text:
    ANTHONY NOVAK, TRUSTEE, ET AL. v. CHARLES SCALESSE
    (14670)
    Dupont, C. J., and Lavery and Spear, Js.
    Argued January 8
    officially released July 18, 1996

      William C. Turney, with whom, on the brief, were John R. McGrail and Charles Angelo, for the appellant (defendant).

      Tracy Alan Saxe, for the appellees (plaintiffs).

       July 18, 1996, the date that this decision was released as a slip opinion is the operative date for all substantive and procedural purposes.

   DUPONT, C. J.

The sole issue in this legal malpractice action is whether the trial court abused its discretion when it set aside a jury verdict in favor of the defendant and ordered a new trial. The resolution of this issue depends on whether the jury’s answer to one of the interrogatories posed to it properly formed a basis for the court’s action.

The plaintiffs, John Scalesse, Samuel Piccione and Scalesse, Scalesse and Piccione, a partnership, brought suit against Charles P. Scalesse claiming that he had, without authority, and contrary to their wishes, caused a release of mortgage to be filed on the land records of the town of New Haven. They alleged, in three counts, that the defendant was negligent and that his professional conduct as an attorney lacked the requisite degree of skill and care of attorneys practicing in Connecticut, that the defendant had breached an agreement with them, and that he had violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendant pleaded two special defenses. He alleged that any damage to the plaintiffs was caused by their own negligence because the release was delivered at their own request or at the request of their authorized representative and that any damage to them was the result of the use of the release by the plaintiffs or their authorized representative.

The jury finding at issue is contained in the jury’s response to interrogatory IA: “At the time Charles P. Scalesse gave the release of the mortgage to others to be recorded, he (did) (did not) [the word ‘did’ was crossed out] have a duty of care to Samuel Piccione either individually or as a partner in a partnership known as SS & P or Scalesse, Scalesse & Piccione.” The verdict form indicated that if the answer was “did not,” rather than “did” that the jury was not to answer the next interrogatories, which related to the first count.

The court concluded that the jury could not have reached that conclusion reasonably and legally and that the jury’s conclusion was so plainly and palpably the product of mistake in applying legal principles that the determination must be set aside. The court also concluded that the jury had not been attentive to the evidence. These conclusions were based on the court’s view that there was no evidence to support the jury’s finding in interrogatory IA, that the jury had spent three days in deliberation, and that it had received a “Chip Smith” charge before delivering a verdict at 5 p.m. on a Friday. The court stated in its memorandum of decision that the “sequence of events [the three days of deliberation, the Chip Smith charge and the timing of the verdict] and the affect of the jurors in the courtroom suggests a jury eager to end its deliberations without going into another work week and not attentive to the actual evidence after three days spent mostly in deadlock.”

The court did not elaborate on the meaning of the word “affect,” or explain in any way what observable demeanor led to the conclusion that the jury was eager to end deliberations. The court also stated that “[further reason to suspect mistake or misapprehension of the principles involved arises from the fact that defense counsel, in closing argument, emphasized the plaintiff Piccione’s lack of present contacts with New Haven and characterized him, in effect, as a wheeler-dealer from New Jersey, who left New Haven after signing the mortgage release. The jury may have been misled by this argument into thinking that persons no longer located physically near to a lawyer are not owed a duty of care by that lawyer.” The court determined that “the jury’s ruling as to the first count of the complaint can only be explained as the product of mistake or improper influences . . . .”

The setting aside of a verdict can occur for two general reasons. First, a trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury, mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied. Maroun v. Tarro, 35 Conn. App. 391, 396, 646 A.2d 251, cert. denied, 231 Conn. 926, 648 A.2d 1641 (1994). Second, a verdict may be set aside if its result justifies a suspicion that a juror or jurors were influenced by prejudice, corruption or partiality. We will first discuss the court’s conclusion that the answer can be explained only as the product of mistake or improper influences. We must decide whether the circumstances justified a suspicion that the jury was influenced by prejudice, corruption or partiality. It is accepted practice to deliver a “Chip Smith” charge and its use does not negate an otherwise proper jury verdict. State v. Ryerson, 201 Conn. 333, 349, 514 A.2d 337 (1986). Such a charge does not require a reversal of a verdict even if it is known before it is given that as of that time all but one juror would vote a certain way; State v. Avcollie, 188 Conn. 626, 641, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983); or if it is given on the third day of deliberations. State v. O’Neill, 200 Conn. 268, 281-84, 511 A.2d 321 (1986). No claim in this case is made that the charge itself was improper, nor was there any exception to it, nor was there a motion for a mistrial made when it was given.

The court inquired of the jury after the verdicts were read to them if the verdicts were theirs and if “so say you all” to which the jury responded affirmatively. The court then asked the clerk to read the verdict forms a second time, reading only those answers designated without reading the unanswered material. The court then asked that each juror be polled individually by name. Each juror stood and orally agreed that the verdicts were accurate. The court then thanked the jury for their work and said “I believe you have worked hard and you’ve listened to a much longer trial than most jurors are ever asked to participate in and a complicated trial.” Lastly, the court told the jury that it would be available to them if they chose to speak to the court about the way they had been treated or about court personnel or rooms.

No objection was made to the remarks of the defendant’s counsel in closing argument, nor did the court interrupt the summation, nor did the court give a curative instruction to disabuse the jury of any notion that the defendant’s counsel had made a specific comment that should not be heeded by it. The court advised the jury in its charge that “what the lawyers may have said to you in their respective summaries ... as to the facts or evidence should have weight with you only if what they’ve said matches up with your recollection.” Later in its charge, the court stated as follows: “I’ll caution you again that the statements made by lawyers both at the beginning of the case and at the end of the case, and sometimes, though I certainly tried to limit that during the case when they would get up and object, are not evidence in the case. You’re not to treat their arguments as evidence and you’re not to treat any part of those opening or closing statements as evidence, they are merely comments on the evidence. And if you find that they referred to matters that were not put into evidence or not within the scope of the claims here or are contrary to my instructions to you, you should completely erase such arguments from your mind.”

No counsel took exception to that portion of the charge that instructed the jury as to the process of answering interrogatories. No exception was made as to the form of the interrogatory in question or to its content, nor did the trial court indicate that the interrogatory could not be answered because of a lack of evidence or could only be answered “yes.” This case does not involve an inconsistency among or between interrogatories or to a claim that the verdict is inconsistent with an interrogatory or with the interrogatories.

There is nothing in the record to indicate that the jury was improperly influenced by the final argument or that the juiy’s answer to the interrogatory occurred because of its inattention to the evidence or because of the time of day or the day of the week, or the length of deliberation, or to anything improper. We cannot conclude that the circumstances justified a suspicion that the jury was influenced by prejudice, corruption or partiality. The setting aside of the verdict, therefore, cannot be sustained on that ground. State v. Avcollie, 178 Conn. 450, 460, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980).

The other ground for setting aside a verdict rests on a finding by the trial court that, given the evidence presented, the jury mistakenly applied a legal principle or could not apply a legal principle because of a lack of evidence. The legal malpractice alleged by the plaintiffs was that the defendant negligently permitted a mortgage release to be filed when he was without authority to allow it to be done. This negligence was allegedly based on the duty of care that the defendant, as the lawyer for the partnership or as the lawyer for the individual plaintiffs, owed to it or to them. The defendant claimed that he had authority to deliver the release by virtue of a request in writing by another of the general partners, Richard Scalesse, who was responsible for the day to day operations of the partnership. The transcript reveals that the defendant does not deny that he represented the partnership. The defendant’s expert testified that “I believe that when Mr. Charles Scalesse was confronted by a general partner of a general partnership and asked to deliver unto the general partnership that which was theirs, meaning the release from his files, that he met the standard of care by delivering that release to the general partner. And it would have been risky for him not to deliver the release. It was the property of the partnership and he had received a request from someone who had the authority to request it and appeared to Charles Scalesse to have the authority to request it.”

In effect, the expert testified that, based on his assumption that the defendant was the legal counsel to the partnership, the defendant acted within the requisite standard of care when he gave the release of mortgage to one of the three partners upon request. The duty of care owed to the partnership arose because of his relationship with the partnership as its attorney. The interrogatory asked the jury to determine whether the defendant had a duty of care to Samuel Piccione individually or as a partner in the partnership. It did not ask whether the defendant had a duty of care to the partnership, which admittedly, he did. The court states that the defendant admitted that he was Piccione’s attorney, and that, therefore, the jury should not have answered the interrogatory as it did. The defendant’s testimony, however, could have been interpreted by the jury to indicate that, although the defendant admitted that he represented the partnership, he did not admit that he represented Piccione, except in the sense that Piccione was a member of the business entity, the partnership. The jury in its answer concluded that the defendant did not owe a duty of care to Piccione individually because the plaintiffs had not proved that he did by a fair preponderance of the evidence. “In a tort case ... if the trier of fact finds that it is equally likely that the defendant did or did not breach a duty [or have a duty] that caused the plaintiffs harm, then the defendant must prevail.” State v. Hammond, 221 Conn. 264, 288 n.11, 604 A.2d 793 (1992).

