author: Freedman, J.

text:
    Dennis White v. Philip Kampner et al.
    (11294)
    Daly, Heiman and Freedman, Js.
    Argued January 13
    decision released April 20, 1993

      Joseph A. Mengacci, for the appellant (plaintiff).

      Stewart I. Edelstein, for the appellees (defendants).
   Freedman, J.

The plaintiff appeals from the judgment of the trial court denying his application for an order to confirm an arbitration award and granting the defendants’ application to vacate the arbitration award. The plaintiff contends that the trial court improperly disturbed the arbitrator’s decision regarding the arbitrability of the dispute. We agree and reverse the judgment of the trial court.

The following facts are relevant to this appeal. On August 27, 1990, the plaintiff, the defendants and Jeffrey Larson entered into two separate contracts, a management contract and a purchase contract. These contracts set forth conditions under which the plaintiff and Larson were to manage and to have an option to purchase State Paint, Inc., a business owned by the defendants. Each contract contains two provisions of importance to this case, a mandatory negotiation provision and an arbitration provision.

In December, 1990, the defendants dismissed the plaintiff from his management position, alleging that he had stolen money from the business. The plaintiff demanded arbitration pursuant to the contracts. The defendants objected to the arbitration of the dispute, both before and during the hearing before the arbitrator, on the ground that the mandatory negotiation sessions had not taken place. After a hearing, the arbitrator found the issues for the plaintiff and ordered damages and other relief pursuant to the demand for arbitration. Although the arbitrator’s award did not specifically address the issue of arbitrability, the arbitrator concluded that “[tjhis award is in full and final settlement of any and all claims submitted to this arbitration.”

After the plaintiff filed his application to confirm the arbitration award, the defendants sought to vacate the award pursuant to General Statutes § 52-418 on the ground that the dispute was not arbitrable due to the parties’ failure to negotiate as required by the contracts. See footnote 2, supra. The trial court found that the question of arbitrability had not been waived by the defendants and that it had been submitted to the arbitrator. The trial court then reviewed the evidence, both testimonial and documentary, presented to it regarding the reasons for the failure of the parties to conduct face-to-face negotiations concerning the dispute. Despite correspondence and numerous conversations between their attorneys, the parties never met face-to-face to discuss the matter prior to arbitration. The trial court found that “while the contract calls for two negotiation sessions . . . not even one negotiation session has ever occurred in this case.” After further finding that “the contractual requirement of two negotiation sessions was never waived by the [defendants],” the trial court concluded that “[i]t is very clear from the contracts that the occurrence of two negotiation sessions was a condition precedent to arbitration . . . [and that] until negotiation has been pursued, or some sufficient reason is given for not pursuing it, no arbitration can occur.” Consequently, the court found that “the award was in violation of the parties’ agreement” and vacated the award. This appeal followed.

There is no doubt that the arbitrability of the dispute between the parties is the central issue in this appeal. The resolution of this issue, however, must turn on the question of whose province it is to determine arbitrability — -the arbitrator’s or the court’s?

“The authority of an arbitrator to adjudicate the controversy is limited only if the agreement [between the parties] contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review.” Garrity v. McCaskey, 223 Conn. 1, 5, 612 A.2d 742 (1992); Carabetta Builders, Inc. v. Hotz Corporation, 30 Conn. App. 157, 160, 619 A.2d 13 (1993). “Arbitration is a creature of contract. It is the province of the parties to set the limits of the authority of the arbitrators, and the parties will be bound by the limits they have fixed. . . . Whether the parties have agreed to submit to arbitration not only the merits of the dispute but the very question of arbitrability, as well, depends upon the intention manifested in the agreement they have made. . . . The intent to submit the question of arbitrability to an arbitrator may be demonstrated in an agreement by an express provision or by use of broad terms.” (Citations omitted; internal quotation marks omitted.) Turner Construction Co. v. Eppoliti, Inc., 28 Conn. App. 139, 142-43, 609 A.2d 1064 (1992). “In apportioning, between the court and the arbitrators, the responsibility for determining which disputes are arbitrable, the language of the contract controls and determines whether the arbitrability of a dispute is for the court or the arbitrators.” Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 122, 318 A.2d 84 (1972).

Here, the contracts provide for arbitration of “[a]ny dispute or question arising under the provisions of [the contracts] which has not been resolved [through the mandatory negotiation procedure].” The parties’ intent to have the question of arbitrability decided by an arbitrator is reflected not in the express terms of their agreements but in the broad language of the arbitration clause of their contracts. See Turner Construction Co. v. Eppoliti, Inc., supra, 144. The contract contains no exclusionary language removing the question of arbitrability from the arbitrator’s domain. See id. Nowhere does the contract affirmatively state that failure to comply with the mandatory negotiation provision will operate as a bar to arbitration. See Gary Excavating, Inc. v. North Haven, supra, 123. Under such circumstances, we conclude that “the above all-inclusive language of the agreement requires a determination that the parties intended the question of arbitrability to be determined by the arbitrators.” Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 105, 438 A.2d 1171 (1981).

“[B]y virtue of the broad scope of [the arbitration clause] of the contracts], the appropriate body to hear claims regarding procedural prerequisites to arbitration must be the arbitration panel.” Gary Excavating, Inc. v. North Haven, supra, 125. In the present case, the arbitrator resolved the issue in favor of arbitrability. See Costello Construction Corporation v. Teamsters Local 559, 167 Conn. 315, 320-21, 355 A.2d 279 (1974). In East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 656-57, 539 A.2d 125 (1988), our Supreme Court concluded that a trial court may not substitute its own findings regarding whether a party met a procedural precondition to arbitration for those of the arbitrator when the arbitrator is contractually empowered to decide the question of arbitrability. Likewise, in Turner Construction Co. v. Eppoliti, Inc., supra, we recently determined that, when the issue of arbitrability is contractually committed to the arbitrator, the question of whether the contractual preconditions to arbitration have been satisfied is properly left by the trial court to the arbitrator. Because the resolution of the question of arbitrability in this case was committed by the parties’ agreement to the arbitrator, the trial court should not have determined whether it agreed with the arbitrator’s conclusion regarding the arbitrability of this dispute. East Hartford v. East Hartford Municipal Employees Union, Inc., supra. Thus, whether there was a precondition to arbitration, whether that precondition was met or whether that precondition was waived, were all matters for the arbitrator to decide.

“[W]hen arbitration is consensual, rather than statutorily imposed, judicial review is limited in scope. ... If the parties mutually agree to submit their dispute to arbitration, the resulting award is not reviewable for errors of law or fact. . . . Judicial review of unrestricted submissions is limited to a comparison between the submission and the award to see whether, in accordance with the powers conferred upon the arbitrators, their award conforms to the submission. ...” (Citations omitted; internal quotation marks omitted.) Bodner v. United Services Automobile Assn., 222 Conn. 480, 487-88, 610 A.2d 1212 (1992). Here, the award conforms to the submission. The defendants believe, as did the trial court, that the arbitrator should have arrived at a different conclusion regarding the question of arbitrability. “It is clear [however] that a party cannot object to an award which accomplishes precisely what the arbitrators were authorized to do merely because that party dislikes the results.” American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 187, 530 A.2d 171 (1987); see also East Hartford v. East Hartford Municipal Employees Union, Inc., supra. “An award will not be vacated on the ground that the construction placed on the facts or the interpretation of the agreement by the arbitrator was erroneous.” Cashman v. Sullivan & Donegan, P.C., 23 Conn. App. 24, 27, 578 A.2d 167, cert. denied, 216 Conn. 821, 581 A.2d 1054 (1990). Since no proper grounds for vacating the award are presented; see Garrity v. McCaskey, supra, 6; Carabetta Builders, Inc. v. Hotz Corporation, supra, 161; see also General Statutes § 52-418 (a); the trial court improperly vacated the award and improperly failed to confirm the award.

The judgment is reversed and the case is remanded with direction to render judgment granting the plaintiffs application to confirm the arbitration award and denying the defendants’ application to vacate or correct the arbitration award.

In this opinion the other judges concurred.

       In addition to the named defendant, Helen Kampner is a defendant and a party to this appeal.

