author: PETERS, J.

text:
    STEVEN CRAIG v. STAFFORD CONSTRUCTION, INC., ET AL.
    (AC 23197)
    Schaller, McLachlan and Peters, Js.
    Argued May 27
    officially released August 5, 2003

      Neil Johnson, for the appellant (plaintiff).

      Ralph W. Johnson III, with whom were Kevin J. Greene and, on the brief, John B. Farley, for the appellees (named defendant et al.).
   Opinion

PETERS, J.

Statements made in preparation for or during a quasi-judicial proceeding are, as a matter of public policy, entitled to absolute immunity from liability. Kelley v. Bonney, 221 Conn. 549, 565-66, 606 A.2d 693 (1992). The issue in this case, an issue of first impression, is whether an internal affairs investigation conducted by the Hartford police department is a quasi-judicial proceeding so that statements made in the course of such a proceeding are entitled to an absolute privilege. The internal affairs investigation resulted from a citizen complaint of racial bias on the part of a police officer. In this defamation action by the police officer, the trial court held that the internal affairs investigation was a quasi-judicial proceeding and that the defendants, who had filed the citizen complaint, were entitled to absolute immunity from liability. We agree and affirm the trial court’s summary judgment in favor of the defendants.

The plaintiff, Steven Craig, a police officer with the Hartford police department, brought a defamation action against the individual defendants, Eugene Ramistella and Miguel Aceves, as well as their employer, Stafford Construction, Inc. (Stafford). In his second amended complaint, filed September I, 1999, the plaintiff alleged that, in a citizen complaint against him, the defendants knowingly and falsely had accused him of having made derogatory racial comments. The plaintiff further alleged that, as a result of these allegedly false statements, he had suffered emotional harm and loss of respect and had been turned down for several requested promotions.

The defendants denied the allegations of the plaintiff and asserted, as a special defense, that Ramistella’s statements were not actionable because of the doctrine of absolute immunity. Ramistella’s immunity, they alleged, arose out of the fact that the statements of which the plaintiff complained had been made in the course of an investigation conducted by the internal affairs division of the Hartford police department. The defendants claimed that the investigation was a quasi-judicial proceeding.

On January 3, 2002, the defendants moved for summary judgment on the basis of their claim of absolute immunity. On June 5,2002, the court granted the motion and rendered judgment in their favor. The plaintiff has appealed.

In his appeal to this court, the plaintiff claims that the trial court improperly concluded that Ramistella’s statements were protected by the doctrine of absolute immunity. He does not challenge the doctrine itself but claims that an internal affairs investigation conducted by the Hartford police department is not a quasi-judicial proceeding. Furthermore, according to the plaintiff, there is no sound public policy reason for allowing an individual to file a maliciously false citizen complaint against a police officer. The defendants ask us to affirm the court’s judgment in all respects.

The standard of review governing the plaintiffs appeal is well established. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.” (Internal quotation marks omitted.) Torringford Farms Assn., Inc. v. Torrington, 75 Conn. App. 570, 573, 816 A.2d 736, cert. denied, 263 Conn. 924, 823 A.2d 1217 (2003).

The trial court began its discussion of this case by reciting the relevant facts which, for present purposes, are undisputed. On March 17, 1997, the plaintiff accepted a private duty job offered by Stafford at a construction site at 1700 Main Street in Hartford. Ramistella was employed by Stafford and was working on the construction site that day. During a coffee break, the plaintiff made allegedly derogatory racial comments regarding the purpose of the construction project.

On April 14, 1997, Ramistella filed a citizen complaint with the internal affairs division. The internal affairs division conducted an investigation and formally charged the plaintiff with “conduct unbecoming of a police officer.” Dining the investigatory process, Ramistella made a false statement regarding the March 17, 1997 incident. A hearing was held on June 16, 1998, at which Ramistella withdrew his complaint. Several months later, the plaintiff was found not guilty.

The court then considered the applicable law. It began by noting that, in Pelyan v. Ellis, 200 Conn. 243, 246, 510 A.2d 1337 (1986), our Supreme Court held that “an absolute privilege . . . attaches to relevant statements made during administrative proceedings which are quasi-judicial in nature.” (Internal quotation marks omitted.) The court turned next to Kelley v. Bonney, supra, 221 Conn. 567, for a description of the defining features of a quasi-judicial proceeding. Applying the Kelley criteria, the court concluded that the internal affairs investigatoiy process in this case was a quasi-judicial proceeding so that Ramistella’s statements were absolutely privileged, and the plaintiff could not prevail in his defamation action.

Whether the internal affairs investigation conducted by the Hartford police department constitutes a quasi-judicial proceeding is a question of law for the court. See Preston v. O’Rourke, 74 Conn. App. 301, 309, 811 A.2d 753 (2002). We agree with the trial court’s resolution of that question.

“The effect of an absolute privilege in a defamation action is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously. . . . [L]ike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are quasi-judicial in nature. . . . Once it is determined that a proceeding is quasi-judicial in nature, the absolute privilege that is granted to statements made in furtherance of it extends to every step of the proceeding until final disposition. . . .

“The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. It includes for example, lunacy, bankruptcy, or naturalization proceedings, and an election contest. It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character.” (Citations omitted; internal quotation marks omitted.) Kelley v. Bonney, supra, 221 Conn. 565-66.

“[I]n determining whether a proceeding is quasi-judicial . . . our review is not limited to the label of the proceeding, but includes a review of the proceeding itself. The principal factors to be considered are whether the body has the power to: (1) exercise judgment and discretion; (2) hear and determine or to ascertain facts and decide; (3) make binding orders and judgments; (4) affect the personal or property rights of private persons; (5) examine witnesses and hear the litigation of the issues on a hearing; and (6) enforce decisions or impose penalties. . . . Further, quasi-judicial is defined as the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature.” (Internal quotation marks omitted.) Preston v. O’Rourke, supra, 74 Conn. App. 309-10; see also Kelley v. Bonney, supra, 221 Conn. 567.

Our inquiry into whether a proceeding is quasi-judicial is not limited to an operational analysis of the proceeding to determine whether it falls within the exact contours of prior cases. A proceeding may be characterized as quasi-judicial in nature even if it does not manifest all of the relevant factors that our case law has identified. Preston v. O’Rourke, supra, 74 Conn. App. 312. Furthermore, we must also inquire “whether there is a sound public policy reason for permitting the complete freedom of expression that a grant of absolute immunity provides.” Kelley v. Bonney, supra, 221 Conn. 567.

I

The trial court concluded that a Hartford police department’s internal affairs investigation is a quasi-judicial proceeding by considering the internal affairs process in its entirety, as Kelley requires. See id., 566. The internal affairs process commences when a citizen complaint is submitted, preferably in written form and notarized. The complaint is then forwarded to the internal affairs division for a determination of whether it requires an investigation or may be resolved by the officer’s immediate supervisor.

If an investigation is warranted, the internal affairs investigator may conduct interviews, obtain sworn statements and record witnesses. Additionally, the investigator may require the accused officer to submit a report about the incident.

After the investigator completes his or her report, the report is then subjected to command review with a recommendation about the proper course of action. The report is first reviewed by the division commander (lieutenant or above) and then by the bureau commander (captain or above). The report is then transferred to the office of the department advocate, who represents the chief of police. The advocate reviews the report and consults with the chief of police.

The chief of police determines whether the accused officer should be disciplined or whether a hearing is warranted. The options available to the chief of police include: (1) counseling; (2) oral or written reprimand; (3) expedited hearing that may result in suspension of not less than one day but not more than five days; or (4) a formal hearing that may result in a penalty of not less than six days suspension and potentially termination of employment.

If the chief of police determines that a formal hearing is necessary, the accused officer receives a formal notice. The hearing is presided over by a hearing officer, a member of the police department. During the course of the proceedings, the accused officer may be represented by counsel, subpoenas may be issued to witnesses and witnesses who testify at the hearing must do so under oath and are subject to cross-examination by the accused officer or his attorney. The hearing officer takes notes of the proceedings, which are subsequently typed and serve as the record. Finally, the hearing officer makes factual findings and issues a recommended decision.

The hearing officer’s decision is then transferred to the chief of police, who may accept, reject or modify the decision. Once the chief of police renders a decision, the accused may appeal from the decision first to the Hartford city government (city hall) and then to the state labor board.

This process manifests many of the features of a quasi-judicial proceeding described in Kelley. The internal affairs division exercises judgment and discretion in determining whether an investigation and hearing are warranted, whether to hold an expedited or formal hearing, and whether to issue a penalty. A primary function of the internal affairs process is to investigate and to ascertain facts. The fact that the accused officer may appeal from the decision does not lessen the quasi-judicial nature of the process. See Preston v. O’Rourke, supra, 74 Conn. App. 312.