The court notes that the testimony of the plaintiffs’ expert was that the defendant owed all of the plaintiffs a duty of care with regard to the use of the release of mortgage. The jury, however, was not obligated to credit that opinion. The court speaks of the “lack of evidence, either direct or circumstantial, sufficient to support the jury’s findings.” The defendant, however, did not have to prove that he did not owe a duty of care to the partnership that was breached or that he did not owe a duty of care to an individual member of the partnership that was breached. That burden was on the plaintiffs, and the jury determined that the plaintiffs had not met their burden. A failure to prove a cause of action because of a lack of evidence may be one reason to set aside a verdict for a plaintiff, but it is not a reason to set aside a verdict for a defendant.

There are only two cases of which we are aware in which, on appeal, it was determined that the trial court should have set aside a verdict for a defendant, and none where there was a conclusive negative answer to an interrogatory that required an affirmative answer in order for a plaintiff to prevail on a cause of action.

In Labatt v. Grunewald, 182 Conn. 236, 241-42, 438 A.2d 85 (1980), it was held that the trial court should have granted a motion to set aside a verdict for a defendant because the circumstances showed that the jury was hopelessly confused over the doctrine of comparative negligence. There were no interrogatories. The original verdict stated that “[t]he juxy finds the issues for the defendants .... We feel both parties are equally responsible.” (Internal quotation marks omitted.) Id., 237. This verdict was initially accepted by the court but subsequently vacated because the verdict was inconsistent on its face. Id., 237-38. Subsequent verdicts, after recharges by the court, continued to indicate confusion. Id., 238-40. The jury verdicts showed that the jury was confused as to how to apply facts to an issue of law, rather than confused as to the existence of a fact. Id., 241.

In Palomba v. Gray, 208 Conn. 21, 543 A.2d 1331 (1988), a paternity action, the plaintiff had established a prima facie case, and the burden of proof had shifted to the defendant to prove his innocence by evidence other than his own testimony. During the defendant’s case he did not offer any other evidence that was relevant to the issue of paternity- Under the circumstances, the verdict for the defendant should have been set aside because the defendant had the burden of proof, which, as a matter of law, he had not sustained. Id., 26.

Both Labatt and Palomba are examples of the general rule that a verdict for a defendant should be set aside if the verdict cannot be legally sustained. Neither case is one in which a defendant’s verdict was set aside because a jury answered a question in the negative involving a fact that it was the plaintiffs burden to prove.

Before determining whether the granting of a motion to set aside is proper, the trial court must look at the relevant law that it gave the jury to apply to the facts and at the facts that the jury could have found based on the evidence. The law and evidence necessarily define the scope of the trial court’s legal discretion. See Gesualdi v. Connecticut Co., 131 Conn. 622, 627, 41 A.2d 771 (1945). This discretion vested in the trial court is not an arbitrary or capricious discretion, but rather, it is legal discretion to be exercised within the boundaries of settled law. Id. This limitation on a trial court’s discretion results from the constitutional right of litigants to have issues of fact determined by a jury. Young v. Data Switch Corp., 231 Conn. 95, 100-101, 646 A.2d 852 (1994); Seals v. Hickey, 186 Conn. 337, 350, 441 A.2d 604 (1982). “This right is an obviously immovable limitation on the legal discretion of the court to set aside a verdict . . . .” (Internal quotation marks omitted.) Young v. Data Switch Corp., supra, 101. In reviewing the issue of whether a trial court abused its discretion in setting aside a verdict, “our sole responsibility is to decide whether, on the evidence presented, the jury could fairly have reached the conclusion it did.” Skrzy-piec v. Noonan, 228 Conn, 1, 11, 633 A.2d 716 (1993).

Each juror in this case was polled individually as to his or her answer to the interrogatory and his or her verdict for the defendant, and acknowledged in open court that each agreed that both were accurate. The jury could have determined that the plaintiffs did not sustain their burden of proving that the defendant owed a duty of care to Piccione individually or to John Scalesse individually. The defendant had no burden to prove that he did not have a duty of care to them.

We conclude that the verdict reflects no manifest injustice so plain and palpable as to clearly denote that a mistake was made and that, therefore, the trial court improperly exercised its discretion in setting aside the verdict for the defendant on the first count of the plaintiffs’ complaint and ordering a new trial.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       Anthony Novak, trustee for the bankruptcy estate of John Scalesse, was substituted as a party plaintiff for John Scalesse after the suit was instituted. The partnership consisted of three general partners. The third partner, Richard Scalesse, did not join in the action.

       We are concerned on appeal only with the first count because the motion to set aside the verdict was granted only as to it. Although the jury also answered the interrogatories relating to the other two counts in favor of the defendant, the trial court did not consider the motion to set aside the verdict on the basis of either of those counts because the plaintiffs had not complained of those counts in their original motion to set aside the verdict. The court ruled that their subsequent “amendment to set aside verdict” could not cure this deficiency because no motion to set aside the verdicts as to those counts had been filed within five days of the verdicts as required by Practice Book § 320.
      In the answers to two other interrogatories relating to the second and third counts, the jury found that there was no agreement that the defendant “would allow the release of mortgage to be filed only in the event of a sale or upon receipt or permission of Samuel Piccione to use it as to a different event”; and that the defendant did not “engage in unfair or deceptive acts or practices in the conduct of his trade as an attorney with regard to Samuel Piccione.”

       For ease of reference, we refer to this interrogatory only, as did the trial court in its memorandum of decision, because an interrogatory concerning John Scalesse was identical to the interrogatory concerning Samuel Piccione.

       See State v. Smith, 49 Conn. 376 (1881).

       The defendant presented evidence that the mortgage, which was released, was the property of the partnership and was treated as such for federal income tax purposes.

       “A partnership usually is a legal entity and is the lawyer’s client. Thus, a lawyer who represents a partnership does not thereby become counsel for or owe a duty to the partners.” 3 R. Mullen & J. Smith, Legal Malpractice (4th Ed. 1996) § 24.8.

       The trial court in its reasoning for sotting aside the verdict does not indicate that it considered the credibility of witnesses in determining whether the interests of justice required it to set aside the verdict. See Gaines v. Manson, 194 Conn. 510, 520-21 n.12, 481 A.2d 1084 (1984); but see State v. Hammond, 221 Conn. 264, 267, 604 A.2d 793 (1992) (credibility not specifically mentioned as factor in determination of motion to set aside).

       The relevant, colloquy between the plaintiffs’ counsel and the defendant is as follows:
      “Q. Did you represent Sam Piccione or not?
      "A. I’ve represented—In what context sir?

        "Q. On December 6, 1984, was Sam Piccione your client or not?
      "A. He was a member of a partnership that was my client.
      ‘"Q. Was he your client or not? Yes or no?
      “A. He was a member or a partnership that, was my client. “Q. Does that mean yes or does that mean no?
      “A. It means what I just said.
      “Q. Well, does that mean? You’re the lawyer. What does that mean? Was he your client or wasn’t he your client?
      “A. He was part of a partnership that was my client.
      “Q. Was he your client?
      “A. If he was part of that partnership I guess he was my client, yes.
      “Q. Okay. So the answer is yes. Sam Piccione, on December 6, 1984, was your client, is that correct?
      “A. Yes.”

       The jury had been charged that the burden of proof shifted to the defendant after the establishment of a prima facie case by the plaintiff, but had not been told that evidence other than the defendant’s denial of paternity was needed to satisfy that burden. Palomba v. Gray, supra, 208 Conn. 27.


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    CHARLES S. CYBULSKI v. PLANNING AND ZONING COMMISSION OF THE TOWN OF ENFIELD ET AL.
    (13704)
    Foti, Lavery and Schaller, Js.
    Argued January 23
    officially released September 17, 1996

      Timothy S. Hollister, with whom, were Aline Gold-bach and, on the brief, R. Webb Steadman, for the appellant (defendant Lego Building Corporation).

      James W. Sherman, with whom was Kevin C. Sand-berg, for the appellee (plaintiff).
   LAVERY, J.