       In nearly identical language, the management contract and the purchase contract have the following “mandatory negotiation” provision: “[The parties] agree that they will attempt to negotiate in good faith any dispute of any nature arising under this [agreement]. The parties shall negotiate in good faith at not less than two negotiation sessions prior to seeking any resolution of any dispute under the [arbitration provision] of this [agreement], Each party shall have the right to legal representation at any such negotiation session.” (Emphasis added.)

       In nearly identical language, the management contract and the purchase contract have the following “arbitration” provision: “Any dispute or question arising under the provisions of this [agreement] whieh has not been resolved under [the mandatory negotiation provision] shall be determined by arbitration before one (1) arbitrator appointed by the American Arbitration Association. Arbitration proceedings shall occur at a neutral location in Waterbury, Connecticut, and shall be conducted in accordance with the rules then applicable of the American Arbitration Association. The decision of the arbitrator shall be final and may be entered in any court having jurisdiction thereof. Each party shall pay one-half of all costs and expenses of such arbitration.” (Emphasis added.)

       General Statutes § 52-418 (a) provides in pertinent part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       In fact, the trial court found that the parties “agreed at the conclusion of the arbitration hearing to submit their correspondence to the arbitrator so that the arbitrator could decide the issue or arbitrability.”

       The proceedings before the arbitrator were not recorded.


source: Caselaw Access Project

license: Public Domain

text:
    Federal Deposit Insurance Corporation v. Retirement Management Group, Inc., et al.
    (10668)
    Landau, Freedman and Schaller, Js.
    Argued January 19
    decision released April 20, 1993

      Patrick W. Boatman, for the appellants (defendants).

      Donald E. Frechette, with whom, on the brief, was Paul N. Gilmore, for the appellee (plaintiff Federal Deposit Insurance Corporation).
   Freedman, J.

The defendants appeal from the deficiency judgment rendered by the trial court pursuant to General Statutes § 49-14 in this mortgage foreclosure action. The defendants claim that (1) the trial court lacked jurisdiction to render the deficiency judgment because the motion for a deficiency judgment was not filed by a party within the time period set forth in § 49-14 (a), (2) the trial court could not permit a substitute plaintiff to enter the case after title to the real property had vested in another party pursuant to the judgment of strict foreclosure, (3) the substitute plaintiff failed to prove that it was the owner of the claim that was the subject of the judgment of strict foreclosure, and (4) the trial court improperly limited the deficiency proceeding to a determination of the value of the property at the time title passed, excluding evidence concerning the mortgage holder’s delay in pursuing the judgment of strict foreclosure. We affirm the judgment of the trial court.

On or about August 31,1990, the Connecticut Bank and Trust Company, N.A. (CBT), commenced this action alleging, inter alia, the nonpayment of two promissory notes and seeking to foreclose certain mortgages that CBT held on real property located in Bran-ford. Shortly after the return of this matter to the Superior Court on October 2, 1990, the defendants informed CBT of their willingness to consent to a judgment of strict foreclosure. CBT proceeded to secure defaults and filed its motion for judgment of strict foreclosure on November 14,1990. The defendants filed a disclosure of no defenses and consent to entry of strict foreclosure on December 18, 1990.

On January 6, 1991, the Federal Deposit Insurance Corporation (FDIC) was named as CBT’s receiver. On that day, FDIC, acting as CBT’s receiver, transferred virtually all of CBT’s assets to the New Connecticut Bank and Trust Company, N.A. (New CBT).

On January 28, 1991, a hearing was conducted on CBT’s motion for strict foreclosure. At the hearing, CBT moved to substitute FDIC as the plaintiff, alleging that FDIC was the holder of the notes and mortgages. That assertion was, however, incorrect since CBT’s assets, including the notes and mortgages that are the subject of this action, had been assigned by FDIC to New CBT. Nonetheless, FDIC was substituted as plaintiff without objection. Thereafter, the court rendered a judgment of strict foreclosure, determined the amount of the debt and set February 20, 1991, as the first law day.

On February 19, 1991, FDIC filed a motion to substitute New CBT as the plaintiff. Thereafter, on February 27, 1991, title to the property vested in FDIC pursuant to the judgment of strict foreclosure. At that time, the motion to substitute New CBT as the plaintiff had not yet been heard.

A motion for deficiency judgment was filed on March 14, 1991. In its body, the motion recited that the plaintiff was New CBT, the assignee of FDIC, the receiver for CBT.

On June 26, 1991, the trial court, over the defendant’s objection, granted the motion to substitute New CBT as plaintiff for purposes of the deficiency proceeding. The trial court then began hearing evidence regarding the motion for deficiency judgment. Further evidence was taken on June 27 and July 9, 1991. On July 11,1991, FDIC dissolved New CBT and appointed itself as receiver of New CBT. On September 3,1991, FDIC moved to be substituted in its capacity as receiver of New CBT as the plaintiff in place of New CBT. On September 12, 1991, the court granted the motion to substitute FDIC as plaintiff and rendered a deficiency judgment against the defendants in the amount of $1,276,752.06. This appeal followed.

General Statutes § 49-1 provides that “[t]he foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure . . . .” General Statutes § 49-14 furnishes an exception to § 49-1 by providing that, “[a]t any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment.” The defendants assert that because the motion for a deficiency judgment was filed by New CBT on March 14,1991, when New CBT was not yet a party to the proceedings, no party to the proceedings sought a deficiency judgment within thirty days after the time limited for redemption had expired, and, therefore, the trial court lacked the authority to grant a deficiency judgment in this action. We disagree.

The defendants correctly point out that strict compliance with the procedural requirements of § 49-14 is required in order to permit the trial court to render a deficiency judgment in a mortgage foreclosure action. See Simsbury Bank & Trust Co. v. Ray Carlson Lumber Co., 154 Conn. 216, 224 A.2d 544 (1966); People’s Holding Co. v. Bray, 118 Conn. 568, 173 A. 233 (1934). Our rules of practice, however, permit the substitution of parties as the interests of justice require. General Statutes §§ 52-108, 52-109; Practice Book §§ 100, 101; see also United States Trust Co. v. DiGhello, 179 Conn. 246, 247 n.1, 425 A.2d 1287 (1979); Hagearty v. Ryan, 123 Conn. 372, 195 A. 730 (1937); Wickes Mfg. Co. v. Currier Electric Co., 25 Conn. App. 751, 760-61, 596 A.2d 1331 (1991). These rules are to be construed so as to alter the harsh and inefficient result that attached to the mispleading of parties at common law. See Hagearty v. Ryan, supra, 375-76. General Statutes § 52-108 and Practice Book § 100 provide that “no action shall be defeated by the nonjoinder or misjoinder of parties.” General Statutes § 52-109 and Practice Book § 101 allow a substituted plaintiff to enter a case “[w]hen any action has been commenced in the name of the wrong person as plaintiff . . . .” Both rules, of necessity, relate back to and correct, retroactively, any defect in a prior pleading concerning the identity of the real party in interest. In the context of analogous rules of federal civil procedure, it has been observed that “[wjhere the change is made on the plaintiffs side to supply an indispensable party or to correct a mistake in ascertaining the real party in interest, in order to pursue effectively the original claim, the defendant will rarely be unfairly prejudiced by letting the amendment relate back to the original pleading.” F. James & G. Hazard, Civil Procedure (2d Ed. 1977) § 5.7, pp. 167-68. “As long as [the] defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action, his ability to protect himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoke a limitations defense. . . . Thus, an amendment substituting a new plaintiff [will] relate back if the added plaintiff is the real party in interest.” 6A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1501, pp. 154-57; see also Health Research Group v. Kennedy, 82 F.R.D. 21 (D.D.C. 1979) (substitution of real party in interest as plaintiff permitted to cure lack of standing of original plaintiff). An amendment to pleadings will relate back to its filing, at the very least, and back to the beginning of the action under appropriate circumstances. Sharp v. Mitchell, 209 Conn. 59, 70-75, 546 A.2d 846 (1988); Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 239-40, 429 A.2d 486 (1980); see also Consolidated Motor Lines, Inc. v. M & M Transportation Co., 128 Conn. 107, 109, 20 A.2d 621 (1941). We see no reason why our general policy with respect to pleadings should not also apply in the context of the substitution of a plaintiff.

Here, the motion to substitute New CBT as plaintiff was filed before New CBT filed its motion for deficiency judgment. Thus, the motion to substitute New CBT, granted on June 26, related back in time to affect the March 14 motion for deficiency judgment. New CBT was the real party in interest at the time that the motion for deficiency judgment was filed. By operation of our rules of practice, then, the motion for deficiency judgment is deemed to have been properly and timely filed by the proper plaintiff, New CBT. As such, the court had authority to consider and grant the motion pursuant to General Statutes § 49-14.

