author: LAVERY, J.

text:
    SMITH BROTHERS WOODLAND MANAGEMENT, LLC v. ZONING BOARD OF APPEALS OF THE TOWN OF BROOKFIELD
    (AC 28376)
    DiPentima, Lavine and Lavery, Js.
    Argued February 14
    officially released June 24, 2008

      Thomas W. Beecher, for the appellant (defendant).

      Brian A. Lema, for the appellee (plaintiff).
   Opinion

LAVERY, J.

The defendant, the zoning board of appeals of the town of Brookfield (board), appeals from the judgment of the trial court sustaining in part the appeal of the plaintiff, Smith Brothers Woodland Management, LLC, from a decision of the board upholding a cease and desist order issued by the Brookfield zoning enforcement officer. The board contends that the court improperly held that (1) the certificate of zoning compliance did not confer a benefit on the plaintiff and therefore it was not bound by the certificate’s terms that were never appealed, and (2) existing Connecticut case law is distinguishable. We reverse the judgment of the trial court.

The following facts are relevant to the board’s appeal. Prior to the plaintiffs purchase of the subject property on April 1, 1999, the premises were owned by John J. Kolinchak, Jr., from 1971 to 1999 and were sold to him by his parents, who had purchased the property on June 23, 1934. On March 23, 1999, Kolinchak submitted an application for a certificate of zoning compliance to the Brookfield zoning commission (commission) for use of the property as a general contractor site with nonretail logging as an accessory use. When the premises were purchased by the plaintiff, the application was taken over by the company. The application was denied on March 26, 1999, but the plaintiff requested that the denial be reconsidered because it could confirm the nonconforming use of the site as a contractor site.

Letters were presented to confirm that heavy equipment had been stored on site, consistent with a contractor’s site, but there also was testimony that logs had not been seen stored there. The plaintiff indicated that the primary purpose of the property was to store equipment, but the commission stated that it sounded like the plaintiff wanted to run a logging business from the property and that there was an attempt to enlarge the existing nonconforming use. The commission requested additional information about the proposed logging use, specifically looking for definitions of construction material, how to eliminate seeing a pile of logs from the street, what size the logs would be and a list of how many trucks would be on the property per week. In a letter dated April 15, 1999, the plaintiff defined the parameters of his logging business, as well as proposed improvements, and stipulated activities that would not occur on the property, including the grinding of materials, the presence of stumps and wood chips and that logs less than twelve feet in length would be present only in a designated area for up to five days.

Specifically, the plaintiff wrote that “[t]he [l]ogging operation of [the plaintiff] is an [accessory use to its [g]eneral [contractor [operation. It is not a [r]etail [b] usiness. There have been no complaints associated with the current operations. This property will be dramatically improved with the added [screening, [pointing, elimination of all [vehicles] [t]ruck [b]odies, [buses] [p]arts, etc. [a]s mandated in the condition of sale. The property and activity will be more conforming than at present. There will be [njo [expansion of a [n]on-[c] onforming use, since the proposed use will have less [equipment, no storage of [others’] [v]ehicles, no outside repairs, significantly less [e]mployees, no [buses], [t]ruck [b]odies, large and small [p]arts, [recreation [v]ehicles, [s]and [g]ravel will be present. The property will be utilized less and therefor[e] will not be an expansion of use.” (Emphasis in original.) The application for the certificate of zoning compliance was granted by the commission with the stipulation that the provisions in the letter be part of the certificate, and a prohibition against the marshaling of logs, with marshaling defined as “the gathering, storing on site, [and] removal to another location.” The plaintiff did not appeal from the imposition of the stipulations or take any further action regarding the certificate of zoning compliance.

The commission inspected the subject property in 2005 and found evidence of grinding material, storage of logs in excess of twelve feet in length, additional log storage outside of the approved airea of the property and the presence of numerous unregistered vehicles that constituted an illegal junkyard. On April 1, 2005, the commission sent a letter to inform the plaintiff of the results of the inspection and to inform the plaintiff that its representatives were to attend the next commission meeting to show cause as to why they should not be issued a citation for the noncompliance. At the commission meeting on April 14, 2005, the plaintiff appeared and agreed to move the logs in the unapproved area, to remove the unregistered vehicles and to remove the pile of wood chips. At the April 28, 2005 meeting, the zoning enforcement officer reported that no changes had been made to the subject property, and the commission voted to issue a cease and desist order dated May 2, 2005, for the improper storing of logs and the on-site storage and maintenance of unregistered motor vehicles. The plaintiff appealed from the decision of the commission to the board.

At the July 11, 2005 meeting of the board, counsel for the plaintiff argued that the current use of the property was an intensification of a lawful, nonconforming use and that there was never an intention to relinquish that use. He argued that the application for the certificate of zoning compliance had no force and effect on the use carried out on the property and that construction yards have unregistered motor vehicles on them all the time. He also argued that there had been no change of use of the property and that since 1934, the property had been used for the storage of logs, storage and maintenance of construction materials, and for the storage of unregistered vehicles. Kolinchak attested in an affidavit that the property was “continuously used as a commercial contractor’s yard for vehicle and materials storage and for the operation of our construction business. ... In conjunction with the operation of our construction and commercial businesses at the [property, my father and I regularly and continuously utilized the [p]roperty for [1] the storage of building materials such as concrete blocks and lumber; [2] the storage of raw materials such as asphalt, concrete, cut logs, wood chips, sand, gravel and stone . . . and [5] the processing of raw and other materials such as the crushing, grinding and screening of stone along with the splitting and cutting of wood and lumber products.”

The commission presented the certificate of zoning compliance and the attached stipulations to the board and stated that the commission had determined that the plaintiff had a preexisting, nonconforming use as a contractor’s yard, that the certificate with the stipulations was supposed to have been filed in the land records and that the plaintiff previously had not appealed from these findings. The commission argued that the certificate of zoning compliance defines the scope of the nonconforming use. In deciding to uphold the cease and desist order, the board determined that the certificate of zoning compliance was the “guiding document” and that, although the plaintiff had proven that its activities were preexisting, nonconforming uses, in context with the certificate of zoning compliance, there was an abandonment of all the activities other than a contractor’s yard. As further evidence, the board pointed out the plaintiffs compliance with other cease and desist orders that had been issued after 1999.

The plaintiff appealed from this decision to the Superior Court, where a trial was held on April 3, 2006. The plaintiff argued that there had been no expansion of nonconforming uses on the property and that there was never an abandonment of the nonconforming use. The board argued that there was an intent to abandon when the plaintiff proposed the stipulated conditions and applied for the certificate of zoning compliance. It further argued that the plaintiff could not claim that the conditions in the certificate of zoning compliance are unenforceable because the plaintiff could have appealed and challenged the conditions within the statutory time limit. In a memorandum of decision dated July 3, 2006, the court found that th e board’s argument that the certificate of zoning compliance with its attached stipulations demonstrated the plaintiffs intent to abandon was “contrary to the evidence and established precedent.” The court determined that the language in the stipulations expressed a less intensive use of the site but not abandonment. In relation to the unregistered vehicles on the property, the court held that the plaintiff had not established that this was a valid preexisting, nonconforming use of the property and found that the board’s upholding of the cease and desist order as to the motor vehicles was supported by substantial evidence in the record.

Specifically, the court distinguished Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 616 A.2d 793 (1992), and Spectrum of Connecticut, Inc. v. Planning & Zoning Commission, 13 Conn. App. 159, 535 A.2d 382, cert. denied, 207 Conn. 804, 540 A.2d 373 (1988). The court held that the cases were distinguishable because in both cases, the plaintiffs had enjoyed a benefit from the permits that had been granted, which also had been subject to conditions. The court drew a distinction because the certificate of zoning compliance in this case never had been recorded in the land records, and the court held that the plaintiff never had enjoyed the benefit of the permit.

