author: PELLEGRINO, J.

text:
    JAMIE STYRCULA v. KEITH STYRCULA
    (AC 33539)
    Gruendel, Espinosa and Pellegrino, Js.

      Argued September 27
    officially released December 25, 2012

      Mark R. Soboslai, for the appellant (plaintiff).

      Keith Styrcula, pro se, the appellee (defendant).
   Opinion

PELLEGRINO, J.

The plaintiff, Jamie Styrcula, appeals from orders of the trial court (1) granting a postjudgment motion for modification of the parties’ dissolution judgment in favor of the defendant, Keith Styrcula, and (2) denying the plaintiffs motion to rear-gue the modification motion. On appeal, the plaintiff contends that the court improperly decided the defendant’s motion for modification without providing appropriate notice to the parties, thereby depriving the plaintiff of her due process rights to notice and the opportunity to participate fully in an evidentiary hearing concerning modification. We agree and, accordingly, reverse the judgment of the trial court modifying the dissolution judgment and remand the case for a hearing on the defendant’s motion to modify.

The record reveals the following facts and procedural history. The trial court, Tierney, J., dissolved the marriage of the plaintiff and the defendant on November 9, 2004, incorporating into the judgment the parties’ separation agreement of the same date. The separation agreement provides, inter alia, that the defendant, employed at JP Morgan Chase at the time, would pay the plaintiff unallocated alimony and child support based on a sliding scale, which required him to pay 55 percent of his “gross annual earned income” up to $250,000 and 35 percent of any “gross annual earned income” between $250,001 and $550,000. The separation agreement further provides that moneys received by the defendant from any “intellectual property” earnings “shall be excluded from the calculation of ‘gross annual earned income’ . . . .”

At the end of 2005, the defendant was discharged from his position at JP Morgan Chase. He began working on various “business projects,” but he claimed that income derived from the projects was “intellectual property income,” excluded from the calculation of his support payments under the separation agreement. The defendant also spoke at various business conferences after the termination of his employment; he claimed that the net proceeds from these conferences went to his fiancée, an event planner, to give her a steady stream of income for herself and her children.

In June, 2008, the plaintiff filed a motion for contempt arguing that the defendant purposefully had reduced his income to deprive her and their minor children of support. On February 11, 2009, the trial court, Hon. Dennis F. Harrigan, judge trial referee, issued a memorandum of decision finding the defendant’s testimony regarding his lack of income “incredible.” The court imputed an earning capacity of $250,000 to the defendant and concluded that he was “in contempt for failing to pay the unallocated order of $137,500 for the calendar year 2008. ” The court determined the defendant’s arrearage and set a purge amount of $50,000, which the defendant’s fiancée paid after the court issued a capias resulting in the defendant’s arrest and incarceration.

On June 10, 2010, the plaintiff again filed a motion for contempt, claiming that the defendant had failed to pay alimony and support in accordance with the court’s February 11,2009 order. The plaintiff asserted that pursuant to the order, the defendant was required to pay $137,500 per year — or $11,458.33 per month — for calendar years 2008, 2009 and 2010. The plaintiff claimed that out of the $343,750 due for the period in question, the defendant had paid only $251,173.33.

The trial court, Shay, J., held a hearing on the plaintiffs motion for contempt on August 9, 2010. The court provided a framework for the hearing by analogizing contempt to “a relatively straightforward three-legged stool. . . . The first thing is a clear, unequivocal order, which we have. The second leg is a failure to meet that clear and unequivocal order .... [T]he third leg of the stool is the question of if there was a failure to meet that obligation, was it wilful and without good cause? That’s the bona tides, that’s the third leg; it’s the most difficult leg of the stool.”

The court continued with its three-legged stool analogy and stated that with respect to the first leg, Judge Harrigan’s order requiring the defendant to pay 55 percent of the imputed $250,000 earning capacity represented the “current order” in the case. Turning to “[l]eg number two,” the parties stipulated that as of the date of the hearing, the defendant owed an arrearage of $109,648.08. The court stated that, regarding the third leg, it needed to determine the defendant’s bona fides— an inquiry for which the court placed the burden on the defendant to show that his failure to comply with the support order was not “wilful disobedience.”