The defendants next argue that the trial court did not have the authority to grant the FDIC’s motion to substitute New CBT as the plaintiff because title to the mortgaged real property that was the subject of the foreclosure had already vested in the FDIC. The defendants rely on General Statutes § 49-15, which prevents a court from opening and modifying a judgment of strict foreclosure “after the title has become absolute in any encumbrancer.” Section 49-15, however, does not apply to the circumstances of this case. The plaintiff did not seek to open the judgment of strict foreclosure. Rather, the motion to substitute was filed in the context of the proceedings on the motion for deficiency judgment. “[T]he deficiency judgment procedure, although procedurally a part of the foreclosure action, serves a separate function of providing for recovery on the balance of the note which was not satisfied by the strict foreclosure.” Maresca v. DeMatteo, 6 Conn. App. 691, 696, 506 A.2d 1096 (1986). The proceedings on a motion for a deficiency judgment, therefore, do not implicate the integrity of the prior, final judgment of strict foreclosure. See Bank of Stamford v. Alaimo, 31 Conn. App. 1, 622 A.2d 1057 (1993). Here, the substitution of New CBT as the plaintiff for purposes of the deficiency judgment did not open, modify or otherwise affect the foreclosure judgment. Because § 49-15 was not implicated by the substitution of parties allowed by the trial court in the context of the deficiency proceeding, we conclude that the defendants’ second claim is without merit.

We have reviewed the record and the parties’ briefs regarding the defendants’ remaining claims on appeal; we find the defendants’ arguments on these issues to be without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to the named defendant, Kenneth J. Messier, Howard P. Chamberlain, David W. Kazarian, H. D. K. Residence Associates and Cedar Woods, Inc., were named as defendants and are parties to this appeal.

       General Statutes § 49-14 (a) provides in pertinent part: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. . . .”

       The following colloquy between counsel for the plaintiff and the court makes it clear that the sole purpose of the motion to substitute was to substitute New CBT in the postjudgment deficiency proceedings and was not intended to affect the judgment of strict foreclosure that had already been rendered by the trial court:
      “[Counsel]: Judgment of strict foreclosure was entered, Your Honor.
      “The Court: And title has vested?
      “[Counsel]: Title has vested.
      “The Court: Therefore, the only purpose of the substitution would be on a deficiency?
      “[Counsel]: That’s correct. . . .”


author: Foti, J.

text:
    Theodore G. Dean et al. v. George Riley, Jr., et al.
    (11301)
    Foti, Landau and Schaller, Js.
    Submitted on briefs February 16
    decision released April 20, 1993

      Edward E. Moukawsher filed a brief for the appellants (plaintiffs).

      Lloyd L. Anderson filed a brief for the appellees (defendants).
   Foti, J.

The plaintiffs, Theodore G. and Beverly H. Dean, appeal from the judgment rendered for the defendants in the plaintiffs’ action to quiet title in a claimed right-of-way over the defendants’ land and to obtain damages, including attorney’s fees and compensatory damages, pursuant to General Statutes § 47-33j. The plaintiffs claim that the trial court improperly found that the claimed easement (1) was not appurtenant to their land and (2) was extinguished. We affirm the judgment.

In 1951, Theodore W. Dean, not a party to this action, took title to approximately seventy acres of land in the town of Canterbury from Diana M. Jeannotte (Dean tract). On December 14, 1963, he quitclaimed an undivided one-half interest in this land to his son, the plaintiff Theodore G. Dean, and retained the remaining one-half interest. On April 2,1977, the plaintiff quit-claimed his one-half interest in approximately three and one-sixth acres of the Dean tract back to his father, Theodore W. Dean. By a deed dated the same day, Theodore W. Dean quitclaimed the same three and one-sixth acres (Riley tract) to the defendants, George and Deborah R. Riley, reserving in himself a right-of-way over the Riley tract. Theodore W. Dean also owns a tract of land known as the pony farm, which abuts the Dean tract but is not adjacent to the Riley tract. The purpose of the right-of-way was to give Theodore W. Dean access to the pony farm.

At the time he conveyed the Riley tract to the defendants and created the right-of-way, Theodore W. Dean had absolute title to both the pony farm and the Riley tract and a one-half interest in the Dean tract. He then quitclaimed his remaining interest in the Dean tract to the plaintiffs Theodore G. and Beverly H. Dean by two deeds, one dated December 22,1977, and the second dated February 13, 1978. The latter deed stated that its purpose was “to convey all my remaining interest in [the Dean tract]” to the plaintiffs.

In January, 1988, the defendants conveyed the Riley tract back to Theodore W. Dean, using the same description by which they took title, including the description of the right-of-way. Theodore W. Dean then deeded the Riley tract back to the defendants, expressly deleting the right-of-way. The deed stated that its purpose was “to extinguish the easement or right-of-way” on the Riley tract.

In 1988, the plaintiffs contracted to subdivide the Dean tract, but the other party withdrew from the plan because of opposition from Theodore W. Dean and the defendants. In October, 1989, the plaintiffs undertook to subdivide the Dean tract. They also began harvesting timber from that tract. When the contract purchaser of the timber attempted to enter the Dean tract by the right-of-way that the plaintiffs thought was on the Riley tract, he was unable to do so because a truck was blocking the entry.

After a court trial, the court determined that the right-of-way was appurtenant to the nonadjacent pony farm owned by Theodore W. Dean and not to the Dean tract, that the easement had been extinguished by the exchange of deeds between Theodore W. Dean and the defendants in January, 1988, and that the exchange did not slander the plaintiffs’ title.

Before addressing the plaintiffs’ claims that the court improperly found that the easement was not appurtenant to their land and was extinguished by the exchange of deeds, we must first address whether the easement created was appurtenant or in gross. “ ‘This question is to be resolved by seeking the intent of the parties as expressed in the deed, and this intent is to be ascertained by reading the words of the deed in the light of the attendant circumstances.’ ” Leabo v. Leninski, 182 Conn. 611, 614, 438 A.2d 1153 (1981). The construction of a deed to ascertain its intent “presents a question of law and requires consideration of all its relevant provisions in the light of the surrounding circumstances.” Carbone v. Vigliotti, 222 Conn. 216, 222, 610 A.2d 565 (1992).

An easement in gross belongs to the owner of it apart from his ownership or possession of any specific land and, in contrast to an easement appurtenant, its ownership is personal to its owners. Lichteig v. Churinetz, 9 Conn. App. 406, 411, 519 A.2d 99 (1986). If the easement is in its nature an appropriate and useful adjunct to the land conveyed, with nothing to show that the parties intended it to be a mere personal right, then it is an easement appurtenant. Birdsey v. Kosienski, 140 Conn. 403, 410, 101 A.2d 274 (1953). “Whether an easement . . . is appurtenant or in gross depends mainly on the nature of the right created and the intention of the parties creating it.” Lichteig v. Churinetz, supra. The easement in the present case is by its nature an appropriate and useful adjunct to the land. It provided Theodore W. Dean and “his heirs and assigns” with a right-of-way along the easterly bounds of the Riley tract to and from the dominant property. Since there is nothing to show that the parties intended the easement to be a mere personal right, we must conclude that the easement is appurtenant.

The plaintiffs argue that the trial court, in construing the deed as to the purpose of the right-of-way, improperly found, from the testimony of its creator, Theodore W. Dean, that the right-of-way was created to permit access to and from the pony farm, which is located to the west of the Dean tract and separated from the Riley tract.

An easement appurtenant must have a dominant estate that enjoys the benefit of the right-of-way and a servient estate that bears the burden. Such an easement can become legally attached to the dominant estate only if the same person owns both the right-of-way and the dominant estate. Curtin v. Franchetti, 156 Conn. 387, 389, 242 A.2d 725 (1968). While an easement appurtenant must be of benefit to the dominant estate, the servient estate need not be adjacent to the dominant estate. Saunders Point Assn., Inc. v. Cannon, 177 Conn. 413, 415, 418 A.2d 70 (1979).

