuant to § 31-291. In support of its motion, the defendant submitted affidavits from Ireland; Susan Flesch, personnel specialist at Burns; James Pandolfo, a manager of security services for the defendant; and Howard Heilweil, a claims team manager for Liberty Mutual. The defendant also attached a copy of the relevant legislative history for the 1989 revision to § 31-291.

The plaintiff objected to the defendant’s motion for summary judgment and moved for summary judgment herself, attaching copies of the checks issued to her by Liberty Mutual that indicated that Bums was her employer. In objecting to the defendant’s motion, the plaintiff reasoned that the facts and exhibits demonstrated that the workers’ compensation benefits were paid to her by or on behalf of Bums and that the defendant had paid moneys to Liberty Mutual pursuant to a contractual, not a statutory, obligation. The plaintiff did not dispute that the defendant was her principal employer, only whether the defendant had paid her compensation benefits.

The court granted the defendant’s motion for summary judgment, noting that the owner controlled insurance policy provides in relevant part: “Northeast Utilities [as managing agent for the defendant] . . . has agreed to fulfill all present and future obligations of the named insured [Bums] with respect to the payment of premiums under said policy.” The policy also indicates that the defendant is an alternate employer to Bums. The court concluded that there was no dispute that Bums was the plaintiffs employer and that the plaintiff had presented no evidence to contradict the defendant’s evidence that Northeast had paid the plaintiffs compensation benefits or to show that Bums had paid the benefits. The plaintiff appealed.

“The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) SLI International Corp. v. Crystal, 236 Conn. 156, 163, 671 A.2d 813 (1996). Our review of the trial court’s granting of a motion for summary judgment is, therefore, plenary. See id. The record before the trial court is identical to the record before this court. See id.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Citations omitted; internal quotation marks omitted.) Altfeter v. Naugatuck, 53 Conn. App. 791, 800-801, 732 A.2d 207 (1999). “[I]t [is] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exits.” (Internal quotation marks omitted.) Dinnis v. Roberts, 35 Conn. App. 253, 260, 644 A.2d 971, cert, denied, 231 Conn. 924, 648 A.2d 162 (1994). “A defendant’s motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact. Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529,543, 494 A.2d 555 (1985).” (Internal quotation marks omitted.) Brunswick v. Safeco Ins. Co., 48 Conn. App. 699, 704, 711 A.2d 1202, cert, denied, 247 Conn. 923, 719 A.2d 1168 (1998).

The plaintiff raised the following issues on appeal: (1) whether the trial court improperly concluded that the defendant was immune from liability under § 31-291 where (a) the affidavits submitted indicate that Northeast paid the moneys to Liberty Mutual and (b) Bums filed a motion to intervene in the action, alleging it had paid the compensation benefits; and (2) whether the trial court improperly inferred that an agency relationship existed between the defendant and Northeast. During oral argument before us, the plaintiff conceded that Northeast, not Bums, had paid her compensation benefits.

In her brief, the plaintiff argues that the court’s decision was clearly erroneous because it inferred an agency relationship between the defendant and Northeast. The clearly erroneous standard does not apply to motions for summary judgment. We undertake a plenary review of the court’s legal conclusions. See Richter v. Danbury Hospital, 60 Conn. App. 280, 286, 759 A.2d 106 (2000).

In its brief here, the defendant pointed out that the plaintiff did not raise before the trial court her claim regarding the agency relationship between Northeast and the defendant, a point the record substantiates. In her reply brief, the plaintiff sought plain error review of this claim. Our Supreme Court has repeatedly stated that “issues not properly raised before the trial court will ordinarily not be considered on appeal.” (Internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 48, 717 A.2d 77 (1998). “A plaintiff cannot try his case on one theory and appeal on another.” McNamara v. New Britain, 137 Conn. 616, 618, 79 A.2d 819 (1951). Furthermore, a party may not seek plain error review for the first time in her reply brief. Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., supra, 48 n.42. We therefore decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court denied the plaintiffs cross motion for summary judgment.

       General Statutes § 31-291 provides: “When any principal employer procures any work to be done wholly or in part for him by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in, on or about premises under his control, such principal employer shall be liable to pay all compensation under this chapter to the same extent as if the work were done without the intervention of such contractor or subcontractor. The provisions of this section shall not extend immunity to any principal employer from a civil action brought by an injured employee or his dependent under the provisions of section 31-293 to recover damages resulting from personal injury or wrongful death occurring on or after May 28,1988, unless such principal employer has paid compensation

        benefits under this chapter to such injured employee or his dependent for the injury or death which is the subject of the action.” (Emphasis added.)

       We note that the deputy sheriffs return provides in relevant part that he left the writ, of summons and complaint “in the hands of Theresa Allsop, Assistant Secretary/Senior Counsel of Northeast Utilities and duly authorized to accept service on behalf of the within named Defendant, Connecticut Yankee Atomic Power Company, Inc.”

       One of the exhibits is titled, “Managed Services & Payments."

       The better method of pleading is to reply to each special defense and setoff separately. See Practice Book § 10-56.