The defendant then testified at the hearing regarding his various business ventures and presentations. Specifically, he indicated that all revenues from his conferences and expositions went to his fiancée’s event planning business, Pomegranate Ventures, LLC (Pomegranate), but that pursuant to a “new working relationship” with Pomegranate, he received half of Pomegranate’s profits. When questions arose regarding the accounting of income between the defendant’s Structured Products Association and Pomegranate, the court continued the hearing to a later date so the parties could engage in further discovery if necessary.

Subsequent to the hearing, on August 17, 2010, the defendant filed a motion to modify the separation agreement. The defendant claimed that he had only worked sporadically since the court’s February 11,2009 decision, and, therefore, he was earning substantially less than the $250,000 earning capacity attributed to him by the court.

On March 1, 2011, the parties returned to court for the continuation of the August 9, 2010 hearing. At the outset of the hearing, the court noted that “we had some unfinished business in August of [2010] . . . [which had] bubbled forth again.” When the court confirmed with the plaintiffs counsel that the court’s “calendar says [the contempt motion],” the defendant’s attorney alerted the court that the defendant had filed the motion for modification in the interim between the hearing dates and suggested that he had anticipated the court hearing both motions. The plaintiffs attorney interjected and stated that the defendant’s modification motion “is not before the court today. This is a continuation of a hearing on August 9, 2010. . . . And it’s a contempt hearing.”

The court addressed the defendant’s counsel and said, “ [the plaintiffs counsel] is saying it’s [the contempt motion] or nothing.” The defendant’s counsel responded that “we were here on [the contempt motion]; that’s accurate. And we did commence evidence before Your Honor, and that is accurate. Our [modification motion] is dated August 17 and indeed is time stamped August 17 as well.” The defendant’s counsel stated: “I think that if nothing else, the court should hear both motions. I spoke with [the case flow coordinator] last week. . . . And I said to him, first of all, are we on for Tuesday .... He said, we’re on. . . . And I said, you’ve got [the contempt motion] and [the modification motion] on. He said, we just have [the contempt motion] on. And I said, well, my assumption was that all motions were coming over to March 1.” The defendant’s counsel indicated that he did not contact the plaintiffs counsel to discuss his conversation with the case flow coordinator.

The court then questioned the plaintiffs counsel regarding whether the court could proceed with both the contempt motion and the modification motion, stating: “[A]s a practical matter . . . modification’s generally the flip side of the coin. . . . [T]he evidence is almost exactly the same; it’s a question of the — you know, on the one hand it’s the person’s wilfulness or their ability to comply with an order, and, on the other, we’re getting into sort of very similar, which is what is their actual income.” The court asked, “if this issue is going to come before the court eventually, why not sooner rather than later?”

In response, the plaintiffs counsel stated that he was “blindsided” by the prospect and that he “didn’t know [the defendant’s counsel] was going to raise [the modification motion]. I thought we were here, and that’s what I prepared for. ... To finish [the contempt motion].” After the defendant’s counsel argued again that the court should consider both motions at the hearing, the court stated: “I’ll tell you what. I hear you both. I’ve stood where you both stood .... I do understand if, for whatever reason, the signals that came out of this court were that it’s just [the contempt motion] and that’s it. So, unless you two guys get on the same page on that one, we’re just going to finish up [the contempt motion]. . . . [W]e’ll do [the contempt motion]. We’ll see how that goes. If anybody changes their minds later, whatever .... I am free today. So that if hghtning struck I would be certainly willing to wade in and finish up the other issue, too. But let’s do [the contempt motion] and see where we axe, how we go with that.”