At the time he created the easement, Theodore W. Dean owned the entire fee in both the Riley tract and the pony farm. He only owned one half of the fee in the Dean tract. Dean testified that the right-of-way was created to provide access to the pony farm. The right-of-way reserved in the deed to the Riley tract could not have created an easement appurtenant to the Dean tract, because Dean held unity of title only in the Riley tract and the pony farm. “The way can become legally attached to the dominant estate only if the same person has unity of title to both the way and the dominant estate.” Curtin v. Franchetti, supra.

The plaintiffs argue, however, that the trial court failed to differentiate between the purpose the creator had in mind and the means he employed to accomplish the purpose.

“ ‘Although in most contexts the issue of intent is a factual question on which our scope of review is limited . . . the determination of the intent behind language in a deed, considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary. . . .’’’(Citations omitted.) Eis v. Meyer, 17 Conn. App. 664, 667-68, 555 A.2d 994, aff’d, 213 Conn. 29, 566 A.2d 422 (1989). We are thus unconstrained by the trial court’s legal conclusion as to intent. See Carbone v. Vigliotti, supra, 222; Marion Road Assn. v. Harlow, 1 Conn. App. 329, 332, 472 A.2d 785 (1984) (scope of review generally not limited by “clearly erroneous” standard when the issue of intent, although ultimately factual in nature, presents a question of law).

Nevertheless, when the underlying facts that form the basis of the trial court’s legal conclusion as to intent are challenged, our review is limited to determining whether the findings as to those underlying facts are supported by the evidence or whether, in light of the evidence and the pleading in the whole record, those findings are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

Here, because the deed was silent as to the intent of the easement, the trial court was required to determine the creator’s intent by examining all of the surrounding circumstances. Carbone v. Vigliotti, supra. As part of this examination, the trial court considered the testimony of the creator himself, which necessarily gave rise to the creator’s credibility. See American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 75, 574 A.2d 796 (1990). While we need not defer to the trial court’s legal conclusion as to intent, we do defer to the court’s determination as to the credibility of witnesses and its finding of the facts underlying that conclusion. Brunswick v. Inland Wetlands Commission, 29 Conn. App. 634, 639, 617 A.2d 466 (1992). The court accepted the testimony of Theodore W. Dean that the intent of the right-of-way was to provide access to the pony farm. From the record, we cannot conclude that this finding was clearly erroneous.

The trial court’s legal conclusion as to the intent of the easement was proper; the trial court reasonably concluded that the pony farm was the dominant estate and the Riley tract was the servient estate. Having so concluded, the court properly determined that the exchange of deeds between the defendants and Theodore W. Dean in January, 1988, extinguished the right-of-way over the Riley tract. Since the plaintiffs did not own the easement, they were not entitled to damages for its obstruction. The court also properly concluded that no slander of title to the Dean tract had occurred, because the defendants’ actions in 1988 did not constitute a false charge or misrepresentation.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47-33j provides: “No person may use the privilege of recording notices under sections 47-33f and 47-33g for the purpose of slandering the title to land. In any action brought for the purpose of quieting title to land, if the court finds that any person has recorded a claim for that purpose only, the court shall award the plaintiff all the costs of the action, including such attorneys’ fees as the court may allow to the plaintiff, and in addition, shall decree that the defendant asserting the claim shall pay to the plaintiff all damages the plaintiff may have sustained as the result of such notice of claim having been so recorded.”

       The defendants argue that the deed that created the right-of-way over the Riley tract describes the easement and the servient estate but fails to describe the dominant estate, thus making this only an easement in gross. Alternatively, they argue that the court properly admitted testimony as to creation of the right-of-way; American Trading Real Estate Properties, Inc. v. Trumbull, 215 Conn. 68, 75, 574 A.2d 796 (1990); in finding that the easement was appurtenant to the pony farm.

       Our Supreme Court has not reconsidered this unity of title doctrine, having been afforded no appropriate occasion to do so. See Carbone v. Vigliotti, 222 Conn. 216, 224, 610 A.2d 565 (1992).


author: Heiman, J.

text:
    James Siano v. Warden, State Prison
    (11255)
    Dupont, C. J., Landau and Heiman, Js.
    Argued February 22
    decision released April 27, 1993

      James M. Ralls, assistant state’s attorney, with whom, on the brief, was Christopher L. Morano, assistant state’s attorney, for the appellant (respondent).

      James Moreno, special public defender, for the appellee (petitioner).
   Heiman, J.

The respondent warden of the Connecticut state prison appeals from the judgment of the habeas court granting the habeas corpus petition, vacating the conviction and ordering a new trial. The habeas court found that the failure of trial counsel to present the testimony of the physician who treated the petitioner for injuries received prior to the date of the crime denied the petitioner the effective assistance of counsel. After receiving certification from the habeas court, the respondent appeals, claiming that the habeas court incorrectly found that the petitioner had been denied the effective assistance of counsel during his jury trial. The respondent asserts that the petitioner’s trial counsel tactically chose to forego summoning the treating physician to testify because of the fear that he would testify that the petitioner was physically capable of committing the crime charged. The state posits that the petitioner’s trial counsel instead relied strategically on the testimony of the petitioner’s mother and sister and on cross-examination of the prosecution’s key witness to bolster the petitioner’s defense. We affirm the judgment of the habeas court.

We first address our scope of review. In a habeas corpus appeal, this court may not disturb underlying historical facts found by the habeas court unless they are clearly erroneous. Veal v. Warden, 28 Conn. App. 425, 428, 611 A.2d 911, cert. denied, 224 Conn. 902, 615 A.2d 1046 (1992); Biggs v. Warden, 26 Conn. App. 52, 56, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991). “[W]e are called upon to determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Biggs v. Warden, supra. Our function is not to examine the record to see if the trier of fact could have reached a contrary conclusion. Id. “When determining whether those facts constitute a violation of the petitioner’s right to effective assistance of counsel, however, this court is not bound by such a limited standard of review, because such a determination is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case.” Veal v. Warden, supra; Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991). The question of whether the historical facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is subject to plenary review by this court unfettered by the clearly erroneous standard. Phillips v. Warden, supra; Daniels v. Warden, 28 Conn. App. 64, 68, 609 A.2d 1052, cert. denied, 223 Conn. 924, 614 A.2d 820 (1992).

The right to the effective assistance of counsel is firmly grounded in the mandates of the sixth amendment to the United States constitution, the fourteenth amendment to the United States constitution, and article first, § 8, of the Connecticut constitution. “The right to counsel is the right to the effective assistance of counsel. . . . This right is equally applicable whether defense counsel is court-appointed [as in the present case], or . . . privately-retained counsel.” (Citations omitted.) State v. Mason, 186 Conn. 574, 577, 442 A.2d 1335 (1982). The right to counsel, however, is the right to effective assistance and not the right to perfect representation. Commissioner of Correction v. Rodriquez, 222 Conn. 469, 478, 610 A.2d 631 (1992); Williams v. Bronson, 21 Conn. App. 260, 263, 573 A.2d 330 (1990).

To prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must demonstrate both (1) deficient performance and (2) actual prejudice. Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992); Summerville v. Warden, 29 Conn. App. 162, 171, 614 A.2d 842, cert. granted on other grounds, 224 Conn. 918, 617 A.2d 172 (1992). To satisfy the first prong, that his counsel’s performance was deficient, the petitioner must establish that his counsel made “ ‘errors so serious that Pie] was not functioning as the “counsel” guaranteed the [petitioner] by the Sixth Amendment.’ ” Bunkley v. Commissioner of Correction, supra, quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner must thus show that counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. Strickland v. Washington, supra, 687-88; Daniels v. Warden, supra, 69. We will indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Daniels v. Warden, supra, 69-70.

To satisfy the second prong, that his counsel’s deficient performance prejudiced his defense, the petitioner must establish that “ 'counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.' ” Bunkley v. Commissioner of Correction, supra, quoting Strickland v. Washington, supra, 687. The petitioner must establish that, as a result of his trial counsel’s deficient performance, “there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal.” Bunkley v. Commissioner of Correction, supra, 454. The second prong is thus satisfied if the petitioner can demonstrate that “there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Summerville v. Warden, supra.

The facts underlying the petitioner’s arrest and trial as were reasonably found by the habeas court may be briefly summarized as follows. The petitioner was arrested by the Enfield police who charged him and another individual with a residential burglary and larceny in the town of Enfield on or about May 25, 1986. The residence was entered through a kitchen window located in the rear of the house. The backyard of the house was surrounded by a wooden stockade fence.