Accordingly, we disagree with the plaintiffs contention that the internal affairs process lacks sufficient indicia of a quasi-judicial proceeding. The trial court properly ruled to the contrary.

II

In our analysis of the internal affairs process, we must also consider the application of the principle of public policy that underlies absolute immunity. As our Supreme Court observed in Petyan, the policy reason for absolute immunity is that, under defined circumstances such as quasi-judicial proceedings, “the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.” (Internal quotation marks omitted.) Petyan v. Ellis, supra, 200 Conn. 246. This policy reflects the unspoken reality that, if there were no absolute immunity, good faith criticism of governmental misconduct might be deterred by concerns about unwarranted litigation. The doctrine of absolute immunity is thus undergirded by the constitutional protection that we afford to free speech about matters of public concern.

We must decide, therefore, whether the policy of supporting freedom of expression to voice citizen complaints against police officers justifies exposing an officer to the risk of false allegations of racial bias. We recognize that the risk to the police officer is serious. Nonetheless, in our view, the trial court properly con-eluded that the defendants have established their right to absolute immunity.

Two cases heard by our Superior Court have concluded that the need to encourage the filing and investigation of valid complaints against police officers, who are public officials with significant power and authority, outweighs the possible detriment to accused officers subjected to false complaints. See Arigno v. Murzin, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 474102 (February 6, 1998) (21 Conn. L. Rptr. 543); Bieluch, v. Smith, Superior Court, judicial district of Litchfield, Docket No. 56050 (May 26, 1993).

This Connecticut case law is persuasively supported by the reasoning of courts in other states that also have recognized the importance of protecting the rights of citizens to voice complaints against police officers. See, e.g., Gray v. Rodriguez, 481 So. 2d 1298, 1299-1300 (Fla. App. 1986); Minery. Novotny, 304 Md. 164,176-77, 498 A.2d 269 (1985); Lewis v. Benson, 101 Nev. 300, 301, 701 P.2d 751 (1985); Magnus v. Anpatiellos, 130 App. Div. 2d 719, 720, 516 N.Y.S.2d 31 (1987); Campo v. Rega, 79 App. Div. 2d 626, 631, 433 N.Y.S.2d 630 (1980), appeal denied, 52 N.Y.2d 705, 437 N.Y.S.2d 1028, 419 N.E.2d 876 (1981); Putter v. Anderson, 601 S.W.2d 73, 76-77 (Tex. Civ. App. 1980); but see Barge v. Ransom, 30 S.W.3d 889, 892 (Mo. App. 2000); Elder v. Holland, 208 Va. 15, 21-22, 155 S.E.2d 369 (1967). These cases emphasize the need to maintain open channels of communication between citizens and their public officials because such communications are fundamental to our democratic form of government. See Miner v. Novotny, supra, 176; Lewis v. Benson, supra, 301.

The plaintiff argues that, to the contrary, absolute immunity should not extend to a citizen complaint con-tabling maliciously false statements. The plaintiff is correct that, if the doctrine of absolute immunity applies, a statement is immune from liability even if it is made falsely and maliciously. Kelley v. Bonney, supra, 221 Conn. 565.

The plaintiffs argument that the doctrine of absolute immunity should not apply relies principally on McDonald v. Smith, 472 U.S. 479, 105 S. Ct. 2787, 86 L. Ed. 2d 384 (1985), which held that such statements were not entitled to absolute immunity under the petition clause of the first amendment to the United States constitution. Id., 485. We are not persuaded that McDonald controls this case.

In our view, this state may, under its common law and constitutional law, provide greater immunity to citizen complaints than does federal law. The common law of absolute immunity rests on constitutional principles of free speech, which our state constitution recognizes in article first, § 4. True, § 4 requires a citizen to take responsibility for abuse of the right to “freely speak,” but it is the responsibility of Connecticut courts, not federal courts, to decide what constitutes an abuse. Under analogous circumstances, our Supreme Court held, in State v. Marsala, 216 Conn. 150, 167-71, 579 A.2d 58 (1990) (en banc), that search warrants were defective as a matter of state constitutional law, under Article 1, § 7, despite a good faith exception adopted as a matter of federal constitutional law in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). Marsala and State v. Linares, 232 Conn. 345, 380-81, 655 A.2d 737 (1995), make it plain that our free speech jurisprudence under our state constitution is not constrained by federal jurisprudence under the first amendment. See also Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984).

The plaintiff also argues that we should disregard the Superior Court decisions that we have cited, Arigno v. Murzin, supra, Superior Court, Docket No. 474102, and Bieluch v. Smith, supra, Superior Court, Docket No. 56050, because these cases are distinguishable. It is significant, according to the plaintiff, that those cases (1) involved a complaint process governed by state statute and (2) addressed the constitutional doctrine of absolute immunity. We disagree with both arguments.

First, in our view, we cannot see a distinction, for present purposes, between a complaint process against state police officers, which is governed by General Statutes § 29-2, and an internal affairs investigatory process that is authorized by a municipal charter. In both cases, a court must undertake an analysis of the actual operations of a complaint process to determine whether the factors set forth in Kelley have been given proper consideration.

Second, we disagree that the constitutional law of free speech is irrelevant to the common-law doctrine of absolute immunity. The need to protect free speech in order to protect our democratic society is the underlying reason for imposing on persons such as the plaintiff the cost of having to suffer from knowing malicious misrepresentations. The discussion of free speech in the cited Superior Court cases is relevant, appropriate and persuasive.

We conclude, therefore, that the trial court properly held that statements made in the course of an internal affairs investigation against a Hartford police officer are sheltered by the common-law doctrine of absolute immunity from actions of defamation. We come to this conclusion for two reasons. The investigatory process conducted by the Hartford police department manifestly is a quasi-judicial proceeding. The protection of citizen complaints of police misconduct from the threat of defamation actions for statements made during a quasi-judicial proceeding selves the public policy of protecting free speech that furthers the interests of a democratic society.

The judgment is affirmed.

In this opinion the other judges concurred.

       Aceves was a coworker at the construction site and, like Ramistella, alleged that he had heard the plaintiff make a derogatory racial comment. He was defaulted and did not join the remaining defendants’ answer or their motion for summary judgment. He is, therefore, not involved in this appeal. We therefore refer in this opinion to Ramistella and Stafford as the defendants.

       Although the trial court, did not issue a written memorandum of decision, the plaintiff provided this court with a signed transcript of the trial court’s oral decision in compliance with Practice Book § 64-1 (a).

       As with the defendants’ motion for summary judgment before the trial court, the defendants, for the purpose of this appeal, do not challenge the plaintiff’s contention that the statements made regarding the plaintiff were false.

       Ramistella withdrew his complaint because he believed that the March 17, 1997 incident was nothing more than a misunderstanding.

       Although the record does not clarify to what extent the internal affairs division has the power to subpoena individuals, Ramistella and Aceves responded to subpoenas and were present at the hearing.

       This case is therefore distinguishable from our recent decision in Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn. App. 846, 855-57, 825 A.2d 827 (2003), in which no governmental proceeding was ever initiated by the person claiming absolute immunity.

       The constitution of Connecticut, article first, § 4, provides: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”

       Chapter XV of the charter of the city of Hartford vests the chief of police with the authority to promulgate and enforce regulations concerning the operation and conduct of the Hartford police department.

       Because we conclude that the statements made by the defendants are absolutely immune, we need not address the plaintiffs arguments regarding the doctrine of qualified immunity.


source: Caselaw Access Project

license: Public Domain

text:
    COLLINS GROUP, INC., ET AL. v. ZONING BOARD OF APPEALS OF THE CITY OF NEW HAVEN ET AL.
    (AC 23487)
    Schaller, Flynn and Peters, Js.

      Argued June 3
    officially released August 5, 2003

      David S. Hoopes, for the appellants (plaintiffs).

      Philip R. Pastore III, for the appellees (defendants).

      Marjorie Shansky, for the appellee (intervening defendant Wilhelm Gertz).
   Opinion

PETERS, J.

Under General Statutes § 8-2 (a), a local zoning commission has the authority to regulate certain characteristics of buildings including the “location and use of buildings . . . .” Pursuant to this authority, New Haven has enacted article V, § 42, of the New Haven Zoning Ordinance entitled “Use Regulations for Business and Industrial Districts,” which permits a zoning enforcement officer to grant “as of right” status to uses that are analogous to those that are explicitly listed in the zoning ordinance. Once an analogous use determination has been made, it “shall thereafter have general applicability to all uses of the same type.” New Haven Zoning Ordinance, art. V, § 42. In this case, the principal issue is whether the zoning board of appeals of the city of New Haven (board) properly upheld the determination of a zoning enforcement officer that there was “no analogous use” that would justify the use of a building as a rooming house for ninety male residents in a short-term residential drug treatment program. The trial court affirmed the decision of the board. We agree and affirm the judgment of the trial court.