The defendant Lego Building Corporation appeals from the judgment of the trial court concluding that the commission’s approval of the special use permit was illegal, arbitrary and an abuse of discretion. On appeal, Lego claims that the trial court improperly (1) determined the dimensions of a public road when the plaintiff did not plead, prove or brief such claims, (2) decided the plaintiffs misrepresentation claim by conducting a de novo inquiry into the issue and placed the burden of proof on the defendants, (3) held that the commission did not have substantial evidence before it to support its approval of the proposed use of a public road, (4) determined that the town abandoned the unpaved areas of the public road, (5) failed to find an implied dedication and acceptance of the road and (6) failed to find a private easement over which Lego could access its property. We conclude that the trial court improperly decided issues of title to the road in this zoning matter when there was substantial evidence before the commission that the town held title to the road.

The following facts are relevant to the issues raised in this appeal. Lego is the owner of a large tract of land in Enfield on which currently exists a manufacturing plant, distribution center and administrative offices. This matter involves Lego’s proposal to construct an office building and parking facilities on the southeast portion of its property. Lego seeks to use a road known as Cybulski Road as primary access to the new office building. Cybulski Road borders properties owned by the plaintiff.

Lego’s property is bounded on the west by the New York, New Haven and Hartford Railroad Company; on the north by Shaker Road; on the east by Taylor Road; and on the south by residential properties of the plaintiff and various manufacturing operations located along Moody Road. Print Shop Road and Cybulski Road each run north-south and provide access from Lego’s property to Moody Road, a major east-west thoroughfare in Enfield. Print Shop Road is located approximately 800 feet west of Cybulski Road and provides access to Lego’s manufacturing facility. Cybulski Road is thirty feet in width for a short distance from its intersection with Moody Road. As Cybulski Road continues north, the pavement narrows to twelve feet.

On February 18, 1993, Lego filed an application with the commission for a special use permit and site plan approval for its new office building pursuant to chapter 16 of the Enfield zoning ordinances. In its application, Lego proposed that primary traffic access to the office building would be by way of Cybulski Road. Lego sought improvements to Cybulski Road, including widening it to thirty feet and extending it to Lego’s property line. Lego’s application lists Cybulski Road as an abutting public street.

At the public hearing, the plaintiff opposed the use of Cybulski Road to access Lego’s office building. The plaintiff expressed concern that enhanced traffic on Cybulski Road would damage the plaintiffs buildings, which are listed in the National Register of Historic Places. The plaintiff did not raise an issue as to the status of title to Cybulski Road.

Lego represented to the commission that Cybulski Road is an existing town roadway extending from Moody Road to a terminus at Lego’s south property line. Mogens Jessen, representing Lego at the public hearing, stated: “With regard to the improvements that are being proposed to Cybulski Road, let us keep in mind that this is a public town roadway.” Mark Friend, the civil engineer on the project, testified that Cybulski Road was a sixty foot wide town road and presented an exhibit to the commission illustrating the town’s sixty foot wide right-of-way extending from Moody Road to Lego’s south property line. Lego also submitted site plans portraying Cybulski Road as a sixty foot wide public roadway. Lego’s traffic impact study listed Cybul-ski Road as an existing town roadway. Eileen Cybulski acknowledged at the public hearing that Cybulski Road is a town road.

On May 27, 1993, the commission rendered its decision approving Lego’s application, but limiting the repaving of Cybulski Road to twenty-four feet in width. On June 7, 1993, the plaintiff filed an appeal in the Superior Court. In his brief to the Superior Court, the plaintiff claimed that (1) the commission’s decision authorizing the widening of Cybulski Road was not supported by substantial evidence, (2) the commission improperly delegated certain decisions to the town staff and (3) the commission improperly permitted the introduction of additional evidence after the close of the public hearing. Prior to the hearing before the trial court, the plaintiff orally claimed that the commission did not have adequate information on the record to determine that Cybulski Road was a public right-of-way extending from Moody Road to Lego’s south property line. In response to the plaintiff’s claim, the trial court, sua sponte, ordered that additional testimony be taken to determine the status of title to Cybulski Road.

In its memorandum of decision, the trial court recognized that it could neither decide issues of title nor the dimensions of public easements upon land in a zoning matter. Nevertheless, the trial court found that “[t]here was no evidence before the commission in the form of deeds of grant, town highway maps, evidence of public use, special dedication, or any other substantial evidence to support; a determination that Cybulski Road is a public highway sixty feet in width extending from Moody Road to the south boundary of the applicant’s land.” The trial court concluded that the granting of the application allowing the paving of Cybulski Road to twenty-four feet throughout the entire distance from Moody Road to the south property line of Lego’s property was illegal, arbitrary and an abuse of discretion.

The dispositive issue in this appeal is whether the trial court improperly decided the issue of title to Cybul-ski Road when there was uncontroverted evidence before the commission demonstrating that Cybulski Road was a sixty foot wide public right-of-way extending from Moody Road to the south boundary of the Lego’s land. During the appeal from the commission’s decision on the application, the trial court solicited evidence pertaining to the public status of Cybulski Road. The court, thereafter, held that the plans and drawings submitted to the commission were inadequate as a matter of law to support the commission’s conclusion. We disagree.

When the commission acts on a special permit or site plan, it acts in an administrative capacity and its function is to determine whether the applicant’s proposed use is one that satisfies the standards set forth in existing regulations and statutes. It is well settled that a commission cannot decide issues of title or ownership of real property. Beckish v. Manafort, 175 Conn. 415, 422 n.7, 399 A.2d 1274 (1978); R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1993) § 8.3. The commission does not have the authority to determine whether the claimed right-of-way is a public highway, since that conclusion can be made only by a judicial authority in a quiet title action governed by General Statutes § 47-31. Gagnon v. Municipal Planning Commission, 10 Conn. App. 54, 58, 521 A.2d 589, cert. denied, 203 Conn. 807, 525 A.2d 521 (1987).

Review of zoning commission decisions by the Superior Court is limited to a determination of whether the commission acted arbitrarily, illegally or unreasonably. Wnuk v. Zoning Board of Appeals, 225 Conn. 691, 695-96, 626 A.2d 698 (1993). In appeals from administrative zoning decisions, the commission’s conclusions will be invalidated only if they are not supported by substantial evidence in the record. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 540-41, 525 A.2d 940 (1987). The substantial evidence rule is similar to the “sufficiency of the evidence” standard applied in judicial review of jury verdicts, and evidence is suffi-cierit to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. Id., 541-42. “ ‘The settled standard of review of questions of fact determined by a zoning authority is that a court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised. Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 49, 484 A.2d 483 (1984). The court’s review is based on the record, which includes the knowledge of the board members gained through personal observation of the site; id., 49-50; or through their personal knowledge of the area involved. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 267, 455 A.2d 339 (1983). Where a zoning authority has expressed the reasons for its decision, a reviewing court “may only determine if the reasons given are supported by the record and are pertinent to the decision,” and the authority’s action “ ‘must be sustained if even one of the stated reasons is sufficient to support it.’ ” Torsiello v. Zoning Board of Appeals, supra, 50, quoting Hoagland v. Zoning Board of Appeals, 1 Conn. App. 285, 290, 471 A.2d 655 (1981).’ Oakwood Development Corporation v. Zoning Board of Appeals, 20 Conn. App. 458, 460-61, 567 A.2d 1260, cert. denied, 215 Conn. 808, 576 A.2d 588 (1990).” Connecticut Health Facilities, Inc. v. Zoning Board of Appeals, 29 Conn. App. 1, 10-11, 613 A.2d 1358 (1992).

The plaintiff claims that Lego was required to provide written evidence of the town’s interest in Cybulski Road sufficient to show the twenty-four foot public right-of-way pursuant to § 16-3 of the Enfield zoning ordinances. The plaintiff argues that the trial court was authorized to take additional testimony as to the public status of Cybulski Road pursuant to General Statutes § 8-8 (k) because Lego failed to provide the commission with substantial evidence concerning title to the road.

In this case, we conclude that the commission had substantial evidence before it showing that Cybulski Road was a town road. Lego represented to the commission on several occasions during the public hearing that Cybulski Road was a town road. Lego also submitted several site plans to the commission exhibiting Cybulski Road as a sixty foot wide public right-of-way extending from Moody Road to the south boundary of Lego’s property. The plaintiffs arguments before the commission neither challenged the public status of Cybulski Road nor the dimensions presented in Lego’s site plans. Our review of the record reveals that the status of Cybulski Road as a public, sixty foot wide right-of-way was an uncontroverted fact before the commission that was supported by substantial evidence. The trial court, therefore, improperly concluded that there was not substantial evidence before the commission that Cybulski Road was a sixty foot public highway extending from Moody Road to the south boundary of Lego’s land.

The judgment is reversed and the case is remanded for farther proceedings to decide the remaining issues on the plaintiffs appeal.

In this opinion the other judges concurred.

       The defendants in this case are the planning and zoning commission of the town of Enfield (commission) and Lego Building Corporation (Lego).