       Bums also filed a motion to intervene in the action, alleging that “[b]y virtue of a Policy of Insurance, [Bums] has paid and has become obligated to pay sums of [moneys] to and on behalf of the said plaintiff’ pursuant to the act for the injuries that the plaintiff had sustained in the course of her employment on the defendant’s property. Bums is not a party to this appeal. See footnote 12.

       The court granted the plaintiff permission to file supplementary interrogatories and requests for production, but the supplemental discovery concerned the removal of snow and ice on the defendant’s property, not the payment of compensation benefits or the agency relationship between Northeast and the defendant.

       A copy of the owner controlled insurance policy was attached to Ireland’s affidavit.

       Flesch attested that “Bums’ employees, including [the plaintiff], are entitled to workers’ compensation benefits under the Owner Controlled Insurance Program if they sustain a work-related injury while on premises controlled by [the defendant], . . . The Owner Controlled Insurance Program was not in any way established or funded by Bums.”

       In his affidavit, Heilweil attested that he had personal knowledge of the statements he was making, that Liberty Mutual “is the administrator of an Owner Controlled Insurance Program under which [the defendant] is an owner, ” that the benefits paid to the plaintiff were not paid by Liberty Mutual as an insurer for Bums, and that “the plaintiff was paid by Liberty Mutual with funds supplied to it by [Northeast] for the benefit of [the defendant].”

       During the discussions concerning the adoption of an amendment to § 31-291 that limited immunity for principal employers, Public Acts 1988, No. 88-226, §1, Representative Joseph A. Adamo responded to a question from Representative Linda N. Emmons that asked whether a general contractor or a principal employer would be immune from civil liability if it paid for workers’ compensation insurance for its subcontractors. Representative Adamo stated: “You’re absolutely right .... If the principal employer or the general contractor wanted to go out and buy workers’ compensation insurance for four or five other subcontractors’ employees at the premiums that they are today, so be it. I guess he could. And once he paid those benefits, yes, he would be immune because he’s in fact the person paying the workers’ [compensation] benefits.” 31 H.R. Proc., Pt. 11, 1988 Sess., p. 3729.

       Although Bums intervened in the action to recoup the benefits it allegedly had paid the plaintiff, it did not file an objection to the defendant’s motion for summary judgment or an affidavit contradicting the affidavits submitted by the defendant.

       See footnote 6.


author: SCHALLER, J.

text:
    MIRIAM ISIDRO v. STATE OF CONNECTICUT
    (AC 19860)
    Foti, Schaller and Heimessy, Js.

      Argued November 29, 2000
    officially released April 3, 2001

      Peter T. Evans, with whom, on the brief, was Peter M. Appleton, for the appellant (plaintiff).

      Robert G. Clemente, with whom, on the brief, was Jessica D. Meerbergen, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Miriam Isidro, appeals from the summary judgment rendered in favor of the defendant, the state of Connecticut, on the ground that the two year statute of limitations, General Statutes § 52-584, barred her negligence action. The plaintiffs sole claim is that the court improperly concluded that General Statutes § 52-593 did not apply to save her action from the running of the two year statute of limitations. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. This action arises from an accident involving a motor vehicle and a pedestrian. At approximately 2 a.m. on February 12, 1995, the plaintiff, while standing on the side of Route 66 in the town of Columbia, was struck by a vehicle owned by the state and operated by a Connecticut state police officer, Roger Weissinger.

On January 13, 1997, the plaintiff initiated a negligence action against Weissinger alone to recover damages resulting from the accident. The parties stipulated that when the accident occurred, Weissinger was employed by the state police, he acted in the course of his employment and the state owned the motor vehicle involved in the accident. This stipulation was fatal to the plaintiffs action, as it rendered Weissinger immune from liability for a negligence claim pursuant to General Statutes § 4-165. On the basis of such immunity, the court granted Weissinger’s motion for summary judgment.

On December 22, 1998, more than three years after the accident, the plaintiff initiated a second action arising from the same accident. This time, she named the state of Connecticut as the defendant, claiming that it was vicariously liable for Weissinger’s conduct. The statute of limitations governing such an action, however, allows only two years from the date of injury for a party to commence an action. General Statutes § 52-584. Because the plaintiff initiated this action after the expiration of the two year limitations period, the defendant filed a motion for summary judgment. To save her action, the plaintiff claimed that § 52-593 applied because the original action failed by reason of failure to name the proper party as the defendant, and, accordingly, her action was exempt from the two year statute of limitations. The court rejected the plaintiffs claim and granted the defendant’s motion for summary judgment. This appeal followed.

The plaintiff claims that the court improperly determined that § 52-593 was inapplicable and, thus, her action could not be saved from the two year statute of limitations. Specifically, she claims that the court improperly concluded that the original action did not fail by reason of failure to name the proper party as a defendant. We are not persuaded.

We begin by setting forth our standard of review applicable in summary judgment matters. “The standards governing review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp-, 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn. App. 136, 145, 727 A.2d 219 (1999) [appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000)].