Following this colloquy, the defendant returned to testify. At the outset of the defendant’s testimony, the court reiterated that “this is a wilfulness hearing.” Similarly, the court stated at one point during the defendant’s testimony that “[t]his is not modification. This is bona fides. This is his abilities.” The defendant testified regarding, inter alia, his financial affidavit, his business ventures, his conferences and his relationship with his fiancée and Pomegranate. Dining closing arguments, the plaintiffs counsel returned the court’s attention to the three-legged stool metaphor and focused the argument on the third leg of the stool: wilfulness. At no point in the plaintiffs argument did counsel mention modification. Similarly, the defendant’s counsel also focused his closing argument on the three-legged stool analogy and specifically stated, “I, too, am limiting my argument to one of wilfulness.” After the parties had completed their closing arguments, the court ended the hearing.

On April 5, 2011, the court issued a “Memorandum of Decision Re: Motion for Modification (#257.00).” The decision noted that “[t]he present matter comes before this court by way of the [plaintiffs] . . . Motion for Contempt (#252.00) dated June 10, 2010, as well as the [defendant’s] . . . Motion for Modification (#257.00) dated August 17, 2010.” The court found that “the evidence demonstrates that the [defendant’s] pre-tax income from self employment is $73,980; that, therefore, this constitutes a substantial downward change in his income; and that based upon the formula set forth in [the separation agreement] ... his unallocated alimony and child support obligation is $40,689 per annum, or $3390.75 per month.” (Internal quotation marks omitted.) The court granted the defendant’s motion for modification “to the limited extent that the court has based the award of unallocated alimony and child support on the [defendant’s] income from self-employment and not his earning capacity,” and ordered, inter alia, that “[c]ommencing April 1, 2011, and monthly thereafter, the [defendant] shall pay to the [plaintiff] the sum of $3390.75 as and for periodic unallocated alimony and child support . . . .” The court also found that “the evidence does not support a finding that the [defendant] is in wilful breach of the orders of the court . . . .”

The plaintiff moved to reargue the motion for modification, claiming that the March 1, 2011 hearing concerned only the contempt motion and that neither party presented any argument on the modification motion. The plaintiff asserted that the court’s modification order was entered without due process of law and requested “notice and a meaningful opportunity to be heard” on reargument of the motion.

During a conference on May 26,2011, the court, Shay, J., denied the plaintiffs motion for reargument. Although the court conceded that it “could have been clearer” about the motions it intended to decide after the March 1, 2011 hearing, the court stated that as a “practical matter” the evidence was the same for both a contempt motion and a modification motion, and that, “as far as this judge is concerned, I took all the evidence. It was all the evidence that I needed. There was a motion for contempt, a motion for modification pending. And I decided them both.” The court also rejected the plaintiffs argument that counsel would have made a different evidentiary presentation if the parties had known that the court would be deciding the modification motion after the hearing; the court stated that it “[did not] see what further evidence” could have been presented or “how it would’ve been different.” The court further told the plaintiffs counsel: “I think, you know, part of my function is to make decisions. And, you know, I think I justified my decision. Was I as clear as I could have been? Probably not. You know, I’ll admit that.” This appeal followed.

The plaintiff claims that the court improperly modified the dissolution judgment without giving the parties adequate notice that it intended to consider and decide the defendant’s motion for modification, and that the court thus deprived the plaintiff of her due process rights to prepare and participate fully in an evidentiary hearing concerning modification. We agree.

We note initially that “[i]t is the settled rule of this jurisdiction, if indeed it may not be safely called an established principle of general jurisprudence, that no court will proceed to the adjudication of a matter involving conflicting rights and interests, until all persons directly concerned in the event have been actually or constructively notified of the pendency of the proceeding, and given reasonable opportunity to appear and be heard ... in sufficient time to prepare their positions on the issues involved.” (Internal quotation marks omitted.) Leftridge v. Wiggins, 136 Conn. App. 238, 243-44, 44 A.3d 217 (2012).