The principal state’s witness was the coconspirator, Carmine Sarno. Sarno testified that the petitioner had been to the house the day before the burglary to check it out. He said that he entered the house through a kitchen window at the back of the house and then opened a sliding glass door and admitted the petitioner. The petitioner went upstairs, according to Sarno, and discovered computer equipment, which they took from the house. Sarno testified that he carried the equipment from the house but that the petitioner carried it into Sarno’s house in Springfield, Massachusetts, without assistance. The computer consisted of four pieces including a dot matrix printer, a keyboard, a monitor and the central processing unit. The computer parts were exhibits at the petitioner’s criminal trial, and the trial court noted that the computer equipment was “heavy equipment.”

On cross-examination, it was shown that Sarno had previous burglary convictions including a burglary in Connecticut for which he had received a sentence of five years suspended after two years. In addition, he was awaiting sentencing in Massachusetts on other burglary charges where he was exposed to a maximum sentence of eighty to ninety years. It was further shown that, as consideration for his testimony against the petitioner, the charges against him arising out of the same transaction were to be nolled and the Connecticut sentence that he was serving was to be advantageously modified.

On April 28, 1986, approximately four weeks prior to the burglary, the petitioner had been injured in a motor vehicle accident. He had sustained a displaced fracture of the left distal radius, a fractured right metatarsal head and multiple abrasions about the body. The petitioner was hospitalized from April 28 until May 1,1986. The fracture of the left wrist was treated by inserting a pin and applying a plaster cast to the hand, thereby immobilizing the hand and limiting its use. In addition, the fracture of the bone in the foot necessitated the use of a crutch at discharge, limiting his mobility for at least six weeks after injury.

The defense called only two witnesses. The petitioner’s mother testified that her son was completely disabled upon discharge from the hospital on May 1, 1986, that he required the use of crutches to walk and that this reliance on crutches continued for more than six weeks after the injury. His sister testified that the petitioner had a broken arm and foot and massive scrapes over his body. No medical witness was called to testify as to the injuries suffered by the petitioner and the probable effect on his ability to engage in the kind of activities that had been described by the state’s principal witness.

The petitioner had supplied to his attorney, a special public defender, the name of his orthopedic surgeon, Victor Panitch of Holyoke, Massachusetts, as well as the name of the hospital where he had been confined for the three days following the injury. The attorney obtained a copy of the hospital discharge summary and a letter from Panitch.

The petitioner’s trial counsel, in his opening remarks to the jury panel, announced that the petitioner would call Panitch to testify in his behalf. The theory of defense was that the petitioner did not commit the crimes with which he stood charged and that his physical condition at the time of the crimes made it highly unlikely that he could have been involved in the commission of the burglary as described by the state’s principal witness.

Despite his representation that the petitioner would call Panitch as a witness, no steps were taken to issue a subpoena to compel the surgeon’s attendance to testify, nor did he properly subpoena the hospital record. Consequently, the hospital record was never offered into evidence.

At the completion of the state’s case-in-chief, the petitioner offered the testimony of his mother and his sister in support of his claims of disability arising out of the injuries he suffered. At the completion of the testimony by the petitioner’s sister, counsel advised the trial court that his investigator had contacted Panitch’s office to determine the surgeon’s availability. Counsel reported that he had been advised that Panitch was in his last surgery. The special public defender requested a brief recess “so we can get to the doctor’s office and find out if he is able to get here today or not.” The court took a recess at 2:35 p.m. as requested and court reconvened at 3:27 p.m. In response to the trial court’s inquiry as to whether there were any preliminaries before the jury was brought in, the petitioner’s attorney said no. The jury was brought back into the courtroom and the following colloquy occurred:

“[The Court]: All right, [counsel], do you have any further evidence to present?

“[Special Public Defender]: No, Your Honor. Although we did tell the jury in the beginning we were going to call Dr. Panitch, he is in emergency surgery and will not be able to testify. And therefore the defense now rests.”

The trial court then continued the case until the following morning so that arguments and the trial court’s charge to the jury could take place as a unit. The case was committed to the jury at 2:51 p.m. following the court’s charge and the jury returned at 4:06 p.m. with verdicts of guilty as charged as to both counts. The petitioner was convicted of burglary in the second degree in violation of General Statutes § 53a-102, and larceny in the second degree in violation of General Statutes § 53a-123 (a) (2).

At the habeas proceeding, the court heard the testimony of Panitch and the petitioner, and of attorney Thomas R. Gerarde, who was experienced as a special public defender and who was the petitioner’s expert witness. Panitch testified that it would have been very difficult for the petitioner to have carried the computer equipment because of his extensive injuries. He also testified that he had never spoken directly with counsel about the testimony he would offer as to the extent and effect of the injuries. During the course of Panitch’s testimony, the court had the opportunity to observe his demeanor, appearance, and ability to relate and communicate facts, and found that he made an excellent witness.

The habeas court noted that during the trial the petitioner’s counsel had told the jury in his opening argument that he would call Panitch. Counsel later decided not to call the surgeon to testify because he was in emergency surgery. At that point, the defense rested its case. While the petitioner’s counsel stated that he concluded that that the surgeon would be a reluctant witness and that he perceived differences between the surgeon’s letter and the discharge summary, the habeas court could not find any reasonable basis for the attorney’s conclusions. The special public defender had stated that he believed a subpoena was not necessary because the surgeon was a friendly witness, but later termed him to be reluctant. He also failed to discuss with Panitch any of the differences between the discharge summary and the letter.

Gerarde testified that the petitioner’s attorney’s conduct at trial fell below an objective standard of reasonableness. In his opinion, a reasonable attorney would have called the surgeon to testify to support the petitioner’s defense that it would have been extremely difficult and unlikely that the petitioner committed the crimes charged. He testified that, without the surgeon’s testimony, the petitioner was essentially left with no defense to the crimes charged. He also noted that counsel’s conduct fell below the standard of care because he failed to subpoena the surgeon and risked his not testifying. In his expert opinion, had petitioner’s counsel not deviated from the objective standard of care and had the surgeon testify, it was reasonably probable that the outcome of the trial would have been different.

The state has failed to demonstrate that the habeas court’s factual findings are clearly erroneous. The habeas court, as the fact finder, determines the credibility and effect to be given to the testimony before it. See State v. Rivera, 30 Conn. App. 224, 231, 619 A.2d 1146 (1993). A review of the entire record reveals that the habeas court’s factual findings are not clearly erroneous.

On the basis of these findings, the habeas court could have reasonably concluded that the petitioner was denied his constitutional right to effective assistance of counsel. After examining the testimony as to the extent of the petitioner’s injuries, the habeas court could have logically concluded that the testimony would have provided the petitioner’s claims with credibility, casting significant doubts on the state’s case. In light of this, we agree with the habeas court’s finding, supported by the evidence, that counsel’s failure to call the surgeon was not a strategic or tactical decision. His alleged strategy left the petitioner without a key witness and a viable defense. See Summerville v. Warden, supra, 171-72, and cases cited therein. The petitioner’s trial counsel’s performance was thus deficient.

The habeas court could have logically and reasonably concluded that the petitioner was prejudiced by the deficient performance of his trial counsel. Had the surgeon testified, there was a reasonable possibility that the result of the proceeding would have been different. The petitioner’s counsel’s errors in his representation of the petitioner at trial were so serious as to deprive the petitioner of a fair trial, a trial the result of which is reliable. The petitioner was left without a neutral credible witness who could refute the state’s allegations against him. The petitioner’s trial counsel’s assistance was ineffective, depriving him of his constitutional right.

The judgment is affirmed.

In this opinion the other judges concurred.

       The sixth amendment to the United States constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

       The fourteenth amendment to the United States constitution provides in pertinent part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, the accused shall have the right to be heard by himself and by counsel . . . .”

       Our Supreme Court adopted the two-pronged analysis of Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to determine if a counsel’s assistance was ineffective. Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992); Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990).

       We note that while the respondent’s brief states that at the time of the petitioner’s criminal prosecution the special public defender had “handled over a thousand criminal cases,” an examination of the transcript of the testimony in the habeas proceeding indicates that the petitioner’s criminal trial represented counsel’s first criminal jury trial.