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert, denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995).” (Internal quotation marks omitted.) Kroll v. Steere, 60 Conn. App. 376, 380-81, 759 A.2d 541, cert, denied, 255 Conn. 909, 763 A.2d 1035 (2000). In accordance with this standard, we must determine whether the court’s interpretation of § 52-593 was legally correct.

Section 52-593 provides in relevant part that “[w]hen a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto . . . .” This statute, according to the plaintiff, should be interpreted broadly to encompass situations in which a plaintiff in an original action names the wrong defendant by virtue of a legal mistake, rather than just by a factual mistake as to the actual identity of the defendant. In other words, she argues that § 52-593 applies to cases in which the plaintiff in the original action, in fact, correctly identified the defendant, but that defendant could not be held liable due to a mistake as to legal theory, in this instance, immunity. We are not persuaded.

The plaintiffs interpretation is contrary to our Supreme Court’s interpretation of the statute. Our Supreme Court has recognized that § 52-593 applies only in circumstances in which the plaintiffs original action failed by reason of naming, in fact, the wrong defendant; that is, in cases in which the naming of the wrong defendant was the product of a reasonable and honest mistake of fact as to the identity of the truly responsible individual. See Perzanowski v. New Britain, 183 Conn. 504, 507, 440 A.2d 763 (1981); see also Vessichio v. Hollenbeck, 18 Conn. App. 515, 520, 558 A.2d 686 (1989). To illustrate, § 52-593 would apply in a situation in which a plaintiff erroneously sues A under the mistaken belief that A negligently operated or owned a vehicle, when in fact B operated or owned the vehicle. In Perzanowski, such a situation did not occur. There, the plaintiffs original civil rights action failed against the defendant city because the city was immune from liability in such an action. When the plaintiff later brought an action against the city under a different legal theory, the trial court dismissed the action for failure to comply with the statute of limitations. The plaintiff appealed from that judgment, arguing that § 52-593 applied and that the action therefore was not barred on the basis of the statute of limitations. Our Supreme Court refused to apply § 52-593 because the plaintiffs original action was not dismissed as a result of “a mistake in naming a defendant.” Perzanowski v. New Britain, supra, 507.

Similarly, here, the plaintiffs original action was not dismissed because she failed to name the proper defendant as a matter of fact. Instead, the plaintiffs original action was dismissed because, like the defendant in Perzanowski, the defendant was immune from liability. We note that the plaintiff did not make a mistake as to the identity of the owner of the vehicle at the time of the original action. To the contrary, she stipulated that the state owned the vehicle. The plaintiff was, therefore, free to pursue the state in the original action but did not to do so for some reason, whether a tactical choice or technical deficiency.

Moreover, following the plaintiffs logic would undermine the statute of limitations because a plaintiff could unilaterally extend the limitation period simply by filing an action against a defendant who could not be liable based on a legal theory. “To allow [such an] action to continue at this time would defeat the basic purpose of the public policy that is inherent in statutes of limitation, i.e., to promote finality in the litigation process.” (Internal quotation marks omitted.) Rosario v. Hasak, 50 Conn. App. 632, 638, 718 A.2d 505 (1998). In the course of interpreting a similar statute that provides refuge from the statute of limitations, we noted that “[although [General Statutes] § 52-592 is a remedial statute and must be construed liberally ... it should not be construed so liberally as to render statutes of limitation virtually meaningless.” (Internal quotation marks omitted.) Rosario v. Hasak, supra, 639. We conclude that the same logic applies to § 52-593 and, accordingly, reject the plaintiffs interpretation of the statute. Under these circumstances, allowing the plaintiff to gain refuge under § 52-593 would undermine the purpose of the statute of limitations. We conclude, therefore, that the court properly determined that § 52-593 did not apply to the plaintiffs case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the iiyury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . .

       General Statutes § 52-593 provides in relevant part: “When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action. . . .”

       General Statutes § 4-165 provides in relevant part: “No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his duties or within the scope of his employment. ...”


author: PELLEGRINO, J.

text:
    BIRD PEAK ROAD ASSOCIATION, INC. v. BIRD PEAK CORPORATION ET AL. BIRD PEAK CORPORATION v. BIRD PEAK ROAD ASSOCIATION, INC., ET AL.
    (AC 19843)
    Zarella, Pellegrino and Peters, Js.

      Argued October 27, 2000
    officially released April 3, 2001

      Martin A. Gould, with whom, on the brief, was William F. Healey, for the appellant (named defendant in the first case, plaintiff in the second case).

      Frank J. Scinto, for the appellee (plaintiff in the first case, named defendant in the second case).
   Opinion

PELLEGRINO, J.

This is an appeal from judgments quieting title to a private road in favor of Bird Peak Road Association, Inc. (association). Bird Peak Corporation (corporation) claims that the trial court improperly construed the language in a deed as granting the corporation only a right-of-way over the road rather than a fee interest in the road. We affirm the judgments of the trial court.

The parties initially instituted two separate actions in which each claimed title to the road. The cases were consolidated and submitted to the court in accordance with joint stipulations and admissions. The undisputed facts are as follows.