In keeping with these principles of due process, we have reversed modifications of support orders where the issue of modification was not before the trial court, or where the court did not give adequate notice that it intended to address a modification issue. For example, in Pritchard v. Pritchard, 103 Conn. App. 276, 928 A.2d 566 (2007), we reversed the modification of a support order where the court “indicated that it was construing the defendant’s motion for contempt ... as a motion for modification,” but the contempt motion “may have been withdrawn” and the motion remaining before the court “could not fairly be read as a request for modification of support.” Id., 287. We concluded that “none of the parties had notice that the court might . . . modify the support order,” and, therefore, that “the court acted in violation of the state’s due process rights to be given adequate notice of the issues the court intended to address, and ... to be given a reasonable opportunity to be heard in sufficient time to prepare a position on the issues involved . . . .’’Id., 288.

Similarly, in Demartino v. Demartino, 79 Conn. App. 488, 496, 830 A.2d 394 (2003), we reversed an order modifying the plaintiffs alimony obligations after finding that the court had “improperly fashioned relief on an issue that was not before it.” In Demartino, the parties’ judgment of dissolution incorporated an agreement and stipulation requiring, among other things, that the plaintiff pay alimony to the defendant on a weekly basis until the defendant either died or remarried. Id., 490 and n.3. In 2002, after he was discharged from his employment, the plaintiff filed a motion seeking modification or termination of his periodic alimony obligation as of the date of the motion. Id., 491. After a hearing, the court found a substantial change in the parties’ circumstances and ordered the plaintiff to pay periodic alimony until December, 2006, when the alimony order would terminate. Id.

On the defendant’s appeal, we noted that the plaintiffs motion had not specifically requested the future termination of his alimony obligations, and, accordingly, that “[t]he issue of future termination of the alimony award was not before the court.” Id., 496, citing Wingerd v. Wingerd, 3 Conn. App. 261, 487 A.2d 212, cert. denied, 195 Conn. 804, 491 A.2d 1104 (1985). We further stated that the “evidence offered [to the court] was insufficient to permit the court to make a determination concerning the future financial circumstances of the parties,” and, therefore, we held that the court abused its discretion in ordering the future termination of the plaintiffs periodic alimony obligations. Id., 497.

In the present case, the court gave no indication to the parties that it planned to consider the defendant’s motion for modification before, during or after the March 1, 2011 hearing. To the contrary, the court told the parties the exact opposite — it planned to use the hearing to resolve the “unfinished business” from August, 2010, and “finish up” the plaintiffs contempt motion, in what the court described more than once as a “wilfulness hearing” concerning “bona fides” and the defendant’s “abilities.” Indeed, after hearing argument from both sides regarding what motions the court should consider, the court specifically informed the parties that it would not be considering the defendant’s modification motion unless “lightning struck” and both parties agreed to put the modification issue before the court. The parties, however, never reached such an agreement. Rather, both the plaintiff and the defendant explicitly limited their arguments to the issue of wilfulness in the context of the contempt motion, and the defendant’s counsel even recognized in his closing argument that the court would not be considering modification until an as-yet-unscheduled future hearing. Given the clear statements of the parties and the court, we cannot conclude on this record that the parties had adequate notice that the court intended to decide the defendant’s motion for modification after the March 1, 2011 hearing. See, e.g., Pritchard v. Pritchard, supra, 103 Conn. App. 288. “Because the court acted in violation of the [parties’] due process rights to be given adequate notice of the issues the court intended to address, and, accordingly, to be given a reasonable opportunity to be heard in sufficient time to prepare a position on the issues involved,” the modification order cannot stand. Id.

The judgment is reversed only as to the modification of the dissolution judgment and the case is remanded for a hearing on the defendant’s motion for modification.

In this opinion the other judges concurred.

       Section 3.6 (b) of the separation agreement defines “intellectual property” as “including, but not limited to, copyrights, patents, trademarks, real property, books, screenplays, plays, collectibles or corporate entities . . . .”