The plaintiffs, Collins Group, Inc., and Community Solutions, Inc., appealed to the trial court from the decision of the board, alleging that their proposed use of a building located at 850 Grand Avenue in New Haven had been denied improperly. Their principal claim was that previously approved analogous uses of other property in similar districts required approval of their proposed use of the property as a residential treatment center. They also advanced a claim of municipal estoppel, based primarily on two letters of zoning compliance for the property that previously had been issued by a deputy zoning enforcement officer.

In the trial court, the plaintiffs also challenged the validity of the limited use variance, for eighteen rather than ninety young men, that the board had granted to them. On November 2, 2000, Wilhelm Gertz, an abutting landowner, was granted status as an intervening defendant because of his interest in the use variance.

The trial court agreed with both defendants that the decision of the board should be upheld and rendered judgment accordingly. It properly based its judgment on the findings of fact by the board. See Caserta v. Zoning Board of Appeals, 226 Conn. 80, 87-91, 626 A.2d 744 (1993); Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn. App. 284, 290-91, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998).

The underlying facts are undisputed. The plaintiffs’ property at 850 Grand Avenue is located in a general business (BA) district. The plaintiffs submitted an application to the board to use the premises for a “rooming house that offers a comprehensive short-term residential treatment program of drug treatment for young male adults, referred by the judicial branch, having offices and an on-site staff of eight, up to ninety residents (also offering support services to include vocational training, job development and life skills).” Although the judicial branch had requested service providers to propose programs for forty clients, the plaintiffs had increased that number to ninety to cover the costs associated with building repairs and renovation.

On June 1,2000, the zoning enforcement officer, Phillip R. Bolduc, determined that § 42 of the New Haven zoning ordinance previously had not been applied to permit a use analogous to that proposed by the plaintiffs’ application. As a result, he ruled that the plaintiffs were required to seek a variance.

On June 20, 2000, the plaintiffs simultaneously filed an appeal to the board from Bolduc’s decision and filed an application with the board for a use variance. After a public hearing on July 18, 2000, addressing both issues, the board held a special meeting on August 10, 2000, at which it unanimously upheld Bolduc’s determination. The board found that there was no existing analogous use because the proposed use was much larger than any use previously authorized by the board. The board focused on the facts that the proposed use would involve ninety clients, plus staff, visitors, suppliers and deliveries, combined with a lack of exterior recreation space, and an age group ranging from sixteen to twenty-five years old. The board declined to attach significant weight to the plaintiffs’ list of allegedly similar uses because the plaintiffs had not presented that information to Bolduc or the city planner prior to the hearing. Without such prior disclosures, the board declared itself unable to determine whether the allegedly analogous uses were legal conforming uses, permitted uses in the zone, illegal uses or uses that had obtained some form of zoning relief.

The trial court upheld the decision of the board. It concluded that the plaintiffs had failed to establish that the board had acted illegally, arbitrarily or in abuse of its discretion. It also rejected the plaintiffs’ contention that their proposed use of their property was permitted as of right because the board was estopped from coming to any other conclusion. Accordingly, the court rendered judgment in favor of the defendants.

On appeal, the plaintiffs challenge the validity of both of these determinations. They maintain that, properly construed and applied, § 42 made their proposed use of the Grand Avenue property a use permitted as of right. They also renew their claim of municipal estoppel. We are not persuaded.

I

ANALOGOUS USES

The plaintiffs’ appeal from the court’s decision on analogous uses stems from their contention that their proposed use of the Grand Avenue properly is permitted as of right because of prior approvals of uses that they deem analogous. In the service of that contention, they have raised a number of issues pertaining to the court’s interpretation and application of § 42 of the New Haven zoning ordinance.

Section 42 contains a “use table” describing permitted uses of property in each of New Haven’s business or industrial districts. The table contains an extensive list of uses and a chart indicating whether each use is permitted as of right, permitted only by special exception or not permitted in each of the districts. The section further states in relevant part that: “In any case where a use is not specifically referred to by the following

table, its status under this section shall be determined ... by reference to the most clearly analogous use or uses that are specifically referred to by the table. When the status of a use has been so determined . . . such determination shall thereafter have general applicability to all uses of the same type.” (Emphasis in original.) New Haven Zoning Ordinance, art. V, § 42. Concededly, residential treatment centers are not “specifically referred to” in the use table.

The plaintiffs maintain that the trial court improperly (1) concluded that § 42 is a valid municipal ordinance; (2) interpreted § 42; and (3) upheld the board’s finding of “no analogous use” as that term is used in § 42 and declined to give dispositive weight to a 1987 certificate of zoning compliance for another residential treatment center located on Legion Avenue. We disagree.

Each of the plaintiffs’ claims of impropriety concerns an issue of law. Our review of the trial court’s conclusions is therefore plenary. Munroe v. Zoning Board of Appeals, 75 Conn. App. 796, 803, 818 A.2d 72 (2003) (interpretation of regulation is question of law).

A

The plaintiffs’ first challenge to the judgment of the trial court is their claim that the court improperly concluded that § 42 is a valid municipal ordinance. They focus on the part of § 42 that refers to permissible analogous uses as “uses of the same type.” New Haven Zoning Ordinance, art. V, § 42. The plaintiffs claim that, without some limiting definition in the ordinance itself, § 42 is fundamentally flawed because (1) it permits the board to violate the uniformity requirement of General Statutes § 8-2 (a) by making each use of land a unique use and (2) it confers rule-making authority on the board in derogation of the authority of the board of aldermen.

In response, the board claims that we should not consider these claims on their merits because they were not properly preserved. We agree with the board.

The plaintiffs have not identified any part of the record in which these issues were raised or decided. Their pleadings do not include any claims of illegality. As best we can tell, the only occasion in which they presented these claims to the trial court was during oral argument before that court, in which they adverted only briefly to problems of uniformity and rule-making. The trial court’s memorandum of decision did not address these claims. The plaintiffs did not file a motion asking the court to articulate its resolution of these claims. See Practice Book § 66-5. If we were to review the judgment of the trial court with respect to these claims, we would be doing so in a vacuum. See Zahringer v. Zahringer, 262 Conn. 360, 370, 815 A.2d 75 (2003); Putnam Park Associates v. Fahnestock & Co., 73 Conn. App. 1, 7, 807 A.2d 991 (2002). We decline to do so.

The plaintiffs do not argue that they brought these issues to the attention of the trial court. They maintain, however, in their reply brief, that these issues are “integral” to their claim that the board and the court misinterpreted § 42. We turn to that claim now.

B

The plaintiffs claim that the board and the court misconstrued the language in § 42 that makes a proposed use of property permissible as of right once a property use of “the same type” has been found to be a permitted use. Article V, § 42, of the New Haven zoning ordinance provides in relevant part: “When the status of a use has been so determined . . . such determination shall thereafter have general applicability to all uses of the same type.” (Emphasis added.) “When interpreting an ordinance, we recognize that [a] local ordinance is a municipal legislative enactment and the same canons of construction which we use in interpreting statutes are applicable to ordinances. ... A court must interpret a statute as written . . . and it is to be considered as a whole, with a view towar d reconciling its separate parts in order to render a reasonable overall interpretation. ... A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance. . . . The words [employed] are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms. . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant.” (Internal quotation marks omitted.) Evans v. Plan & Zoning Commission, 73 Conn. App. 647, 651-52, 808 A.2d 1151 (2002).

In the plaintiffs’ view, whether a proposed use of property is of “the same type” depends on the overall characterization of the use without regard to operational facts such as the number of occupants, the personal characteristics of occupants or on-site programs for occupants. In their case, they claim to have established a use “of the same type” because they propose to use their property as a residential treatment center. In 1987, another New Haven property owner had obtained a certificate of compliance for property on Legion Avenue that was used as a residential treatment center. Bolduc, as the zoning enforcement officer, had found the treatment center to be a permitted use analogous to a rooming house, a permitted use in a BA zone.