The road was formerly owned by Robert F. Weltzien, who acquired it as a portion of a large tract of land deeded to him by Shagroy Farms, Inc. (Shagroy Farms), in 1961. Weltzien developed and subdivided the southern portion of the tract into several lots and constructed the road to provide access to the lots. After he sold all of the lots, he conveyed a tract to the north of the developed tract to Thorpe Mountain, Inc. (Thorpe Mountain), in a deed recorded on May 9, 1983 (1983 deed). Thorpe Mountain never developed the land, and its interest in the land was foreclosed by New Milford Savings Bank. The corporation is successor to whatever title Thorpe Mountain held, having acquired it from New Milford Savings Bank in a 1993 foreclosure sale.

The owners of the lots in the subdivision, pursuant to their deeds, had rights-of-way over the road. They formed the association for the stated purpose of maintaining the road. Thereafter, the association claimed to have acquired the fee interest in the road by virtue of a quitclaim deed from Weltzien dated July 23, 1993 (1993 deed).

Sometime in 1994, a representative of the corporation began to cut trees in or about the road area, precipitating the actions that led to this appeal. The association claimed that it held the fee interest in the road pursuant to the 1993 deed and sought to quiet title. It also claimed damages for the corporation’s unauthorized cutting of trees along the road. The corporation claimed a fee interest in the road by virtue of the 1983 deed, and it, too, sought to quiet title. The corporation also alleged that the association slandered the corporation’s title when the association recorded the 1993 deed in the town land records.

The parties agreed in their written stipulation that the first issue that the court should resolve was whether the 1983 deed conveyed to the corporation afee interest in the road or merely a right-of-way over it. If the 1983 deed conveyed only a right-of-way to the corporation, then the 1993 deed effectively transferred the fee interest in the road to the association. The remaining issues hinged on the determination of which party had title to the road.

The parties also agreed that to resolve the critical issue of what interest in the road was conveyed by the 1983 deed, the court needed to analyze four paragraphs in that deed. Paragraph two described the parcel of land north of the subdivision and merely referenced the northern terminus of the road as part of the land’s southern border. The parties agree that paragraph two does not otherwise describe the road. Paragraph eleven transfers a right-of-way over the road. Paragraph fifteen conveys any covenants and hereditaments in the subdivision property together with any strips, gores or premises that Weltzien may have retained in the subdivision. Paragraph nineteen, the final paragraph in the deed and the “meaning and intending” clause, expressed Weltzien’s intent to convey the premises conveyed to him by Shagroy Farms in 1961, less those portions that he already had conveyed.

The parties agree that paragraph eleven transferred only a right-of-way or easement over the road. The corporation argues, however, that the transfer of “other premises” in paragraph fifteen effectively transferred the remaining fee interest in the road. It claims that the grantor’s intent to transfer all of the lands acquired in 1961 that he still held at the time of the 1983 conveyance, as expressed in paragraph nineteen, supports that position. In other words, because the fee interest in the road was not otherwise specifically conveyed, paragraph nineteen indicated the grantor’s intent to convey the fee to the road. The corporation claims that this intent is also alluded to in paragraph two by the grant- or’s reference to the road “as hereinafter described and conveyed.” In response, the association argues that paragraph eleven is clear and specific in conveying only a right-of-way in the road and, therefore, the other paragraphs cannot be read to convey a fee interest in the road because that interpretation would render the language in paragraph eleven superfluous.

The court analyzed the critical paragraphs in the 1983 deed and, in a well reasoned memorandum of decision, concluded that the deed merely transferred to the corporation a right-of-way or easement over the road. The court, therefore, quieted title to the road in favor of the association. We agree with the judgments of the trial court.

I

Both the corporation and the association claim a fee interest in the road. The determination of which party owns the fee to the road requires us to construe the relevant terms of the 1983 deed and to discern whether they express an intent to convey the fee to the road or merely a right-of-way over it.

“[T]he determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary. . . . Thus, when faced with a question regarding the construction of language in deeds, the reviewing court does not give the customary deference to the trial court’s factual inferences. . . . The meaning and effect of the [paragraphs in the 1983 deed] are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the surrounding circumstances .... The primary rule of interpretation ... is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met.” (Citation omitted; internal quotation marks omitted.) Wood v. Amer, 54 Conn. App. 601, 604-605, 736 A.2d 162 (1999), ail’d, 253 Conn. 514, 755 A.2d 175 (2000).

Further, “[i]t is a well established principle of construction that wherever possible each part of the scrivener’s phraseology should be given some import. . . . Every word, sentence and provision, if possible, is to have effect, and a construction which requires rejection of an entire clause is not to be admitted . . . .” (Citation omitted; internal quotation marks omitted.) D'Addario v. D'Addario, 26 Conn. App. 795, 800, 603 A.2d 1199 (1992).

In light of the foregoing principles, we must review the relevant provisions of the 1983 deed, in the context of the overall instrument and the surrounding circumstances, to determine whether Weltzien expressed an intent therein to convey a fee interest in the road.

