author: Heiman, J. Schaller, J.,

text:
    Anthony J. Paige et al. v. Town Plan and Zoning Commission of the Town of Fairfield et al.
    (12324)
    Heiman, Schaller and Spear, Js.
    Argued May 6
    decision released August 30, 1994

      Frederick S. Ury, for the appellants (plaintiffs).

      Roy H. Ervin, Sr., with whom, on the brief, was Roy H. Ervin, Jr., for the appellee (named defendant).

      John F. Fallon, for the appellee (defendant Fairfield University).

      Richard Blumenthal, attorney general, and Joseph Rubin and Janet P. Brooks, assistant attorneys general, filed a brief for the commissioner of environmental protection as amicus curiae.
   Heiman, J.

The plaintiffs appeal, pursuant to General Statutes § 8-8 (o), from the judgment of the trial court sustaining the decision of the defendant plan and zoning commission. On appeal, the plaintiffs claim that the trial court improperly (1) found that trees and wildlife are not natural resources pursuant to General Statutes § 22a-19, (2) found that the proposed subdivision was not a cul-de-sac as defined in § 2.1.6 of the Fair-field subdivision regulations, (3) determined that the commission had not acted arbitrarily, unreasonably or illegally by finding that the proposed subdivision complied with the Fairfield subdivision regulations when the plan did not provide adequate drainage as required by §§ 1.1.8 and 3.4.4, failed to show the location of principal wooded areas on the site under § 1.1.3, showed an unsafe intersection under § 1.1.8, failed to provide for open spaces under § 2.3 and did not comply with § 1.4.2, and (4) determined that the defendant commission had properly applied the appropriate standard of review in its review of the subdivision plan. We affirm the judgment of the trial court.

The following facts are necessary for a proper resolution of this appeal. Fairfield University owns 13.4 acres of land located west of North Benson Road in the town of Fairfield. The plaintiffs own land that is within a radius of 100 feet of the subject property. The land is zoned to permit single-family detached dwellings. The university submitted an application to the defendant commission to resubdivide the land into forty building lots. The university also filed an application for a special permit to excavate and fill the land. The plaintiffs intervened in the action pursuant to General Statutes § 22-19 (a). After a public hearing, the defendant commission approved both applications subject to compliance by the university with twenty conditions. The plaintiffs appealed to the trial court pursuant to General Statutes § 8-8 (b). The trial court sustained the commission’s approval. The plaintiffs petitioned this court for certification, which we granted.

I

The plaintiffs first claim that the trial court improperly found that trees and wildlife are not natural resources under General Statutes § 22a-19. The following facts are necessary for a proper understanding of this issue. The plaintiffs intervened pursuant to § 22a-19 (a) to assert a claim that the approval of the application will have an adverse impact on the environment. See Burton v. Dillman, 27 Conn. App. 479, 482, 607 A.2d 447, cert. denied, 223 Conn. 904, 610 A.2d 178 (1992). As such, the plaintiffs wanted the commission to consider alternative plans pursuant to § 22a-19 (b). The commission approved the plan without comment on any possible environmental impact. From this action, it is apparent that the commission rejected the plaintiffs’ claim that the subdivision would have an adverse impact on the natural resources of this state. On appeal to the trial court, the plaintiffs asserted that the commission improperly approved the applications because the plan required the cutting of 13.4 acres of forest resulting in the elimination of trees and of wildlife that inhabits the forest, and did not consider alternative plans that would not require such action. Specifically, the plaintiffs claimed that the trees and wildlife on the property are “natural resources” as that term is used in § 22a-19 (a) and (b). The trial court did not decide the factual issue of whether the land contains trees and wildlife. Instead, without deciding the factual issue, the trial court, relying on Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 733, 563 A.2d 1347 (1989) (Red Hill II), found that trees and wildlife, while being natural resources in the generic sense, are not natural resources under General Statutes § 22a-19 (a). Thus, the trial court found that the commission was not obligated to comply with § 22a-19 (b).

“Initially, we note that the trial court’s decision will not be reversed unless it is clearly erroneous. Practice Book § 4061 .... ‘[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . ” (Citations omitted.) Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 723, 563 A.2d 1339 (1989) (Red Hill I); Bell v. Zoning Board of Appeals, 27 Conn. App. 41, 48, 604 A.2d 379 (1992). “In determining whether [trees and wildlife are natural resources] under § 22a-19, we note that ‘[o]ur fundamental objective in construing a statute is to carry out the apparent intent of the legislature.’ . . . ‘As is true in every case involving the construction of a statute, our starting point must be the language employed by the legislature.’ . . . [Trees and wildlife are] not specifically referred to in § 22a-19 (a). Therefore, to determine whether the legislature meant to include [trees and wildlife] within the term ‘natural resources,’ we turn to the statute’s legislative history and other extrinsic sources to attempt to ascertain the intent of the legislature.” (Citations omitted.) Red Hill II, supra, 735.

The legislative history does not indicate the intent of the legislature to include trees and wildlife within the term “natural resources of the state.” See 14 S. Proc., Pt. 3, 1971 Sess., pp. 1082-97; 14 H.R. Proc., Pt. 2, 1971 Sess., pp. 733-65. Even though the legislative history does not shed light on the intent of the legislature, the Regulations of Connecticut State Agencies along with other statutory provisions indicate that the legislature meant to include some trees and wildlife within the term natural resources. See Red Hill II, supra, 212 Conn. 735-36. The department of environmental protection’s regulations state that it was created to manage, protect and preserve “the air, water, land, wildlife and other natural resources of the state.” Regs., Conn. State Agencies § 22a-l-l. Thus, the department of environmental protection treats wildlife as a natural resource of the state. The legislature also has included wildlife and plant life as part of the natural resources protected under the Environmental Policy Act. General Statutes § 22a-6a (a). Furthermore, “[w]ords in a statute must be given their plain and ordinary meaning . . . unless the context indicates that a different meaning was intended.” Gelinas v. West Hartford, 225 Conn. 575, 584, 626 A.2d 259 (1993). Natural resource is defined as “[a]ny material in its native state which when extracted has economic value. Timberland, oil and gas wells, ore deposits, and other products of nature that have economic value.” Black’s Law Dictionary (6th Ed. 1990).

Even though trees and wildlife are included as natural resources, the types of trees and wildlife included under General Statutes § 22a-19 must be restricted so that the interpretation will accomplish a reasonable and rational result. Red Hill II, supra, 212 Conn. 737. If we were to include all trees and wildlife in the definition of natural resources of the state, “we would potentially be requiring the consideration of alternatives pursuant to § 22a-19 (b) for every subdivision in the state. We will not presume that the legislature intended such a result.” Id., 738. Thus, our interpretation of the statutory phrase, “other natural resources of the state,” in so far as it relates to trees and wildlife, must be tempered by consideration of the necessary tension that exists between legitimate environmental concerns; Mario v. Fairfield, 217 Conn. 164, 169, 585 A.2d 87 (1991); and the requirement that the right to develop residential and commercial zones not be unduly burdened. Red Hill I, supra, 212 Conn. 719. As noted in the definition of natural resources in Black’s Law Dictionary, “[tjimberland . . . and other products of nature that have economic value” are natural resources. Thus, the determination as a matter of law of whether trees and wildlife are other natural resources depends on the factual determination of their economic value. Cf. General Statutes § 22a-19.

Even though the trial court improperly determined that trees and wildlife are not natural resources of this state as a matter of law, a remand to the trial court for a factual determination is not required. When the commission fails to articulate the reasons for its actions, it is the function of the trial court to search the entire record before the commission to find a basis for the decision. Parks v. Planning & Zoning Commission, 178 Conn. 657, 662, 425 A.2d 100 (1979). On appeal, we review the entire record before the commission to determine the propriety of the trial court’s finding. See id. Since we review the record on appeal independently, a remand to the trial court for such review is not needed. The record before the commission reveals that it had no evidence that the subdivision area had economic value. To the contrary, the testimony at the hearing indicated that the area contained absolutely no endangered or rare trees and wildlife that would cause the property to have economic value in tourism and research. Further, the testimony revealed that the property serves no other useful productive use causing the property to have economic value. Thus, our review of the record before the commission leads us to conclude that it lacked any evidence to find that the property is a natural resource of the state.

II

The defendant next claims that the trial court improperly found that the proposed subdivision was not a culde-sac as defined in § 2.1.6 of the Fairfield subdivision regulations. We are unpersuaded.

The following facts are necessary for a proper resolution of this issue. Section 2.1.6 provides that a culde-sac cannot provide access to more than ten building lots. The subdivision plan creates a street, Mailands Road, in the shape of a horseshoe the ends of which are connected; circles are on the end of the connecting road. The only entrance in the subdivision is at one side of the horseshoe.

The plaintiffs claimed in the trial court that the plan violated § 2.1.6 because the street is a cul-de-sac that provides access for more than ten building lots. The trial court found that Mailands Road is not a cul-desac. Specifically, the trial court found that the subdivision creates three separate intersecting streets with one label, that each street is not closed at one end, and that the shape of the horseshoe serves the purpose of the ten lot requirement by giving emergency vehicles access to all land.

The commission enjoys reasonable discretion in construing the regulations it is charged with enforcing. Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991); Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). “ ‘ “[U]pon appeal, the trial court reviews the record before the [commission] to determine whether it has acted fairly or with proper motives or upon valid reasons . . . . We, in turn, review the action of the trial court.” Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-49, 206 A.2d 110 (1964). “The burden of proof to demonstrate that the [commission] acted improperly is upon the [plaintiff]. Horvath v. Zoning Board of Appeals, 163 Conn. 609, 316 A.2d 418 (1972); Thorne v. Zoning Board of Appeals, 156 Conn. 619, 621, 238 A.2d 400 (1968); Talmadge v. Zoning Board of Appeals, 141 Conn. 639, 642, 109 A.2d 253 (1954).” Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980).’ Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988). ‘Our function on appeal is not to determine whether the trier of fact could have reached a conclusion other than the one reached .... “Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980).’ Alan v. Nissley, 184 Conn. 539, 542, 440 A.2d 231 (1981).” Shailer v. Planning & Zoning Commission, 26 Conn. App. 17, 25-26, 596 A.2d 1336 (1991). “The plaintiffs bear the burden of proving that the commission acted unreasonably, arbitrarily or illegally.” Michel v. Planning & Zoning Commission, 28 Conn. App. 314, 323, 612 A.2d 778, cert. denied, 223 Conn. 923, 614 A.2d 824 (1992).