The trial court intexpreted § 42 more narrowly. As directed by the zoning ordinance itself, the court referred to Webster’s New World Dictionary, College Edition, to ascertain the meaning of “uses of the same type” in § 42. Using this reference, the court stated: “The dictionary defines ‘type’ ... as ‘the general form, structure, plan, style, etc., characterizing or distinguishing the members of a class or group . . .’ and that dictionary defines ‘same’ as ... T. being the very one, identical. 2. alike in kind, quality, amount, or degree; corresponding . . . .’ Thus, certain similarities between uses do not establish that said uses are ‘of the same type.’ ” The court found that “in determining whether the proposed use is of the ‘same type’ as existing uses, the [board] is entitled to consider . . . the size of the proposed use and the characteristics of the clientele to be served, and to require a high degree of likeness ‘in kind, quality, amount or degree’ between a proposed use and those posited by the plaintiffs as existing uses of the same type in order to trigger the ‘general applicability’ provision of § 42.”

We agree with the court’s reasoned analysis of the words “same type” as a fair and rational interpretation of the natural and usual meaning of the words used in § 42. The plaintiffs’ contention that the term “same type” refers genetically to a residential treatment center, regardless of operational details, leads to irrational results. For example, according to the plaintiffs’ logic, a residential treatment center serving 500 pretrial young adults would be permitted as a right in a BA zone. Under such a scenario, a zoning enforcement officer would lack the authority to examine the effect of such a proposal on community concerns such as safety and traffic. The plaintiffs’ argument cannot, therefore, be sustained. “Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body.” Spero v. Zoning Board of Appeals, 217 Conn. 435, 441, 586 A.2d 590 (1991).

C

The plaintiffs’ third claim is that the trial court improperly upheld the board’s factual determination of “no analogous use.” In deciding the merits of the plaintiffs’ appeal, the board was acting in its administrative capacity. The validity of the board’s decision depended, therefore, on whether its decision was supported by substantial evidence of record. See DeBeradinis v. Zoning Commission, 228 Conn. 187, 199-200, 635 A.2d 1220 (1994). The plaintiffs maintain that the trial court should have concluded that the record did not support the board’s decision and that the board, instead, had acted illegally, arbitrarily or in abuse of its discretion.

Viewing the evidence of record in light of its interpretation of § 42, the court concluded that there was substantial evidence before the board to support the board’s determination that the permitted existing use cited by the plaintiffs was not “of the same type” as the plaintiffs’ proposed use. The court noted that the plaintiffs had not claimed that their proposed use fit within the literal definition of rooming house. The court held that, as the board had found, there were substantial differences between the residential treatment facility for forty-eight beds in twenty-four rooms on Legion Avenue that had been approved in 1987 and the plaintiffs’ proposed facility for up to ninety young male adults and eight staff members.

The trial court’s memorandum of decision highlights the relevant facts. The court referred to the city planner’s report, which stated that “[s]everal aspects of this proposal are unique. The use is potentially very large— its residential component is larger than any rooming house that the city plan department is aware of in the city of New Haven.” The record reflects that the board relied on the city planner’s report in its decision, as much of the public hearing was dedicated to these issues.

We agree with the trial court’s conclusion that the board properly determined that the usage of the property on Legion Avenue was not property usage “of the same type” as the usage proposed by the plaintiffs. We already have held that it was proper for the board to consider operational details such as size, age range and lack of recreational space. The existence of these operational differences is substantial evidence in support of the board’s decision denying the plaintiffs’ claim of right.

One other operational difference is worth noting. In addition to concerns about the size of the facility, the record reflects concerns about security that, so far as we know, have no counterpart in the residential treatment center on Legion Avenue. These safety concerns emanated from the fact that the facility was nonsecure, so that the pretrial detainees who would be housed there could leave the premises freely. Exacerbating these concerns was the lack of recreational space at the residential treatment center, which would make it likely that the center’s residents would leave the facility often. The board properly could consider the likelihood that the plaintiffs’ proposed use of the Grand Avenue property would impose additional burdens “on a neighborhood which has almost reached its saturation point for similar uses . . . .”

The court’s judgment in favor of the board on the issue of analogous uses was based on its analysis of the comparability between the usage of the property on Legion Avenue and that proposed by the plaintiffs on Grand Avenue. The court was not asked to, and did not, conduct a de novo hearing with respect to the classification of other properties that the plaintiffs, in this appeal, claim to be analogous.

Although a list of these other possibly analogous properties, located on Grand Avenue, Broadway, Park Street and Howe Street, had been presented to the board, the board declined, for procedural reasons, to consider whether these properties were in fact analogous. It found that “the list of claimed ‘similar uses’ submitted by the applicant carried little weight, as the list was not presented to the zoning director (Bolduc) or city [planners] prior to the hearing, and the board was unable to determine whether the uses were legal nonconforming uses, permitted uses in the zone, illegal uses, or uses that obtained some form of zoning relief.”

The plaintiffs have not addressed their procedural default before the board. They have not challenged the accuracy of the board’s statement and, as far- as the record shows, did not amend their submissions to the board to cure their omission. At oral argument before the trial court, they merely characterized the record as “incomplete.” Over the objections of the board, the trial court nonetheless permitted them to brief what they believed to be “pertinent and analogous use of other decisions of the city pertinent to this claim.”

The trial court’s memorandum of decision, however, did not discuss any of the allegedly analogous properties to which the board had declined to give plenary consideration. If that was an oversight by the court, the plaintiffs did nothing to supplement the record, because they filed no motion for articulation.

In effect, the plaintiffs ask us to decide that the universe of possibly analogous properties includes properties to which the board, for reasons that the plaintiffs do not challenge, gave “little weight.” The fact that they presented evidence to the board to the effect that they believed these properties to have analogous uses is no substitute for a finding by the designated trier of fact to that effect. They similarly ask us to overlook the absence of any determination by the trial court that these properties were examples of uses analogous to the use they proposed for 850 Grand Avenue.

The plaintiffs have failed to preserve this claim for appellate review. In the absence of any claim that the action of the board or the decision of the court fall into the category of plain error, we have confined our review of the judgment of the trial court to the allegedly analogous use of the Legion Avenue property.

On the record that is properly before us, we affirm the conclusion of the trial court that the plaintiffs have not established that their proposed use of the Grand Avenue property is a use of right under § 42. We agree with the trial court’s interpretation of that section and with its determination that the plaintiffs have not established that the proposed use of their property falls within the section’s savings clause that generalizes the approval of a prior “use of the same type.” With respect to the one property that was fully considered as possibly analogous by the board and the court, we are persuaded that the operational realities of the plaintiffs’ proposed use overshadow the nominal resemblance between residential treatment centers.

II

ESTOPPEL

The plaintiffs’ second major claim is that they are entitled to use their property at 850 Grand Avenue as a short-term residential treatment center for a drug treatment program for young male adults because the city of New Haven is estopped from challenging their right to do so. They maintain that the actions of several city officials unjustifiably induced them to make substantial expenditures with respect to their property that they otherwise would not have undertaken.

The trial court rejected their claim of municipal estoppel. The plaintiffs contend that we should reverse the judgment of the court because the court improperly (1) found that they have failed, as a matter of fact, to prove their claim and (2) declined to exercise its discretion to afford them an evidentiary ruling. We disagree.

A

We review the plaintiffs’ challenge to the trial court’s fact-finding to determine whether the court’s decision was clearly erroneous. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Putnam Park Associates v. Fahnestock & Co., supra, 73 Conn. App. 11-12. We conclude that it was not.

It is useful, at the outset, to review the ground rules that govern claims of municipal estoppel. Our Supreme Court has recognized that “estoppel always requires proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. ... In municipal zoning cases, however, estoppel may be invoked (1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations.” (Citations omitted; internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 246-47, 662 A.2d 1179 (1995). A claim of municipal estoppel is, therefore, inherently fact bound.

The plaintiffs base their claim of municipal estoppel on (1) a certificate of zoning compliance, dated February 5,1999, in which deputy zoning enforcement officer Francesco Gargiulo approved their program application for forty adolescents, (2) a certificate of zoning compliance, dated September 28, 1999, in which Gargiulo approved a pretrial program for forty young men awaiting trial and (3) other claims of words or action by other city officials including the building inspector and fire marshal. As a result of these assurances, the plaintiffs allegedly spent $836,105, $567,972 of which was spent prior to Bolduc’s decision on June 1, 2000.

On appeal, the plaintiffs have challenged only the trial court’s finding as to the September 28,1999 certificate of zoning compliance. In that certificate, the plaintiffs described their use as: “A tenant proposes to be the sole tenant and operate a program for young adults with pre-trial status in the care of the Court Support Services Division of the Connecticut Judicial Branch. This program would operate a licensed rooming house for 40 individuals. There will be offices and a staff level not to exceed 10 people.” (Emphasis added.) The plaintiffs closed on the Grand Avenue property on December 1, 1999.