Paragraph eleven of the 1983 deed is clearly at odds with paragraph fifteen and paragraph nineteen, the meaning and intent clause. Paragraph eleven explicitly conveys only a right-of-way over the road, whereas paragraphs fifteen and nineteen may be read, arguably, to transfer the fee in the road. The court relied on the rule enunciated in Barrí v. Schwarz Bros. Co., 93 Conn. 501, 107 A. 3 (1919), to reconcile the discrepancy. In Barri, our Supreme Court ruled that when a deed sets forth two different descriptions of the property to be conveyed, “the one containing the less certainty must yield to that possessing the greater, if apparent conflict between the two cannot be reconciled.” Id., 510; see also Pinney v. Winsted, 79 Conn. 606, 612-14, 66 A. 337 (1907); Benedict v. Gaylord, 11 Conn. 332, 336-37, 29 Am. Dec. 299 (1836); Mt. Maumee Partnership v. Peet, 40 Conn. App. 752, 755, 673 A.2d 127, cert, denied, 237 Conn. 924, 677 A.2d 947 (1996); 23 Am. Jur. 2d, Deeds § 298 (1983); 14 R. Powell, Real Property (1999) § 81A.05 [3] [c].

The language used in paragraph eleven was very specific. It clearly conveys only a right-of-way over the road. Any reference to the road in paragraphs fifteen and nineteen, however, is oblique at best. The corporation, nonetheless, argues that the rule in .Barri is inapplicable in this case. The corporation contends that the paragraphs do not, in fact, conflict because we need not choose between giving effect to one or the others, i.e., they may all be given effect by reading paragraph eleven to transfer an easement in the road and the other paragraphs to convey, indirectly, the remaining interest in the road. We disagree with that characterization because the meanings of those paragraphs, as argued by the corporation, present a clear conflict of the type to which the rule of Barri applies to give paragraph eleven primary effect.

The court relied on the specificity of the language in paragraph eleven and gave it precedence over the vague language in paragraphs fifteen and nineteen. We believe that analysis was appropriate and sound. Although the court in Barrí was faced with conflicting descriptions of property in a deed and it was not possible to give effect to both simultaneously, courts have applied the rule favoring specificity over generality in situations in which that was not the case. For example, in Mt. Maumee Partnership v. Peel, supra, 40 Conn. App. 755-56, we cited the rule in holding that a deed conveyed only one parcel of land and not that parcel plus another, fully separate and distinct, parcel of land. If the definition of “conflict” for purposes of the rule were as narrow as the corporation urges, we would have found no conflict between the clauses at issue, refused to apply the rule and given both clauses effect.

Moreover, if we were to accept the corporation’s interpretation of the 1983 deed, the language in paragraph eleven conveying a right-of-way over the road would be unnecessary, as it would serve no purpose. In American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 574 A.2d 796 (1990), our Supreme Court, in reviewing a quiet title action, interpreted a deed and held that a fee simple interest in a certain narrow strip of land had been conveyed, rather than an easement. Id., 74-75. The court based its holding on the fact that the grantor had reserved a right to pass over and cross the strip, noting that “[s]uch a reservation of rights would have been unnecessary if the grantors had retained fee simple title to the roadway, since the right to use the property for purposes not inconsistent with a nonexclusive easement would have remained with the grantors.” Id., 74. Similarly, in the present case, there would have been no reason for Weltzien to transfer a right-of-way over the road in paragraph eleven if he intended to transfer the fee in paragraphs fifteen and nineteen because the rights inherent in the fee, being complete, fully encompassed those entailed in a right-of-way.

Our analysis comports with the rule of construction requiring us to give effect to each part of the deed’s phraseology. If we were to interpret paragraphs fifteen and nineteen as the corporation urges, we would render the clause of paragraph eleven transferring an easement to the road completely superfluous and, therefore, give it no effect. Additionally, paragraphs two, fifteen and nineteen are in harmony with our construction of paragraph eleven. Paragraph two refers to the road “as hereinafter described and conveyed.” That language does not necessarily contemplate the transfer of fee title, as the transfer of an easement is also a type of “conveyance.” Furthermore, paragraph fifteen’s references to “other premises” likely contemplate premises other than the road. Although the grantor in that paragraph specifically refers to “covenants,” “hereditaments,” “strips,” “gores” and “other premises,” conspicuously absent is any mention of “the road” or even “roads” generally. Finally, paragraph nineteen’s exclusion of “property heretofore conveyed” from that intended to be presently conveyed may be read to encompass the road, as it had been “heretofore conveyed,” as a right-of-way, in paragraph eleven.

That interpretation of the 1983 deed does not lead to an unusual or irrational result. In fact, “[i]t has generally been held that the conveyance of a ‘right of way,’ or ‘right of passageway,’ in connection with the conveyance of another parcel of land, conveys only an easement in the portion of the conveyance representing the ‘right of way,’ and not a fee simple estate.” Annot., 89 A.L.R.3d 767, 768 (1979). That often is so, even where an unconditional grant appears in another part of the deed. Id., 769. Moreover, Connecticut courts have found on several occasions that a developer retained a fee interest in a road even after transferring all of the abutting lots to other parties. See, e.g., Henriques v. Rockefeller, 148 Conn. 654, 658,173 A.2d 596 (1961); Wambeck v. Lovetri, 141 Conn. 558, 563-64, 107 A.2d 395 (1954).