The board filed a motion to reargue on the basis of the court’s interpretation of a Brookfield zoning regulation that did not pertain to certificates of zoning compliance. The court agreed that the regulation was not relevant to the case at bar but held that it did not alter its analysis of Upjohn Co. and Spectrum of Connecticut, Inc., nor its conclusion. The court affirmed its conclusion that the plaintiff had not utilized the certificate of zoning compliance because it legally could continue all valid, nonconforming uses. The court held that the certificate of zoning compliance was not binding on the plaintiff. Further, the court held that the plaintiff had not abandoned or unlawfully expanded its preexisting, nonconforming uses in regard to its logging operation. The court dismissed the plaintiffs appeal, in part, because the cease and desist order related to the storage of unregistered motor vehicles was supported by substantial evidence, and the court found that the plaintiff had abandoned grinding or retail sales of logs as a nonconforming use.

We begin by setting forth the relevant standard of review. “In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [conclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board]. . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached. ... If a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board. ... If there is conflicting evidence in support of the zoning commission’s stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission. . . . The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.” (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60, 916 A.2d 5 (2007), citing Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004). “Since the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . the court must determine the correctness of the conclusions from the record on which they are based.” (Citation omitted; internal quotation marks omitted.) Spectrum of Connecticut, Inc. v. Planning & Zoning Commission, supra, 13 Conn. App. 163, quoting Feinson v. Conservation Commission, 180 Conn. 421, 425, 429 A.2d 910 (1980); Housatonic Terminal Corp. v. Planning & Zoning Board, 168 Conn. 304, 306, 362 A.2d 1375 (1975).

When a zoning authority has stated the reasons for its action, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision. Goldberg v. Zoning Commission, 173 Conn. 23, 25-26, 376 A.2d 385 (1977). The decision of a zoning authority will be disturbed only if it is shown that it was arbitrary, illegal or an abuse of discretion. Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 444, 418 A.2d 82 (1979).

“Abandonment is a question of fact which implies a voluntary and intentional renunciation. Nevertheless, the intent to abandon may be inferred as a fact from the circumstances. . . . The mere discontinuance of a use where there is no intent to abandon is not enough. ... To establish abandonment, the intention on the part of the owner [must be] to relinquish permanently the nonconforming use. . . . Because the conclusion as to the intention of the landowner is an inference of fact, it is not reviewable unless it was one which the trier could not reasonably make. ” (Emphasis in original; internal quotation marks omitted.) Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn. App. 622, 631, 814 A.2d 396, cert. denied, 263 Conn. 901, 819 A.2d 836 (2003).

Our Supreme Court has “ordinarily recognized that the failure of a party to appeal from the action of a zoning authority renders that action final so that the correctness of that action is no longer subject to review by a court. ... All of these rules rest in large part, at least in the zoning context, on the need for stability in land use planning and the need for justified reliance by all interested parties . . . .” (Citations omitted.) Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 102.

In Upjohn Co., the plaintiff applied to the town zoning board for permits and site plan approval to enclose certain structures in connection to the wastewater treatment system on its property. Id., 98. The applications were approved by the board, subject to twenty conditions, one of which was the elimination over time of an activity that was a valid nonconforming use, referred to as condition seven. Id. The plaintiff did not appeal from the imposition of the condition. Id. When the town zoning enforcement officer issued a cease and desist order that insisted that condition seven be enforced, the plaintiff then challenged the conditions. Id., 99. Our Supreme Court held that the plaintiff could not challenge the conditions of the application after the plaintiff failed to appeal in a timely manner. Id., 105. In a subsequent opinion, the Supreme Court wrote that in deciding Upjohn Co., “[fjirst, we reasoned that the rules requiring a contemporaneous appeal from the imposition of a zoning condition, and thus depriving a trial court of subject matter jurisdiction over a subsequent challenge, rest ‘on the need for stability in land use planning and the need for justified reliance by ah interested parties—the interested property owner, any interested neighbors and the town.—on the decisions of the zoning authorities.’ [Id., 102.] Second, we noted that ‘there are limits to the notion that subject matter jurisdictional defects may be raised at any time’; id., 103; and that those limits applied to that case because ‘[t]he lack of jurisdiction, if any, was far from obvious, [the plaintiff] had the opportunity to challenge it at the time, and we perceive [d] no strong policy reasons to give [the plaintiff] a second opportunity to do so now.’ Id., 104.” Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 149-50, 763 A.2d 1011 (2001).

Spectrum of Connecticut, Inc., supra, 13 Conn. App. 159, was about a special permit for a video arcade, to which a special condition was imposed. The special condition was attached to the initial permit, and, in considering the renewal of the permit, the commission considered the noncompliance with the condition. Id., 162. The plaintiff “did not contest the imposition of the conditions before the commission with respect to the renewal of the permit. Just as a party may not ordinarily ask for a certain result and then challenge its validity on appeal ... a party may not challenge on appeal the validity of a preexisting condition to a special permit which it seeks to renew.” (Citations omitted.) Id.

The conclusion of the court that Upjohn Co. and Spectrum of Connecticut, Inc., are distinguishable because, in the present case, there was no perceived benefit in obtaining the certificate of zoning compliance is not in conformity with the established case law. When the certificate of zoning compliance was applied for in 1999, there was a contract for the sale of the property. The plaintiff, in purchasing the property, had an interest in ensuring that the company’s intended uses for the property were existing, nonconforming uses and had an interest in having documentation to prove the legal nonconformity. In the present case, as in Upjohn Co. and Spectrum of Connecticut, Inc., once the stipulations in the application were imposed, the document became the operative document with respect to the permitted uses of the property. Upjohn Co. and Spectrum of Connecticut, Inc., illustrate the point that when a person or entity applies for a permit or other zoning instrument, they then have two choices once the board accepts the application, even when there are conditions imposed; they can either accept the conditions and conform, or they can appeal from the imposition of the conditions. Failure to conform to the conditions and appealing from their imposition only when the board enforces them is not an option save for “exceptional” circumstances. See Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 104-105.

By initiating the application to clarify the uses of the property, the plaintiff became bound by the outcome and could have appealed from the decision of the commission. Because the certificate of zoning compliance was not appealed from, we do not question its accuracy or the decision of the commission in granting it. In the present case, the commission made it clear that the stipulations, and not the preexisting, nonconforming uses, were to be adhered to when other cease and desist orders were issued on the subject property. Historically, the plaintiff complied with the stipulations and, if found by the board to not be in compliance, tailored its actions to conform. The board’s determination that the application and stipulations showed an intent to abandon was one that it could reasonably make. The board had substantial evidence before it that the certificate of zoning compliance explicitly provided what was permitted and not permitted on the property and that some of the logging practices of the plaintiff were not permitted because such practices, even if they were preexisting, nonconforming uses, had been abandoned.

The judgment is reversed and the case is remanded with direction to dismiss the plaintiffs appeal in its entirety.

In this opinion the other judges concurred.

       The record of the commission meetings in 1999 exists in the form of minutes from the meetings on April 8 and 22, 1999.

       Section 242-202 of the Brookfield zoning regulations defines a junkyard in relevant part as “any place of outside storage or deposit, whether in connection with a business or not, for two (2) or more motor vehicles which are no longer intended or in condition for legal use on the public highways and shall also include any place of outside storage or deposit of used parts of motor vehicles which on any lot have an aggregate bulk equal to one (1) automobile.”

       In Upjohn Co., the Supreme Court opined that there may be “exceptional cases” in which a previously unchallenged condition “was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it, or in which the continued maintenance of a previously unchallenged condition would violate some strong public policy.” Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 104-105. Such “exceptional cases” have been found. See Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 150-51, 763 A.2d 1011 (2001); Gay v. Zoning Board of Appeals, 59 Conn. App. 380, 388, 757 A.2d 61 (2000). The plaintiff has not claimed that this case is exceptional.


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    CONNECTICUT LIGHT AND POWER COMPANY v. WESTVIEW CARLTON GROUP, LLC, ET AL.
    (AC 28470)
    Bishop, Gruendel and Borden, Js.