Although the commission did not comment on the issue, we conclude that it found that Mailands Road is not a cul-de-sac. On the basis of the configuration of the road shown on the map, the record supports the trial court’s finding that the commission did not act unreasonably, arbitrarily or illegally in finding that Mailands Road is, in fact, three separate intersecting streets and that each street is not closed at one end. Further, the labeling of the streets with one name does not convince us that the commission’s approval was unreasonable, arbitrary or illegal. The naming of the street does not change the configuration of the subdivision. The subdivision regulations provide that “it is desirable that all streets intersect at right angles.” Fair-field Subdivision Regs. § 2.1.4.2. Further, the regulations provide that the intersection of local streets must have an angle of at least forty-five degrees. Id. Thus, the town regulations anticipate the intersection of streets to be at angles between forty-five and ninety degrees. It is clear from the subdivision plan that Mailands Road has three intersections with angles approaching ninety degrees. Therefore, we conclude that the record supports the trial court finding that Fairfield University complied with the applicable regulations and, thus, the commission did not act unreasonably, arbitrarily or illegally.

Ill

The plaintiffs next claim that the trial court improperly determined that the commission did not act unreasonably, arbitrarily or illegally by finding that the proposed subdivision complied with the town regulations because the plan did not provide adequate drainage under §§ 1.1.8 and 3.4.4, failed to show the location of principal wooded areas on the site under § 1.1.3, showed an unsafe intersection under § 1.1.8, failed to provide for open spaces under § 2.3 and did not comply with § 1.4.2 because of the litany of claimed delicts in the subdivision plan. We are unpersuaded.

At the outset, we note that the commission acted in its administrative capacity. Reed v. Planning & Zoning Commission, 208 Conn. 431, 433, 544 A.2d 1213 (1988). As such, it “has no discretion or choice but to approve a subdivision if it conforms to the regulations adopted for its guidance. . . . If it does not conform as required, the plan may be disapproved.” (Citations omitted; emphasis added.) Id.; see Friedman v. Planning & Zoning Commission, 222 Conn. 262, 267, 608 A.2d 1178 (1992). Thus, if we conclude that the trial court correctly found that Fairfield University complied with the applicable zoning regulations, we must conclude that the application approval was not unreasonable, arbitrary or illegal. If we conclude that the trial court improperly found that Fairfield University complied with the regulations, we must determine whether the trial court’s finding that the commission did not act unreasonably, arbitrarily or illegally on the basis of the facts presented to the commission was supported by the record. See Shailer v. Planning & Zoning Commission, supra, 26 Conn. App. 17.

A

DRAINAGE

The Fairfield subdivision regulations require that the storm water pipes be at least twelve inches in diameter “as will in the judgment of the Town Engineer be sufficient to properly carry storm water expected to enter the pipe from the proposed subdivision and from other properties when developed which normally drain across the area of the proposed subdivision.” Fairfield Subdivision Regs. § 3.4.1. The town engineer submitted a memo to the commission stating that “the 15 inch pipe size on the eastern portion of Mailands Road Loop and the 18 [inch] connection to the detention pond appear to be undersized for a ten year storm frequency. Please upgrade sizes or submit calculations.” At the public hearing, Fairfield University asserted that the plan was adequate. In the commission’s approval of the subdivision plan, the commission adopted verbatim the engineer’s statement as a condition for approval without providing a detailed finding of drainage. The trial court found that the commission’s approval was not illegal because the condition set by the commission was not a finding by the commission that § 3.4.1 was not met. Instead, the trial court found that the commission found that the drainage was adequate for “storm water that . . . normally drains across the area of the proposed subdivision” and that a ten year storm would generate more than normal conditions. We agree with the trial court.

The commission approved the plan with the condition that the drainage be upgraded to meet the needs of a ten year storm. The commission did not find that the drainage was inadequate for normal drainage. Thus, we must conclude, absent other facts, that the commission found that the drainage was adequate. The town engineer did not report that drainage was inadequate. Instead, the report requested an increase to take into account a ten year storm only, not a correction of inadequate drainage. Therefore, we conclude that the record supports the trial court finding that Fair-field University complied with the applicable regulations and thus the commission did not act unreasonably, arbitrarily or illegally.

B

WOODED AREAS

Section 1.1.3 of the Fairfield subdivision regulations requires: “A preliminary map shall be submitted showing . . . the location of principal wooded areas.” The regulations do not require that depiction in the final map. Fairfield Subdivision Regs. § 1.3.1. The parties concede that the preliminary map, which was also submitted as the final map, did not depict the location of principal wooded areas. Thus, Fairfield University did not comply with the applicable subdivision regulations. We must then determine whether the record supports the trial court’s finding that the commission’s approval was not unreasonable, arbitrary or illegal on the basis of the evidence before the commission in approving the plan without conforming to the applicable regulations. See Friedman v. Planning & Zoning Commission, supra, 222 Conn. 267; Reed v. Planning & Zoning Commission, supra, 208 Conn. 433.

The trial court found, and we agree, that the commission had before it evidence of the principal wooded areas, even though this evidence was not contained in the preliminary map. Fairfield University conceded at the public hearing held by the commission that the land was 80 percent wooded. Thus, the commission knew that virtually the entire property was wooded. Further, the subdivision regulations do not require the depiction of principal wooded areas for final approval. See Fairfield Subdivision Regs. § 1.3.1. As such, the regulations demonstrate that the depiction of principal wooded areas is not a consideration to be given as great weight by the commission as other requirements that are needed in both the preliminary plan and the final plan. See Harris v. Planning Commission, 151 Conn. 95, 100, 193 A.2d 499 (1963). On the basis of the evidence before the commission and the relative importance assigned to this requirement, we conclude that the record supports the trial court finding that the commission did not act unreasonably, arbitrarily or illegally in approving the subdivision plan.

C

DANGER TO HEALTH AND SAFETY

Section 1.1.8 of the Fairfield subdivision regulations provides that “other evidence shall be submitted establishing that the land to be subdivided is of such character that it can be used for building purposes without danger to health or the public safety . . . that any proposed street shown on the subdivision plan is in harmony with existing or proposed principal thoroughfares shown on said Master Plan especially in regard to safe intersections with such thoroughfares.” The plaintiffs claim that there was no “other evidence” that Mailands Road would be in harmony with North Benson Road in regard to the intersection of the two roads. Contrary to this assertion, the trial court found that at the public hearing Fairfield University’s attorney responded to questions from the commission about traffic and the proposed intersection of Mailands Road and North Benson Road.

Statements made by counsel at the hearing, in the presence of opposing counsel, are entitled to be accepted by the commission “in lieu of sworn testimony and [given] such credence and weight as, in their minds, it merited.” Parsons v. Board of Zoning Appeals, 140 Conn. 290, 293, 99 A.2d 149 (1953). Thus, despite the contention by the plaintiffs in their brief, the commission did, in fact, have before it “other evidence” on the safety of the intersection of Mailands Road and North Benson Road. We conclude that the record supports the trial court’s finding that Fairfield University complied with the applicable regulations and, thus, the commission did not act unreasonably, arbitrarily or illegally.

D

OPEN SPACES

Section 2.3 of the Fairfield subdivision regulations provides that the “open spaces for parks, playgrounds, or recreational areas shall be provided in places deemed proper by the Commission.” The plaintiffs claim that the failure by Fairfield University to provide open spaces was per se fatal to the application. The trial court found, however, and we agree, that this position is incongruous to the plain language of the regulation. The regulation clearly allows the commission to determine the amount of open space required in the subdivision plan as a condition of approval. As we have already stated, the burden is on the plaintiffs to show that the commission acted improperly. Shailer v. Planning & Zoning Commission, supra, 26 Conn. App. 25-26. The plaintiffs claim only that the commission acted improperly because of the overall environmental concerns associated with the property. The plaintiffs, though, neither specify the environmental concerns nor point to specific evidence that would mandate open spaces here. Thus, the plaintiffs’ claim is unpersuasive.

IV

The plaintiffs next claim that the trial court improperly determined that the commission did not improperly apply the legal standard for determining off-site traffic safety. Specifically, the plaintiffs claim that the commission viewed off-site traffic as irrelevant under TLC Development, Inc. v. Planning & Zoning Commission, 215 Conn. 527, 532-33, 577 A.2d 288 (1990), and Sowin Associates v. Planning & Zoning Commission, 23 Conn. App. 370, 580 A.2d 91 (1990), cert. denied, 216 Conn. 832, 583 A.2d 131 (1991). Instead, the plaintiffs argue that the commission should have followed Friedman v. Planning & Zoning Commission, supra, 222 Conn. 262, which clarified TLC and Sowin by stating that the commission must consider traffic and intersection safety when the regulations provide for such a consideration. See Barberino Realty & Development Corp. v. Planning & Zoning Commission, 222 Conn. 607, 616, 610 A.2d 1205 (1992). The commission’s decision does not indicate the standard employed by it in determining that traffic safety did not require disapproval of the application. “Because public officers, acting in their official capacities, are presumed, until the contrary appears, to have acted legally and properly . . . the burden on such a claim rests upon the person asserting it.” Fonfara v. Reapportionment Commission, 222 Conn. 166, 177, 610 A.2d 153 (1992). The plaintiffs provided no evidence to the trial court or to this court that the commission applied the wrong standard. This court will not participate in the conjecture and speculation required in this case to determine the standard applied by the commission. See State v. Carter, 34 Conn. App. 58, 96, 640 A.2d 610, cert. granted on other grounds, 229 Conn. 919, 644 A.2d 915 (1994). Thus, their claim must fail.