After undertaking our plenary review, we conclude that the 1983 deed transferred only a right-of-way over the road to Thorpe Mountain. Thus, the corporation, as Thorpe Mountain’s successor in interest, held only an easement over the road. The 1993 deed, therefore, was effective to transfer the fee interest in the road to the association. Accordingly, the court properly quieted title to the road in favor of the association.

II

The corporation also asserts that we should remand this case to the trial court for reconsideration of its claims of trespass and slander of title. Because the success of each of those claims depended on our reversal of the court’s finding that the association held the fee interest in the road; see General Statutes § 47-33j; Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 517, 280 A.2d 877 (1971); Dean v. Riley, 31 Conn. App. 87, 93, 623 A.2d 521 (1993); we need not address them and must refuse the requested relief.

The judgments are affirmed.

In this opinion the other judges concurred.

       The road is described in a deed dated May 5, 1983, and recorded in the Salisbury town clerk’s office at volume 128, page 1031. It consists of three segments, a “60.0’ proposed town road, a 50.0’ private road . . . and the turnaround” connecting the two. In this opinion, we will refer to the segments, collectively, as simply “the road.” The road runs through a developed subdivision, in which the members of the Bird Peak Road Association own homes, to an undeveloped parcel of land north of the subdivision, owned by Bird Peak Corporation.

       The corporation brought claims of trespass and slander of title against the association and its individual members. The association sought an injunction to prevent the marking and removal of trees along the road, as well as damages for trees that had already been removed. The association originally brought its action against Dario Ceppi, an officer or director of the corporation, and later joined the corporation after learning of its existence.

       General Statutes § 47-31 (a) provides: “An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiffs claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property. Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property.”

       That claim is not a subject of this appeal.

       Paragraph two of the 1983 deed states: “From an iron pipe in the northwesterly line of lands now or formerly of Katrin V. Warfield which iron pipe is located North 67° 48’ 30” East 100 feet from an iron pipe in the northeasterly comer of lot #15 on map No. 1204 hereinafter referred to; thence from said point along the line of lands now or formerly of Anna Marie E. Armstrong North 35° 08’ 23” West 1,308.37 feet to an iron pipe marking the northerly comer of lot #12 shown on Map No. 1204 hereinafter referred to; thence still along the line of lands of said Armstrong, South 68° 11’ 30” West 1,285.03 feet to an iron pipe; thence across the northerly terminus of the 50.0’private road as hereinafter described and conveyed South 73° 46’ 00” West 55.90 feet to an iron pipe marking the northeasterly comer of lands now or formerly of James L. Marks III and Sally C. Marks; thence along the northerly line of lands of said Marks North 79° 56’ 00” West 356.12 feet to an iron pipe in the boundary line between the States of New York and Connecticut.” (Emphasis added.)

       Paragraph eleven of the 1983 deed states: “ALSO conveyed hereby are rights of way in common with others running over a 60.0’ proposed town road, a 50.0’ private road . . . and the turnaround, all as shown on said Map No. 1204 hereinafter referred to.”

       Paragraph fifteen of the 1983 deed states: “Also conveyed hereby is all right, title and interest of the grantor in any covenants or hereditaments in respect of the lands shown on the subdivision Map #1204 hereinafter described or any predecessor or successor subdivision maps, and together with any strips, gores or other premises which the grantor may have retained with respect to said lands.”

       Paragraph nineteen of the 1983 deed states: “MEANING AND INTENDING to convey all of the premises conveyed to Robert F. Weltzien by deed of Shagroy Farm, Inc. dated August 12, 1961 and recorded in the Salisbury Land Records in Volume 83, Page 557, and by deed of Shagroy Farm, Incorporated, dated January 4, 1965 and recorded in the Salisbury Land Records in Volume 89, Pages 273-275, excluding all property heretofore conveyed.”


author: STOUGHTON, J.

text:
    JOSEPH R. HOLT ET AL. v. PEOPLE’S BANK
    (AC 19976)
    Schaller, Dranginis and Stoughton, Js.

      Argued December 11, 2000
    officially released April 3, 2001

      Brenden P. Ley don, for the appellants (plaintiffs).

      Thomas R. Gerarde, for the appellee (defendant).
   Opinion

STOUGHTON, J.

The plaintiffs appeal from the judgment of the trial court rendered in favor of the defendant in this premises liability action. The plaintiff Joseph Holt sought damages for injuries that he sustained in a fall that occurred while he was on the defendant’s premises. The plaintiff Donna Holt joined in the action claiming damages for loss of consortium. The defendant, People’s Bank, interposed a special defense, alleging negligence on the part of the plaintiff. The case was tried to an attorney trial referee, who issued a report in which he concluded that the plaintiffs own negligence barred recovery. The plaintiffs timely filed a motion to correct this finding, which the court denied. They then filed objections to the acceptance of the report of the attorney trial referee and exceptions to the report of the attorney trial referee, which were both heard and overruled by the trial court. The court subsequently accepted the report and rendered judgment for the defendant. This appeal followed.