      Argued March 20
    officially released June 24, 2008

      Dov Braunstein, with whom was Lawrence S. Dressier, for the appellants-appellees (defendants).

      Jeanine M. Dumont, for the appellee-appellant (plaintiff).
   Opinion

BORDEN, J.

The defendants, Westview Carlton Group, LLC (Westview), and Howard S. Sousa, West-view’s sole shareholder, appeal from the judgment of the trial court, finding them both Hable for electrical services supplied by the plaintiff, Connecticut Light & Power Company, to two buildings owned by Westview. The defendants claim that the court improperly (1) pierced the corporate veil as to Sousa, (2) concluded that the plaintiff was not required to mitigate its damages by applying for a receiver of rents and (3) awarded prejudgment interest to the plaintiff. The plaintiff cross appeals from the judgment, claiming that the court improperly rejected its claim that was based on the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court in all respects.

The plaintiff brought this action in three counts. In the first count, the plaintiff claimed a written contract with Westview and, as to Sousa, that he was personally liable to the plaintiff on a theory of piercing the corporate veil. In the second count, the plaintiff alleged unjust enrichment. In the third count, the plaintiff sought damages under CUTPA. After a trial to the court, the court found in favor of the plaintiff against both defendants on the first count. On this count, the court rendered judgment in the total amount of $109,160.19. This amount consisted of the following: (1) $46,086.66 as the principal amount of the debt; (2) prejudgment interest of $11,544.34; (3) costs of $3128.19; (4) attorney’s fees as allowed by the contract for electrical services in the amount of $39,960; (5) and an offer of judgment interest award of $7878, along with $350 for attorney’s fees and $213 for costs. The court found in favor of the defendants on the second count because of its determination on the first count and found in favor of the defendants on the third count because it determined that the defendants’ conduct did not rise to the level of a CUTPA violation. These appeals followed.

The court found the following facts. The plaintiff is engaged in the business of selling electrical utility services to the public. Westview is a Connecticut limited liability corporation with its principal place of business at 45 East 89th Street, suite 10B, New York, New York. Sousa was the “sole owner, operator and member of Westview,” and he resided at Westview’s principal place of business.

Before moving to the United States, Sousa was an accountant in England, the qualifications for which were similar to those in the United States. After coming to the United States, Sousa worked in the accounting department of MCI Telecommunications Corporation, was a vice president of a semiconductor business in California and was a consultant in general business expansion to MCI Telecommunications Corporation in the late 1980s.

On April 25, 2000, Sousa formed Westview for the purpose of buying two buildings, consisting of 146 rental apartment units, located at 120 and 170 Hillside Avenue, Waterbury. Westview bought the properties on May 4, 2000, and at Westview’s request, made by Sousa, the plaintiff began supplying electricity to the common areas of the apartment complex and any apartments owned by Westview.

The court further found that state statutes and regulations require electrical companies such as the plaintiff to provide electrical services to owners of apartment buildings such as those owned by Westview. Further, such companies are prohibited from requiring the owner of such properties to post a security deposit, from eliciting a personal guarantee or from terminating service to the owner in the event of nonpayment of the bills for such service.

The only statutory remedy available to the plaintiff in the event of nonpayment for electrical service by an owner of an apartment building is to apply to the Superior Court for the appointment of a receiver of rents pursuant to General Statutes § 16-262f. The court noted that companies such as the plaintiff are reluctant to do so, however, because it is “expensive, time-consuming, confusing to the tenants, causes tenants to stop paying rent to anyone and can result in the electric utility becoming in effect the manager of the building.” Accordingly, companies such as the plaintiff, when dealing with a nonpaying owner, use the receivership process only as a last resort.

Westview’s meters were located in a locked basement, requiring estimated bills to be sent until the plaintiff was able to gain access to them. From the outset of its ownership in May, 2000, Westview was delinquent in paying the monthly bills. It made no payment until August 11, 2000, and by September, 2000, the balance was more than $11,000. It made no further payments until March, 2001. Westview’s history on its account was replete with demands for payment, unfulfilled promises of payment by Sousa and threats by the plaintiff of receivership.

Eventually, the plaintiff turned the account over for collection to its counsel, who notified Westview on May 20, 2002, that unless payment in full was received by June 4, 2002, an application for receiver of rents would be filed. Sousa received this letter but did not contact the plaintiff. Several days after June 4,2002, the plaintiff seived Westview with an application for receivership; the plaintiff was then informed that the property had been sold on June 3, 2002.

The court found that the plaintiff had proven a breach of contract by Westview and that as of September 3, 2002, the balance owed by Westview was $46,086.66. The court then turned to the plaintiffs claim that Sousa was personally liable for Westview’s obligation to the plaintiff.

Specifically invoking the instrumentality test for piercing the corporate veil; see Hersey v. Lonrho, 73 Conn. App. 78, 87, 807 A.2d 1009 (2002); the court made the following findings. First, the court found that Sousa was not a credible witness; his testimony was inconsistent, evasive and contradicted by much other evidence, including his deposition. The court further found that he was the sole owner, member and manager of Westview, which he formed for the sole purpose of owning the two buildings in question. His residence was Westview’s principal place of business. He was in total control of all of Westview’s operations and made all the decisions involving finances, policy and business practices. No state or federal tax returns were filed by Westview for the three tax years that Westview owned the buildings, and he intentionally failed to preserve Westview’s financial records so that there was inadequate documentary support for his claim that Westview was a losing venture. Sousa’s control and domination of all of West-view’s affairs was such that as to the obligation to the plaintiff, Westview had no separate mind, will or existence of its own.

In addition, the court found that Sousa was aware of the governmental restrictions imposed on the plaintiff in doing business with owners of apartment buildings, such as Westview, and that the plaintiff could not refuse service, demand a personal guarantee from him or disconnect the meters in the event of nonpayment, and that the only action the plaintiff could take would be to apply for a receiver of rents. The court found that Sousa knew that the plaintiff was reluctant to do so and that he could stall the plaintiff from so applying by making partial payments and false promises of payment schedules. Sousa also began negotiating to sell the property while he was continuing to make promises of payment, he knew that the plaintiff was going to apply for a receiver on June 4, 2002, and he sold the property on June 3, 2002, without notifying the plaintiff or making any payment on the outstanding bill of $46,086.66. The effect of the sale was to leave Westview with no assets; there were funds available at the closing to pay the plaintiffs bill, and Sousa personally received approximately $74,000 from the proceeds of the sale. The court further found that “Sousa used his total control of the affairs of Westview to perpetrate an unjust act in contravention of the plaintiffs legal rights, and that said control and conduct caused the plaintiff a loss of $46,086.66.”

The court awarded the plaintiff prejudgment interest on this amount, pursuant to General Statutes § 37a-3, at the rate of 6 percent per year, commencing on November 1, 2002, to the date of judgment. It also awarded the plaintiff costs and attorney’s fees on the basis of the application for service. See footnote 2.

Because it found in favor of the plaintiff against both defendants on the first count based on the contract, the court found in favor of the defendants on the second count, which was based on unjust enrichment. On the third count, which was based on CUTPA, the court found that “the conduct underlying the breach of contract by Westview, and the conduct of Sousa which the court has found sufficient to pierce Westview’s corporate veil and hold Sousa personally liable for said breach of contract, does not rise to the level of a CUTPA violation.” Accordingly, the court found in favor of the defendants on this count.

I

THE DEFENDANTS’ APPEAL

A

Piercing the Corporate Veil

The defendants first claim that the court improperly concluded that Sousa was personally liable for West-view’s breach of contract. We disagree.

Whether the corporate veil should be pierced presents a question of fact, which we review under the clearly erroneous standard. Litchfield Asset Management Corp. v. Howell, 70 Conn. App. 133, 148, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). The instrumentality test for piercing the corporate veil, which the court applied in the present case, “requires, in any case but an express agency, proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiffs legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.” (Emphasis in original; internal quotation marks omitted.) Id., 152.