       The discharge summary was an exhibit at the habeas trial and provides:
      “PATIENT NAME: SIANO, JAMES
      ROOM: HOSPITAL: 43-16-30
      ATTENDING PHYSICIAN: V. PANITCH, M.D.
      TYPE OF REPORT: DIS. SUM.
      ADMITTED: 4/28/66 [sic]
      DISCHARGED: 5/1/86
      Mr. Siano was admitted to the hospital after falling from a dirt bike sustaining severe abrasions over multiple areas of his body, displaced fracture of the left distal radius and a fractured right metatarsal head.
      COURSE IN THE HOSPITAL: The patient shortly after admission was taken to the operating room where his wounds were scrubbed, his fracture reduced and held with pins and plaster. The patient’s postoperative course was marked by a great deal of pain but otherwise was uncomplicated. At the time of discharge the patient was managing well with one crutch. Neurologic function and range of motion of the left hand was good. The patient will be followed as an out patient.
      DISCHARGE DIAGNOSIS: DISPLACED FRACTURE LEFT DISTAL
      RADIUS.
      FRACTURED RIGHT METATARSAL
      HEAD.
      MULTIPLE ABRASIONS.
      SIGNED_M.D.
      V. PANITCH, M.D. . . .”

        The text of the Paniteh letter is as follows:
      “August 18, 1986
      “Dear Sirs:
      “Re: James Siano
      “This is to confirm that James Siano sustained a severe fracture of the left wrist and was immobilized with that hand in a cast making its use quite limited.
      “In addition, the patient sustained a fracture of one of the bones in his foot making it quite difficult for him to be very agile on his feet for a good six weeks from the time of his injury.
      “Prolonged standing or running would be very difficult.
      “Yours truly,
      s/Victor Panitch
      Victor Panitch, M.D.”

       See General Statutes § 54-82Í (c).

       The special public defender testified that he intended “to present Mr. Siano’s medical records under the provisions of the Practice Book which would allow medical records to be presented in a way where they’re self-authenticating if they are accompanied with the correct documents from the institution. [He] made a request to Providence Hospital to send them to court in the correct form and, in fact, drafted a form letter for them to sign off on. They apparently discarded that or otherwise ignored that, stuffed them in an envelope and sent them to the clerk. So that when they arrived they were not in the correct form to have them introduced as self-authenticating documents. . . . [His] judgment at that point in time was that in the form they were in they were inadmissible.” Our examination of the rules of practice fails to disclose exactly what rule the special public defender was referring to in his testimony. See General Statutes §§ 52-180, 52-180a, and 4-104.

       On December 22,1987, the trial court sentenced the petitioner to seven years in the custody of the commissioner of correction on each count, the sentences, however, to be served concurrently with each other, but consecutively to a sentence of eighteen to twenty years then being served by the petitioner in Massachusetts. The petitioner appealed to this court, and we affirmed the judgment of the trial court. State v. Siano, 20 Conn. App. 369, 567 A.2d 1231 (1989). On petition for certification, the petitioner was permitted to appeal from this court to our Supreme Court, and our judgment was affirmed by that court. State v. Siano, 216 Conn. 273, 579 A.2d 79 (1990).

       One of the reasons alleged for the surgeon’s reluctance to testify was an unpaid medical bill.

       The habeas court noted that without Panitch’s testimony, the jury was left wondering about the true extent of the petitioner’s injuries.


author: Dupont, C. J.

text:
    Vincent T. McManus, Jr., et al. v. Commissioner of Environmental Protection
    (11343)
    Dupont, C. J., Heiman and Freedman, Js.

      Argued January 12
    decision released April 27, 1993

      Patrick M. Noonan, for the appellants (plaintiffs).

      Patricia A. Horgan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Joseph Rubin and Robert B. Teitel-man, assistant attorneys general, for the appellee (defendant).
   Dupont, C. J.

The plaintiffs appeal from a judgment of the trial court upholding an order of the commissioner of the department of environmental protection (DEP). The order required the plaintiffs to remove fill that had been placed around a farm pond that had been excavated on wetlands on their property and to restore the wetlands surrounding the pond. The dispositive issue on appeal is one that has not been resolved by our appellate courts. It is whether the DEP could properly issue an administrative order under General Statutes § 22a-44 (a) three years after having originally brought a civil action pursuant to General Statutes § 22a-44 (b), which action was still pending at the time of the order. We hold that the DEP cannot.

The following facts are undisputed by the parties. In April, 1985, the named plaintiff contacted the DEP about excavating for a farm pond on his property. A DEP environmental analyst made a preliminary on-site determination that the proposed farm pond was not likely to have a significant adverse impact and was “no big deal.” In September, 1985, the DEP informed the plaintiffs that their proposed farm pond could be excavated without a permit and that they were entitled to an exemption under General Statutes § 22a-40 (a) (1), but creation of a “pasture or other fast land in wetlands adjacent to the pond [was] not exempt.” Shortly thereafter, the plaintiffs filed an application for a permit, which they withdrew on November 6, 1985.

In the spring of 1987, the plaintiffs excavated a farm pond on their property without a permit from the DEP. On May 4, 1987, the DEP filed a civil action pursuant to General Statutes § 22a-44 (b) against the plaintiffs seeking the removal of the fill from the wetlands adjacent to the farm pond, the restoration of the wetlands to their prior condition and the payment of a civil penalty and various other costs. On March 6, 1990, the DEP issued an administrative order directing the same remedy as was sought in the civil claim, except for the penalty and costs. Two days later, after almost three years of extensive pleadings, motions and depositions, the DEP withdrew its civil claim against the plaintiffs, leaving its administrative order extant.

Pursuant to General Statutes § 22a-43, the plaintiffs appealed from the administrative order. After a hearing was held, a DEP administrative hearing officer issued a “Final Decision and Order” that upheld the administrative order. The plaintiffs then appealed to the Superior Court, which upheld the decision of the DEP administrative hearing officer. This appeal followed.

The dispositive issue here revolves around the relationship and interaction between subsections (a) and (b) of General Statutes § 22a-44. The plaintiffs claim that because the defendant originally brought a civil action against the plaintiffs pursuant to § 22a-44 (b), litigated it for three years and then withdrew it, the defendant could not then issue an administrative order pursuant to § 22a-44 (a). The plaintiffs contend that allowing the DEP, after three years of litigation, to effect the same remedy by administrative order as was sought in the civil action is highly inequitable and oppressive. The DEP, however, claims that the subsections allow alternative remedies, are not exclusive, and the use of one does not bar the use or substitution of the other.

General Statutes § 22a-44 provides two different statutory remedies for dealing with a violation of General Statutes §§ 22a-36 through 22a-45, the Inland Wetlands and Watercourses Act. Conservation Commission v. Price, 193 Conn. 414, 421, 479 A.2d 187 (1984). Subsection (a) allows an inland wetlands agency or its agent to issue orders directing a violator of the act “to cease immediately such activity or to correct such [violations].” Subsection (b) provides for the assessment of a civil penalty for violations of the act and gives the Superior Court jurisdiction “to restrain a continuing violation ... to issue orders directing that the violation be corrected or removed and to assess civil penalties . . . .” Subsection (b) also provides for the awarding of all costs, fees and expenses in connection with such action, including reasonable attorney’s fees.

“ ‘[T]he construction and interpretation of a statute is a question of law for the courts . . . particularly where . . . the statute has not previously been subjected to judicial scrutiny or time-tested agency interpretations.’ ” Jutkowitz v. Department of Health Services, 220 Conn. 86, 106, 596 A.2d 374 (1991); New Haven v. Freedom of Information Commission, 205 Conn. 767, 773-74, 535 A.2d 1297 (1988). In construing a statute, our objective is to ascertain and give effect to the apparent intent of the legislature. Rose v. Freedom of Information Commission, 221 Conn. 217, 225, 602 A.2d 1019 (1992); Cummings v. Twin Mfg., Inc., 29 Conn. App. 249, 254, 614 A.2d 857 (1992). We approach this objective by first looking to the language of the statute. United Illuminating Co. v. Groppo, 220 Conn. 749, 756, 601 A.2d 1005 (1992); Cummings v. Twin Mfg., Inc., supra. If the language of the statute is clear and unambiguous, we need not go any further. Rose v. Freedom of Information Commission, supra; Cummings v. Twin Mfg., Inc., supra. “[N]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . .’’(Citations omitted; internal quotation marks omitted.) Peck v. Jacquemin, 196 Conn. 53, 66, 491 A.2d 1043 (1985).