The plaintiffs claim that the attorney trial referee improperly (1) found that the plaintiff slipped on his way to the teller in the same area where he ultimately fell, thus imputing knowledge of the hazard to him, and (2) premised his conclusion that the plaintiff was negligent on the fact that the plaintiff was wearing cowboy boots with smooth leather soles. We affirm the judgment of the trial court.

The attorney trial referee’s report included the following relevant findings of fact and conclusions of law. On January 9, 1996, the defendant owned and controlled an office at 3 Pickwick Plaza in Greenwich. The bank had two entrances that led from the outside to the interior of the bank and the teller counter. On the previous day, heavy snow had fallen, and, on January 9,1996, approximately nineteen inches of snow and ice had accumulated on the ground in Greenwich. Because customers tracked snow, slush and water into the bank, bank personnel placed warning signs at each entrance and periodically mopped the floor of the bank.

In the midafternoon of January 9, 1996, the plaintiff parked his car in a parking garage located near the rear entrance of the bank. He was wearing cowboy boots with smooth leather soles and walked along a snow covered path to the rear entrance of the bank. He walked across the lobby to a customer desk and waited in line for the next teller. While in line, the plaintiff noticed an accumulation of water and slush on the floor. As he walked toward Wesley Jaramillo, the next available teller, Jaramillo noticed the plaintiff slip, but not fall, on the area in front of the tellers. After the plaintiff completed his transaction, he turned, walked across the same area from which he came and slipped and fell on an accumulation of snow, ice, slush and water. The plaintiff became soaked with water and slush while he was on the floor.

The attorney trial referee concluded that the plaintiff was a business visitor and that the defendant was negligent, but he also concluded that the plaintiff, himself, was negligent. The referee concluded that the plaintiffs negligence was 70 percent of the total negligence that caused his fall and, thus, that he was barred from recovery pursuant to General Statutes § 52-572h (b).

A reviewing authority may not substitute its own findings for those of the Superior Court reviewing the findings of an attorney trial referee. Elgar v. Elgar, 238 Conn. 839, 848, 679 A.2d 937 (1996). An attorney trial referee’s determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment. Id., 849. “The factual findings of a [trial referee] on any issue are reversible only if they are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Id.

The plaintiff first claims that the attorney trial referee improperly found that the plaintiff had actual notice of the wet and slippery conditions of the particular area of the floor where he had fallen because of his finding that the plaintiff previously had slipped there. The plaintiff claims that this finding rested solely on the testimony of Jaramillo. Jaramillo testified that he believed that the plaintiff approached the counter in an awkward manner. He further testified that he “believe [d] it could have been any number of things. It could have been maybe him shifting his body or legs, or maybe slipping. [I] don’t know exactly what it was. But I thought I saw something awkward when he was approaching.”

This testimony supports the finding by the attorney trial referee that the teller saw the plaintiff slip as he approached the counter. Moreover, in the referee’s ruling on the plaintiff’s motion to correct, in which he found that the plaintiff was aware that the area was wet and slippery, the referee expressly indicated that he did not rely solely on the testimony of the teller, but rather on all of the evidence presented. He also noted that the plaintiff had testified that prior to his fall he had noticed an accumulation of water and areas of slush on the floor. The referee also found that the plaintiff noticed a large amount of water and slush all over the floor of the bank after he fell. Furthermore, the plaintiff did not challenge the court’s finding that warning signs were placed on the doors. In ruling on the motion to correct, the referee determined that the plaintiff had seen “some sign” on the back door. These facts sufficiently supported the finding that the plaintiff had seen the warning signs as he entered the bank. The referee did not find credible the plaintiffs testimony that he did not see the signs. The resolution of these conflicting factual claims falls within the province of the trier of fact. Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988).

We conclude that there was ample evidence to support the finding by the attorney trial referee that the plaintiff knew of the wet and slippery condition of the floor before he fell. The referee’s conclusions that the plaintiff had failed to heed the warnings, knew of the dangerous conditions and failed to take adequate precautions for his own safety were not clearly erroneous.

The plaintiff next claims that the attorney trial referee improperly concluded on the basis of the fact that the plaintiff was wearing cowboy boots that he was negligent. The referee found that the plaintiff knew that leather soles can absorb water and would become slippery when wet. The referee’s conclusion that wearing cowboy boots contributed to the plaintiffs fall was not clearly erroneous, and because the conclusion of negligence also was based on all of the factors recited earlier in this opinion, it was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       Donna Holt’s claim for loss of consortium is derivative of her husband’s claim for personal injuries, which is at issue, and, therefore, we address only his claim and refer to Joseph Holt as the plaintiff.

       General Statutes § 52-572h (b) provides in relevant part: “In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or the person’s legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section. . . .”


author: LAVERY, C. J.

text:
    MONA LUCAS v. ROBERT RIORDAN ET AL.
    (AC 20137)
    Lavery, C. J., and Mihalakos and Shea, Js.

      Argued January 18
    officially released April 3, 2001

      Norman A. Pattis, with whom, on the brief, was John R. Williams, for the appellant (plaintiff).