       The plaintiff argues in his brief that this appeal is moot because Lego has obtained commission approval of a route for traffic that does not involve Cybulski Road. “ ‘When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. ’ In re Romance M., 229 Conn. 345, 357, 641 A.2d 378 (1994).” Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995). Our review of the record, however, reveals that Lego has temporarily modified its site plan until this appeal is resolved in order to allow construction and occupancy of a portion of the defendant’s office building.

       In his appeal to the Superior Court, the plaintiff also claimed that, the commission improperly imposed conditions on approval and that the notices of the public hearing were inadequate. The plaintiff did not brief this issue. Issues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided. Shaw v. Planning Commission, 5 Conn. App. 520, 525, 500 A.2d 338 (1985).

       Section 16-3 of (lie Enfield zoning ordinances provides in pertinent part: “The following in their collective entirety shall, for the purpose of this ordinance, constitute an application: (c) written evidence of an interest in the property for which application is made sufficient to enable application for the use and/or development for which approval is sought. Submission of this evidence shall be representation by the applicant that sufficient interest is in his possession, and the commission shall be held harmless for this representation . . . .”

       General Statutes § 8-8 (k) provides in relevant part: “The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if ... (2) it appears to tire court that additional testimony is necessary for the equitable disposition of the appeal. . . .”


author: SCHALLER, J.

text:
    669 ATLANTIC STREET ASSOCIATES v. ATLANTIC-ROCKLAND STAMFORD ASSOCIATES
    (14928)
    Dupont, C. J., and Schaller and Hennessy, Js.

      Argued May 2
    officially released September 17, 1996

      James R: Fogarty, with whom were Stephanie Budlong Paul and, on the brief, Jennifer Paul Cohen, for the appellant (defendant).

      Katherine C. Callahan, with whom were Kevin N. Reynolds and, on the brief, M. Catherine Healy, for the appellee (plaintiff).
   SCHALLER, J.

The defendant appeals from the judgment of foreclosure and in favor of the plaintiff on the defendant’s counterclaim rendered after a trial to the court. The defendant claims that the trial court improperly (1) determined that the plaintiffs failure to pay rent did not preclude the plaintiff from foreclosing the mortgage, (2) granted the plaintiffs motion to dismiss count three of its counterclaim alleging that the plaintiff violated the Connecticut Unfair Trade Practices Act (CUTPA), (3) determined that its allegations of breaches of the contract and lease by the plaintiff did not constitute allegations of material breaches that would excuse the defendant from its performance and (4) granted the plaintiffs motion to strike the case from the jury list. We affirm the judgment in part, but reverse the judgment on two counts of the defendant’s counterclaim and remand the matter for a trial to a jury on those counts.

The trial court found the following facts. The plaintiff is a Connecticut general partnership consisting of two partners, John Schorsch and Paul Gugenheim. Schorsch and Gugenheim also owned and operated the Royal Metals Corporation (Royal Metals), a company that reclaims precious metals primarily by burning waste photographic film. The defendant is also a Connecticut general partnership and originally consisted of Peter Malkin and Bruce Warwick. In November, 1990, Warwick sold his interest in the defendant to ARSA Associates, which consists of Peter Malkin and his son, Anthony Malkin.

During the early 1980s, the plaintiff assembled a group of four properties in the south end of Stamford. Royal Metals operated on one of the properties and the remaining space was leased to tenants, including Ovablac, Northeast Fiberglass and New England Fiberglass. In 1985, the plaintiff decided to sell the property. Warwick and Peter Malkin were then developing the Metro Center office complex through Warwick Malkin, Inc., and W & M Properties. The Metro Center was close to the plaintiffs properties. When the plaintiff approached Warwick and Peter Malkin, they indicated an interest in buying the properties in order to develop an office complex adjacent to the Metro Center.

In the late winter and early spring of 1986, the plaintiff began negotiating with Warwick and Peter Malkin for the sale of the properties. Warwick and Malkin, however, needed time to acquire additional properties necessary for the development of the Metro Center. The plaintiff wanted to continue operating Royal Metals for a few more years, but also wanted to realize immediate cash. The parties therefore planned a sale and lease back transaction. From April to September, 1986, they negotiated and drafted four documents: a contract for the sale of the properties to the defendant; a lease of the properties back to the plaintiff; a purchase money note; and a mortgage to secure the unpaid portion of the purchase price.

The primary subject of the negotiations was the presence of hazardous wastes and material on the properties and the possibility of resulting contamination. Both Warwick and Peter Malkin had serious concerns about the environmental condition of the properties and insisted on a preliminary environmental investigation and testing of the properties pursuant to provisions included in the core documents.

On September 30,1986, the contract of sale was executed. The contract provided for a purchase price of $5,637,500, of which $1,437,000 would be paid prior to closing with the balance to be paid on December 31, 1989, according to the terms of a nonrecourse promissory note secured by a nonrecourse mortgage on the property. In the contract, the plaintiff represented that to the best of its knowledge, as of the closing, there were no conditions on the property in violation of law or governmental regulation and that any hazardous waste on the property would be managed according to applicable laws and regulations. The parties also agreed that the sale would constitute a transfer of a “hazardous waste establishment” within the meaning of General Statutes §§ 22a-134 through 22a-134d and that pursuant thereto the plaintiff would furnish a “negative declaration” to the defendant. The plaintiff also promised to have another environmental site assessment performed on the properties during the last three months of the lease term and, if that assessment recommended any cleanup, to “promptly undertake” and “diligently prosecute” that work to completion.

The note, mortgage and lease were executed at the closing on November 17, 1986. The note was in the principal amount of $4,200,000 and was due on December 31, 1989. It provided for an annual interest rate of 7.72 percent to be paid in quarterly installments of $81,060. The note further provided for a default interest rate of 15 percent. The lease required the plaintiff to pay rent, taxes, insurance and all other carrying costs of the properties. The plaintiffs rent was due quarterly and was equal to the amount of the defendant’s interest payments. The lease expired on December 31,1989, the date the note was due.

During the term of the lease, a dispute arose about the plaintiffs performance of its obligations concerning the environmental condition of the property and the presence and extent of environmental contamination. The plaintiff and the defendant each retained an environmental consultant, and each consultant performed a preliminary environmental site assessment of the property by October 31, 1989. The parties also began negotiating an extension of the maturity date of the note and mortgage while their attorneys coordinated a joint effort by their respective environmental consultants to assess the condition of the properties. The parties also discussed extending the lease with Royal Metals as the lessee. The parties, however, never reached an agreement regarding the extensions. In June, 1990, and April, 1991, the environmental consultants made their final recommendations.

The defendant’s consultant, HRP Associates, Inc. (HRP), identified two primary areas of concern. First, HRP noted that the soil in the loading dock area near Royal Metals contained impermissible levels of trichlo-roethylene and tetrachloroethylene. Second, the soil in the New England Fiberglass drum storage area contained impermissible levels of acetone. HRP also recommended asbestos removal, cleaning of the interior of the Royal Metals building and the excavation of an underground tank and some surrounding soil. The plaintiffs consultant, TRC Environmental Consultants, Inc., believed that only the drum storage area warranted remediation. HRP estimated that in the worst case scenario, the maximum cost of remediation would be $275,000. TRC estimated a cost of $91,000 to remove soil from the drum storage and loading dock areas and to remove the underground tank and surrounding soil.

Royal Metals also became involved in a dispute with the state department of environmental protection (department). In August, 1986, apparently without the defendant’s knowledge, department inspectors visited the properties. Department inspectors also inspected the properties in March, 1990. As a result of the inspections, the department ordered Royal Metals to test its incoming and outgoing waste streams for hazardous materials. These tests would enable the department to determine how Royal Metals should be classified under the pertinent environmental laws. Because Royal Metals failed to perform these tests, the department issued an order of abatement in June, 1990. Royal Metals then made some effort to test its waste streams, but it never complied with the order to the department’s satisfaction. The department, therefore, referred the matter to the attorney general who brought a civil action against Royal Metals in February, 1991. By May, 1991, Royal Metals had left Connecticut. In September, 1991, the action was withdrawn and the abatement order closed.

In March, 1992, Gugenheim returned to the property to oversee the removal of the suspected acetone contaminated soil from the drum storage area. The plaintiff gave no advance notice of the cleanup to either the defendant or the department. The department made a visual inspection of the properties in July, 1992, and concluded that “[n]o additional remedial action is necessary at the site,” but did not conduct any further soil or groundwater testing.

On June 13,1990, the plaintiff commenced this action to foreclose its mortgage on the properties located at 669 Atlantic Street in Stamford. On October 16, 1990, the defendant filed an answer, including seven special defenses, and a counterclaim consisting of four counts.