“Courts, in assessing whether an entity is dominated or controlled, have looked for the presence of a number of factors. Those include: (1) the absence of corporate formalities; (2) inadequate capitalization; (3) whether funds are put in and taken out of the corporation for personal rather than corporate purposes; (4) overlapping ownership, officers, directors, personnel; (5) common office space, address, phones; (6) the amount of business discretion by the allegedly dominated corporation; (7) whether the corporations dealt with each other at arm’s length; (8) whether the corporations are treated as independent profit centers; (9) payment or guarantee of debts of the dominated corporation; and (10) whether the corporation in question had property that was used by other of the corporations as if it were its own.” (Internal quotation marks omitted.) Id., 152-53.

There was more than ample evidence to support the court’s determination that under the instrumentality test, the corporate veil should be pierced in this case. In addition to, and in support of, the numerous specific factual findings made by the trial court, there was evidence that Westview lacked an agent for service as required by General Statutes §§ 34-121 and 34-104, filed no annual reports with the secretary of the state as required by General Statutes § 34-106 and lacked any of the documentation required for a limited liability corporation, as required by General Statutes § 34-144. In addition, there was evidence that Westview failed to maintain any business records for the property, failed to file tax returns for any of the years involved and was undercapitalized. There was also evidence that Sousa commingled Westview funds for his own benefit, by transferring funds from Westview to a different entity controlled by him, namely, the Clyde Group, for purported payment of undocumented and unsubstantiated loans. Finally, there was evidence that when Westview sold the property, Sousa, not the plaintiff, Westview’s creditor, was the beneficiary of the $74,000 net proceeds of the sale.

Thus, we reject the defendants’ suggestion that this was simply a case of a single shareholder being charged with a corporate debt solely because of his ownership status. There was ample evidence that Westview had no separate existence, that Sousa treated it as such and that Sousa used it to perpetrate an unjust act in contravention of the plaintiffs legal rights. The evidence in this case amply supports the court’s determination that the corporate veil should be pierced.

B

Mitigation of Damages

The defendants next claim that the court improperly concluded that the plaintiff was not obligated to mitigate its damages by promptly applying for a receiver of rents pursuant to § 16-262f. Specifically, the defendants claim that because Westview breached the contract within the first two months of their relationship, and because by June, 2001, it was clear that Westview was not making its payments in full, the plaintiff should have mitigated its damages by applying for a receivership at that time. We disagree.

The defendants’ claim requires little discussion. A party being damaged has an obligation to make reasonable efforts to mitigate its damages, and the question of what constitutes such efforts is a question of fact that is subject to the clearly erroneous scope of review. Vanliner Ins. Co. v. Fay, 98 Conn. App. 125, 145, 907 A.2d 1220 (2006). The breaching party has the burden of proof on this issue. Id.

We agree with the court and the p laintiff that although § 16-262Í affords an electric utility a means of mitigating its damages, it does not mandate that it do so regardless of the circumstances. The court’s findings, which are amply supported by the evidence, support its determination that the plaintiff was not obligated to mitigate its damages by resorting to a rent receivership, which would have itself been expensive, time-consuming, and might well have resulted in tenants declining to pay rent at all. Furthermore, there was evidence that Sousa misrepresented to the plaintiff that he was working on a long-term solution that would have afforded payment to the plaintiff. Instead, he sold the property without notifying the plaintiff and pocketed the net proceeds of the sale for himself.

C

Prejudgment Interest

The defendants’ final claim is that the court improperly awarded prejudgment interest pursuant to § 37-3a (a). This claim also requires little discussion. The trial court’s award of interest pursuant to the statute for money wrongfully withheld was amply supported by the evidence and was not an abuse of discretion. See McCullough v. Waterside Associates, 102 Conn. App. 23, 33, 925 A.2d 352, cert. denied, 284 Conn. 905, 931 A.2d 264 (2007).

II

THE PLAINITFF’S CROSS APPEAL

The plaintiff, in its cross appeal, claims that the court improperly declined to find the defendants liable under CUTPA. Specifically, the plaintiff claims that the overwhelming evidence established that the defendants’ conduct violated some or all of the three parts of the familiar “cigarette rule.” See Angiolillo v. Buckmiller, 102 Conn. App. 697, 709, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007). We reject this claim.

Whether conduct violates CUTPA is an issue of fact for the trial court. De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 433-34, 849 A.2d 382 (2004). A reviewing court will direct a judgment for the plaintiff on a CUTPA claim only when the trial court could not have reasonably reached its conclusion that there was no CUTPA violation. See id., 442; see also Smith v. Greenwich, 278 Conn. 428, 441, 899 A.2d 563 (2006).

In the present case, the court stated only that “the conduct underlying the breach of contract by Westview, and the conduct of Sousa, which the court has found sufficient to pierce the corporate veil and hold Sousa personally liable for said breach of contract, does not rise to the level of a CUTPA violation.” The plaintiff did not ask the court to articulate its reasoning underlying this finding. On this state of the record, although the court could have found otherwise, we cannot say that the court acted unreasonably and in abuse of its discretion in concluding as it did. Put another way, it cannot be said that on this state of the record, a CUTPA violation was established as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       Technically, the court “dismissed” the second and third counts. We read this as essentially finding in favor of the defendants on those counts, as if the court had rendered judgment in favor of the defendants on those counts.

       The written application for electrical service, submitted by Westview and signed by Sousa, provides for payment of all charges for such services, including costs and a reasonable attorney’s fee incurred in collecting sums owed for the service.

       The defendants separate this claim into two arguments: (1) the court improperly found Sousa liable for Westview’s breach of contract and (2) the court improperly found Sousa liable under the contract for attorney’s fees, interest and costs because Sousa signed the contract as president of Westview, and not as an individual. We consider both these arguments together because, contrary to the defendants’ suggestion that they are sever-able, the same legal principles and factual findings govern both.

       General Statutes § 16-262f provides in relevant part: “(a) (L) Upon default of the owner, agent, lessor or manager of a residential dwelling who is billed directly by an electric, electric distribution, gas or telephone company or by a municipal utility for electric or gas utility service furnished to such building, such company or municipal utility or electric supplier providing electric generation services may petition the Superior Court or a judge thereof, for appointment of a receiver of the rents or payments for use and occupancy or common expenses ... for any dwelling for which the owner, agent, lessor or manager is in default. . . .”

       As with their first claim, the defendants separate this claim into two parts. Also as with that claim, we treat both parts in one analysis because the same legal principles and facts govern both.

       General Statutes § 37-3a (a) provides in relevant part: “Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. ...”


author: WEST, J.

text:
    KIP KRICHKO v. LESLIE KRICHKO
    (AC 27691)
    Flynn, C. X, and Lavine and West, Js.

      Argued April 22
    officially released June 24, 2008

      William R. Donaldson, with whom, on the brief, was Christopher P. Norris, for the appellant (plaintiff).

      David P. Ball, for the appellee (defendant).
   Opinion

WEST, J.

The plaintiff, Kip Krichko, appeals from the judgment of the trial court, granting his motion to terminate his obligation to pay alimony. He claims that the court improperly (1) failed to rule that alimony terminated on the date on which the defendant, Leslie Krichko, began cohabiting with an unrelated male and (2) failed to find the date on which the defendant began to cohabit with an unrelated male. We reverse the judgment of the trial court.