The trial court determined that this certificate was not a sufficient basis for the plaintiffs’ claim of municipal estoppel. The court relied on the fact that “[t]he plaintiffs did not receive a certificate of zoning compliance for the use at issue [ninety young men awaiting trial] prior to expending sums on the purchases and renovation of 850 Grand Avenue and were not unjustifiably induced to make such expenditures . . . .” We reiterate that the plaintiffs’ decision to undertake the larger program was not directed by the judicial branch, which had issued a request for proposals for forty individuals, but by the plaintiffs’ financial need to support the debt service of the building.

The crux of the plaintiffs’ disagreement with the trial court is their contention that there is no functional distinction between a program for forty young men and ninety young men. They maintain that their estoppel claim was limited to a forty bed program but that the number of residents “is irrelevant to the issue of whether the use itself is permitted as of right In their view, they had no obligation to specify which of their building improvements were necessary for a forty bed program because their purchase of the building for $386,000 was a sufficient act of reliance on the certificate of zoning compliance.

This argument with respect to municipal estoppel thus mirrors the plaintiffs’ argument with respect to analogous uses, which we have already found unpersuasive. If, as we have held, operational details such as size are relevant in that context, they are equally persuasive in this one. The use that the plaintiffs described in their September, 1999 application to Gargiulo was less than half the size of the use presented to Bolduc on June 1, 2000. “The town agents cannot be said to have ratified a use of which they were ignorant . . . especially since it is the [landowner’s] burden to show that in undertaking the expansion [it] had exercised due diligence in ascertaining its legality.” (Citation omitted.) Zoning Commission v. Lescynski, 188 Conn. 724, 732-33, 453 A.2d 1144 (1982).

By way of rebuttal, the plaintiffs cite West Hartford v. Rechel, 190 Conn. 114, 459 A.2d 1015 (1983). In that case, the Supreme Court held that a municipality could be estopped from enforcing its zoning regulations because of a long-standing pattern of unchallenged conduct. Id., 121-22. The defendants had been denied a license to operate a rooming house on their properties because the building inspector determined that such a use violated the zoning regulations. Id., 116-17. The Supreme Court reversed the denial of the license because the defendants justifiably might have relied on licenses for their property that had been freely granted to prior owners of the property. Id., 123-24. The defendants had inquired about those licenses before they purchased the property, and the building inspector had been fully aware of the uses to which the defendants intended to put the property. Id., 123.

This case is not governed by Rechel. The record in this case establishes that zoning officials had not granted “as of right” status either to predecessor owners of the plaintiffs’ property or to any other large residential treatment center in New Haven. The plaintiffs have not alleged that, prior to June 1, 2000, either Gargiulo or Bolduc was aware, or should have been aware, of the plaintiffs’ expanded program for use of their property.

The plaintiffs, therefore, undertook to make substantial improvements to their property to support a program that, as the trial court found, differed substantially from that for which they had obtained a valid certificate of zoning compliance. In consequence, we conclude, as did the trial court, that they made these expenditures at their own peril. When the plaintiffs finally revealed their true intentions, the zoning ordinance was applied fairly and consistently. The trial court’s determination that the plaintiffs had failed to prove facts to establish a claim of municipal estoppel was, therefore, not clearly erroneous and must stand.

B

The plaintiffs’ final claim is that the trial court improperly denied them a de novo evidentiary hearing with respect to their municipal estoppel claim. They had raised the estoppel claim before the board by introducing documentary and testimonial evidence at the public hearing held on July 18, 2000. Nonetheless, General Statutes § 8-8 (k) permits a court, in an appeal from the decision of a zoning board of appeals, to “allow any party to introduce evidence in addition to the contents of the record if . . . (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal.”

The statute does not say that a trial court is required to hold an evidentiary hearing. Our Supreme Court, in Troiano v. Zoning Commission, 155 Conn. 265, 268, 231 A.2d 536 (1967), held that the trial court had the authority to decide, in the exercise of its discretion, whether additional evidence was necessary for the equitable disposition of the appeal. On appeal, we need only decide whether, in this case, the trial court abused its discretion in declining to hear additional testimony with respect to the plaintiffs’ estoppel claim. See Samperi v. Planning & Zoning Commission, 40 Conn. App. 840, 851, 674 A.2d 432 (1996).

The plaintiffs argue, however, that the trial court was required to hold an evidentiary hearing under the circumstances of this case because they have a due process right to present further evidence in support of their estoppel claim. For this proposition, the plaintiffs cite Bloom, v. Zoning Board of Appeals, 233 Conn. 198, 203-205, 658 A.2d 559 (1995). In our view, the plaintiffs’ reliance on Bloom is misplaced.

In Bloom, the Supreme Court ruled that the trial court, in considering a zoning variance, improperly raised and decided the case sua sponte on the theory of equitable estoppel, even though that issue had not been argued, either before the board or before the court. Id., 205. The Supreme Court held that the trial court should not have proceeded sua sponte. “Because the court held no evidentiary hearing on [the] subject, the plaintiffs never had an opportunity to present evidence to the trial court nor were they permitted the opportunity to present an argument on the legal applicability of the doctrine of equitable estoppel .... A fundamental premise of due process is that a court cannot adjudicate any matter unless the parties have been given a reasonable opportunity to be heard on the issues involved . . . .” Id.

The record in this case is far different. The plaintiffs had numerous opportunities to present evidence on their claim of municipal estoppel, both before the board and before the trial court.

The plaintiffs complain that their presentation of evidence before the board was truncated by the ruling of the chairman of the board, at the public hearing held on July 18, 2000, that no further evidence would be heard at that time because of the lateness of the hour. The chairman also stated, however, that the plaintiffs could have another opportunity to present evidence “if you want one.” “I think we’ve heard a great deal,” he further stated, “and if you have more, we’ll let you at the end come back.” The plaintiffs did not object. They evidently did not follow up on the chairman’s offer. They have, therefore, no basis for their claim that they did not have the opportunity to make their estoppel case to the board.

The plaintiffs also cite Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898 (1969), in which the Supreme Court held that equitable claims, such as estoppel, should be decided by a court of law rather than by a zoning board of appeals composed of laypersons. Bianco does not, however, speak to the presentation of additional evidence in the trial court.

The plaintiffs’ reliance on Burns v. Board of Zoning Appeals, Superior Court, judicial district of Fairfield, Docket No. 298475 (September 24, 1993), is equally misplaced. In Burns, an evidentiary hearing was held as a result of mutual agreement by both parties that additional evidence was needed to decide the equitable estoppel claim. The plaintiffs do not allege that there was any such agreement in this case.

In further contrast to Bloom, the record of the proceedings in the trial court definitively demonstrates that the plaintiffs were given a full opportunity to present their arguments in favor of an evidentiary hearing to the trial court. On April 20, 2001, the plaintiffs filed their motion to introduce additional evidence concerning their estoppel claim. The defendants duly objected. On June 13,2001, the court granted the plaintiffs’ motion in part, permitting the plaintiffs to file a supplemental brief discussing other decisions by the city relating to their claim of municipal estoppel. The plaintiffs apparently did not do so. Instead, at a hearing on October 22, 2001, plaintiffs’ counsel stated, “I have determined that everything I need to submit by way of documentation is either already part of the record or was allowed to be considered by the court.”

Nonetheless, on November 5,2001, the plaintiffs filed an offer of proof in which they outlined additional evidence that they hoped to present at the evidentiary hearing and moved for permission to do so. They reiterated their claim that they were entitled to present oral testimony to support the credibility of their witness with respect to the seriousness of the losses that they had incurred in reliance on the September 28, 1999 certificate of zoning compliance issued by Gargiulo. The defendants objected to the motion and, after a hearing on January 31, 2002, the trial court denied it.

In light of the record before us, we conclude that the trial court did not abuse its discretion by denying the plaintiffs’ motion for an evidentiary hearing to supplement the evidence with respect to municipal estoppel that they presented or could have presented to the zoning board. The record before the board was sufficient to permit the court to adjudicate the merits of the plaintiffs’ claim. On the merits, we agree with the trial court’s conclusion that the plaintiffs have not proven their claim of municipal estoppel.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 8-2 (a) provides in relevant part: “The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the . . . use of buildings, structures and land for trade, industry, residence or other purposes . . .

       The plaintiffs are affiliated corporations. Collins Group, Inc., is the owner of the premises in question. Community Solutions, Inc., is the proposed tenant.

       There is some dispute between the parties over whether the final total number of residents was to be eighty or ninety.