Subsection (a) specifically states that “[t]he issuance of an order pursuant to this section shall not delay or bar an action pursuant to subsection (b) of this section.” It is clear from this language that the appropriate inland wetlands agency can issue an order under (a) and also pursue a civil penalty and a court order for noncompliance with an administrative order under subsection (b) either simultaneously or at a later date. Subsection (b), however, does not include similar language. If the legislature had intended that administrative actions brought under subsection (a) are not barred or delayed by a prior action brought under subsection (b), it would have included the language found in subsection (a) in subsection (b). See Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 726, 563 A.2d 1339 (1989).

When a statute is silent as to whether it covers a particular situation, and there is another statute on the same subject that is not silent, a court cannot add the missing provision to the statute that does not address the situation. See Glastonbury Co. v. Gillies, 209 Conn. 175, 180-81, 550 A.2d 8 (1988); State v. Kreminski, 178 Conn. 145, 154, 422 A.2d 294 (1979). Although no prior appellate court has interpreted the subsections involved in this case, we are unaware of any Connecticut case in which the authorized agency or the DEP brought a civil action pursuant to § 22a-44 (b) and subsequently sought an order pursuant to subsection (a). In the cases of Conservation Commission v. Price, 193 Conn. 414, 479 A.2d 187 (1984), Ruotolo v. Inland Wetlands Agency, 18 Conn. App. 440, 558 A.2d 1021, cert. denied, 212 Conn. 806, 563 A.2d 1356 (1989), and Conservation Commission v. Price, 5 Conn. App. 70, 496 A.2d 982 (1985), administrative orders were issued prior to court actions. See also Inland Wetlands & Watercourses Agency v. Landmark Investment Group, Inc., 218 Conn. 703, 590 A.2d 968 (1991); Miller v. Conservation Commission, 27 Conn. App. 590, 607 A.2d 1159 (1992).

In the present case, the DEP originally brought a civil action against the plaintiff, Patricia McManus, requesting in its prayer for relief an injunction requiring the removal of the materials spread on the wetlands and watercourses area adjacent to the farm pond, assessment of a civil penalty of $1000 per day for each day the materials remained adjacent to the farm pond, and costs, fees, expenses and reasonable attorney’s fees of the DEP. In the administrative order, the DEP similarly requested that the plaintiffs remove “all unauthorized fill placed in inland wetlands and/or watercourses [adjacent to the farm pond] . . . and to restore the inland wetlands and watercourse.” Other than the request for monetary costs, which can be sought only through subsection (b), the prayer for relief in the complaint and the action directed in the administrative order are virtually identical.

The last paragraph of the administrative order that underlies this appeal would allow the DEP to pursue an injunction and penalties pursuant to subsection (b) if the plaintiffs do not comply with the order. The DEP should not be allowed initially to bring an action pursuant to subsection (b), and then to issue an order under subsection (a), and thereafter to withdraw the action brought under subsection (b), only to set the stage to pursue the same civil action again. The plaintiffs should not have to expend time and money to litigate the same issue originally brought by the DEP in 1987 and withdrawn three years later. The administrative order does not provide the DEP with a greater remedy than the DEP would have had under the civil remedy originally sought.

Even if it is assumed that the legislative silence of subsection (b) renders the subsection ambiguous, and therefore requires a review of the legislative history of subsection (b), and implicitly subsection (a); see Glastonbury Co. v. Gillies, supra, 182; see also Rose v. Freedom of Information Commission, supra, 227; United Illuminating Co. v. Groppo, supra, 755-56; that history does not support the defendant’s position. A review of the legislative history of this section of the act reveals that when the act was passed, subsection (b) was the only enforcement provision in it. The commissioner was required to bring a civil action in order to issue injunctions and orders and to assess penalties. Three years later, subsection (a) was added to allow the DEP to issue and enforce orders without having to resort to the courts. Thus, if the DEP did not want to assess a civil penalty, it could choose to issue an administrative order pursuant to subsection (a). If, however, the DEP wanted to assess a civil penalty, as well as to obtain an injunction, it would have to use the courts. The remedies available in subsection (b) include the same remedies available in subsection (a) plus the ability to assess a civil penalty and costs. Subsection (a) is, therefore, a quicker but more limited remedy than subsection (b). Accordingly, it is logical that subsection (b) could be used following or simultaneously with subsection (a), and it is for this reason that subsection (a) specifically allows a civil action to be brought after the issuance of an order.

When the legislature amended the act to include subsection (a), they could easily have amended subsection (b) to provide that an action pursuant to it would not delay or bar an order pursuant to subsection (a). They pointedly did not. We conclude, as a matter of law, that the DEP could not properly issue an administrative order under § 22a-44 (a), having three years earlier elected to bring a § 22a-44 (b) civil action against the plaintiffs.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs’ appeal.

In this opinion the other judges concurred.

       The plaintiffs are Vincent T. McManus and Patricia McManus, Ms wife.

       In view of our holding, we need not reach the issue of whether General Statutes § 22a-40 (a) (1), which exempts from “regulated activities” in § 22a-38 (13) certain farm ponds, also exempts the deposition of the spoils derived from the excavation of such farm pond. After the creation of the farm pond at issue in this case the statute was amended, making it unlikely that this issue will need to be resolved in other cases.

       The plaintiffs were notified about the administrative order on March 12, 1990.

       General Statutes § 22a-44 (a) provides: “If the inland wetlands agency or its duly authorized agent finds that any person is conducting or maintaining any activity, facility or condition which is in violation of sections 22a-36 to 22a-45, inclusive, or of the regulations of the inland wetlands agency, the agency or its duly authorized agent may issue a written order by certified mail, to such person conducting such activity or maintaining such facility or condition to cease immediately such activity or to correct such facility or condition. Within ten days of the issuance of such order the agency shall hold a hearing to provide the person an opportunity to be heard and show cause why the order should not remain in effect. The agency shall consider the facts presented at the hearing and within ten days of the completion of the hearing notify the person by certified mail that the original order remains in effect, that a revised order is in effect, or that the order has been withdrawn. The original order shall be effective upon issuance and shall remain in effect until the agency affirms, revises or withdraws the order. The issuance of an order pursuant to this section shall not delay or bar an action pursuant to subsection (b) of this section. The commissioner may issue orders pursuant to sections 22a-6 to 22a-7, inclusive, concerning an activity, facility or condition which is in violation of said sections 22a-36 to 22a-45, inclusive, if the municipality in which such activity, facility or condition is located has failed to enforce its inland wetlands regulations.”
      Subsection (b) provides: “Any person who commits, takes part in, or assists in any violation of any provision of sections 22a-36 to 22a-45, inclusive, including regulations adopted by the commissioner and ordinances and regulations promulgated by municipalities or districts pursuant to the grant of authority herein contained, shall be assessed a civil penalty of not more than one thousand dollars for each offense. Each violation of said sections shall be a separate and distinct offense, and, in the case of a continuing violation, each day’s continuance thereof shall be deemed to be a separate and distinct offense. The superior court, in an action brought by the commissioner, municipality, district or any person, shall have jurisdiction to restrain a continuing violation of said sections, to issue orders directing that the violation be corrected or removed and to assess civil penalties pursuant to this section. All costs, fees and expenses in connection with such action shall be assessed as damages against the violator together with reasonable attorney’s fees which may be allowed, all of which shall be awarded to the commissioner, municipality, district or person which brought such action. The moneys collected pursuant to this section shall be used by the commissioner of environmental protection, to restore the affected wetlands or watercourses to their condition prior to the violation, wherever possible.”

       On July 1,1988, jurisdiction over inland wetlands and watercourses was transferred from the DEP to the local municipalities. The DEP was allowed to retain jurisdiction over enforcement activities currently underway.


author: Daly, J.

text:
    Caridad Sierra v. David Lozada
    (11499)
    Daly, Lavery and Schaller, Js.
    Argued February 22
    decision released April 27, 1993

      Louis Kiefer, for the appellant (defendant).

      Rochelle Homelson, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (state).
   Daly, J.