       The separation agreement states that the payments of unallocated alimony and child support are nonmodifiable as to amount and term, except in certain delineated circumstances. Section 3.4 of the agreement sets forth the circumstances under which either party would be allowed to move for modification, including, inter alia, that the defendant “shall be entitled to move for a modification . . . should there be a substantial, non-voluntary downward change to his yearly employment income caused by a disability or termination from employment.” Section 3.4 further provides that “[t]he [defendant] earned approximately $400,000 per year prior to this action for divorce . . . and that this figure shall be the benchmark to be considered by the [c]ourt in determining whether there has been a substantial downward change in the [defendant’s] income.” Additionally, § 3.5 of the agreement provides that in the event either party successfully moves to modify the amount of unallocated alimony and child support, the plaintiff has the right to move to modify the definition of “gross annual earned income” to include the consideration of the defendant’s “intellectual property” income.

       The trial court, Hon. Dennis F. Harrigan, judge trial referee, calculated that in April, 2008, the defendant may have grossed as much as approximately $460,000 from one conference.

       The $137,500 figure represents 55 percent of the defendant’s imputed $250,000 earning capacity, as set forth in the separation agreement.

       The defendant’s counsel also recognized that the March 1,2011 proceeding before the court did not concern his modification motion, stating: “When we have our hearing on the motion for modification . . . perhaps we can actually get this [earning capacity] lowered to a reasonable number . . . .”

       The plaintiff has indicated that only the court’s modification order is the “focus of this appeal.”

       In Ms appellate brief, the defendant — who is representing himself in connection with tMs appeal — addresses not oMy the plaintiffs due process claim, but also the merits of the court’s modification decision and the purported impropriety in the plaintiffs characterization of Ms relationsMp with Pomegranate as a “fraudulent scheme.” Because we conclude that the court failed to provide adequate notice that it planned to decide the modification motion, we do not reach the merits of the court’s decision, and, accordingly, these arguments are largely irrelevant to our discussion here. We do note, however, that at oral argument before this court and in Ms brief the defendant has attempted to support Ms position with numerous mischaracterizations of the record in tMs case. The facts and procedural Mstory as set forth herein accurately reflect the record and proceedmgs before the trial court; to the extent that the defendant has proposed differing accounts of the underlymg proceedings, we reject Ms interpretation.

       The trial court selected December 1, 2005, as the alimony termination date because the defendant would become sixty-five years old and begin receiving pension payments at that time. Demartino v. Demartino, supra, 79 Conn. App. 495. As we noted, however, “[t]he court did not . . . make a finding of a substantial change precipitating an order for immediate modification, either downward or upward, of alimony. The court also did not order an immediate termination of periodic alimony. In essence, the court applied its present finding of a substantial change in circumstances to support a future termination of periodic alimony.” (Emphasis in original.) Id.

       The fact that the court’s calendar for the date of the hearing listed only the contempt motion further supports the plaintiffs argument that she did not receive proper notice of the issues the court planned to consider. Although the defendant’s counsel mentioned to the case flow coordinator that he thought both motions would be heard by the court on March 1, 2011, there is no indication in the record that the plaintiffs counsel had any knowledge of this conversation or otherwise knew of the defendant’s plans to raise the modification motion at the hearing.

       Although we cannot presume to know the exact additional issues the parties may have presented if the court had clarified that it planned to consider the defendant’s motion for modification at the March 1, 2011 hearing, the plaintiffs briefing on appeal suggests that the plaintiff would have raised, inter alia, arguments and evidence concerning (1) whether the court should consider the defendant’s actual earnings or his earning capacity in determining whether to modify the dissolution judgment, (2) the correct interpretation of §§ 3.4 and 3.5 of the parties’ separation agreement and (3) the defendant’s “intellectual property” income as it affects the defendant’s “gross annual earned income” for purposes of the support calculation.