The judgment is affirmed.

In this opinion Spear, J., concurred.

Schaller, J.,

dissenting. Two major issues in this appeal are whether trees and wildlife are “natural resources” entitled to the protection afforded by General Statutes § 22a-19, and whether the plaintiffs are entitled to relief as a result of the trial court’s resolution of that issue. I disagree with the majority’s disposition of these issues in two respects. First, I believe that the appropriate relief to be granted to the plaintiffs in this case is a remand to the commission with direction that it consider and decide the issues raised under § 22a-19. Second, I believe that the definition of natural resources selected by the majority is unduly narrow in light of the legislative intent expressed in § 22a-19, as well as other pertinent statutes.

A brief review of procedural history will illuminate the problems in this case. The plaintiffs, Candace Paige and Anthony Paige, intervened in the proceeding before the commission pursuant to General Statutes § 22a-19 (a), and properly requested that the commission consider alternative plans pursuant to General Statutes § 22a-19 (b). In their notices of intervention, the plaintiffs alleged that the approval of the subdivision was likely unreasonably to pollute, impair or destroy the public trust in the air, water, wildlife and other natural resources of the state because the development would require the clear cutting of 13.41 wooded acres.

At the public hearing on the matter, the engineer of the subdivision plan stated that approximately 80 percent of the 13.41 acres was wooded. A member of the commission who questioned the engineer placed the figure at approximately 90 percent. The plaintiff Candace Paige spoke in opposition to the applications, stating that the land in dispute was heavily wooded and populated by a variety of plants, animals, birds and trees. Other opponents provided written statements in opposition to the applications, and noted the vast loss of trees and wildlife that would occur if the commission approved the plan. In addition, Mylan Bull, a biologist from the Connecticut Audubon Society, stated that the area contained over fifty species of birds that would lose their nesting places with the construction of the subdivision.

The commission approved the applications of the university without specifically addressing the issues set forth in General Statutes § 22a-19 (b). Despite the statutory mandate of General Statutes § 22a-19 (b) that “the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative,” the commission made no findings or conclusions on this issue. (Emphasis added.) It is impossible to determine from the decision whether the commission (1) determined that trees and wildlife could not be “natural resources” as matter of law, (2) determined that trees and wildlife could be natural resources as a matter of law, but that, under the facts of this case, the trees and wildlife were not natural resources as a matter of fact, (3) determined that the trees and wildlife were, in fact and law, natural resources, but that it was not reasonably likely that the effect of the subdivision plan would result in the unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and, therefore, no alternative plan was necessary, or (4) failed to consider any of the issues presented by General Statutes § 22a-19 (b).

The plaintiffs pursued their available remedy, namely, an appeal to the Superior Court. In the first count of their complaint, the plaintiffs alleged that the application for the subdivision plan violated several sections of the town regulations. In the second count, the plaintiffs alleged that the commission acted “illegally, arbitrarily and in abuse of its discretion by approving the Fairfield University Resubdivision Application without considering the proposed development’s unreasonable destruction of a natural resource and by failing to consider feasible and prudent alternatives.” At the hearing before the trial court, counsel for both parties discussed the evidence presented before the commission and argued the merits of their positions.

I

“[0]ur case law clearly requires the trial court, in appeals from planning and zoning authorities, to search the record to determine the basis for decisions made by those authorities. In Parks v. Planning & Zoning Commission, 178 Conn. 657, 661-62, 425 A.2d 100 (1979), [the Supreme Court] said that ‘[t]he [planning and zoning] commission’s failure to state on the record the reasons for its actions, in disregard of General Statutes § 8-3, renders appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the commission’s decision . . . .’ [The court] further stated that ‘[i]f any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld.’ (Emphasis in original.) Id., 662-63. [The Supreme Court has] enunciated this duty of a trial court with respect to appeals from zoning boards in a long line of cases. See, e.g., A. P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 186, 355 A.2d 91 (1974); Morningside Assn. v. Planning & Zoning Board, 162 Conn. 154, 156, 292 A.2d 893 (1972).” Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 607-608, 569 A.2d 1094 (1990).

In this case, it is undisputed that the commission’s decision made no reference to the General Statutes § 22a-19 issues. As noted, the commission did not reveal whether it actually determined that natural resources were not involved as a matter of law or fact; determined that natural resources were involved, but that it was not reasonably likely that any unreasonable pollution, impairment or destruction of those resources would occur, and, thus, no consideration of alternative plans was necessary; or utterly failed to make any determination on these matters. Accordingly, the commission’s action in granting the application cannot reasonably be interpreted as indicating that the commission considered the § 22a-19 issues.

Beyond that, even if the commission’s action is construed, as the majority contends, as a “rejection” of the plaintiffs’ claims, the trial court plainly did not perform its responsibility of searching the record to find whether a basis for the commission’s decision existed. Instead, the trial court, without acknowledging the absence of any decision on those issues by the commission, merely addressed in the abstract the legal issue as to whether the term natural resources as used in General Statutes § 22a-19 included trees and wildlife. Although conceding that “[i]t is beyond question that trees and wildlife are natural resources in the generic sense,” the trial court concluded that they are not natural resources “within the contemplation of General Statutes § 22a-19” by virtue of our Supreme Court’s decision involving agricultural land in Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 563 A.2d 1347 (1989). The trial court concluded incorrectly, therefore, that because “trees and wildlife are not natural resources protected by § 22a-19, the commission was not obliged to comply with § 22a-19 (b) by considering alternatives to the elimination of trees and wildlife which will allegedly result from the resubdivision plan approved by the commission.”

In deciding this legal issue, the trial court apparently was persuaded by the legislature’s omission of specific references to trees and wildlife in General Statutes § 22a-19 (b) (despite the reference to those factors in General Statutes § 22a-5), and the absence of legislative history, as well as its fear that, if trees and wildlife are natural resources, “we would potentially be requiring the consideration of alternatives pursuant to General Statutes § 22a-19 (b) for every subdivision application in the state.”

Given that record in the prior proceedings, the majority, itself, proceeds to search the commission record in an effort to determine whether evidence was presented to the commission that was adequate to support the presumed rejection of the plaintiffs’ claims. I disagree with the majority’s interpretation of appellate review under these circumstances. In the absence of any proper review of the commission record by the trial court, this case should be remanded to the trial court for, at the very least, performance of its duty in reviewing the record; see Gagnon v. Inland Wetlands & Watercourses Commission, supra, 213 Conn. 611-12; and, more appropriately, for remand to the commission for performance of its duty of considering the General Statutes § 22a-19 issues.

Although conceding that the commission failed to “comment on any possible environmental impact,” the majority elects to interpret this silence by presuming that the commission did consider the issue and “rejected the plaintiffs’ claim that the subdivision would have an adverse impact on the natural resources of this state.” The majority concedes that the trial court, on the basis of the commission’s presumed consideration of the issue, did not review the record before the commission. The result of these proceedings is that neither the commission nor the trial court has placed on the record any findings or conclusions as to the factual issues raised under General Statutes § 22a-19. The appropriate remedy under the circumstances is to direct the trial court to remand the matter to the commission for purposes of carrying out its statutory mandate. No other remedy will give the plaintiffs the opportunity to have their claims under § 22a-19 (b) considered. That procedure will produce the required factual determination for review by the trial court if an administrative appeal is brought thereafter.

II

The majority recognizes that the trial court improperly concluded that trees and wildlife were not natural resources of this state as a matter of law. The majority, however, adopts a narrow and restrictive definition of natural resources couched in terms of economic value. This definition, borrowed from Black’s Law Dictionary, states that a natural resource is “[a]ny material in its native state which when extracted has economic value. Timberland, oil and gas wells, ore deposits, and other products of nature that have economic value.” This definition apparently has been refined to include consideration of the economic value of trees and wildlife derived from “tourism” and “research.” I disagree with the adoption of this definition and suggest, instead, a broader definition more in accord with the expressed legislative intent concerning natural resources.

In the absence of a detailed definition of natural resources in General Statutes § 22a-19 (b), we must attempt to produce a definition that is consistent with the intent of the legislature. In doing so, we construe statutes with the assumption that the legislature is presumed to be cognizant of existing statutes, and to enact new statutes in an attempt to create a consistent body of law. Zachs v. Groppo, 207 Conn. 683, 543 A.2d 1145 (1988). We should “presume that the legislature had a purpose for each sentence, clause, or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.” Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991).

The adoption of a narrow and restrictive definition disregards relevant considerations including (1) the language of General Statutes § 22a-19 (b), itself, which includes air and water within the meaning of natural resources; (2) the broad policy language of General Statutes § 22a-6a (a), which includes plant, wild animal, and aquatic life in the phrase other natural resources, (3) the broad policy language in the legislative finding of General Statutes § 22a-36, which defines inland wetlands and watercourses as natural resources, and notes that the destruction of such natural resources “will continue to imperil the quality of the environment thus adversely affecting the ecological, scenic, historic and recreational values and benefits of the state for its citizens now and forever,” and (d) the language in § 22a-l-l of the Regulations of Connecticut State Agencies, which describes the creation and authority of the department of environmental protection and states in pertinent part that “[t]he department operates according to powers conferred in various titles of the General Statutes relating to management, protection and preservation of the air, water, land, wildlife and other natural resources of the state . . . .”

In view of those legislative declarations as well as the legislative intent plainly expressed in General Statutes § 22a-19, which views natural resources in terms of values beyond the limited economic product value, a definition of natural resources for purposes of § 22a-19 should not be restricted to a narrow economic product value standard, but should take into account the broader range of values envisioned by the legislative language. The legislature clearly has recognized that we have advanced far beyond the primitive view of natural resources as no more than a source of materials available for human consumption and production, to a more realistic and forward-looking view of natural resources as a complex of interrelated elements existing in a state of ecological balance, which must be preserved for life to survive on the planet.