I

The defendant claims first that the trial court improperly determined that the plaintiff could foreclose the mortgage despite the plaintiffs failure to pay rent after December 31,1989. The defendant argues that, pursuant to paragraph 4. J. of the mortgage, the plaintiffs payment of rent is a condition precedent to the defendant’s obligation to pay the balance of the note. Paragraph 4. J. of the mortgage provides in pertinent part: “Notwithstanding any contrary provisions of the note or of the mortgage which it secures relating to events of default, no default herein or therein specified shall be deemed to exist ... so long as the lessee under that certain lease dated even date herewith covering the mortgaged premises . . . shall be in default in the payment of rent, additional rent or in the performance of any other obligations . . . .” (Emphasis added.) Because the plaintiff did not pay rent after December 31, 1989, therefore, the defendant asserts that the plaintiff cannot foreclose on the mortgage. We find no merit in the defendant’s claim.

The trial court found the following additional facts regarding the holdover tenancy of the plaintiff. In 1988, the defendant began negotiating a direct lease with Royal Metals. In January, 1989, they had agreed on some terms, but not on others, including rent. Later in 1989, the plaintiff and the defendant began negotiating extensions of the note and mortgage, but they did not reach an agreement by December, 1989. In January, 1990, the plaintiff and the defendant reached a tentative agreement on certain points regarding extensions of the note and mortgage, and the defendant and Royal Metals reached a tentative agreement for a direct lease. Negotiations continued into the summer of 1990, when there were significant disagreements, mainly concerning environmental issues. The parties neither completed their negotiations nor reached a final agreement.

On the basis of those facts, the court determined that “[following expiration of the lease on December 31, 1989, [the plaintiff] became a tenant at sufferance and, as such, no longer had any contractual obligation to pay rent. ... A tenant at sufferance has no contractual obligation to pay rent but, rather, is required by law to pay the reasonable value of his/her use and occupancy of the property. [Welk v. Bidwell, 136 Conn. 603, 607, 73 A.2d 295 (1950)]; Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 357 A.2d 910 (1975); Housing Authority v. Hird, 13 Conn. App. 150, 535 A.2d 377 (1988). . . . While [the defendant] may have had a claim for the reasonable value of [the plaintiffs] use and occupancy beyond December 31, 1989, after that date, [the defendant] could no longer claim protection of paragraph 4. J.”

The defendant argues that the trial court’s conclusion that the plaintiff was a tenant at sufferance is clearly erroneous. The defendant asserts, rather, that the plaintiff was a tenant at will and, therefore, responsible to pay rent to the defendant and the failure to pay such rent precluded the plaintiff from foreclosing the mortgage pursuant to paragraph 4. J. The defendant also argues that the trial court improperly determined that if the plaintiff was obligated to pay a fair rental value as a tenant at sufferance, the fair rental value did not fit within the definition of rent for the purposes of paragraph 4. J. of the mortgage.

It is unnecessary for this court to decide whether the trial court’s conclusion that the plaintiff was a tenant at sufferance is clearly erroneous. It is clear that the lease expired on December 31, 1989, that the parties had not reached an agreement for an extension of the lease and that the plaintiff continued in possession of the properties as a holdover tenant. “Holding over by any lessee, after the expiration of the term of his lease, shall not be evidence of any agreement for a further lease.” General Statutes § 47a-3d; David A. Altschuler Trust v. Blanchette, 33 Conn. App. 570, 573-74, 636 A.2d 1381, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).

Paragraph 4. J. of the mortgage was predicated on a failure to pay rent pursuant to the lease dated November 17, 1986. Whether the plaintiff had become a tenant at will* * or a tenant at sufferance, the legal obligations that followed were distinct from those under the original lease. The parties were unable to agree to an extension of the lease, and that unchallenged portion of the trial court’s conclusion defeats the defendant’s claim that the plaintiff could not foreclose on the mortgage due to its failure to pay rent.

II

The defendant claims next that the trial court improperly dismissed the third count of its counterclaim alleging a violation of CUTPA. The defendant argues that it presented evidence of a prima facie CUTPA claim, but that the trial court rejected the evidence despite the court’s obligation in deciding a motion to dismiss to construe the evidence in its favor. See Discover Leasing, Inc. v. Murphy, 33 Conn. App. 303, 308, 635 A.2d 843 (1993). We find no merit in the defendant’s claim.

The defendant alleged in its counterclaim that the plaintiff violated CUTPA by its continued use of the properties after the lease expired and by its failure to maintain the properties in an environmentally sound condition. The trial court determined that the plaintiffs continued use of the property did not constitute a violation of CUTPA because it was done with the defendant’s knowledge. The court also determined that the plaintiffs failure to maintain the properties in an environmentally sound condition did not constitute a violation of CUTPA because “the property was not different from that for which [the defendant] bargained.” The court held, therefore, that the defendant did not suffer an ascertainable loss.

The defendant now challenges the dismissal of the CUTPA count, arguing that the trial court improperly determined that it received that for which it bargained in the lease and the contract of sale. Pursuant to the lease, the defendant argues that the plaintiff did not tender custody or control of the subject premises at the expiration of its lease; second, the plaintiff did not satisfy its obligations to conduct a site assessment of the properties during the last three months of the lease and failed to undertake promptly any work necessary to ensure that the properties complied with state environmental statutes.

The defendant asserts that it did not receive that for which it bargained under the contract because the plaintiff did not deliver the negative declaration required by the contract to either the defendant or the department that the properties were uncontaminated. See General Statutes § 22a-134. The defendant also asserts that the plaintiff represented in the contract that there were no violations of governmental rules or regulations as of the closing date and that, to the best of its knowledge, the properties were being managed in accordance with all applicable hazardous waste regulations. The defendant contends, nevertheless, that it presented evidence that three weeks prior to the execution of the contract, a department investigator inspected the properties and found that Royal Metals had failed to file certain required analyses of materials being processed on the properties.

We need address only the defendant’s arguments concerning environmental issues because the defendant fails to challenge the trial court’s determination that the plaintiffs holdover tenancy did not constitute a violation of CUTPA. Moreover, while the plaintiff distinguishes the benefits in the lease from those in the contract, we note that the trial court determined that the contract, lease, note and mortgage are interdependent. The plaintiff does not challenge that determination. “Where there are multiple writings regarding the same transaction, the writings should be considered together to determine the intent of the parties.” Mongillo v. Commissioner of Transportation, 214 Conn. 225, 229, 571 A.2d 112 (1990).

General Statutes § 42-1 lOg (a) provides: “Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. ...” (Emphasis added.) “Whenever a consumer has received something other than what he bargained for, he has suffered a loss of money or property. That loss is ascertainable if it is measurable even though the precise amount of the loss is not known.” Hinchliffe v. American Motors Corp., 184 Conn. 607, 614, 440 A.2d 810 (1981).

The trial court essentially found as facts the defendant’s allegations concerning the environmental condition of the property. The court, nevertheless, determined that the defendant received the properties for which it bargained. The court held: “Just as [the defendant] bargained to impose responsibility for any environmental problems upon [the plaintiff], so too [the defendant] bargained to protect itself in the event that [the plaintiff] failed to do so.” The court further noted that “the note and lease give [the defendant] the right to offset the actual costs of curing such defaults from the balance due under the note. Thus, when negotiating for the property, [the defendant] contemplated the possibility that [the plaintiff] might default on its environmental obligations and that [the defendant] might be required to cure those defaults. [The defendant] contractually ensured that in such event it could do so without facing liability or expense and without diminution in the property value because of environmental issues.”

The defendant argues that “[i]t did not bargain for premises which were contaminated or polluted but which it could clean up at no cost to itself.” We agree with the trial court, however, that the parties clearly contemplated the transfer of environmentally contaminated properties. The defendant has failed to identify any provisions of the documents, or other evidence, relating to this transaction that would demonstrate otherwise.

Ill

The defendant next claims that the trial court improperly determined that the plaintiffs breaches of the contract of sale and the lease were not material breaches. The defendant, therefore, argues that the court improperly rejected its third special defense, which would have excused the defendant from further performing its obligations under the contract and the lease. We find no merit in the defendant’s claim.

The trial court noted that the defendant alleged that the plaintiff breached the lease by failing to surrender the premises when the lease expired, by continuing to sublet the premises after the lease expired, by failing to perform the remedial work recommended in the environmental site assessments before the lease expired, by failing to keep the property free of nuisances and by failing to comply with all orders, regulations, rules and requirements of the government. The court further noted that the defendant alleged that the plaintiff breached the contract by representing that, at the time of closing, no violations of government rules, regulations or limitation existed, by representing that any hazardous waste on the premises was being managed in accordance with all applicable regulations and by failing to furnish a negative declaration.