       Although the plaintiffs characterized their proposed use of their property as a “rooming house,” they did not rely directly on the fact that, under § 42E, a rooming house is a permitted use in a BA zone. They have consistently taken the position that their use was analogous to that of a rooming house.

       The board, by a vote of four to one, granted the plaintiffs a use variance limited to eighteen residents. Although, at trial, the plaintiffs also claimed that the limitation contained in the use variance was improper, they have not appealed from the trial court’s adverse ruling on this claim. The validity of the use variance is not an issue in this appeal.

       Article I, § 1, of the New Haven zoning ordinance provides: “Words not defined in this ordinance shall be defined in the most current edition of Webster’s New World Dictionary, College Edition.”

       In their brief in this court, the plaintiffs state: “The zoning ordinance makes no express provision for residential treatment facilities.”

       The plaintiffs also argue that, just as restaurants continue to be restaurants regardless of their size, so residential treatment centers are residential treatment centers regardless of their size. This argument founders on the fact that the use table contained in § 42 does not treat all restaurants alike. Rather, the determination of whether a restaurant may be located in a BA zone as of right depends on whether the restaurant has an entertainment accessory or is located near a residential use. New Haven Zoning Ordinance, art. V, § 42E.

       General Statutes § 8-8 (k) provides: “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 (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, pursuant to section 8-7a, or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. The court may take the evidence or may appoint a referee or committee to take such evidence as it directs and report the same to the court, with any findings of facts and conclusions of law. Any report of a referee, committee or mediator under subsection (f) of section 8-8a shall constitute a part of the proceedings on which the determination of the court shall be made.”

       In light of the statement of the chairman, which the plaintiffs recite in their brief, it is astonishing to read, in a transcript that they attached to their reply brief, that they claim to have had no more than one hour to present their case to the board. They emphasize that, on the evening of the hearing, the chairman stated: “I will give you a couple of minutes” to finish their presentation. They ignore the fact that the chairman afforded them an opportunity to supplement the record at a later date.


author: LAVERY, C. J.

text:
    TYLER E. LYMAN, INC. v. ALBERT C. LODRINI ET AL.
    (AC 23232)
    Lavery, C. X, and Schaller and West, Js.

      Argued May 6
    officially released August 12, 2003

      James Colin Mulholland, for the appellant (named defendant).

      David P. Condon, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendant Albert C. Lodrini appeals from the judgment of the trial court, denying his motion for an award of counsel fees pursuant to General Statutes § 42-150bb. On appeal, the defendant argues that the court improperly concluded that a party could not be found to have defended an action successfully under § 42-150bb when the action is withdrawn before judgment is rendered. Because we conclude that a factual issue exists regarding the applicability of § 42-150bb, we reverse the judgment of the trial court and remand the matter for a hearing on the defendant’s motion for counsel fees.

We previously have set forth the relevant facts in Tyler E. Lyman, Inc. v. Lodrini, 63 Conn. App. 739, 780 A.2d 932, cert. denied, 258 Conn. 902, 782 A.2d 137 (2001). “On November 12, 1994, the defendants entered into an agreement with the plaintiff to list a parcel of real property for sale. Pursuant to the listing agreement, the defendants promised to pay the plaintiff a commission of 10 percent of the sale price if the plaintiff produced a buyer ready, willing and able to purchase the property for a price acceptable to the defendants. The agreement was for a period of six months.

“On January 7, 1995, the parties executed an addendum to that agreement. The addendum provided that the plaintiff may have a potential buyer for the property and, if it would disclose the potential buyer to the defendants and if the buyer purchased the property within two years, then the defendants agreed to compensate the plaintiff 10 percent of the purchase price as commission. The addendum listed one potential buyer as the Connecticut department of environmental protection (department).

“On October 25, 1995, the defendants accepted the department’s offer to purchase the property for $735,000. The defendants closed the sale with the department on December 11, 1997. The defendants did not pay the plaintiff any commission on the sale. On January 16, 1998, the plaintiff commenced this action, seeking the $73,500 in commissions to which it believed it was entitled pursuant to the terms of the listing agreement. On February 19, 1998, the court entered a default judgment against the defendants and in favor of the plaintiff in the amount of $73,732, which included the $73,500 commission plus $232 in interest.” Id., 740^2.

The court denied the defendants’ motion to set aside the default judgment, and the defendants appealed to this court. Id., 742. With regard to Albert Lodrini, the defendant herein, we held that sufficient evidence had been produced at the hearing before the trial court to rebut the presumption that he had received the notice of the default judgment. Pursuant to the principles set forth in Habura v. Kochanowicz, 40 Conn. App. 590, 592, 672 A.2d 512 (1996), we held that the defendant’s motion to set aside the default judgment was timely, and we remanded the matter for further proceedings to consider the merits of his motion. Tyler E. Lyman, Inc. v. Lodrini, supra, 63 Conn. App. 747-48.

On remand, the court granted the defendant’s motion to set aside the default judgment and to restore the case to the docket. In so doing, the court held that the defendant had satisfied the requirements of General Statutes § 52-212, that is, the court found that the defendant had a reasonable defense to the action that existed at the time the judgment was rendered, and he was prevented by reasonable cause from presenting the defense that he might have in the case.

Subsequent to the setting aside of the default judgment and restoration to the docket, the defendant filed a request to revise the complaint, to which the plaintiff objected. The court overruled the plaintiffs objection. The defendant then filed a motion for nonsuit against the plaintiff for its failure to revise its complaint. The plaintiff subsequently filed a withdrawal of the action. The defendant then filed a motion for an award of counsel fees under § 42-150bb, which was denied by the court. The defendant filed a motion to reargue his motion for counsel fees and a motion for articulation. In response, the court denied the motion and stated: “No fees awarded when a case is withdrawn.” Thereafter, the defendant filed the present appeal.

On appeal, the defendant argues that the court improperly held that a party could not be found to have defended an action successfully under § 42-150bb when the commercial party unilaterally withdraws the action before judgment is rendered in the matter. The plaintiff counters that the court’s decision is supported by Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001), and Wallerstein v. Stew Leonard’s Dairy, 258 Conn. 299, 780 A.2d 916 (2001). We do not decide that issue, however, because we conclude that a threshold factual issue exists as to whether the action involves a contract that is covered by the provisions of § 42-150bb.

Section 42-150bb provides in relevant part: “Whenever any contract or lease entered into on or after October 1, 1979, to which a consumer is a party, provides for the attorney’s fee of the commercial party to be paid by the consumer, an attorney’s fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract or lease. . . . For the purposes of this section, ‘commercial party’ means the seller, creditor, lessor or assignee of any of them, and ‘consumer’ means the buyer, debtor, lessee or personal representative of any of them. The provisions of this section shall apply only to contracts or leases in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes.”

“Under § 42-150bb, the court has no latitude to deny [attorney’s fees] to a consumer who successfully defends an action brought against him by a commercial party.” Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 66, 689 A.2d 1097 (1997). Such attorney’s fees are available, rather, by operation of law. Id. The amount of the fees to be awarded “rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion.” (Internal quotation marks omitted.) Id., 78.

Section 42-150bb “provides its own definition of the type of contract for which attorney’s fees maybe recovered.” Id., 72. It applies only to contracts or to leases in which “the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes.” General Statutes § 42-150bb. When faced with a motion for counsel fees pursuant to § 42-150bb, a court must, therefore, determine whether the contract at issue is the type of contract for which attorney’s fees may be recovered.

In that regard, the record reveals the following additional facts. The defendant represented in his motion for an award of counsel fees pursuant to § 42-150bb that the plaintiff had commenced the action on the basis of a contract in which the money, property or service that was the subject of the transaction was primarily for personal, family or household purposes. The defendant represented that the plaintiff was a commercial party and that the parties’ contract provided that the plaintiffs attorney’s fee was to be paid by the defendant. Specifically, the defendant argued that the action was based on an addendum to the real estate listing agreement, pursuant to which the defendant “ ‘agree [d] to pay [the plaintiff] reasonable legal fees for collection of any commissions that shall become due and payable under the terms and conditions of this agreement.’ ” The motion indicates that the defendant requested oral argument and indicated that testimony was to be presented on the matter.

In its objection to the motion for attorney’s fees, the plaintiff argued, inter alia, that the contract at issue was not a consumer contract. Specifically, the plaintiff argued that “[t]he contract in issue is a real estate listing agreement on undeveloped non-residential real property consisting of [approximately 13.7] acres known as 209-227 River Road in Stonington, Connecticut. Said property was not the defendant’s residence or otherwise used for his personal, family or household purposes.”