Definitions containing the factors that, to be consistent with legislative intent, should be taken into account are available. In 42 U.S.C.S. § 9601, part of the federal legislation regarding hazardous substance release, liability, and compensation, known as CERCLA, the definition of the term natural resources embodies the broader range of values contemplated by our legislature. Natural resources is defined as including “land, fish, wildlife, biota, air, water, ground water, drinking water, drinking water supplies, and other such resources. . . .” Moreover, the definition of natural resources adopted by the Minnesota legislature accurately reflects the broad values suggested by the language of General Statutes § 22a-19 (b). The Minnesota Environmental Rights Law, in relevant part, defines natural resources as including “all mineral, animal, botanical, air, water, land, timber, [and] soil . . . .” 1992 Minn. Laws § 116B.02. I suggest that the Minnesota Environmental Rights Law definition is consistent with the legislative intent of General Statutes § 22a-19 (b) and should be adopted by this court.

I am fully aware of the language contained in Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, supra, 212 Conn. 727, to the effect that a definition and interpretation of natural resources that would require-an alternative plan with respect to every application would not carry out the relevant legislative intent. I believe, however, that adopting the recommended definition from the Minnesota Environmental Rights Law would make the determination of whether natural resources are involved in a given case a factual determination for the agency, subject to court review. The recommended definition differs from that offered by the majority essentially in eliminating the economic value standard and requiring consideration of underlying values beyond the economic standard. The proposed definition would not result in requiring alternative plans in each case any more than would the definition adopted by the majority. By its plain terms, General Statutes § 22a-19 (b) requires the consideration of alternative plans only where the commission first determines that it is reasonably likely that the project would cause unreasonable pollution, impairment or destruction of the public trust in the' natural resource at issue. See Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, supra, 734-35; Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 499, 400 A.2d 726 (1978); Fromer v. Boyer-Napert Partnership, 42 Conn. Sup. 57, 69-71, 599 A.2d 1074, aff'd, 26 Conn. App. 185, 599 A.2d 398 (1991); 14 H.R. Proc., Pt. 2, 1971 Sess., pp. 737, 741-42. In view of the factors and standards that govern the determination in each case, any fear that a broad definition will cause alternative plans to be required in virtually every case is plainly unwarranted.

Because I believe that the commission is obligated specifically to consider the issues raised by the plaintiffs under General Statutes § 22a-19 (b) and to indicate the results of that consideration, I would reverse the judgment of the trial court and remand this case to the trial court with direction to remand it to the commission for appropriate consideration and articulation with respect to the issues raised under General Statutes § 22a-19 (b).

Accordingly, I respectfully dissent.

       The plaintiffs are Anthony J. Paige and Candace D. Paige.

       The defendants are the town plan and zoning commission of Fairfield, the town of Fairfield and Fairfield University.

       General Statutes § 22a-19 provides in pertinent part: “(a) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law . . . any person . . . may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

       See footnote 3.

       General Statutes § 22a-19 (b) provides: “In any administrative, licensing or other proceeding, the agency shall consider the alleged unreasonable pollution, impairment or destruction of the public trust in the air, water or other natural resources of the state and no conduct shall be authorized or approved which does, or is reasonably likely to, have such effect so long as, considering all relevant surrounding circumstances and factors, there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety and welfare.”

       General Statutes § 22a-6a (a) provides: “Any person who knowingly or negligently violates any provision of section 14-100b or 14-164c, subdivision (3) of subsection (b) of section 15-121, section 15-171, 15-172, 15-175, 22a-5, 22a-6, 22a-7, 22a-32 or 22a-39, chapter 441, section 22a-69 or 22a-74, subsection (b) of section 22a-134p, section 22a-162, 22a-171, 22a-174, 22a-175, 22a-177, 22a-178, 22a-181, 22a-183, 22a-184, 22a-190, 22a-208, 22a-208a, 22a-209, 22a-213, 22a-220, 22a-225, 22a-231, 22a-336, 22a-342, 22a-345, 22a-346, 22a-347, 22a-358, 22a-359, 22a-361, 22a-362, 22a-383, 22a-384, 22a-385, 22a-387, 22a-401 to 22a-405, inclusive, 22a-416, 22a-417, 22a-424 to 22a-433, inclusive, 22a-447, 22a-449, 22a-450, 22a-451, 22a-454, 22a-458, 22a-461, 22a-462 or 22a-471, or any regulation, order or permit adopted or issued thereunder by the commissioner of environmental protection shall be liable to the state for the reasonable costs and expenses of the state in detecting, investigating, controlling and abating such violation. Such person shall also be liable to the state for the reasonable costs and expenses of the state in restoring the air, waters, lands and other natural resources of the state, including plant, wild animal and aquatic life to their former condition insofar as practicable and reasonable, or, if restoration is not practicable or reasonable, for any damage, temporary or permanent, caused by such violation to the air, waters, lands or other natural resources of the state, including plant, wild animal and aquatic life and to the public trust therein. Institution of a suit to recover for such damage, costs and expenses shall not preclude the application of any other remedies.”

       The dissent proposes the adoption of the definition contained in the Minnesota Environmental Rights Law. The adoption of this definition is antithetical to the teaching of Red Hill II, supra, 212 Conn. 727. The dissent states that its definition will not frustrate the teaching of Red Hill II because General Statutes § 22a-19 (b) still requires the consideration of alternative plans only when the commission determines that it is reasonably likely that the project would affect natural resources of this state. The dissent’s explanation of how his definition complies with the teaching of Red Hill II, however, misapprehends our Supreme Court’s language. Red Hill II is not concerned with developers being actually subjected to submitting alternative plans, but with the potential that developers will be required to submit alternative plans. The dissent’s definition will potentially require every subdivision applicant to submit alternative plans.

       Since we have independently reviewed the record before the commission, the dissent’s consternation that the plaintiff will be denied review of the record before the commission is unfounded.

       Section 2.1.6 of the Fairfield subdivision regulations states that a culde-sac is a “street closed at one end by building lots and which will not be extended in the future.”

       Section 1.1.8 of the Fairfield subdivision regulations provides in pertinent part: “Other evidence shall be submitted establishing . . . that proper provision will be made for drainage.”

       Section 3.4.4 of the Fairfield subdivision regulations provides: “The discharge of all storm water shall be into suitable streams or rivers or into Town drains with adequate capacity to carry the additional water.”

       Section 1.1.3 of the Fairfield subdivision regulations provides in pertinent part: “A preliminary map shall be submitted showing . . .thelocation of principal wooded areas. The map . . . shall be submitted at least three days prior to the meeting at which they are to receive consideration.”

       Section 1.1.8 of the Fairfield subdivision regulations provides in pertinent part: “Other evidence shall be submitted establishing that the land to be subdivided is of such character that it can be used for purposes without danger to health or the public safety.”

       Section 2.3 of the Fairfield subdivision regulations provides: “Open spaces for parks, playgrounds or recreational areas shall be provided in places deemed proper by the Commission. . . . No loam, fill or natural growth shall be removed from the area reserved for open space, and no foreign matter shall be permanently placed upon said space unless required by the Commission in connection with the grading, construction or development of the subdivision.”

       Section 1.4.2 of the Fairfield subdivision regulations provides that the subdivision plan shall be approved once all the conditions of the regulations are met.

       Since we conclude that the application did not violate any of the regulations, we need not address the plaintiffs’ claim that the commission improperly approved the application in violation of § 1.4.2 of the regulations on the ground that Fairfield University did not comply with them. Our courts have consistently rejected the notion that a claim of error based on aggregating claims of nonreversible error will result in reversal of the judgment. See State v. Reddick, 33 Conn. App. 311, 338-39, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994).

       General Statutes § 22a-5 discusses the duties and powers of the commissioner of the department of environmental protection and provides in pertinent part: “The commissioner shall . . . (b) provide for the protection and management of plants, trees, fish, shellfish, wildlife and other animal life of all types, including the preservation of endangered species; (c) provide for the protection, enhancement and management of the public forests, parks, open spaces and natural area preserves . . .

       The plaintiffs are ensnared in a dilemma similar to catch-22. The reference is to Joseph Heller’s novel Catch-22. In the novel, set in World War II, the only way soldiers could be relieved of active duty was for them to be insane. The catch was that they had to claim insanity. Anyone trying to claim insanity, however, clearly was sane enough to want to escape the destruction of war. This problem was known as catch-22. Here, the failure of the commission and the trial court to perform their respective functions is interpreted in a manner that effectively deprives the plaintiffs of review of their claims.

       This important problem would benefit from legislative provision of an all encompassing definition, established after appropriate consideration of all the interests involved.

       “The visible and impending environmental impacts of our newly acquired powers have forced us to recognize that the environment consists of scarce and exhaustible resources.” R. Dorfman & N. Dorfman, eds., Economics of the Environment (2d Ed. 1977) p. 2. There is a “widely felt concern over the profligate way in which mankind, and particularly Americans, have been depleting their natural resources and exploiting their environment.” Id., p. ix.
      “[A] commitment to environmental protection ... today is an important part of the value system of the American people.” N. Stoloff, Regulating the Environment: An Overview of Federal Environmental Laws (1991), p. 2. “People must recognize that each of us is responsible for the quality of the environment in which we all live.” Id., p. 3.

       Land must be excluded on the basis of Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, supra, 212 Conn. 738-40.

       In the statement of purpose of the Minnesota Environmental Rights Law, the legislature declared “its policy to create and maintain within the state conditions under which human beings and nature can exist in productive harmony in order that present and future generations may enjoy clean air and water, productive land, and other natural resources with which this state has been endowed.” 1992 Minn. Laws § 116B.01.

       Land and soil must be excluded on the basis of Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, supra, 212 Conn. 738-40.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Thomas A. McSwiggan v. Kera A. Kaminsky et al.
    (12283)
    Freedman, Schaller and Spear, Js.

      Argued April 25
    decision released August 30, 1994

      John D. Jessep, for the appellant (plaintiff).

      Paul E. Pollock, with whom, on the brief, was Colleen D. Fries, for the appellees (defendants).
   Spear, J.

The plaintiff appeals from the judgment rendered in his favor in a personal injury action. He claims that the trial court’s instructions as to the difficulty of proving pain and suffering improperly enlarged his burden of proof. We agree and reverse the judgment.