In Bernstein v. Nemeyer, 213 Conn. 665, 672, 570 A.2d 164 (1990), our Supreme Court approved the multifactor standards for materiality contained in § 241 of the Restatement (Second) of Contracts. “In determining whether a failure to render or to offer performance is material, the following circumstances axe significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; [and] (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.” 2 Restatement (Second), Contracts § 241 (1981).

The defendant concedes that the trial court analyzed the proper allegations and correctly stated the applicable law. The only issue, therefore, is whether the trial court’s finding that the breaches, if proven, were not material was clearly erroneous in light of the evidence and the pleadings in the record as a whole. Practice Book § 4061; Bernstein v. Nemeyer, supra, 213 Conn. 670.

The trial court found that the criteria set forth in (a), (b) and (d) of § 241 are dispositive of this issue. “As previously discussed, [the defendant] was not and could not have been deprived of the benefit it reasonably expected under the contract or the pertinent provisions of the lease. The benefit came in two alternative forms: it was either a property which [the plaintiff] had investigated and remediated in accordance with the contract and lease, or; alternatively, a property that [the defendant] could own without risk of liability and could investigate and remediate without cost to itself. As noted . . . by virtue of the offset and indemnification provisions in the documents, [the defendant] was protected from environmental liability and could remedy any contamination at [the plaintiffs] sole expense.” The trial court also determined that the alleged breaches of the lease were not material according to the criterion in (b) of § 241 because the defendant never commenced a summary process action to evict the plaintiff and recover possession of the properties.

The plaintiff argues that the evidence in the present case is similar to the evidence in Bernstein v. Nemeyer, supra, 213 Conn. 672, and that, because the Supreme Court held in that case that the trial court improperly concluded that the breaches were incidental rather than material, we should also so hold. We do not agree that the present case is controlled by Bernstein.

In that case, the trial court found that the defendants breached a negative cash flow guarantee that was part of a partnership agreement. Id., 670. Pursuant to the agreement, the defendants agreed to lend to the partnership the amount by which outlays exceeded receipts. Id., 667. The trial court determined that the defendants’ breach of the agreement was not material because the guarantee was incidental to the contract as a whole, the plaintiffs’ losses resulted from the failure of the real estate market rather than the defendants’ breach and the plaintiffs received the tax benefits that were a central part of the bargain despite the breach. Id., 669. Our Supreme Court disagreed and concluded that “the most important factors are that the defendants’ breach deprived the plaintiffs of a substantial benefit for which they had clearly bargained and which they had every reason to expect, and that the defendants’ breach was totally incurable . . . .” Id., 672.

In part II of this opinion, we concluded that the trial court properly found that the plaintiff, in failing to meet its environmental obligations, did not deprive the defendant of a benefit that it reasonably expected. This conclusion was based on the reasoning that the parties clearly contemplated that the plaintiff would be responsible for any environmental contamination of the properties and the defendant would be able to offset any costs associated with remedying the contamination. The breaches of the contract in the present case, therefore, are clearly distinguishable from those in Bernstein v. Nemeyer, supra, 213 Conn. 672. Moreover, we agree with the trial court that the plaintiffs failure to surrender possession of the properties at the end of the lease did not constitute a material breach because the defendant could have commenced a summary process action to regain possession of the properties. See 2 Restatement (Second), supra, § 241 (b) and (c).

The standard of materiality must “be applied in the light of the facts of each case in such a way as to further the purpose of securing for each party his expectation of an exchange of performances. [Section 241] therefore states circumstances, not rules, which are to be considered in determining whether a particular failure is material.” Id., § 241, comment (a). Under the circumstances, we conclude that the trial court’s findings are not clearly erroneous.

IV

The defendant claims finally that the trial court improperly granted the plaintiffs motion to strike its jury claim. After the defendant filed an answer, including special defenses, and a counterclaim, consisting of four counts, it submitted a claim for a jury trial. The plaintiff responded by filing a motion to strike the case from the jury docket, and the trial court granted the motion. The defendant argues that it was entitled to a jury trial of four of its special defenses and two counts of its counterclaim. We agree with respect to the two challenged counts of the defendant’s counterclaim.

First, we note that the plaintiff brought a foreclosure action. Such actions are equitable in nature and, therefore, do not give rise to a right to a jury trial under article first, § 19, of the Connecticut constitution. See Northeast Savings, F.A. v. Plymouth Commons Realty Corp., 229 Conn. 634, 641, 642 A.2d 1194 (1994); Skinner v. Angliker, 211 Conn. 370, 374, 559 A.2d 701 (1989); Texaco, Inc. v. Golart, 206 Conn. 454, 458, 538 A.2d 1017 (1988); Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982). The defendant asserts, however, that it raised issues of law in its special defenses and its counterclaim that require a determination by a jury.

“ ‘When legal and equitable issues are combined in a single action, whether the right to a jury trial attaches depends upon the relative importance of the two types of claims. “Where incidental issues of fact are presented in an action essentially equitable, the court may determine them without a jury in the exercise of its equitable powers. Doris v. McFarland, 113 Conn. 594, 608, 156 Atl. 52 [1931], Where, however, the essential basis of the action is such that the issues presented would be properly cognizable in an action of law, either party has a right to have the legal issues tried to the jury, even though equitable relief is asked in order to give full effect to the legal rights claimed; Berry v. Hartford National Bank & Trust Co., 125 Conn. 615, 618, 7 Atl. (2d) 847 [1939]; LaFrance v. LaFrance, 127 Conn. 149, 152, 14 Atl. (2d) 739 [1940] . . . .” National Bank of Commerce v. Howland, 128 Conn. 307, 310, 22 A.2d 773 (1941).’ ” Northeast Savings, F.A. v. Plymouth Commons Realty Corp., supra, 229 Conn. 641.

In its first and fourth special defenses, the defendant alleged that because of the plaintiffs failure to perform its obligations under the lease, it could not be defaulted and was prevented from performing under the terms of the note and mortgage. In its second and third special defenses, the defendant alleged that it was excused from performance of any of its own obligations under the note and mortgage because of the plaintiffs failure to perform its obligations under the contract and the plaintiffs breach of representations and warranties in the contract.

Warranty actions have always been triable by a jury. Motor Vehicles Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 77, 523 A.2d 486 (1987). Likewise, breach of contract claims are also cognizable at law. See Northeast Savings, F.A. v. Plymouth Commons Realty Corp., supra, 229 Conn. 642. We do not agree with the defendant, however, that its special defenses changed the basic, equitable nature of the plaintiffs foreclosure action. The defendant’s special defenses, rather, fall among the many relevant circumstances that a trial court may consider in order to ensure that complete justice is done. See Reynolds v. Ramos, supra, 188 Conn. 320.

We, nevertheless, agree with the defendant that the trial court improperly denied it the right to a trial by jury of the two counts of its counterclaim alleging breach of contract, breach of lease and fraudulent inducement. “Because a counterclaim is an independent action; see Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985); the question presented is whether the defendants’ counterclaim is essentially legal or essentially equitable. See Franchi v. Farmholme, Inc., [191 Conn. 201, 211, 464 A.2d 35 (1983)]; Flanigan v. Foley, 20 Conn. Sup. 12, 13, 119 A.2d 741 (1955). This analysis must be performed in the context of the pleadings when read as a whole. Franchi v. Farmholme, Inc., supra. The form of the relief demanded is not dispositive. Fitzgerald v. Sullivan, 12 Conn. Sup. 206, 206-207 (1943).’ United States Trust Co. v. Bohart, 197 Conn. 34, 45, 495 A.2d 1034 (1985).” (Internal quotation marks omitted.) Northeast Savings, F.A. v. Plymouth Commons Realty, supra, 229 Conn. 641-642.

In the counterclaim, the defendant alleged in the first count that, on the basis of the false representations and warranties made by the plaintiff in the contract and lease, the defendant was induced to execute the note and mortgage. As a result, the defendant further alleges, the defendant purchased other property and “undertook an enormous commitment of labor and capital in an effort to develop a large commercial project known as ‘Metro Plaza II’ . . . [and] the defendant has suffered and continues to [suffer] great damage.” In the second count, the defendant alleged that “[a]s a consequence of the plaintiffs breaches of the provisions of the contract and lease . . . the defendant has suffered and continues to suffer great damage.”

The trial court held that the “motion to strike from the jury docket is granted because this is a foreclosure action, and the defendant cannot by the assertion of special defenses and counterclaims containing several ‘legal’ causes of action convert the case from its essential equitable nature to a legal cause of action.” The trial court correctly noted that the plaintiff pleaded legal issues, but did not analyze the counterclaims as independent actions. Because counts one and two of the defendant’s counterclaim are essentially legal in nature, however, the defendant must be afforded a jury trial on those two counts.