The following factual and procedural history is relevant to our disposition of the plaintiffs appeal. The parties were married on September 10, 1983, in Maine, and they subsequently had three children. The marriage was dissolved by the court, Carroll, J., on April 15, 2002. On that date, the parties executed a separation agreement, which was incorporated into the dissolution judgment. Section 13.2 of that agreement provides in relevant part: “After April 30, 2005, if alimony has not previously been terminated . . . then the [plaintiff] shall on the 1st day of May, 2005 and continuing thereafter on the 15th day and 1st day of each month, pay the [defendant] the sum of Seven Hundred Fifty and no/100 ($750.00) Dollars as alimony provided that such payment shall terminate on the earliest of the following events to occur: a. The death of either party; or b. The remarriage or cohabitation of the[defendant]; or c. The date on which the [defendant] obtains her Master’s Degree; or d. April 30, 2007.” On October 6, 2005, the plaintiff filed a motion for an order, postjudgment, seeking to terminate alimony immediately pursuant to § 13.2 of the separation agreement. In his motion, the plaintiff requested that the alimony he was paying to the defendant be terminated immediately due to the fact that the defendant was cohabiting with an unrelated adult male and that, as a result, there was a change of circumstances, which altered the defendant’s financial needs. The plaintiff did not cite a statute in support of his claim.

A hearing regarding the issue of termination of alimony was held on February 14,2006, and was continued to March 31, 2006, and concluded on that date. At the conclusion of the hearing, the court, Pinkus, J., found that the defendant was cohabiting with an unrelated adult male and that the defendant’s financial circumstances had changed, and, as a result, the court terminated the plaintiffs alimony obligation. The court did not decide the date as of which the alimony was to be terminated and gave the attorneys an opportunity to submit case law on that issue.

The plaintiff argued that his alimony obligation should terminate as of the beginning of September, 2005, when the defendant began cohabiting with the unrelated male, and relied on Mihalyak v. Mihalyak, 30 Conn. App. 516, 620 A.2d 1327 (1993), in support of this argument. On April 3, 2006, however, the court ordered alimony terminated effective February 14,2006. The court arrived at this conclusion by relying on the language of General Statutes § 46b-86 (a), which provides in relevant part: “No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.” The court did not believe it could terminate the alimony retroactively pursuant to § 46b-86 (a).

On April 19, 2006, the plaintiff filed a motion to reargue, claiming that the court improperly terminated the alimony as of February 14, 2006, instead of early September, 2005. The plaintiff cited Mihalyak v. Mihalyak, supra, 30 Conn. App. 516, for the proposition that the alimony should be terminated at the start of the cohabitation, regardless of the date of the hearing. The motion, however, was denied by the court on April 24, 2006. On May 12, 2006, the plaintiff appealed from the April 3, 2006 decision regarding the effective date of the termination of the alimony. Subsequently, on April 19, 2007, the plaintiff filed a motion for articulation, asking the court to articulate several things, including, inter alia, the specific date on which the defendant’s cohabitation began, whether the court terminated the alimony pursuant to the separation agreement or some other legal authority and a legal rationale for terminating alimony as of February 14, 2006. The court denied this motion on May 9, 2007. On May 17, 2007, the plaintiff filed a motion for review concerning the court’s May 9, 2007 decision. This court granted the motion for review on July 11, 2007, but denied the relief requested by the plaintiff. Additional facts will be set forth as necessary.

Prior to examining the plaintiffs appeal, we set forth the applicable standard of review. The parties are not disputing any issues of fact. The crucial issue is whether the court properly determined that the plaintiffs alimony obligation terminated on the date of the commencement of the hearing regarding the plaintiffs motion to terminate alimony. Accordingly, the parties are not disputing whether the alimony should have been terminated but, rather, when it should have been terminated. When the alimony should have been terminated is a question of law over which we afford plenary review. “We afford plenary review to conclusions of law reached by the trial court.” Sagamore Group, Inc. v. Commissioner of Transportation, 29 Conn. App. 292, 300, 614 A.2d 1255 (1992). “Under plenary review, we must decide whether the trial court’s conclusions of law are legally and logically correct and find support in the record.” (Internal quotation marks omitted.) William Raveis Real Estate, Inc. v. Newtown Group Properties Ltd. Partnership, 95 Conn. App. 772, 777, 898 A.2d 265 (2006).

I

The plaintiff claims that the court improperly failed to determine that his alimony obligation terminated on the date on which the defendant began cohabiting with an unrelated male. We agree with the plaintiff.

The following additional facts are relevant to the disposition of the plaintiffs claim. On March 31, 2006, the court heard testimony from both the defendant and her significant other, Donald Townsend, regarding the date they began to cohabit. The defendant testified that at the beginning of the 2005-2006 school year, she registered her daughter to take the bus from Townsend’s home address. Townsend testified that the defendant began living with him around the first week of September, 2005. There was no evidence presented to demonstrate that the defendant and Townsend began cohabiting any earlier or later than the first week of September, 2005. In addition, both the defendant and Townsend testified regarding the extent to which the defendant’s financial circumstances had changed as a result of her living with him. Townsend testified that he and the defendant essentially were sharing the costs of running the house. The defendant testified that she and Townsend evenly shared the cost of the utilities for the house, that they evenly divided the cost of the mortgage payment for the house and that she moved in with Townsend in order to reduce her expenses. At the end of the hearing, the court found that the defendant was cohabiting with an unrelated male and that there was a change in the financial circumstances of the defendant.

The plaintiff argues that the court should have relied on the separation agreement, not the relevant portions of § 46b-86, to terminate the alimony. The plaintiff cites Mihalyak v. Mihalyak, supra, 30 Conn. App. 516, as being directly on point in the present case. The plaintiff argues that in Mihalyak, the former husband sought under the terms of the separation agreement to terminate alimony due to his former wife’s cohabitation with an unrelated male. This court, in Mihalyak, agreed that the former husband’s alimony obligation should have been terminated as of the date the cohabitation began. The plaintiff here argues that, as in Mihalyak, the applicable provision of the separation agreement was automatic and self-executing. Accordingly, the moment the defendant began cohabiting with Townsend, the alimony ceased, and the plaintiff is entitled to the reimbursement of all alimony payments made to the defendant after the commencement of cohabitation. We agree with the plaintiff.

Our decision in Mihalyak v. Mihalyak, supra, 30 Conn. App. 516, controls. In Mihalyak, the parties’ marriage was dissolved, and the judgment, which incorporated an oral stipulation of the parties, provided that “the [former] [w]ife’s right to receive alimony will terminate upon the death of either party or upon the [former] wife’s remarriage or cohabitation.” (Internal quotation marks omitted.) Id., 518. After learning of the cohabitation, the former husband filed a motion for modification or termination of alimony in February, 1991, but continued paying alimony until July 19, 1991. Id. The trial court held a hearing and found that the former wife had been cohabiting with another man since September 1, 1988, and that her financial needs had changed. Id., 518-19. The court, therefore, terminated the alimony as of the date the former husband filed his motion for modification. Id., 519. The former husband appealed, claiming that pursuant to the dissolution decree, the court should have terminated the alimony as of the date it found that cohabitation had commenced. Id. This court stated that the former husband sought termination of alimony solely on the basis of the provision in the decree, not § 46b-86. Id., 520-21. In such a situation, “[t]he provisions of ... § 46b-86 are inapplicable. The trial court should have considered the terms of the dissolution decree, which incorporated the agreement of the parties in the form of a stipulation.” Id., 521. Furthermore, in reversing the judgment of the trial court, this court held that “[t]he [dissolution] judgment in this case is clear: by its unambiguous terms, alimony ceased when the [former wife’s] cohabitation began on September 1, 1988. The alimony termination provision was automatic and self-executing upon cohabitation . ... No alimony ‘accrued’ between September 1, 1988, and July 19, 1991, and the defendant was properly entitled to a reimbursement of the sums he had paid to the [former wife] during that period.” (Emphasis in original.) Id., 522.

In the present case, as in Mihalyak, the separation agreement did not reference § 46b-86, and the plaintiffs motion to modify the alimony was made solely on the basis of the separation agreement, not the statute. In fact, the wording of the separation agreement in the present case was almost identical to that of the agreement in Mihalyak. Therefore, as in Mihalyak, the separation agreement’s termination provision was self-executing upon cohabitation. Accordingly, the court improperly failed to conclude that the plaintiffs alimony obligation terminated as of the date the defendant began cohabiting, pursuant to the separation agreement.