The jury reasonably could have found the following facts. On May 1, 1988, the plaintiff was standing in a parking lot when a car operated by the defendant Kera A. Kaminsky and owned by the defendant Zane Kaminsky backed up and struck the plaintiff. The force was sufficient to break the plaintiff’s left leg and turn his foot 180 degrees. The plaintiff was transported to the hospital where he underwent surgery to manipulate his tibia and fibula back into place. He returned to the hospital ten days later and underwent a second surgery after the orthopedist discovered that the plaintiff’s fractured bones were again displaced. To stabilize the fractured bones, metal plates and bone grafts removed from the plaintiffs hip were inserted in his leg. On May 16, 1989, the plaintiff underwent a third surgery in which the plates and screws were removed from his leg.

In February, 1992, doctors discovered that new bone had grown between the plaintiffs tibia and fibula, resulting in a restricted range of motion and a limp in his walk. This condition necessitated further surgery. As a result of the pain, the plaintiff slept poorly and experienced nightmares. He also experienced physical difficulties in attempting to work and his emotional state “was not very good.” Since the injury, his leg has felt unusually cold, he has not participated in any sports and he has a poor gait.

The jury returned a verdict of $81,159.03, consisting of economic damages of $66,159.03 and damages for pain, suffering and permanent injuries of $15,000. The plaintiff moved to set aside the verdict because of the allegedly improper instructions and the inadequate pain and suffering award. After denying the motion, the trial court rendered judgment on the verdict, and this appeal ensued.

As a threshold issue, we must first determine whether the plaintiff properly preserved his claim for appeal. The defendants contend that the plaintiff failed to except properly to the jury charges regarding physical and mental pain and suffering and, therefore, is precluded from raising any claim of error in the charge on appeal. We disagree.

The trial court instructed the jury concerning physical and mental pain and suffering on three occasions: (1) during the initial charge to the jury; (2) in the supplemental instruction after the plaintiff's exception; and (3) in the instruction given in response to the jury’s request for guidance on the issue of pain and suffering.

Practice Book § 315 provides that jury instructions are reviewable if “the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered.” See also Yale University School of Medicine v. Collier, 206 Conn. 31, 39-40, 536 A.2d 588 (1988); Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 750, 355 A.2d 1287 (1988); Mauro v. Yale-New Haven Hospital, 31 Conn. App. 584, 591, 627 A.2d 443 (1993). The plaintiff properly took exception to the initial charge but did not except to the second and third charges. The defendants claim that further exceptions were necessary because our Supreme Court has stated that “[w]here a court specifically corrects a portion of its charge after an exception is taken to it, the rule is that the excepting party must again except to the charge as corrected. If he does not so except, he may not claim that alleged error on appeal.” (Emphasis added.) Enlund v. Buske, 160 Conn. 327, 332, 278 A.2d 815 (1971). Contrary to the defendants’ assertion, however, this is not fatal to the plaintiff’s appeal because the trial court did not make any specific corrections to the first instruction. Rather, it simply gave a second instruction without correcting the initial charge. In the third and final instruction, the trial court referred the jury back to the first instruction.

In Enlund, our Supreme Court held that where a party properly excepts to the initial charge and the court does not make any subsequent corrections to its instructions, the initial charge may be properly assigned as error on appeal. Id. By excepting to the initial charge on pain and suffering, the plaintiff properly preserved this claim for our consideration.

The plaintiff asserts that the trial court improperly instructed the jury as to pain and suffering. We agree.

“In assessing the adequacy of a charge to the jury, we consider the charge in its entirety, and judge it by its total effect rather than by its individual component parts. ... We consider whether the instructions are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury. . . . The charge must give the jurors a clear comprehension of the issues presented for their determination under the pleadings and upon the evidence, and must be suited to guide them in the determination of those issues.” (Citations omitted.) Goodmaster v. Houser, 225 Conn. 637, 644-45, 625 A.2d 1366 (1993); see also Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991); Castaldo v. D’Eramo, 140 Conn. 88, 94, 98 A.2d 664 (1953).

The court charged the jury with regard to physical and mental pain and suffering as follows: “There was evidence that the plaintiffs injuries were painful to him at the time and that he has had pain from time to time. If you find that he has suffered and continued to suffer physical and mental pain and suffering, he’s entitled to be compensated for it. You should keep in mind that pain and suffering is difficult to prove and disprove and there’s always the possibility that there is no real basis for the claim. Consider the evidence with care, but if it is proven by a preponderance of the evidence you should award damages for the plaintiff for physical and mental pain and suffering to the extent that it exists.” (Emphasis added.)

After the jury was excused, the plaintiff excepted to the trial court’s charge. The jury was brought back and further instructed: “I think I also did mention to you on the concept of pain and suffering that what’s involved in that is both physical pain and mental suffering. They’re similar but related concepts, so you can award — to the extent that you find . . . pain and suffering, physical and mental exist you’re entitled to award damages for that if proven by a fair preponderance of the evidence.”

Shortly after the jury retired to deliberate, they returned and requested guidance from the trial judge with respect to his charge on physical and mental pain and suffering. His further explanation did not correct the first instruction. The court referred to its original instruction stating that: “You should keep in mind as I indicated to you originally that this is something that is difficult to prove or disprove. And there’s always the possibility that claims can be either overrated or underrated. And you should consider the evidence and decide if it’s been proven by a preponderance of the evidence if there is a pain and suffering award and to the extent there is, you should award damages for it.” (Emphasis added.)

The plaintiff contends that Buckley v. Lovallo, 2 Conn. App. 579, 481 A.2d 1286 (1984), is dispositive of this appeal. In Buckley, we held that instructions similar to those given in the present case were improper and we remanded the case for a new trial on the issue of damages. In Buckley v. Lovallo, supra, 587-88, the court charged the jury as follows: “ ‘A plaintiff injured by the wrongdoing of another is just as much entitled to be compensated for mental suffering thereby, and the results that would [proximately] follow from it, as well as physical suffering. From the nature of the evidence in support of such suffering, however, it is difficult to prove or disprove its existence or extent with certainty, and there is always the possibility that there is no real basis for the claim or that the suffering, to a greater or lesser extent, is exaggerated. For that reason, you should scrutinize with care the evidence offered and approach the matter with caution. But if you are satisfied that a fair preponderance of the evidence supports the claim, the plaintiff is entitled to be compensated for mental distress and suffering.’ (Emphasis added.)” We found that “[t]he [trial] court, in effect, instructed the jury, by the language italicized above, to apply a more exacting gauge to the plaintiff’s claims of mental suffering than to those of physical suffering. This was error.” Id., 588.

Likewise, in this case, the trial court drew attention to the difficulty the plaintiff faced in proving both mental and physical pain and suffering. Moreover, the trial court shed doubt on whether there was a real basis for the plaintiff’s claim and cautioned the jury to “consider the evidence with care,” thus encouraging it to apply a more exacting standard to the plaintiff’s claims of physical and mental pain and suffering. Although the instructions here and in Buckley are not exactly the same, they suffer from the same infirmity. The reasoning set forth in Buckley applies to the circumstances in this case.

The fact that the judge instructed the jury to apply the fair preponderance of the evidence test does not cure the instruction of its error. In Buckley v. Lovallo, supra, 2 Conn. App. 589, we held that “[although the court, at the end of the challenged portion of the charge, adverted to a burden of proof by a fair preponderance of the evidence, the gist of the charge clearly indicated that the jury should apply that standard more critically to the plaintiff’s claims of mental suffering than to the rest of her case. The jury was likely, therefore, to have been misled as to the correct standard to use in determining damages for mental suffering. This charge constituted material error.”

“Before a party is entitled to a new trial because of an erroneous ruling, he or she must demonstrate that the error was harmful. . . . In a civil case, the determining standard is whether the erroneous ruling would likely affect the result.” (Citation omitted.) Joblin v. LaBow, 33 Conn. App. 365, 368, 635 A.2d 874 (1993). This standard applies to jury instructions as well as evidentiary rulings. See Blancato v. Randino, 33 Conn. App. 44, 49, 632 A.2d 1144, cert. denied, 228 Conn. 916, 636 A.2d 846 (1993).

The defendants argue that this court should view the charge as a whole and not isolate certain words and phrases. We agree. In doing so, we are mindful that our Supreme Court has found that even one sentence in a voluminous jury charge required reversal where “the error was probably harmful.” The court stated: “a charge to the jury is to be judged in its entirety and harmful error cannot be predicated on detached sentences or portions of the charge unless it is reasonably probable that the jury could have been misled by them.” (Emphasis added; internal quotation marks omitted.) Logan v. Greenwich Hospital Assn., 191 Conn. 282, 295, 465 A.2d 294 (1983). The instructions clearly indicated to the jury that the plaintiffs claims for physical and mental pain and suffering warranted a special scrutiny and invited a more stringent standard of proof than by fair preponderance. To recover for physical and mental pain and suffering, however, the plaintiff is required to meet only the fair preponderance of the evidence standard. Buckley v. Lovallo, supra, 2 Conn. App. 589.

Contrary to the defendants’ assertion, the two subsequent charges to the jury did not cure the initial defective instruction. While the second instruction standing alone would have been legally correct, it did not dispel the earlier notion that evidence of physical and mental pain and suffering should be subjected to a more exacting standard of proof than a mere preponderance of the evidence. The jury likely relied on the third instruction in which the judge referred back to the initial charge, which cast doubt on whether there was a real basis for the plaintiff’s claim for pain and suffering and instructed the jury to look at the evidence “with care.” Thus, the instruction was harmful.

The judgment is reversed and the case is remanded for a new hearing in damages.

In this opinion the other judges concurred.

       The defendants admitted liability and the trial was to determine only the issue of damages.

       See footnote 5 and accompanying text for a discussion of the three jury instructions.

       Practice Book § 315 provides: “The [Appellate Court] shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

       The note from the jury was apparently lost.