The judgment is reversed only as to counts one and two of the defendant’s counterclaim, and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes §§ 42-110a through 42-110q.

       In its first special defense, the defendant asserted: “Contrary to its statutory and common law obligations as a holdover tenant, it failed to pay to the defendant both the rent and additional rent . . . . As a consequence of said defaults by the plaintiff in its obligations under said lease, no default is deemed to exist on the part of the defendant under either the note or the mortgage.”

       A tenancy at will “exists only when the occupation of the property is with the landowner’s consent, continuing during the tenancy.” Welk v. Bidwell, supra, 136 Conn. 608.

       “ ‘A tenancy at sufferance arises when aperson who came into possession of land rightfully continues in possession wrongfully after his right thereto has terminated. . . .’” (Citations omitted.) Berlingo v. Sterling Ocean House, Inc., 5 Conn. App. 302, 308, 504 A.2d 516 (1986), rev’d on other grounds, 203 Conn. 103, 523 A.2d 888 (1987).

       The trial court determined that the plaintiff’s nonenvironmental breaches of the lease did not constitute a violation of CUTPA because they occurred with the defendant’s “knowledge . . . while [the defendant] was negotiating direct leases with Royal Metals and other subtenants [as well as an extension of] the note and mortgage [with the plaintiff]. Thus, this conduct cannot be considered unfair or deceptive.” In support of its holding, the trial court cited Caldor, Inc. v. Heslin, 215 Conn. 590, 597, 577 A.2d 1009 (1990), cert. denied, 498 U.S. 1088, 111 S. Ct. 966, 112 L. Ed. 2d 1053 (1991), and McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 568, 473 A.2d 1185 (1984). We do not pass on the merits of this holding.

       Section 267 of Restatement (Second), Contracts, provides in pertinent part: “[I]t is a condition of each party’s remaining duties to render performances to be exchanged under an exchange of promises that there be no uncured material failure by the other party to render any such performance due at an earlier time.”

       The trial court found: “At one point, [the defendant] specifically instructed subtenants to pay rent to [the plaintiff] and although, according to Malian’s testimony, nothing prevented it, [the defendant] never commenced a summary process action to evict [the plaintiff] to recover possession of the properties]. Consequently, there is no issue of compensation to [the defendant] for any lost benefit.”

       Many of the allegations of the special defenses and the first and second counterclaims are closely intertwined. Nonetheless, there are distinct claims remaining for jury trial apart from the issues that the trial court properly resolved in deciding the foreclosure action.
      As to count one, “[fjraud in the inducement of a contract ordinarily renders the contract merely voidable at the option of the defrauded party, who also has the choice of affirming the contract and suing for damages. Davidson v. O'Connell, 114 Conn. 116, 122, 158 A. 207 [1932]; 37 Am. Jur. 2d, Fraud and Deceit, § 327 [1968], If he pursues the latter alternative, the contract remains in force . . . A. Sangivanni & Sons v. F. M. Floryan & Co., 158 Conn. 467, 472, 262 A.2d 159 (1967). In this case, the defendant chose to seek damages rather than to void the transaction. Accordingly, the first count of the counterclaim raises issues that are factually and legally distinguishable from the special defenses.
      In count two of the counterclaim, the defendant sought damages for breach of the contract and lease. In deciding the issues raised by the special defenses, the trial court ruled on various aspects of the claimed breach of contract and lease. None of those determinations, however, preclude a future resolution of the issue of whether breaches, in fact, occurred thereby entitling the defendant to damages.

       We note that the defendant is entitled to a jury trial on two counts of his counterclaim, even though the trial court properly determined that the defendant would not be excused from performance if the defendant proved its allegations. “When a breach of contract occurs, ‘[t]he contract is not put out of existence, though all further performance of the obligations of the parties may cease. It survives for the purpose of measuring the claims arising out of the breach . . . ” Rokalor, Inc. v. Connecticut Eating Enterprises, Inc., 18 Conn. App. 384, 392, 558 A.2d 265 (1989), quoting Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 10, 110 A.2d 464 (1954); see also CMG Realty of Connecticut, Inc. v. Colonnade One Ltd. Partnership, 36 Conn. App. 653, 666, 653 A.2d 207 (1995).


author: LANDAU, J.

text:
    STATE BOARD OF LABOR RELATIONS v. FREEDOM OF INFORMATION COMMISSION ET AL. STATE BOARD OF MEDIATION AND ARBITRATION v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (14410)
    (14411)
    Foti, Landau and Schaller, Js.
    Argued April 1
    officially released September 17, 1996

      Mitchell W. Pearlman, general counsel, with whom, on the brief, was Cynthia A. Christ, law student intern, for the appellant (named defendant in each case).

      Joseph M. Celentano, general counsel, for the appel-lee (named plaintiff in the first case).

      Laurie Adler, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (named plaintiff in the second case).

      Jason W. Cohen, with whom, on the brief, was J. William Gagne, Jr., for the appellee (Council 4, AFS-CME, AFL-CIO, defendant in the second case).

      M. Jeffry Spahr, Norwalk deputy corporation counsel, pro se, the appellee (defendant in the first case).
   LANDAU, J.

The defendant freedom of information commission (FOIC) appeals from the judgments of the trial court sustaining the administrative appeals of the plaintiffs from a decision by the FOIC. On appeal, the FOIC claims that the trial court improperly found that (1) grievance arbitration hearings before the board of mediation and arbitration (mediation board) are not meetings within the meaning of General Statutes § l-18a (b) and (2) parties to a grievance arbitration hearing do not have the right, pursuant to General Statutes § 1-2 la (a), to tape-record the proceedings. The FOIC also claims that, in so finding, the trial court based its conclusion on facts not contained in the record and substituted its judgment for that of the FOIC. We disagree and affirm the judgments of the trial court.

The record discloses the following factual and procedural history. On January 28, 1991, M. Jeffry Spahr, deputy coiporation counsel for the city of Norwalk (city), requested an advisory opinion, pursuant to General Statutes § 4-176 (a), from the FOIC regarding the propriety of the mediation board’s policy of refusing to permit the parties to an arbitration proceeding to tape-record such proceedings. Spahr’s request was precipitated by the ruling of an arbitrator who presided over a grievance arbitration proceeding between the city and the police union, and would not permit Spahr to tape-record the proceedings.

In his letter to the FOIC, Spahr contended that, because the mediation board was a public agency within the meaning of § l-18a (a), and because arbitration hearings are public meetings within the meaning of General Statutes § 1-21 (a),the “clear and unambiguous provisions” of § l-21a (a) apply to grievance arbitration hearings and thereby render illegal the board’s policy of refusing to permit the parties to a mediation board hearing to tape-record the proceedings. The FOIC granted Spahr’s request and conducted a hearing on July 30, 1991. At the hearing, the state board of labor relations appeared and was granted permission by the FOIC to intervene as an interested party. Both boards contended that grievance arbitration proceedings are not subject to the recording provisions of the Freedom of Information Act (act), General Statutes § 1-15 et seq.

Subsequently, on February 19, 1992, the FOIC issued a ruling in which it concluded that “arbitration hearings are neither strategy nor negotiation sessions” with respect to collective bargaining and that “the Board’s policies prohibiting the tape recording of its arbitration hearings violate, and are superseded by, the provisions of the [act].” The FOIC also concluded that, although arbitration hearings are public meetings within the meaning of the act, the board “may certainly convene in executive session in those instances permitted under [the act].” The FOIC decided that the request for an advisory opinion did not necessitate a finding as to “whether a tape recording of an arbitration hearing, kept by the Board, is subject to public disclosure under [the act].”

Although the mediation board and the board of labor relations appealed separately to the Superior Court, the trial court consolidated the appeals because they involved the same administrative proceeding. On January 6, 1995, the court issued separate memoranda of decision sustaining the boards’ appeals. In the mediation board’s appeal, the court concluded, inter alia, that “arbitration hearings are not meetings within the purview of § l-18a (b)” and ordered the FOIC’s advisory opinion “set aside, vacated and rescinded.” The trial court sustained the appeal of the board of labor relations “for the reasons recited” in the related appeal.