II

The plaintiff also claims that the court improperly failed to find a date on which the defendant began to cohabit. The court did not find a date on which cohabitation by the defendant commenced. Because we have concluded that the alimony should have terminated on the date cohabitation commenced, we remand the case to the trial court to make that finding.

The judgment is reversed only as to the date of termination and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The plaintiff also filed the same motion for an order on January 24, 2006, and then filed an amended motion for an order on March 10, 2006. The motions filed on October 6, 2005, and on January 24, 2006, were identical in substance. The amended motion filed on March 10, 2006, corrected a scrivener’s error present in the first two motions by substituting the word “defendant” for the word “plaintiff’ in two places.

       Although the statute allows retroactive modification of alimony from the date of service of notice of the pending motion for modification on the opposing party, the court did not modify the alimony from the date of the service of the motion.

       In addition to relying on the relevant portion oí § 46b-86 (a), the court also relied on § 46b-86 (b), which provides: “In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the Superior Court, may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.”

       The defendant argued at oral argument that DeMaria v. DeMaria, 247 Conn. 715, 724 A.2d 1088 (1999), controls the present case because in DeMaria, our Supreme Court stated that in deciding whether to modify alimony on the basis of the cohabitation of one party, the trial court must be guided by the statutory analysis, even if the separation agreement does not reference the statute. DeMaria is inapposite, however, because DeMaria discussed what the trial court should consider in deciding whether to terminate alimony on the basis of cohabitation, not when the alimony should be terminated after a court decides it should be terminated.


author: McLACHLAN, J.

text:
    DAVID H. PORTER v. MAUREEN MORRILL ET AL.
    (AC 27739)
    Flyim, C. J., and McLachlan and West, Js.

      Argued March 10
    officially released June 24, 2008

      James P. Brennan, for the appellants (named defendant et al).

      William C. Franklin, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

The defendant RMM Consulting, LLC, appeals from the judgment of the trial court quieting title to a 1.728 acre parcel located in Warren (disputed parcel) in favor of the plaintiff, David H. Porter. The defendant claims that the court improperly failed to conclude (1) that the description of the disputed parcel contained in an 1816 deed in the plaintiffs chain of title was legally insufficient to convey title, (2) that it was the record owner of the disputed parcel and (3) that it had acquired title by adverse possession if it was not the record owner of the disputed parcel. We affirm the judgment of the trial court.

The facts that follow were either found by the court or are not in dispute. The plaintiff and the defendant are owners of adjoining properties located in the Lake Waramaug area of Warren. The plaintiffs father acquired 5.18 acres, a portion of the plaintiffs property, in 1937. In 1954, the plaintiffs father acquired a contiguous 5.64 acre tract, which is claimed to include the disputed parcel. The combined tracts, consisting of 10.82 acres, are shown on a 1954 map and were conveyed through a straw deed to the plaintiffs parents in survivorship. The plaintiffs father died in 1960. In August, 1986, the plaintiffs mother conveyed the 10.82 acre tract to the plaintiff. The property has been used by the plaintiffs parents and, subsequently, the plaintiff and his family as a summer cottage.

Maureen Morrill, the sole member of the defendant limited liability company, first became aware of the availability of two undeveloped lots in an approved subdivision in the late summer or fall of 2002. As a builder of single-family houses, she entered into contracts for the purchase of those two lots in early 2003, each lot being owned by different owners. She engaged the services of Michael Riordan, a land surveyor, to revise the lot lines, and he prepared a revision map that was referred to in the defendant’s deed recorded on May 15, 2003. The original two lots, referred to as old lots 9A and 9B by the parties and the court at trial, became new lots 9A and 9B. The disputed parcel is old lot 9B.

After the lot revisions were approved by local authorities, the defendant began the construction of a single-family dwelling on new lot 9A. In the fall of 2003, before construction had been completed, Morrill contacted the plaintiff by telephone to inquire about the removal of some trees from the plaintiffs property that would obstruct the view from the house being built. The content of that conversation is disputed, but a large number of trees were cut down between November, 2003, and May, 2004, by an individual hired by the defendant. The plaintiff, who resides in New York, was not at the Warren property during that time period.

The plaintiff returned to the summer cottage on May 22, 2004. At that time, he observed that numerous trees had been cut on his property. He investigated the area to determine the extent of the tree removal and discovered the house built by the defendant. When he saw it, he became concerned that it had been constructed on his property or, at the very least, was in violation of the town’s setback requirements. When he visited the town hall and reviewed the maps on file a few days later, he discovered that the defendant claimed a portion of his property.

The plaintiff commenced this action against the defendant and Morrill, claiming record title to the disputed parcel and title by adverse possession. The defendant and Morrill filed a counterclaim, also alleging record title and title by adverse possession. The defendant and Morrill, as third party plaintiffs, additionally filed a complaint against Mary Lewis Sheehan, Monica E. Tague, Matthew Sheehan and John V. Sheehan, the third party defendants, who were the defendant’s predecessors in title. They conveyed new lots 9A and 9B to the defendant by warranty deed. The third party plaintiffs and the third party defendants reached an agreement shortly after this appeal was filed, and the trial court rendered judgment in accordance with their stipulation on August 30, 2006.

During a seven day trial, the court heard testimony from several expert and fact witnesses for the plaintiff and the defendant. It also admitted eighty-six exhibits, including deeds and maps from both chains of title. Following trial, the court issued a fifty-five page memorandum of decision in which it painstakingly evaluated both parties’ claims of record title and adverse possession. It concluded that the plaintiff was the record owner of the disputed parcel and that the defendant had not proved title by adverse possession.

In that decision, the court found that each side relied on a chain of deeds going back to the eighteenth century. The common grantor, Elias Taylor, acquired the Peters Farm in 1798, which consisted of approximately 155 acres. In 1816, Taylor conveyed two separately described parcels, totaling thirty-six acres, from that farm to Ebenezer Thomas, the plaintiffs predecessor in title. The second parcel, which the plaintiff claims is the disputed parcel, was described as a one acre woodlot adjoining the north side of the first described parcel. In 1839, Taylor conveyed the remainder of the farm to Daniel Beeman, Jr., the defendant’s predecessor in title. Subsequently, Lucinda Beeman, in a deed in the plaintiffs chain of title, more particularly described the woodlot as being located at the northwest comer of the first described parcel. She also referenced the Taylor to Thomas deed in describing the woodlot in that 1852 deed. Until 1852, the woodlot had not been located precisely on the northern boundary of the first parcel.

The court rejected the defendant’s claim that the disputed parcel became included in its chain of title when the remainder of the farm was conveyed to its predecessor in title in 1839. The court was not persuaded by the argument that it was “accidentally” conveyed to the defendant’s predecessor in title because the description of the woodlot in the 1816 deed was too uncertain to convey title to the plaintiffs predecessor in title. The court found that the 1852 deed “corrected and improved” the less than perfect description in the 1816 deed, that the disputed parcel first became included in the plaintiffs chain of title by way of the 1816 deed and that it has remained in the plaintiffs chain of title since that time.

With respect to the defendant’s various other claims concerning perceived inaccuracies in the plaintiffs chain of title, the court found that the deficiencies in the defendant’s chain of title “far outweighfed], individually and collectively, the alleged kinks in the plaintiffs chain of title.” In reaching that determination, the court noted that the plaintiffs title expert and the defendant’s title expert searched both chains of title. The court found, however, that unlike the plaintiffs expert, the defendant’s expert “was very defensive on cross-examination.” Further, in evaluating the testimony of Riordan, the defendant’s surveyor, the court considered his bias and motivation in light of the fact that he had prepared the lot revision map for the defendant prior to its purchase of the disputed parcel. Even though Riordan discovered conflicting claims of ownership while researching the relevant conveyances and maps in the preparation of his survey map, he never shared that information with the defendant.