       The full instruction given in response to the jury’s request is as follows: “I have your question. You’ve asked me for some guidance concerning pain and suffering. There’s no set mathematical formula that you can apply. You should determine whether and to what extent it is reasonably probable that the plaintiff has had pain and suffering in the past and will in the future.
      “To the extent that the plaintiff has proven this by a preponderance of the evidence, or the various components of it, the plaintiff is entitled to an award for past pain and suffering and future pain and suffering and this would include physical pain and mental suffering the plaintiff has endured or you find he will endure in the future, that as well.
      “And you will recall the evidence on this subject. I — rather than telling you what my recollection is, you should depend on your own combined recollection on what testimony there was as to pain in the past on the part of the plaintiff.

        “You should keep in mind as I indicated to you originally that this is something that is difficult to prove or disprove. And there’s always the possibility that claims can be either overrated or underrated. And you should consider the evidence and decide if it’s been proven by a preponderance of the evidence if there is a pain and suffering award and to the extent there is, you should award damages for it.
      “The amount of damages is discretionary with the jury. You should award what you think is fair, just and reasonable based on the evidence that you’ve heard if you make a pain and suffering award. And bear in mind that the purpose of damages in general is to compensate the plaintiff fairly for his injuries and not to punish the defendant.
      “That’s about all I can tell you about it. There is as I said no set mathematical formula to determine these things. It’s a matter within your common sense and good judgment.” (Emphasis added.)


author: Heiman, J. Lavery, J.,

text:
    Leonard P. Cottiero et al. v. Donald W. Ifkovic, Jr., et al.
    (12997)
    Foti, Lavery and Heiman, Js.
    Argued May 31
    decision released August 30, 1994

      Gerald, L. Garlick, for the appellant (defendant Chemical Bank).

      Raymond A. Garcia, with whom was Gregory R. Faulkner, for the appellees (plaintiffs).
   Heiman, J.

The defendant Chemical Bank appeals from the judgment of strict foreclosure rendered by the trial court. On appeal, the defendant claims that the trial court improperly determined that its mortgage was not entitled to priority over the plaintiffs’ mortgage because (1) the defendant is entitled to equitable subrogation, (2) the plaintiffs were unjustly enriched, (3) the plaintiffs’ mortgage secured an antecedent debt, and (4) the plaintiffs received their mortgage after the grantor had conveyed the deed to the land to the defendant Donald W. Ifkovic, Jr. We affirm the judgment of the trial court.

The parties stipulated to the following facts. In 1986, Harry P. Sund, Leonard Cottiero and Jacqueline Cottiero formed a partnership named Sundcott for the purpose of purchasing property to start a restaurant in Branford to be called “Harlow’s.” The restaurant opened but went out of business in 1988, eighteen months after opening. Sund and the Cottieros accrued trade debts of approximately $190,000 by the time the restaurant closed. The two parties agreed to divide the indebtedness. The Cottieros paid their share of the debt. The Cottieros also agreed to lend Sund $95,000 to pay his half of the debt. On May 17, 1989, Sund delivered a note and two mortgages to the Cottieros that evidenced the $95,000 debt owed by Sund to the Cottieros and gave the Cottieros an interest in property owned by Sund at 34 Pawson Trail and 3 Waverly Road in Branford. At the time of this transaction, Branford Savings Bank held a mortgage on the property located at Waverly Road. On May 24, 1989, Sund made an interest payment on the note to the Cottieros. On June 12, 1989, Sund sold the property located at 3 Waverly Road to Donald W. Ifkovic, Jr., conveying title by warranty deed. Ifkovic paid Sund $235,000 for the property, $152,282.15 to Branford Savings Bank in satisfaction of their mortgage and the balance to Sund. Ifkovic gave Chemical Bank a mortgage on the property for $184,000. On June 15, 1989, the Cottieros accepted the mortgages delivered by Sund and caused the mortgages to be recorded in the Branford land records. On June 20, 1989, eight days after delivery, Chemical Bank had its mortgage from Ifkovic recorded in the Branford land records. Sund paid the Cottieros until February, 1990, and filed bankruptcy on May 10, 1990.

By complaint dated April 26, 1991, the plaintiffs sought to foreclose on the two properties. Ifkovic and Chemical Bank challenged the validity of the plaintiffs’ mortgage and the priority of the plaintiffs’ debt to their mortgage on the Waverly Road property. They claimed that the plaintiffs’ mortgage was not valid because the mortgage was given for an antecedent debt and not based on sufficient consideration. They also claimed that their warranty deed was filed in the land records within a reasonable time after its execution, even though it was filed after the Cottieros had filed their mortgage, and, thus, they claimed priority over the Cottieros’ mortgage. After a full evidentiary hearing, the trial court found Sund “to be astute yet not to be believed” and believed the Cottieros’ testimony that Sund never told them of his pending sale of the property to Ifkovic. Further, the trial court found that the Cottieros’ mortgage did not secure an antecedent debt because the mortgage “finalized the transaction between the Cottieros and Sund. The security given was not for previous loans. It was one transaction that took two months to finalize that under the present circumstances of the facts in this case was not unreasonable.” The trial court also found that Chemical Bank did not file its mortgage within a reasonable time. Since the bank did not file the mortgage until June 20,1989, the trial court found that the mortgage was not filed within a reasonable time. On the basis of these findings, the trial court rendered a judgment of strict foreclosure of the property located on Waverly Road. Only the defendant bank appealed.

I

The defendant claims that the trial court improperly determined that its mortgage was not entitled to priority over the plaintiffs’ mortgage under the doctrine of equitable subrogation. We are unable to review this claim because it was not properly preserved in the trial court.

Although the defendant pleaded equitable subrogation as a special defense, the trial court’s memorandum of decision makes no mention of this issue. “Our rules of practice require that the trial court state its decision on each issue in the case and its conclusion as to each issue in the case and its conclusions as to each claim of law raised by the parties. Practice Book § 4059. . . . Since this issue was presented to the trial court in the [defendant’s] pleadings ... we conclude that it was raised within the meaning of Practice Book § 4059. . . . The [defendant], however, did not assign as error the trial court’s failure to rule on this claim of law nor did [it] seek, by motion for articulation in the trial court . . . to have the trial court address this issue.” (Citations omitted.) McLaughlin v. Bronson, 206 Conn. 267, 277, 537 A.2d 1004 (1988). If the trial court had refused to articulate the ruling on the claim of law, the defendant could have sought review by this court of the adequacy of the trial court’s memorandum of decision. Holmes v. Holmes, 32 Conn. App. 317, 321, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993). “It remains the appellant’s responsibility to furnish an adequate appellate record. Practice Book § 4061. Because the deficiency of the record regarding this claim should have been remedied by the [defendant], we will not remand the case to the trial court for rectification.” Southington v. State Board of Labor Relations, 210 Conn. 549, 564, 556 A.2d 166 (1989); McLaughlin v. Bronson, supra, 278. The trial court decided only that the Cottieros’ mortgage did not secure an antecedent debt and that they were not unjustly enriched by the foreclosure.

The trial court’s memorandum of decision on the issue of unjust enrichment does not cure the lack of discussion on equitable subrogation. “Subrogation is . . . a remedy which equity gives to aid in the enforcement of a right either legal or equitable and if there is a right the application of the remedy does not require the existence of any other ground of equitable relief.” Home Owners’ Loan Corp. v. Sears, Roebuck & Co., 123 Conn. 232, 241, 193 A. 769 (1937). “The object of subrogation is the prevention of injustice. It is designed to promote and to accomplish justice, and is the mode which equity adopts to compel the ultimate payment of a debt by one who, in justice, equity, and good conscience, should pay it.” 10 S. Williston, Contracts (3d Ed. Jaeger 1970) § 1265. On the other hand, “[u]njust enrichment applies ‘wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract.’ 5 Williston, Contracts (Rev. Ed.) § 1479. ‘A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. Franks v. Lockwood, 146 Conn. 273, 278, 150 A.2d 215 [1959]; Schleicher v. Schleicher, 120 Conn. 528, 534, 182 A. 162 [1935].’ Connecticut National Bank v. Chapman, 153 Conn. 393, 399, 216 A.2d 814 [1965].” Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 246, 287 A.2d 379 (1971); Burns v. Koellmer, 11 Conn. App. 375, 383, 527 A.2d 1210 (1987). Thus, an analysis of the defendant’s claim under the doctrine of unjust enrichment cannot be interpreted to include equitable subrogation. Therefore, there is no adequate record on which to afford review of this claim.

II

The defendant also claims that the trial court improperly determined that its mortgage was not entitled to priority over the plaintiffs’ mortgage under the doctrine of unjust enrichment. Since the defendant failed to preserve this claim properly in the trial court, we are unable to review it.

Chemical Bank did not raise this issue in the trial court. The defendant Ifkovic did argue an unjust enrichment claim. The claim by Ifkovic, however, does not preserve the claim for Chemical Bank. Practice Book § 285A provides in relevant part: “If a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief. If this is not done, it will not be the duty of either the trial court or the appellate court to decide the claim.” (Emphasis added.) Similar language contained in Practice Book § 315 has been interpreted not to allow a defendant to rely on the claim of another defendant to preserve a claim of law. Howe v. Neal, 145 Conn. 187, 190, 140 A.2d 318 (1958). Thus, Chemical Bank did not properly preserve this claim in the trial court and we are unable to review it.

Ill

The defendant next claims that the trial court improperly determined that its mortgage was not entitled to priority over the plaintiffs’ mortgage because the plaintiffs’ mortgage secured an antecedent debt and Sund executed and delivered a mortgage to the plaintiffs without possessing an interest in the land.

It has long been the law in Connecticut that the validity of a mortgage does not depend on the moment that the underlying debt was created. “It is immaterial whether the indebtedness was created at the very instant the mortgage was executed or had been in existence for some time before that time. In either event the indebtedness was then in existence.” Thomaston Savings Bank v. Warner, 144 Conn. 97, 100, 127 A.2d 495 (1956); see also Sadd v. Heim, 143 Conn. 582, 586, 124 A.2d 522 (1956); Hart v. Chalker, 14 Conn. 77, 79 (1840). Thus, whether the mortgage secured an antecedent debt is immaterial to the determination of the subordination of the plaintiffs’ mortgage.