I

The FOIC first claims that the trial court improperly determined that grievance arbitration proceedings conducted by the mediation board, pursuant to General Statutes § 31-91 et seq., are not public meetings within the meaning of the act and are, therefore, not governed by the act. The FOIC argues that grievance arbitration proceedings fall within the definition of a public meeting pursuant to § 1-18 a (b) because they are not “strategy or negotiations with respect to collective bargaining . . . ,” In contrast, the boards contend that grievance arbitration proceedings are labor disputes that necessarily involve negotiations and strategy discussions related to the collective bargaining process and, as such, do not constitute public meetings. They argue, therefore, that grievance arbitration proceedings are not subject to the recording provisions of the act. We begin by setting forth our standard of review. “Judicial review of [an administrative agency’s] action is governed by the Uniform Administrative Procedure Act (General Statutes, c. 54, § § 4-166 through 4-189), and the scope of that review is very restricted. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the defendant.” (Citations omitted; internal quotation marks omitted.) New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988). “Even as to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . [Id., 774.] Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986); see also New Haven v. Freedom of Information Commission, supra, 773-74; Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980). . . . Perkins v. Freedom of Information Commission, [228 Conn. 158, 164-65, 635 A.2d 783 (1993)]. . . . Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28, 39, 657 A.2d 630 (1995).” (Internal quotation marks omitted.) Hartford v. Freedom of Information Commission, 41 Conn. App. 67, 72-73, 674 A.2d 462 (1996).

With these principles in mind, we now consider whether the trial court properly vacated the FOIC’s ruling. The trial court relied on this court’s holding in Glastonbury Education Assn. v. Freedom of Information Commission, 35 Conn. App. 111, 118-19, 634 A.2d 1320 (1994), aff'd, 234 Conn. 704, 663 A.2d 349 (1995), to support its finding that “the current appellate law is that arbitration hearings are not meetings within the meaning of § l-18a (b) . . . that arbitration hearings are ‘continued negotiations’ and therefore not subject to the [act].” In Glastonbury, we were called on to determine whether binding arbitration proceedings, conducted pursuant to General Statutes § 10-153a et seq., are subject to the open meeting provisions of the act. Id. In doing so, we interpreted the language of § 1-18a (b) and held that, given the legislative history of the act, “the legislature intended the term meeting [as found in § 1-18a (b)] not to apply to any part of the collective bargaining process.” Id., 118.

Nevertheless, the FOIC argues that Glastonbury does not control here. Rather, the FOIC contends that Glastonbury is a narrow holding, limited to its facts, because there is a distinction between binding arbitration proceedings, which involve the negotiation process aimed at the settlement of labor contracts, and the grievance arbitration proceedings at issue here, which involve disciplinary actions with “hearings for the formal presentation of evidence and argument before an empowered decision maker.” The FOIC concedes that while, in the former instance binding arbitration proceedings are strategy or negotiation sessions that are properly part of collective bargaining and are, thus, exempt under §l-18a (b), in the latter instance, grievance arbitration proceedings are “quasi-judicial” in nature and, although part of the collective bargaining process, do not involve strategy or negotiations and should, therefore, be open to the public. The FOIC relies on Bloomfield Education Assn. v. Frahm, 35 Conn. App. 384, 391, 646 A.2d 247, cert. denied, 231 Conn. 926, 648 A.2d 161 (1994), for the proposition that § l-18a (b) does not exclude collective bargaining in general from the definition of meeting, but rather only those sessions that exclusively constitute strategy or negotiations. The FOIC’s reliance on the decision in Bloomfield is misplaced.

In Bloomfield, we concluded that the trial court properly upheld the FOIC’s determination that the filing of a grievance is not exempted from disclosure under § 1-19 (b) (9) of the act because it is does not constitute a record, report or statement of strategy or negotiations with respect to collective bargaining. Id. We reasoned that, “[ajlthough grievances may be the subject of collective bargaining, the mere filing of a grievance, standing alone, and containing limited information . . . does not reveal any strategy or negotiations involved in the collective bargaining process.” Id., 388. We further stated that the filing of a grievance “does not discuss a proposed settlement and therefore does not contain negotiations.” Id., 391. Thus, the holding in Bloomfield is premised on the rationale that only that part of the grievance process that does not involve strategy or negotiations must be disclosed.

With respect to the grievance arbitration proceedings at issue here, however, Bloomfield necessarily implies that a different result is necessary. Because grievance arbitration proceedings are labor disputes, the parties will necessarily engage in strategy and continued negotiations with respect to the underlying collective bargaining agreement. See National Labor Relations Board v. City Disposal Systems, Inc., 465 U.S. 822, 831-32, 104 S. Ct. 1505, 79 L. Ed. 2d 839 (1984); United Steelworkers v. Warrior Navigating Co., 363 U.S. 574, 578, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960); Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 493, 628 A.2d 946 (1993). “Strategy is defined as a careful plan or method and the art of devising or employing plans or stratagems toward a goal. . . . Negotiations is a broad term, not in all connotations a term of art, but in general it means the deliberation which takes place between the parties touching a proposed agreement . . . the deliberation, discussion, or conference on the terms of a proposed agreement; a treating with another with a view to coming to terms .... Negotiations look to the future . . . .” (Citations omitted; internal quotation marks omitted.) Bloomfield Education Assn. v. Frahm, supra, 35 Conn. App. 390.

We conclude that grievance arbitration proceedings, as their binding arbitration counterpart, do involve strategy and negotiations with respect to collective bargaining; Glastonbury Education Assn. v. Freedom of Information Commission, supra, 35 Conn. App. 118-19; and, therefore, are not public meetings within the meaning of the act. Id. Accordingly, we hold that the trial court properly determined that the FOIC’s conclusion that grievance arbitration proceedings are subject to the recording provisions of the act is contrary to law.

II

Our inquiry does not end here because the FOIC also claims that the trial court “failed to exercise the judicial restraint required in these cases.” Specifically, the FOIC asserts that the trial court made “extra-record findings of fact” in violation of the standard of review set forth in General Statutes § 4-183 (i) through (j). The FOIC’s claim refers only to the portion of the court’s memorandum of decision in which it opined that the mediation board’s regulations, on which the board claims authority to limit the recording of its hearings, is not unreasonable. Our review of the record, however, reveals that the appeal presented to the trial court did not concern the legality of the board’s regulations. Rather, the dis-positive issue presented to the trial court was “whether aparty to [amediation board] hearing has the right under General Statutes § 1 -21 a (a,) to tape-record the proceedings.” (Emphasis added.) Thus, any findings by the court directed at the regulations of the mediation board is mere surplusage. Moreover, because the record before this court reveals that the trial court’s findings of fact are based on substantial evidence found in the administrative record, we conclude that the trial court properly applied the appropriate standard of judicial review.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendants in the first action are the FOIC and M. Jeffry Spahr, deputy corporation counsel for the city of Norwalk. The defendants in the second action, are the FOIC, Spahr and Council 4, AFSCME, AFL-CIO, which is the city of Norwalk police union. Only the FOIC has appealed.

       The trial court rendered two judgments in which it sustained the administrative appeals brought separately by the state board of mediation and arbitration and the state board of labor relations.

       The two appeals brought by the defendant are separate. Because the issues raised are identical, however, the defendant was permitted to file a consolidated brief. We will refer to both appeals in the singular.

       General Statutes § l-18a (b) provides in pertinent part: “ ‘Meeting’ means any hearing or other proceeding of a public agency .... ‘Meeting’ shall not include . . . strategy or negotiations with respect to collective bargaining . . . .”

       General Statutes § l-21a (a) provides in pertinent part: “At any meeting of a public agency which is open to the public, pursuant to the provisions of section 1-21, proceedings of such public agency may be recorded, photographed, broadcast or recorded for broadcast, subject to such rules as such public agency may have prescribed prior to such meeting, by any person or by any newspaper, radio broadcasting company or television broadcasting company. Any recording, radio, television or photographic equipment may be so located within the meeting room as to permit the recording, broadcasting either by radio, or by television, or by both, or the photographing of the proceedings of such public agency. . . .”

       General Statutes § 4-176 (a) provides in pertinent part: “Any person may petition an agency ... for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of an agency."

       General Statutes § l-18a (a) provides in pertinent part: “ ‘Public agency’ or 'agency' means any executive, administrative or legislative office of the state . . . .”

       General Statutes § 1-21 (a) provides in pertinent part,: “(a) The meetings of all public agencies, except executive sessions as defined in subsection (e) of section l-18a, shall be open to the public. . . .”

       See footnote 4.

       The FOIC asserts that the court made the following findings of fact that are not supported by the record: (1) “stenographic recording is quiet and orderly”; (2) “the record is being compiled by a certified competent reporter unlikely to impair its integrity”; (3) “certified copies can be made readily available without concern for tampering or mistakes”; and (4) “a transcript duly certified is less likely than a recorded taping to raise errors in the transcript of the record.”

       Section 31-91-30 of the Regulations of Connecticut State Agencies provides in pertinent part: “The board does not provide a stenographic service during arbitration hearings. If either or both parties feel it is necessary to have their respective arbitration hearings recorded, they should make the necessary arrangements with a private reporting service at their own expense. . .