      Robert E. Young, with whom, on the brief, were James N. Tallberg and Barbara A. Frederick, for the appellees (defendants).
   Opinion

LAVERY, C. J.

The plaintiff, Mona Lucas, appeals from the judgment of the trial court granting the motion of the defendants, Robert Riordan and Steve Wydra, to dismiss the plaintiffs complaint for lack of subject matter jurisdiction. On appeal, the plaintiff claims that the court improperly concluded that it lacked jurisdiction over the case because of her failure to exhaust her administrative remedies before filing the action. We agree with the plaintiff and reverse the judgment of the trial court.

According to the allegations of the plaintiffs complaint, which for purposes of this appeal we assxxme to be true, the plaintiff was, at the time of the events giving rise to this action, a police officer in the Milford police department (department). Throughout her tenure as an officer, the plaintiff has enjoyed a reputation as an honest and honorable police officer. On November 24, 1998, the defendants alleged to the chief of the department that the plaintiff was a thief. As a result of this allegation, the department conducted an intensive investigation, eventually concluding on January 22, 1999, that the plaintiff had not engaged in any wrongdoing.

The plaintiff thereafter brought this action against the defendants on May 4,1999, alleging slander, intentional infliction of emotional distress and negligent infliction of emotional distress. On June 24, 1999, the defendants moved to dismiss the plaintiffs entire complaint on the ground of lack of subject matter jurisdiction, alleging that because the plaintiff had failed to file a grievance under her collective bargaining agreement or to seek arbitration of the dispute, she had failed to exhaust her administrative remedies, thus depriving the court of jurisdiction over her complaint. On September 2, 1999, the court granted the defendants’ motion to dismiss, finding that because the plaintiff had failed to pursue the administrative remedy provided by the grievance process before resorting to the courts, the court lacked subject matter jurisdiction over the complaint. This appeal followed.

“The standard of review of a motion to dismiss is . . . well established. In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiffs] claim. . . . We first note that, because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Citations omitted; internal quotation marks omitted.) Hyllen-Davey v. Plan & Zoning Commission, 57 Conn. App. 589, 592, 749 A.2d 682, cert, denied, 253 Conn. 926, 754 A.2d 796 (2000).

The defendants argue before this court that the trial court properly found that the plaintiff had not exhausted her administrative remedies because the collective bargaining agreement under which the plaintiff is employed by the department includes a procedure for resolving grievances. That procedure, contained in article XII of the collective bargaining agreement, includes, in § 1 (a), a definition of a grievance. We consider this definition as a statement by the parties of the issues that the grievance process covers. Thus, by implication, all other issues are not covered.

The plaintiff, in her memorandum in opposition to the defendants’ motion to dismiss, unequivocally set forth the parameters of her complaint. She claimed that “[s]he [did] not sue her employer; she [did] not sue any supervisor. Indeed, the plaintiff was treated with complete fairness by her supervisors throughout the entire course of this process.” This statement makes clear that, far from having a grievance against the department, she was quite satisfied with the manner in which it handled the allegations made against her by the defendants. The department took no disciplinary action against her, she makes no charge of favoritism or discrimination in her complaint, and her complaint makes no mention of a dispute concerning the application and interpretation either of department policies or of the collective bargaining agreement. Only the defendants raise the collective bargaining agreement in this case in their motion to dismiss the plaintiffs complaint.

The record indicates that the plaintiff and the defendants are engaged in a private dispute. The defendants, in their argument to this court, emphasize the fact that this entire controversy began with a dispute about the cost of breakfast items obtained by the plaintiff. While interesting, that dispute does not change the current character of the case. The plaintiff does not bring this action because of that dispute, but because of the defendants’ alleged overreaction to that dispute. There are instances too numerous to mention here where civil litigation has ensued, involving large amounts of money, as the result of events that, at their inception, involved matters very small indeed. The old story of how “the kingdom was lost, all for the want of a two-penny nail” is a classic example of this.

The controversy here centers around whether the defendants defamed the plaintiff and, either intentionally or negligently, inflicted emotional distress upon her. That the parties are all police officers employed by the same municipality does not change the nature of the controversy. It is also irrelevant to this case that the department has in place a grievance procedure by which employees may have grievances concerning then-employment adjudicated without resort to the courts. The controversy in this case is not of that kind, and thus the grievance procedures do not apply to it.

Because we disagree with the trial court’s conclusion that the grievance procedures governed this case and because the court based its dismissal of the plaintiffs complaint on that conclusion, the complaint must be reinstated.

The judgment dismissing the plaintiffs complaint is reversed, and the case is remanded for further procedings consistent with this opinion.

In this opinion the other judges concurred.

       See Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 409, 722 A.2d 271 (1999).

       The defendants are also officers in the Milford police department.

       The collective bargaining agreement provides in relevant part:
      “a. Definition of a grievance shall be as follows:
      “1. Discharged, suspension or other disciplinary action or any other reduction in grade or rank.
      “2. Charge of favoritism or discrimination.
      “3. Interpretation and application of rules and regulations and policies of the Police Department.
      “4. Matters relating to the interpretation and application of the articles and sections in this agreement.”