The defendant also claims that the plaintiffs’ mortgage is not entitled to priority because Sund had transferred his interest in the land to Ifkovic prior to his delivery of the mortgage to the plaintiffs. “Our recordation statute, now [General Statutes] § 47-10, has consistently been interpreted as providing for a reasonable period within which to record a deed of conveyance. That construction finds support in its provision that no conveyance can be effective against subsequent innocent parties ‘unless recorded on the records of the town in which the land lies.’ (Emphasis added.) [General Statutes § 47-10]. The use of the word ‘unless’ as opposed to ‘until’ connotes legislative recognition of the proposition that rights conveyed by a deed may effectively accrue a reasonable time prior to its actual recordation. Since Beers v. Hawley, 2 Conn. 467, 469 (1818), construing predecessor statutes with similar texts, this court has permitted a mortgage deed, if recorded within a reasonable time of its execution, to take priority from the date of its delivery, even as to liens recorded prior to the recording of the deed but subsequent to its execution. Apstein v. Sprow, 91 Conn. 421, 99 A. 1045 (1917); Hartford Building & Loan Assn. v. Goldreyer, 71 Conn. 95, 99-100, 41 A. 659 (1898); Goodsell v. Sullivan, 40 Conn. 83, 85 (1873); see 1 Z. Swift, A System of the Laws of the State of Connecticut (1795) p. 308 (‘every purchaser of land shall have a reasonable time to procure his deed to be recorded’).

“Because the wording of § 47-10 has remained in essentially the same form since the 1800s, we may presume legislative acquiescence in our interpretation of the mortgage lien statute. ‘[I]ts subsequent nonaction may be understood as a validation of that interpretation.’ Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987), quoting Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987).” Farmers & Mechanics Savings Bank v. Garofalo, 219 Conn. 810, 816-17, 595 A.2d 341 (1991). Further, a mortgage is considered a conveyance of land. Second National Bank v. Dyer, 121 Conn. 263, 267, 184 A. 386 (1936). Thus, the critical factor is whether eight days is a reasonable time for Chemical Bank to file their mortgage in determining the effect of the delivery of title from Sund to Ifkovic and the subsequent delivery of the mortgage to Chemical Bank on the priority of the plaintiffs mortgage.

“ ‘[W]hat is a reasonable time is a question of fact for the trial court, and its finding is conclusive.’ . . . Numerous cases have addressed the issue of what constitutes a reasonable time period for recordation of a real property deed so as to give a mortgagee or purchaser priority over intervening lienholders. Short delays ranging from thirty-one hours; Goodsell v. Sullivan, supra, [40 Conn. 85]; to one day; Hartford Building & Loan Assn. v. Goldreyer, supra, [71 Conn. 99-100]; or to two days; Apstein v. Sprow, supra, [91 Conn. 424]; have been held to be reasonable. By contrast, delays measured in months and years have been held to be unreasonable. Pond v. Skidmore, [40 Conn. 213, 222 (1873)] (eight months); Rees v. Hemisphere Publishing Corporation, 11 Conn. Sup. 403, 407 (1943) (four and one-half months); Burgey v. Bochinski, 16 Conn. Sup. 427, 428 (1950) (twelve years). These cases do not provide guidance, as a matter of law, about the reasonableness of a[n eight] day delay in recordation. ‘ “[T]he length of time that is to be considered reasonable, has never been ascertained, and perhaps cannot be, and must be left according to the special circumstances of each case.” ’ Beers v. Hawley, supra, [2 Conn. 471] quoting 1 Z. Swift, supra, p. 308.” Farmers & Mechanics Savings Bank v. Garofalo, supra, 219 Conn. 820-21.

The trial court found that the eight day delay by Chemical Bank was not reasonable. The trial court based its decision on the testimony of an expert in the field of real estate law. We will not disturb this finding. Thus, the conveyance from Sund to Ifkovic and the subsequent mortgage to Chemical Bank is not effective against the plaintiffs and the plaintiffs’ interest is entitled to priority over the defendant Chemical Bank’s interest.

The judgment is affirmed.

In this opinion Foti, J., concurred.

Lavery, J.,

dissenting. I respectfully dissent from part I of the majority’s opinion because the record is adequate for our review and the facts require equitable subrogation.

I

The majority reviews the trial court’s memorandum of decision and, not finding the words “equitable subrogation,” concludes (1) that the trial court failed to comply with Practice Book § 4059, (2) that Chemical Bank (defendant) failed to comply with Practice Book § 4061, and (3) that we cannot review the defendant’s claim for equitable subrogation for lack of an adequate record. The majority correctly points out that § 4059 requires that the trial court give its conclusions on each issue raised by the parties. That section does not, however, require the trial court to recite, in talismanic fashion, particular words and phrases.

The trial court did state its conclusions on the equitable subrogation claim. In its memorandum of decision, the court reviewed the stipulated facts and then addressed the defendant’s claims. First, the court resolved the dispute over the validity of the Cottieros’ mortgage. The defendant had claimed that the mortgage was invalid as not supported by sufficient consideration. The trial court found that valuable consideration had been exchanged and that the two month period between execution of the note and the mortgage was reasonable. The trial court concluded that the Cottieros’ mortgage was valid.

After reaching that conclusion, and before considering the unjust enrichment claim and the attack on the amount of the debt, the trial court reviewed the posture and conduct of the parties. In a paragraph separate from its treatment of all of the other claims, the trial court noted that Sund had deliberately concealed his sale to Ifkovic, and the Cottieros had no notice of Sund’s sale and had acted reasonably. The court further observed that the defendant had without explanation unreasonably delayed recording their mortgage. In light of the equities among the parties, the court concluded that “[i]t would be unfair and unjust to rearrange the priorities in this case to give the bank, a later recorded mortgage, a superior right of enforcement

I believe that a reasonable and rational reading of this paragraph reveals that the trial court did address the equitable subrogation claim. Equitable subrogation rearranges the priorities of the parties in a case. See Home Owners’ Loan Corp. v. Sears, Roebuck & Co., 123 Conn. 232, 238-39, 193 A. 769 (1937); 2 J. Story, Equity Jurisprudence (14th Ed. 1918) § 707. That rearrangement is based on fairness and justice. See Home Owners’ Loan Corp. v. Sears, Roebuck & Co., supra, 238-39. Because the trial court believed that the Cottieros had acted reasonably and the defendants had acted unreasonably, the court concluded that rearranging the priorities would not be fair and just.

I respectfully submit that the context of the decision makes clear that the trial court did address the claim and that the record is adequate for our review.

II

The facts of this case are, I believe, quintessentially suited to equitable subrogation. I agree with the facts set out in the majority opinion with the following additions. When Sund executed a note in favor of the plaintiffs, the property securing the note was subject to (1) a mortgage in the amount of $111,352.15 from Sund to the Branford Savings Bank, and (2) a judgment lien in the amount of $40,930 based on a debt that the Cottieros and Sund, in their capacities as partners, owed to Branford Savings Bank. When Sund sold the property to Ifkovic, Chemical Bank paid $152,282.15 to satisfy and release these two encumbrances. Notwithstanding Chemical Bank’s release of those encumbrances, the plaintiffs testified that they believed they were taking a mortgage subject to the prior encumbrances. Leonard Cottiero testified that he knew of the law suit and resulting judgment lien and Jacqueline Cottiero testified that she knew there was a mortgage on the property. When Sund defaulted on his note, the Cottieros discovered that their lien had been advanced to first priority by Chemical Bank’s payment, and foreclosed on the property.

This brief recitation of the facts reveals that the Cottieros benefited from a threefold windfall: They received the value of $152,282.15 when their mortgage was advanced from third to first place by Chemical Bank’s satisfaction of the Branford Savings Bank’s mortgage and judgment lien. When they foreclosed, the Cottieros also received $135,000 worth of property for which they paid only $95,000. Finally, the Cottieros were released from personal liability for the $40,930 partnership debt owed to Branford Savings Bank.

“ ‘Subrogation is a doctrine which equity borrowed from the civil law and administers so as to secure justice without regard to form or mere technicality. . . .’ ” Home Owners’ Loan Corp. v. Sears, Roebuck & Co., supra, 123 Conn. 238. “Subrogation is the substitution of one person in place of another . . . so that he who is substituted succeeds to the rights of the other . . . .” 2 J. Story, supra, § 707; see also Restatement, Restitution § 162 (1937). “Equitable subrogation ... is a legal fiction entitling a person to reimbursement for discharging the debt or obligation for one who should have paid it.” Thornton v. Syracuse Savings Bank, 961 F.2d 1042, 1046-47 (2d Cir. 1992).

The aim of equitable subrogation is to prevent the unjust enrichment of another person; 1G. Palmer, The Law of Restitution (1978) § 3.6; while not causing that person to suffer inequity. Home Owners’ Loan Corp. v. Sears, Roebuck & Co., supra, 123 Conn. 243. Thus, a subrogee takes only those rights held by the subrogor. Continental Casualty Co. v. Pullman, Comley, Bradley & Reeves, 709 F. Sup. 44, 49 (D. Conn. 1989). “This doctrine is not static, but so elastic as to take within its remedy cases of first instance which fairly fall within it and secure its primary object by compelling payment of a debt by him who ought in equity and good conscience to pay it.” (Internal quotation marks omitted.) Home Owners’ Loan Corp. v. Sears, Roebuck & Co., supra, 238-39.

“In numerous cases it has been held that one who advances money to discharge a prior lien on real or personal property and takes a new mortgage as security is entitled to be subrogated to the rights under the prior lien against the holder of an intervening lien of which he was ignorant.” Id., 237. Faced with those facts, our Supreme Court did employ equitable subrogation in Home Owners’ Loan Corp. v. Sears, Roebuck & Co., supra, 248. Equitable subrogation has often been used to disgorge unjust enrichment in cases similar to this one, where equity and good conscience so demanded. See 1 G. Palmer, supra, § 3.6 (a); J. Pomeroy, Equity Jurisprudence (5th Ed. 1941) § 1212, pp. 642-43.