The court denied the defendant’s motion without holding a hearing or permitting argument of counsel. As previously stated, in response to the defendant’s motion to reargue and for articulation, the court simply stated: “No fees awarded when a case is withdrawn.” The court did not address whether the contract was one in which “the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes.” See General Statutes § 42-150bb. Such a determination was required, however, before the court could act on the motion for counsel fees properly pursuant to § 42-150bb. See, e.g., TDS Painting & Restoration, Inc. v. Copper Beech Farm, Inc., 45 Conn. App. 743, 751, 699 A.2d 173 (“determination as to whether a particular property is commercial in nature for purposes of the ‘commercial exception’ to the Home Improvement Act [General Statutes § 20-418 et seq.] is a factual determination, and not a matter of law”), cert. denied, 243 Conn. 908, 701 A.2d 338 (1997); Craftsmen, Inc. v. Young, 18 Conn. App. 463, 468, 557 A.2d 1292 (court improperly granted motion for summaiy judgment pursuant to Home Solicitation Sales Act, General Statutes §§ 42-134a and 42-135a, where genuine issue of fact existed between parties about whether work performed by plaintiff was for “ ‘personal, family or household purposes’ ”), cert. denied, 212 Conn. 806, 561 A.2d 947 (1989).

We conclude, on the basis of the previously discussed case law, that the court improperly denied the defendant’s motion for counsel fees pursuant to § 42-150bb without conducting an evidentiary hearing. See, e.g., New England Savings Bank v. Clark, 54 Conn. App. 121, 126, 734 A.2d 146 (1999). Without a factual determination that the contract at issue fell within the parameters of § 42-150bb, the court improperly held that attorney’s fees are not permitted under the statute when a case is withdrawn.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Virginia Lodrini, the other defendant in this action, is not a party to this appeal. We therefore refer in this opinion to Albert Lodrini as the defendant.

       The defendants were Albert Lodrini and Virginia Lodrini.

       The plaintiff also argues that although the defendant filed his motion pursuant to Practice Book § 11-21, which requires that motions for attorney’s fees be filed with the court within thirty days following the date on which the final judgment is rendered, that rule does not apply to the present case. Specifically, the plaintiff argues that the defendant failed to satisfy a prerequisite for relief under that rule because no judgment was rendered in his favor. In that regard, we note that “[u]nder [the] law, the effect of a withdrawal, so far as the pendency of the action is concerned, is strictly analogous to that presented after the rendition of a final judgment or the erasure of the case from the docket.” (Internal quotation marks omitted.) Smith v. Reynolds, 54 Conn. App. 381, 383, 735 A.2d 827 (1999).

       The plaintiff further pointed out that “in a purchase and sales contract signed by [the] defendant with the Connecticut Department of Environmental Protection on October 26, 1995, the property is described as follows: ‘. . . illustrated on a map entitled “Site Plan Showing Property of ALBERT C. and VIRGINIA LODRINI DBA Stonington Yacht Club Located On Stanton Weir Point River Road Stonington, Connecticut And As Stonington Marina Scales as Shown January 1984” prepared by George H. Dieter, L.S. No. 5078, attached hereto and incorporated herein as Schedule B.’ ”

       In light of that conclusion, we do not decide whether, assuming the contract at issue is one that falls within the ambit of General Statutes § 42-150bb, the court properly held that attorney’s fees are not permitted when the action is withdrawn. In the event that the court, on remand, determines that the action was not based on a consumer contract and, therefore, would not fall within the ambit of § 42-150bb, any resolution of that issue at this juncture would be no more than an advisory opinion, which we are without authority to render. See, e.g., In re Brianna F., 50 Conn. App. 805, 811, 719 A.2d 478 (1998).


author: FOTI, J.

text:
    MARY MERRITT v. TIMOTHY FAGAN
    (AC 23142)
    Foti, Pellegrino and Dranginis, Js.
    Argued April 29
    officially released August 12, 2003

      Donald A. Mitchell, for the appellant (defendant).

      Elisabeth S. Maurer, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant, Timothy Fagan, appeals from the judgment of the trial court, rendered in favor of the plaintiff, Mary Merritt, after he was defaulted for failure to plead, which was followed by a hearing in damages. On appeal, the defendant claims that the court improperly (1) denied his motion to set aside the default, (2) found that the plaintiff held a fee interest in the property at issue, (3) failed to consider his claim of avoidable consequences, and (4) awarded punitive damages and attorney’s fees. We affirm the judgment of the trial court.

The court found the following facts. The defendant owned and operated a business that purchased and sold antiques, works of arts, collectibles and other items. The parties’ relationship was a casual one, formed as a result of the location of the defendant’s business near the business of the plaintiffs niece.

On or about February 16, 1998, the plaintiff invited the defendant to her home to obtain his opinion on the value of several items. After looking through the plaintiffs attic, the defendant found a painting of the Grand Canyon by Arthur Wesley Dow (painting) and asked if he could purchase it from her. The plaintiff declined the offer. The defendant then offered to take the painting and have it appraised. The plaintiff accepted that offer, and they both agreed that as soon as the defendant received the appraisal, he would return the painting to her with a copy of the appraisal.

Despite the plaintiffs numerous inquiries into the painting’s location, the defendant did not tell the plaintiff its whereabouts, nor did he provide her with a copy of the appraisal report. Ultimately, the plaintiff learned that the defendant had taken the painting to an auction facility where it had been auctioned for $165,000. The defendant retained the net proceeds from the sale at auction, which amounted to $150,000.

The plaintiff brought an action against the defendant claiming (1) conversion of the painting, (2) breach of contract, (3) violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and (4) negligent infliction of emotional distress. The plaintiff’s complaint, filed on November 30, 1999, recited a return date of December 14, 1999. The defendant appeared through counsel, but failed to file an answer within the time prescribed by the rules of practice. Consequently, pursuant to Practice Book § 17-32, the plaintiff filed a motion for default for failure to plead on October 22,2001, which the court clerk granted that same day. The plaintiff then claimed the matter for a hearing in damages on November 7, 2001.

The defendant waited until February 26, 2002, the day of the scheduled hearing in damages, to file his answer and to file a motion to set aside the default. The court denied that motion, and the hearing in damages proceeded on March 5, 2002. After the hearing in damages, the court issued a memorandum of decision in which it found that the plaintiff was entitled to (1) $150,000 forthe conversion of her property, (2) $150,000 for the CUTPA violation as punitive damages, (3) interest of $58,000 and (4) attorney’s fees of $37,030. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to set aside the default entered against him on October 22,2001. Specifically, the defendant argues that the court improperly denied the motion because he had filed his answer timely pursuant to General Statutes § 52-121 (a) and Practice Book § 17-32 (b).

We begin by setting forth the standard of review that will govern our analysis. We review a court’s ruling on a motion to set aside a default under the abuse of discretion standard. Richards v. Trudeau, 54 Conn. App. 859, 863, 738 A.2d 215 (1999). “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Terracino v. Fairway Asset Management, Inc., 75 Conn. App. 63, 73, 815 A.2d 157, cert. denied, 263 Conn. 920, 822 A.2d 245 (2003).

A

The defendant first argues that the court improperly denied his motion to set aside the default because he filed his answer timely in accordance with General Statutes § 52-121 (a). We do not agree.

The defendant argues that there was no legal basis for the court’s denial of his motion to set aside the default. In support of his argument, the defendant cites General Statutes § 52-121 (a), which provides that “[a]ny pleading in any civil action may be filed after the expiration of the time fixed by statute or by any rule of court until the court has heard any motion for judgment by default or nonsuit for failure to plead which has been filed in writing with the clerk of the court in which the action is pending.” The defendant argues that even though he filed his answer beyond the time period fixed by Practice Book § 10-8, it was timely filed pursuant to General Statutes § 52-121 (a) and, as a result, the court should have granted his motion to set aside the default judgment.

Under the circumstances, the court did not improperly deny the defendant’s motion to set aside the default. Although the defendant claims that General Statutes § 52-121 (a) afforded him an opportunity to file his answer, “we cannot say that the trial court was deprived of its inherent authority to control the proceedings before it to ensure that there was no prejudice or inordinate delay.” Gianquitti v. Sheppard, 53 Conn. App. 72, 76, 728 A.2d 1133 (1999). In Gianquitti, the defendant claimed that the trial court improperly had precluded it from filing its special defenses on the day trial commenced. Id. In support of its argument, the defendant cited General Statutes § 52-121 (a) to support the proposition that it “was entitled as of right to file its pleading . . . .” (Internal quotation marks omitted.) Id. Despite the fact that a motion for default was never filed, the trial court in Gianquitti exercised its discretion and did not allow the filing of the special defenses. Id., 76-77.