The defendant father, David Lozada, appeals from the trial court’s decision to dismiss his cross complaint for lack of subject matter jurisdiction. This matter arises from an application for a show cause order relating to a support judgment under General Statutes § 46b-172 (b). The state of Connecticut brought the action in the plaintiffs name to establish support payments for two boys for whom the defendant executed an acknowledgment of paternity on August 13,1991. The plaintiff mother, Caridad Sierra, affirmed the defendant’s paternity of her two sons. The state filed the plaintiff’s affirmation of paternity and the defendant’s acknowledgment of paternity with the family support magistrate division of the Superior Court on August 16, 1991. There was no agreement to support the children filed with these documents.

The state applied to the family support magistrate division of the Superior Court on October 28,1991, for an order pursuant to § 46b-l 72 (b) directing the defendant to show cause why a child support judgment should not be entered against him. Because the plaintiff and her sons were receiving benefits under the Aid to Families with Dependent Children (AFDC) program, this matter fell within the definition of a IV-D support case under General Statutes § 46b-231 (b) (15). The order to show cause was issued by the family support magistrate. The application, however, was never decided by the magistrate.

On February 24,1992, the defendant filed an appearance, a cross complaint without an order and summons, and a motion to transfer the case to the family division of the Superior Court. The cross complaint alleged that the defendant was denied suitable access to his children. He requested relief in the form of an award of joint custody and meaningful visitation. The plaintiff filed a pro se appearance with the court on March 23,1992. The family support magistrate granted the defendant’s motion to transfer the case to the family division of the Superior Court and notice of this order was issued on April 13, 1992. The state had unsuccessfully argued before the family support magistrate that the application for show cause could not properly be transferred to the Superior Court because General Statutes §§ 46b-172 (b) and 46b-231 (m) (2) conferred mandatory jurisdiction on the family support magistrate division to hear IV-D support motions, such as the one in the present case.

The state then moved to dismiss the cross complaint pursuant to Practice Book § 142, arguing that the Superior Court lacked subject matter jurisdiction to hear the issues raised in the cross complaint involving custody and visitation because the cross complaint was brought in response to the application for a show cause order in a IV-D support case, and only the family support magistrate had jurisdiction to hear IV-D support cases. General Statutes §§ 46b-172 and 46b-231 (b) (15). The defendant claimed that the dismissal of his cross complaint would require him to file a separate action, which he argued would be unnecessarily duplicative and expensive. The motion to dismiss the cross complaint was granted on May 18, 1992. On June 9, 1992, the defendant’s motion to reargue was granted, but the court did not change its decision to dismiss the cross complaint. The defendant claims on appeal that the motion to dismiss was improvidently granted. We disagree.

“The Connecticut Family Support Magistrate’s Act, General Statutes §§ 46b-231 through 46b-235, was first enacted in 1986 in response to federal legislation providing federal funds for states that complied with federal requirements for the expeditious enforcement of child support orders in cases arising under Title IY-D. See Public Acts 1986, No. 86-359; ‘Child Support Enforcement Amendments of 1984,’ Pub. L. No. 98-378, 98 Stat. 1305 (1984), now codified in various sections of 42 U.S.C. §§ 651 through 675.” Perry v. Perry, 222 Conn. 799, 806, 611 A.2d 400 (1992). The enactment of § 46b-231 (d) created “ ‘the family support magistrate division of the superior court for the purpose of the impartial administration of child and spousal support.’ ” Perry v. Perry, supra, 807. This legislation was enacted to address the legislature’s “concern for the timely and effective collection of support payments arising out of child and spousal support rights under Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq.” Perry v. Perry, supra, 806.

The present case is a IV-D support case. Thus, an assignment of support rights became effective upon operation of state law when the plaintiff signed her application for public assistance. General Statutes § 17-82b. The allegations and claims for relief set out in the cross complaint exceed the scope of the action initiated under General Statutes § 46b-172 (b). Section 46-172 (b) specifically limits an action under that section to support and arrearage payment orders and to providing for past due support. Custody and visitation issues are not involved in actions brought under this provision, but would properly fall within the ambit of an action brought pursuant to General Statutes § 46b-61.

The issue before us is analogous to the issue before our Supreme Court in Atlantic Refining Co. v. O’Keefe, 131 Conn. 528, 41 A.2d 109 (1945). There our Supreme Court found that the defendant could not interpose a counterclaim in a summary process action to secure the transfer of the action from the jurisdiction of the justice of the peace, who could not hear the counterclaim, to the Superior Court. Our Supreme Court concluded that where a cause of action is strictly defined by statute, a party cannot interpose a counterclaim in order to secure a transfer of the action to another court division. Id.

The application for a show cause order in the present IV-D case is likewise a special proceeding assigned to a particular judicial division for hearing and adjudication according to state statute. General Statutes § 46b-231 (m) (2); see 45 C.F.R. 303.101. The allegations in the cross complaint exceeded the scope of the application for a show cause order under General Statutes § 46b-172 (b). General Statutes § 46b-231 (m) (8) provides that a family support magistrate may receive and review written agreements between the parties to a IV-D support case on issues of custody and visitation. The family support magistrate does not have jurisdiction to decide contested claims. The family support magistrate division, therefore, has no authority over the issues presented in the cross complaint because no written agreement is involved here. Thus, the trial court properly refused to expand §§ 46b-172 and 46b-231 beyond their mandates because such an expansion of the jurisdiction of the family support magistrate would cause chaos at both the family support magistrate division and the family division of the Superior Court.

Finally, we note that the defendant is not left without recourse since he can initiate an action in the Superior Court. Section 46b-61 provides for custody and support actions that may be brought when the parents live separately. Such an action may address custody and visitation issues.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-172 (b) provides in pertinent part: “fU]pon the application of any interested party, the court or any judge thereof or any family support magistrate in IV-D support cases shall cause a summons . . . to be issued, requiring the putative father to appear in court at a time and place named therein, to show cause, if any he has, why the court or the family support magistrate assigned to the judicial district in IV-D support cases should not enter judgment for support of the child . . .

       General Statutes § 46b-231 (b) (15) defines IV-D support cases as “actions for child and spousal support under Title IV-D of the Social' Security Act and include cases in which support rights have been assigned to the state in AFDC cases and in foster care cases or cases in which a person has applied to the support enforcement division of the superior court for child-support enforcement services.”

       General Statutes § 46b-231 (m) sets forth the powers of the family support magistrate. General Statutes 46b-231 (m) (2) provides in pertinent part: “Family support magistrates shall hear and determine matters involving child and spousal support in IV-D support cases including petitions for support brought pursuant to sections 17-82e, 17-324,17-578 and 46b-215; applications for show cause orders in IV-D support cases brought pursuant to subsection (b) of section 46b-172, and actions for interstate enforcement of child and spousal support under sections 46b-180 to 46b-211, inclusive, and shall hear and determine all motions for modifications of child and spousal support in such cases. . . .”

       General Statues § 17-82b provides in pertinent part that by an application for public assistance, “the applicant shall assign to the commissioner the right of support, present, past and future, due all persons seeking assistance and shall assist the commissioner in pursuing support obligations due from the absent parent. Notice of such assignment shall be conspicuously placed on said application and shall be explained to the applicant at the time of application. . . .”

       General Statutes § 46b-61 provides: “In all cases in which the parents of a minor child live separately, the superior court for the judicial district where the parties or one of them resides may, on the complaint of either party and after notice given to the other, make any order as to the custody, care, education, visitation and support of any minor child of the parties, subject to the provisions of sections 46b-54, 46b-56, 46b-57 and 46b-66.”

       Summary process actions are no longer decided by justices of the peace in the “justice courts.” Our legislature abolished the justice courts; Public Acts 1959, No. 28, §§ 130, 204; and created the housing docket of the Superior Court in 1978. Public Acts 1978, No. 78-365. Thus, the basis for the rule that counterclaims could not properly be brought in summary process actions is no longer in existence. See Fellows v. Martin, 217 Conn. 57, 60-63, 584 A.2d 458 (1991); Southland Corporation v. Vernon, 1 Conn. App. 439, 445-51, 473 A.2d 318 (1984). The justification for the rule under the former system involving justice courts remains persuasive nevertheless.

       General Statutes § 46b-231 (m) (8) provides in pertinent part: “Agreements between parties as to custody and visitation of minor children in IV-D support cases may be filed with the assistant clerk of the family support magistrate division. Such agreements shall be reviewed by a family support magistrate, who shall approve the agreement unless he finds such agreement is not in the best interests of the child. . . .”