I believe that, in this case, equity and good conscience demand that Chemical Bank be subrogated to the priority of the debts it discharged. Equity must be employed to best serve justice and to carry out the actual intention of the parties. Lomas & Nettleton Co. v. Isacs, 101 Conn. 614, 622, 127 A. 6 (1924). Thus, the parties’ intent is a controlling consideration. Id. In this case, the plaintiffs intended their mortgage to be subject to the existing encumbrances; the defendant intended, and paid for the right to be, superior to all encumbrances. Subrogating Chemical Bank to the debts it discharged will best achieve the parties’ intent.

Subrogation will also best serve justice. The plaintiffs’ unwarranted threefold windfall justifies subrogation. See Connecticut National Bank v. Chapman, 153 Conn. 393, 399, 216 A.2d 814 (1966) (“[t]o deny relief . . . would result in . . . unjust enrichment . . . through an unexpected and undeserved windfall”). By paying off the attachments, Chemical Bank paid off a partnership debt for which the plaintiffs were liable, gave the plaintiffs $152,282 in value by advancing their lien which the plaintiffs neither expected nor bargained for, and enabled the plaintiffs to obtain $135,000 in property. Since the Cottieros benefited from the satisfaction of the prior liens, they should pay for the benefit. Equity and good conscience demand that Chemical Bank receive the value of what it paid by being equitably subrogated to the priority of the liens it discharged.

Equitable relief is not barred by Chemical Bank’s tardy filing of its mortgage. Ignorance of an intervening lien when discharging a superior lien is “regarded in equity as equivalent to a mistake . . . .” Id., 398; Lomas & Nettleton Co. v. Isacs, supra, 101 Conn. 620-21. “We have upheld the power of a court of equity to grant relief from the consequences of an innocent mistake although the mistake was not unmixed with negligence (Fountain Co. v. Stein, 97 Conn. 619, 626, 118 Atl. 47) . . . where the failure to do so would allow one to enrich himself unjustly at the expense of another.” Lomas & Nettleton Co. v. Isacs, supra, 620-21; see also Wesson, Inc. v. Hychko, 205 Conn. 51, 59, 529 A.2d 714 (1987); Home Owners’ Loan Corp. v. Sears, Roebuck & Co., supra, 123 Conn. 242; Connecticut National Bank v. Chapman, supra, 153 Conn. 398; 1 G. Palmer, supra, § 3.6, pp. 249, 256 (“[o]ne cannot justify the retention of a windfall, conferred upon him by another through mistake, because that other was careless”). Therefore, Chemical Bank’s negligent failure to record its mortgage in a timely fashion does not bar the relief of equitable subrogation.

Nor is equitable relief barred by prejudice to the plaintiffs. Chemical Bank would not be entitled to subrogation if it would prejudice or work inequity to the plaintiffs. It will not. Subrogees can only be subrogated to the rights held by the subrogor. Continental Casualty Co. v. Pullman, Comley, Bradley & Reeves, supra, 709 F. Sup. 49. Thus, Chemical Bank would be subrogated only to the amount of the prior liens that it discharged, $152,282.15. Because that will put the plaintiffs in the exact financial position that they intended to occupy, and believed they occupied, they will neither be prejudiced nor suffer inequity. Moreover, the plaintiffs would still reap the reward of the release of the partnership debt for which they were liable. Thus, they will benefit regardless of Chemical Bank’s priority.

Finally, I note that the purpose of the recording act would not be advanced if equitable subrogation was denied because Chemical Bank failed to record timely. One of the central purposes of the recording system is to preserve the priority of liens. 1 G. Palmer, supra, § 3.6, p. 256. Here, the plaintiffs are not seeking to preserve the priority gained by their recording. They seek, instead, to retain the advantage of a higher priority obtained at the defendant’s expense. “Subrogation merely returns [the plaintiffs] to the position of priority which [they] protected through recording.” Id.

Because the trial court addressed the claim and because the facts before us strongly support the application of equitable subrogation, I would follow the precedent of Home Owners’ Loan Corp. and Lomas & Nettleton Co., and reverse the trial court’s judgment.

Accordingly, I respectfully dissent.

       The plaintiffs are Leonard Cottiero and Jacqueline Cottiero. The defendants in the foreclosure action are Donald W. Ifkovic, Jr., Teddy VanDerHorst, Johannes VanDerHorst and Chemical Bank. Only Chemical Bank appealed. We refer in this opinion to Chemical Bank as the defendant.

       The dissent asserts that the trial court did address a claim of equitable subrogation, thereby providing an adequate record, by including in its memorandum of decision the statement that “it would be unfair and unjust to rearrange the priorities in this case to give the bank, a later recorded mortgage, a superior right of enforcement because of the unexplained and unreasonable recording of its mortgage.” Starting with the assertion that this sufficiently provides an adequate record, the dissent then asserts that we refuse to review the claim because the trial court failed to use, in “talismanic fashion,” the phrase “equitable subrogation.” This distorts the meaning of the court’s opinion. What we do require, unlike the dissent, is a collection of meaningful words in the trial court’s memorandum of decision that we can properly interpret as a legal discussion of the claim, rather than to grasp at legal straws in an attempt to reach, perhaps, a more satisfying result. The paragraph in the trial court’s opinion that the dissent points to as evidence of the resolution of the equitable subrogation issue, we conclude, is nothing more than the trial court’s discussion as to whether the bank recorded its mortgage within a reasonable time. We decline to extend that statement beyond its logical significance.

       Practice Book § 315 provides in pertinent part: “The supreme court shall not be bound to consider as error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. . . .” (Emphasis added.)

       To the extent that the trial court did not use the term “equitable subrogation,” the discussion is not as obvious as it might be. Even if the record was inadequate, however, I believe the proper resolution would be to remand for articulation. “[U]nder normal circumstances, this court will not remand a case to correct a deficiency that the appellant should have remedied.” Economy Sales & Service Co. v. Family Center Pharmacy, Inc., 33 Conn. App. 822, 825, 639 A.2d 1042 (1994). “On a case-by-case basis, however, both [appellate] courts have on occasion ordered articulation even after the case has been argued.” Id.; see also id., 825 n.5 (citing cases remanded for articulation after argument); Dime Savings Bank of Wallingford v. Cornaglia, 33 Conn. App. 549, 561, 636 A.2d 1370 (Lavery, J., dissenting), cert. granted, 229 Conn. 907, 640 A.2d 120 (1994). Failure to remand in cases such as this one, where the trial court did in fact conclude the issue of law would recast Practice Book § 4059 as the supreme shredder of viable appealable issues.

       Leonard Cottiero testified as follows:
      “Q. Did you know whether or not there were any liens or encumbrances against the property at 3 Waverly Road?
      “A. Yes. I assumed there was. I did not know for sure.
      “Q. You knew for sure about one, didn’t you? Weren’t you and Mrs. Cottiero and Sund attached by Branford Savings Bank?
      “A. Yes.
      * * *
      “Q. Do you recall how much the attachment was for?
      “A. It says here sixty thousand.
      * * *
      “Q. Did you discuss the status of the title with Mr. Sund?

        “A. No.
      “Q. But you knew that because he told you he didn’t have enough equity to get his own mortgage, you know there was some lien against the property?
      “A. Yes.
      “Q. One of which you knew about because you were part of the lawsuit?
      “A. Right.
      “Q. Do you know what it means to have a first mortgage on the property?
      “A. Yes.
      “Q. Did you think you were getting a first mortgage on the property?
      “A. I was not sure.
      “Q. When you say you were not sure, you knew there was an attachment against the property?

        “A. Yes..
      “Q. So you knew that would be ahead of your lien?
      “A. I did not know that for sure.”

       Jacqueline Cottiero testified as follows:
      “Q. Do you know or did you know at that time whether there were any liens against that property?
      “A. Which property are you talking?
      “Q. Waverly Road?
      “A. I thought there was one mortgage on it and that was it.”

       I note that the Cottieros’ partner, Sund, is the source of all of the parties’ present woes. By mortgaging property that he no longer owned, Sund obtained relief from a $95,000 debt he owed to his partners, relief from a $40,930 debt he owed Branford Savings Bank, relief from a $111,352 mortgage to Branford Savings, and obtained an additional $81,481.45 in cash. He filed bankruptcy and is now protected from liability by his discharge.

       At the time of the hearing, a private sale of the property for $135,000 was pending. The parties agreed to place the proceeds of the sale in escrow pending resolution of this action.

       The Cottieros were jointly liable with Sund for this debt. General Statutes § 34-53 (partners are liable jointly for all partnership debt).

       See, e.g., Wesson, Inc. v. Hychko, 205 Conn. 51, 59, 529 A.2d 714 (1987) (where vendor pays taxes on sale mistakenly believed nontaxable, equitable subrogation entitles vendor to obtain reimbursement from buyer); Connecticut National Bank v. Chapman, 153 Conn. 393, 399-400, 216 A.2d 814 (1966) (first mortgagee, who released mortgage to refinance, subrogated to priority over unknown second mortgagee); Lomas & Nettleton Co. v. Isacs, 101 Conn. 614, 625-26,127 A. 6 (1924) (first and second mortgagee, who released mortgages to refinance, subrogated to priority over unknown third mortgage); First Taxing District v. National Surety Co., 97 Conn. 639, 649, 118 A. 96 (1922) (where embezzled district funds used by estate administrator to pay creditors, district subrogated to creditor’s rights against administrator’s surety); Paton v. Robinson, 81 Conn. 547, 555, 71 A. 730 (1909) (buyer who satisfies first mortgage subrogated to that mortgage’s priority against all others when title proves defective).

       Chemical Bank’s payment was the only way the Cottieros could obtain the property: before their lien was advanced, the superior liens were far greater than the value of the property, and Sund’s bankruptcy discharge left the plaintiffs without recourse.