Following the line of reasoning from Gianquitti with respect to General Statutes § 52-121 (a), we conclude that the court did not abuse its discretion in denying the defendant’s motion to set aside the default. We specifically note that unlike the situation in Gianquitti in which a default motion was not filed, the plaintiff here did file a motion for default, which the clerk granted. We also note that it was more than two years from the original return date that the defendant filed his answer and special defenses and that he did so on the day of the scheduled hearing in damages. Additionally, despite the defendant’s being in default, the court gave him what it described as “a wide latitude with respect to his participation in the hearing [in damages] and in such defenses as he believed existed to the litigation as a matter of courtesy and certainly not as a matter of right.” As such, an injustice has not been done. The court was well within its discretion to handle the situation as it did. Accordingly, we conclude that the court did not abuse its discretion in denying the defendant’s motion to set aside the default.

B

The defendant next argues that the court improperly denied his motion to set aside the default pursuant to Practice Book § 17-32 (b). We do not agree.

Section 17-32 (b) provides in relevant part that “[i]f a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the judicial authority, the clerk shall set aside the default. If a claim for a hearing in damages or a motion for judgment has been filed the default may be set aside only by the judicial authority. ...” Accordingly, a defendant seeking to file an answer after the plaintiff has filed a claim for a hearing in damages will succeed only by first filing a motion with the judicial authority to open the default. Richards v. Trudeau, supra, 54 Conn. App. 862-63. We review a court’s refusal to open the default under the abuse of discretion standard. Id., 863.

The plaintiff filed a certificate of closed pleadings and claimed the matter to the trial list on June 29, 2001. Subsequently, the plaintiff filed a motion for default for failure to plead, which the court granted on October 22, 2001. Then, on November 7, 2001, the plaintiff claimed the matter to the hearing in damages list. It was not until February 26,2002, the day of the scheduled hearing in damages, that the defendant filed an answer and a motion to set aside the default. Because the plaintiff had claimed the matter to the hearing in damages list before the defendant filed his answer, the power to open the default was within the discretion of the court. See Practice Book § 17-32 (b); Richards v. Trudeau, supra, 54 Conn. App. 862-63.

Our review of the record reveals adequate support for the court’s decision not to set aside the default. The defendant waited until the day of the scheduled hearing in damages, nearly two years from the original return date, to file his answer and a motion to set aside the default. Additionally, despite going forward with the hearing in damages, the court still afforded the defendant wide latitude with respect to his participation in the hearing. As such, we conclude that the court did not abuse its discretion in denying the defendant’s motion to set aside the default.

II

The defendant next claims that the court improperly found that the plaintiff held a fee interest in the painting. Specifically, the defendant argues that the court (1) did not have a sufficient evidentiary basis to conclude that the plaintiff held a fee interest in the painting and (2) improperly admitted the plaintiffs testimony on the issue of her ownership of the painting. We do not agree and will address each aspect of the defendant’s claim in turn.

The following additional facts underlie the defendant’s claim. On November 28, 1967, the plaintiffs husband, Walter Gordon Merritt, executed his will. In one provision, Walter Merritt devised certain property to the plaintiff in the following language: “If [the plaintiff] survives me, I give and devise to her TO HAVE AND TO HOLD during her life ... all tangible personal property of every description customarily used in connection therewith, including household furnishings but excepting the items specifically bequeathed by me to others in Article SEVENTH . . . .” The defendant contends that the language of Walter Merritt’s will, among other evidence, supports a conclusion that the plaintiff did not possess a full fee interest in the painting. As a result, the defendant argues that the court could not award to the plaintiff the full amount of the painting as damages.

On that issue, the court heard testimony from the plaintiff that she had seen the estate’s inventory list and that the painting was not mentioned or contained therein. Consequently, the court found that the evidence supported a conclusion that the plaintiff possessed a fee interest in the painting, that it was not an asset of the estate and therefore was free of any life estate limitation contained in Walter Merritt’s will.

A

The defendant claims that the court’s finding that the plaintiff held a fee interest in the painting did not have a proper evidentiary basis.

Our standard of review of such claims is well established. “When the factual basis of the trial court’s decision is challenged on appeal, the role of this court is to determine whether the facts set out in . . . the 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. ... On appeal, the function of this court is limited solely to the determination of whether the decision of the trial court is clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) Wren v. MacPherson Interiors, Inc., 69 Conn. App. 349, 353-54, 794 A.2d 1043 (2002).

In its memorandum of decision, the court clearly set forth the basis of its findings. Specifically, the court noted its consideration of the language of Walter Merritt’s will and of the plaintiffs testimony that the painting was not on the estate’s inventory list in making the implicit factual finding that the plaintiff held a fee interest in the painting. After considering the evidence before it, the court stated that “this particular item of personal property passed directly to the plaintiff free from the burden of the life estate limitation.”

Essentially, the defendant now asks this court to review the evidence on which the trial court made its factual findings and to conclude otherwise. We decline to do so. After a careful review of the entire record, we conclude that the court’s finding that the plaintiff held a fee interest in the painting does not leave us with a “definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id., 354. As such, the court’s finding in that regard was not clearly erroneous.

B

The defendant next claims that the court improperly admitted the plaintiffs testimony regarding the painting’s absence from the estate’s inventory list. The defendant, however, concedes that he did not preserve his claim, but now argues that the court’s conduct constituted plain error. See Practice Book § 60-5; Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 765-66, 717 A.2d 150 (1998).

“To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Kennison, 62 Conn. App. 256, 259-60, 774 A.2d 987, cert. denied, 256 Conn. 908, 772 A.2d 601 (2001).

We will not undertake a plain error review of that claim because it is not one that, by implication, would affect the “fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Macy v. Lucas, 72 Conn. App. 142, 157, 804 A.2d 971, cert. denied, 262 Conn. 905, 810 A.2d 272 (2002). Plain error review is not warranted.

Ill

The defendant next claims that the court improperly failed to consider his claim of avoidable consequences. Specifically, he claims that the court improperly failed to consider whether the plaintiff had a duty to mitigate her damages by taking reasonable efforts to recover possession of the painting. We decline to review that claim because the defendant has failed to provide an adequate record for review.

“It is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter.” (Citation omitted; internal quotation marks omitted.) State v. Collic, 55 Conn. App. 196, 209, 738 A.2d 1133 (1999).

The court’s memorandum of decision does not specifically address the defendant’s defense of avoidable consequences. If the defendant believed that the court did not address his asserted defense, he could have filed a motion for articulation; see Practice Book § 66-5; but he failed to do so. The defendant bears the burden of furnishing this court with an adequate record to review his claim. See Practice Book § 61-10. Accordingly, because the defendant failed to make such a motion, we must take the court’s decision as properly defining the scope of the defendant’s defenses and arguments that were presented. “Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us . . . would be entirely speculative.” (Internal quotation marks omitted.) State v. Collie, supra, 55 Conn. App. 209. We therefore decline to review the defendant’s claim.

IV

Finally, the defendant claims that the court improperly awarded punitive damages and attorney’s fees. We decline to review this claim.

“It is well settled that the trial court can be expected to rule only on those matters that are put before it. . . . With only a few exceptions . . . we will not decide an appeal on an issue that was not raised before the trial court. ... To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) State v. William C., 71 Conn. App. 47, 67, 801 A.2d 823, cert. granted on other grounds, 262 Conn. 907, 810 A.2d 277 (2002); see Narcisco v. Brown, 63 Conn. App. 578, 582, 777 A.2d 728 (2001); Baker v. Cordisco, 37 Conn. App. 515, 522, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995).

The defendant did not object to the court’s award or otherwise seek an articulation of the court’s reasoning after it made its award. We therefore refuse to consider the defendant’s claims regarding punitive damages and attorney’s fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court stated in its memorandum of decision: “[T]he court has found the testimony of the plaintiff to be quite credible on the question of her absolute ownership of the painting . . . .”

       The defendant also claims that the court improperly awarded equitable relief as to the plaintiffs CUTPA claim. That claim, as with the defendant’s other challenges to the court’s award of damages, is notpreserved. Nevertheless, we observe that in her complaint, the plaintiff did not ask the court for equitable relief pursuant to her CUTPA claim. The plaintiff sought only punitive damages and attorney’s fees, which is exactly what the court awarded. Although authorized to do so under the statute, the court awarded no equitable relief to the plaintiff. To the extent that the defendant relies on Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 645 A.2d 505 (1994), for the proposition that because CUTPA creates an “essentially equitable cause of action”; id., 155; all relief awarded pursuant to that statute is, therefore, equitable in nature, that reliance is misguided.