With respect to the defendant’s adverse possession claim, the court agreed that the defendant used the disputed parcel openly, notoriously and under claim of right from the time it purchased new lots 9A and 9B in 2003. The court found, however, that the defendant failed to provide any evidence that its predecessors in title used the disputed parcel “for any purpose whatsoever.” The court concluded that the defendant failed to prove the elements of adverse possession by clear and convincing evidence. Accordingly, the court rendered judgment quieting title to the disputed parcel in the plaintiff. This appeal followed.

I

The defendant first claims that the description of the woodlot in the 1816 deed was legally insufficient to convey title to Thomas, the plaintiffs predecessor in title. Specifically, the defendant argues that the conveyance of the woodlot from Taylor to Thomas was ineffective because the description failed to describe and locate the one acre woodlot with the specificity required by law. The defendant further claims that the 1852 deed from Lucinda Beeman, which located the woodlot at the northwest comer of the first described parcel, could not correct or clarify a deed that was void for indefiniteness.

The court’s determination that the ambiguous description of the woodlot in the 1816 deed did not void the attempted conveyance to Thomas is a question of law that merits plenary review. To reach that determination, it is necessary to construe the language in that deed. “Ordinarily, the interpretation of a deed is a matter of law subject to plenary review.” Palmieri v. Cirino, 90 Conn. App. 841, 846 n.7, 880 A.2d 172, cert. denied, 276 Conn. 927, 889 A.2d 817 (2005).

The principles governing the constmction of instruments of conveyance are well established. “In construing a deed, a court must consider the language and terms of the instmment as a whole. . . . Our basic rale of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties. . . . In arriving at the intent expressed ... in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence. . . . [T[f the meaning of the language contained in a deed or conveyance is not clear, the trial court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity.” (Citation omitted; emphasis added; internal quotation marks omitted.) Lakeview Associates v. Woodlake Master Condominium Assn., Inc., 239 Conn. 769, 780-81, 687 A.2d 1270 (1997).

After the description of the first conveyed parcel in the 1816 deed from Taylor to Thomas, the second parcel was described as follows: “Also one acre of woodland adjoining to the north side of the first described piece, being about thirty rods long east and west, and to be of equal width at the east and west ends.” The northern boundary of the first parcel, which ran along a stone wall, was approximately 1030 feet. The second parcel, the one acre woodlot, was approximately 495 feet in length. The description in the 1816 deed, therefore, did not locate precisely the woodlot along that northern boundaiy. All parties agree that the description was ambiguous.

That description was not made more specific until the 1852 conveyance from Lucinda Beeman to Edwin R. Beeman. That deed, which is in the plaintiffs chain of title, describes the second parcel as follows: “Also one acre adjoining said land on the northwest comer about thirty rods long east and west to be of equal width at the east and west ends and for reference had to Thomas deed from Elias Taylor . . . .” The parties agree that the description in the 1852 deed was sufficient to locate that parcel along the northern boundary of the first parcel, but the defendant argues that the subsequent deed could not correct the 1816 deed because the 1816 deed was invalid.

Although the description of the woodlot contained the requisite dimensions of the land being conveyed, it was ambiguous because it did not locate the parcel with precision on the northern boundary of the first piece. We conclude, as did the parties and the trial court, that the description of the one acre woodlot in the 1816 deed was ambiguous. It was not, however, so indefinite as to render the conveyance void as claimed by the defendant.

The defendant does not provide us with any cases that are factually similar to this case. It references the general language in treatises that provides that property descriptions in instruments of conveyance must be definite enough to ascertain the location of the land. The treatises, however, also provide that courts will generally strive to interpret documents so as to validate the transaction. See 14 R. Powell, Real Property (2008) § 81A.07 [1] [e], p. 81A-137. “People will be presumed not to intend nullities by their solemn conveyances.” 23 Am. Jur. 2d 207, Deeds § 199 (2002). “A deed is not void for uncertainty of description if the quantity, identity, or boundaries of the property can be determined by reference to extrinsic evidence.” 23 Am. Jur. 2d 244, supra, § 259.

This is not a situation in which it is impossible to determine the location of the land, such as the conveyance of a portion of a larger tract of land without dimensions or placement within that larger tract (e.g., a one acre parcel out of a 155 acre tract on Curtis Road). The only uncertainty in this case was the woodlot’s precise location along the stone wall on the northern boundary of the first conveyed parcel. That ambiguity was resolved thirty-six years later when Lucinda Beeman situated the one acre parcel at the northwest comer. At that time, the description was definite and the exact location of the land was ascertainable.

Although the defendant agrees that the description was ambiguous and that the court could consider extrinsic evidence to determine the intention of the parties, it insists that the court could consider evidence only as to the surrounding circumstances at the time of the conveyance in 1816 and the situation of Taylor and Thomas at that time. We disagree. This title problem originated with a deed that is nearly 200 years old. The intention of Taylor and Thomas cannot be determined if the court is restricted solely to a review of the 1816 deed; the individuals who could provide information relative to that conveyance died many years ago. The only intention that is apparent from the 1816 deed is that Taylor intended to convey a one acre woodlot adjoining to the north of the first parcel that he conveyed to Thomas.

Moreover, there is extrinsic evidence that does locate the property with certainty. “[I]f the meaning of the language contained in a deed or conveyance is not clear, the trial court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity.” Lakeview Associates v. Woodlake Master Condominium Assn., Inc., supra, 239 Conn. 780-81. The 1852 deed is relevant extrinsic evidence.

Further, even though the standards of title of the Connecticut Bar Association are not controlling, contractually or otherwise, they do establish the custom in the legal community. Id., 782 n.20. Standard 10.1 provides: “Errors, irregularities and deficiencies in property descriptions in the chain of title do not impair marketability unless, after all circumstances of record are taken into account, a substantial uncertainty exists as to the land which was conveyed or intended to be conveyed, or the description falls beneath the minimal requirement of sufficiency and definiteness which is essential to an effective conveyance. Lapse of time, subsequent conveyances, the patent or typographical nature of errors or omissions, accepted rules of construction, and other considerations should be relied upon to approve marginally sufficient or questionable descriptions.” (Emphasis added.) Connecticut Bar Association, Connecticut Standards of Title (1999), standard 10.1. Comment one of that standard additionally provides that “[i]t is reasonable to rely upon corrections or improved descriptions appearing in later conveyances and upon the passage of time in which difficulty has not arisen from the less than perfect description. All matters of record, such as adjoining descriptions, maps and surveys on file and the land owned by the grantor, can be means of explanation for the problem description.” Id., comment one.

In the present case, we find the standards and comments to be helpful in resolving this issue. An 1816 deed containing an ambiguous description was clarified by a subsequent grantee in 1852. The court properly considered the relevant extrinsic evidence found in the Warren land records to locate the one acre woodlot, which is the disputed parcel. We conclude, therefore, that the description in the 1816 deed was not insufficient as a matter of law to convey title to that parcel.

II

The defendant next claims that the court improperly concluded that the plaintiff, rather than the defendant, was the record owner of the disputed parcel. Specifically, the defendant argues that because of the various inaccuracies in the plaintiffs chain of title, it established record title through the submission of deeds and maps going back to 1839.

Whether a disputed parcel of land should be included in one or another chain of title is a question of fact for the court to decide. Feuer v. Henderson, 181 Conn. 454, 458, 435 A.2d 1011 (1980). In such a determination, it is the court’s duty to accept the testimony or evidence that appears more credible. Id. It is well settled that we review the court’s findings of fact under the clearly erroneous standard. “We cannot retry the facts or pass on the credibility of the witnesses. ... 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 . . . .” (Internal quotation marks omitted.) Palmieri v. Cirino, supra, 90 Conn. App. 846.

A substantial amount of evidence was presented by the parties at trial, consisting of eighty-six exhibits, including maps, surveys, photographs and deeds together with considerable testimony from expert and fact witnesses. The defendant does not claim that there was no evidence to support the court’s conclusions; instead, it claims that its evidence was more substantial in light of the inaccuracies in the plaintiffs chain of title.

The defendant brought all of the perceived inaccuracies in the plaintiffs chain of title to the court’s attention at trial. The court thoroughly addressed each claim in its memorandum of decision. It recognized the discrepancies between the configuration and acreage of the original conveyance and the disputed parcel as surveyed—the woodlot in 1816 being described as one acre in size and 495 feet by 88 feet in dimension and the surveyed disputed parcel being an irregularly shaped quadrangle totaling 1.728 acres. It also noted discrepancies in the number of acres deeded to Julian Voisard, the plaintiffs predecessor in title, and the number of acres that he conveyed to various grantees. Further, it acknowledged the omission of an abutting owner in the eastern call of the description in the deed from Alice Strong to Voisard. Nevertheless, the court concluded that the inaccuracies in the defendant’s chain of title “far outweigh[ed], individually and collectively,” the inaccuracies in the plaintiffs chain of title.

“[I]t is the function of the trial court to weigh the evidence and the credibility of the parties and to find the facts; we cannot retry the case on appeal.” Riscica v. Riscica, 101 Conn. App. 199, 207, 921 A.2d 633 (2007). “The court [is] free to accept or to reject, in whole or in part, the testimony of one expert over another.” Palmieri v. Cirino, supra, 90 Conn. App. 847. In the present case, the court heard extensive testimony from the plaintiffs title expert and surveyor, who explained in detail the bases for their conclusion that the plaintiff was the record owner of the 1.728 acre parcel. The thrust of the defendant’s argument is that the court should have credited its evidence and found in its favor. We conclude that the record contains ample evidence to support the court’s conclusion as to the ownership of the disputed parcel and that its factual determinations were not clearly erroneous.

Ill

The defendant’s final claim is that the court improperly concluded that it had not proven the elements of adverse possession. Specifically, the defendant claims that the evidence it submitted demonstrating that it paid taxes on the property, that it cleared and built a house on the property and that its predecessors in title filed subdivision maps incorporating the disputed parcel into the defendant’s chain of title constituted clear and convincing evidence that it acquired title by adverse possession. We disagree.

We first set forth the applicable standard of review. “Because adverse possession is a question of fact for the trier . . . the court’s findings as to this claim are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . [0]nly in rare instances is [an appellate] court justified in holding, as a matter of law, that [adverse possession] has been established. A trial court’s findings in an adverse possession case, if supported by sufficient evidence, are binding on a reviewing court ....

“Where title is claimed by adverse possession, the burden of proof is on the claimant. . . . The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner. . . . Such a possession is not to be made out by inference, but by clear and convincing proof. . . . The doctrine of adverse possession is to be taken strictly.” (Citations omitted; internal quotation marks omitted.) Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759, 779-80, 890 A.2d 645 (2006).

The defendant argues that its payment of local property taxes on the disputed parcel supports its adverse possession claim. “Payment of property taxes is powerful evidence to show that the occupier claimed the land as his own . . . although it is not dispositive.” (Citations omitted; internal quotation marks omitted.) Top of the Town, LLC v. Somers Sportsmen’s Assn., Inc., 69 Conn. App. 839, 849, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002). In the present case, however, the defendant’s argument fails because the plaintiff also was paying taxes on the disputed parcel. The court found that “ [the plaintiff] also has been paying taxes to the town of Warren on the same piece and, therefore, is likewise entitled to claim equal benefit from said evidence.” The defendant does not dispute that finding by the court.

With respect to the defendant’s use of the disputed parcel, the court acknowledged that its actions in staking old lot 9B, digging test holes for the septic system, blasting rock and removing trees satisfied the elements of open and notorious use under a claim of right. The court found, however, that none of those incidents of ownership took place prior to 2003. The defendant presented no evidence that indicated his predecessors in title similarly used the disputed parcel. The defendant argues that the recording of the subdivision maps in 1972 and 1973 placing the disputed parcel in the defendant’s chain of title demonstrates a claim of right sufficient to meet the standard for adverse possession. Significantly, he cites no case law in support of that contention.

We conclude that the court’s finding that the defendant failed to prove adverse possession of the disputed area has evidentiary support and, therefore, was not clearly erroneous. The court properly concluded that the defendant had not ousted the plaintiff or its predecessors of possession for fifteen years by open, visible and adverse acts.

The judgment is affirmed.

In this opinion the other judges concurred.

       RMM Consulting, LLC, and Maureen Morrill were named as defendants in this action, and both appealed. Morrill is the sole member of RMM Consulting, LLC, which claimed ownership of the disputed parcel. Because this appeal only involves the title to the disputed parcel, we refer in this opinion to RMM Consulting, LLC, as the defendant.

       It is undisputed that the rear deck of the house is located on the disputed parcel.

       In addition to those claims, the plaintiffs seven count amended complaint alleged trespass, nuisance, unjust enrichment, violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and diminution in the value of his property due to the loss of his trees. The defendant and Morrill’s five count counterclaim also alleged slander of title, tortious interference with a contract and fraud. Following a case management conference, the court ordered the title and adverse possession issues to be severed from all other counts for purposes of trial.
      After the court issued its memorandum of decision quieting title in the plaintiff, the defendant and Morrill withdrew the remaining counts of their counterclaim and then filed the present appeal. The plaintiff filed a motion to dismiss the appeal, claiming that there was no final judgment. This court denied the motion as to the defendant’s and Morrill’s counterclaim. The partial judgment on the plaintiffs complaint is not part of this appeal.

       At oral argument before this court, counsel for the plaintiff suggested that the defendant was collaterally estopped from pursuing its claims because of the stipulated judgment. Although that judgment had been rendered prior to the filing of the appellate briefs in this case, the issue had not been raised previously by the plaintiff. Collateral estoppel does not implicate a court’s subject matter jurisdiction. State v. T.D., 286 Conn. 353, 360 n.6, 944 A.2d 288 (2008). We, therefore, decline to address this issue. “We generally do not consider claims raised for the first time at oral argument.” (Internal quotation marks omitted.) Zelvin v. JEM Builders, Inc., 106 Conn. App. 401, 408 n.6, 942 A.2d 455 (2008).

       The handwritten deed from Taylor to Thomas is difficult to read. Although it is clear that the deed was recorded at volume 7, page 3 of the Warren land records, the date that it was recorded is not apparent. The acknowledgement on the deed is dated July 25, 1816, and the parties and the court referred to this deed as the 1816 deed.

       The court noted, inter alia, the following problems in the defendant’s chain of title: (1) a map prepared in 1936 for Winifred Young, the defendant’s predecessor m title, indicated that her property was 45.7 acres in size when she received 41.5 acres from her grantor; (2) subsequent maps were “traced from” the Young map; (3) Young entered into a bond for deed with Housatonic Valley Insurance Agency, Inc. (agency), using the Young map description but conveyed the property to the agency using the original 41.5 acre description by which she took title; (4) the agency conveyed the 41.5 acres by warranty deed to Hoyt Smith and Helen Smith but excepted from that conveyance one and one-half acres “claimed by Julian P. Voisard.” The agency then quitclaimed the one and one-half acres by a separate instrument to the Smiths; (5) Hoyt Smith also conveyed the one and one-half acre parcel by quitclaim deed after excepting it from a warranty deed conveying the remaining property; and (6) when the property was subdivided and the disputed parcel became old lot 9B, the subdivision map did not provide access to that lot; it was landlocked, and the adjoining lots were not subject to a right-of-way in favor of old lot 9B for ingress and egress.

       The defendant did suggest that Winifred Young, its predecessor in title, “corralled” an area by the stone wall and that “[ijt appears that [she] used old lot 9B as a grazing area for animals.” There is no indication, however, as to the exact area corralled or how many years the fence was in place. Moreover, there was no evidence that Young’s successors, until 2003, ever used the corralled area for any puipose.