       As the defendant correctly asserts, the fact that he had filed a written motion for modification in advance of the March 1,2011 hearing distinguishes this case from certain cases cited by the plaintiff, including Connolly v. Connolly, 191 Conn. 468, 464 A.2d 837 (1983), Winick v. Winick, 153 Conn. 294, 216 A.2d 185 (1965), and Osterlund v. State, 129 Conn. 591, 30 A.2d 393 (1943). The mere fact that the defendant filed the modification motion, however, does not change our analysis. Our case law makes plain that due process entitles the parties to fair notice of the issues the court plans to consider. See, e.g., Leftridge v. Wiggins, supra, 136 Conn. App. 243-44; Pritchard v. Pritchard, supra, 103 Conn. App. 288. Here, the record reveals that the parties received no such notice with respect to the issue of modification.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    WOODBURY DONUTS, LLC, ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF WOODBURY
    (AC 34000)
    Gruendel, Alvord and Bear, Js.

      Argued October 11
    officially released December 25, 2012

      Franklin G. Pilicy, for the appellants (plaintiffs).

      Thomas A. Kaelin, for the appellee (defendant).
   Opinion

ALVORD, J.

The plaintiffs, Woodbury Donuts, LLC, and EYRE, LLC, appeal from the judgment of the trial court dismissing their administrative appeal from the decision of the defendant, the zoning board of appeals of the town of Woodbury (board). The board had upheld the town zoning enforcement officer’s denial of the plaintiffs’ application for a zoning permit to operate a Dunkin Donuts on Main Street South in Woodbury. On appeal, the plaintiffs claim that the court improperly determined that (1) there was substantial evidence in the record to support the board’s conclusion that the proposed use constituted an impermissible expansion of a preexisting, legal nonconforming use and (2) the doctrine of municipal estoppel was not applicable under the circumstances of this case. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. EYRE, LLC, owns property at 787-807 Main Street South in Woodbury, which is located in the Middle Quarter District. Corey’s restaurant, a tenant, was a 3000 square foot establishment that operated seasonally on a portion of that property. The restaurant opened in 1995 or 1996 and ceased operation in the fall of 2006. The building housing Corey’s restaurant was a preexisting, legal nonconforming structure, and the use as a fast food restaurant was a preexisting, legal nonconforming use.

In 2006, EYRE, LLC, filed a special permit application with the town’s zoning commission (commission), seeking approval to construct a 42,000 square foot commercial retail center on the property and to relocate Corey’s restaurant into a conforming building to be constructed on the site. The commission approved the application on November 28,2006. In that approval, the commission found, inter alia, that “the proposed site development and uses of the property within the Middle Quarter District, including the relocation of an existing legal non-conforming use within the same portion of the lot and as conditioned below, conform to the applicable standards of the Regulations . . . .” The approval was subject to several conditions, including the following: (1) “[a]ny variation from the approved Special Permit or Site Development Plans . . . shall require review and approval in accordance with Section 8.2.8 of the Regulations”; (2) “[t]he Developer shall obtain a Zoning Permit from the Zoning Enforcement Officer for each approved structure, including signage, and each use on the subject property”; and (3) “[u]ses permitted on the subject site pursuant to this Approval are as permitted by Zoning Regulations pertaining to [the] Middle Quarter [District].”

EYRE, LLC, and Corey’s restaurant were unable to agree on terms for a new lease. Accordingly, EYRE, LLC, looked for a replacement tenant, and, on September 22, 2008, Woodbury Donuts, LLC, applied for a zoning permit to operate a Dunkin Donuts franchise at the location originally planned for Corey’s restaurant. By letter dated November 18,2008, the zoning enforcement officer notified Woodbury Donuts, LLC, that its application had been denied for the following reasons: “The proposed use is not permitted under Section 5.2 of the Woodbury Zoning Regulations [and] is significantly different in character from and is an impermissible expansion of the previous non-conforming use.”

The plaintiffs appealed to the board from the decision of the zoning enforcement officer pursuant to General Statutes § 8-6. Following a four day public hearing, the board issued its decision on April 20, 2009. The board denied the plaintiffs’ appeal and gave the following reasons for its decision: (1) the plaintiffs failed to demonstrate that the zoning enforcement officer’s decision was in error; (2) the zoning permit was properly denied because the proposed use is not permitted under § 5.2 of the zoning regulations, is significantly different in character from the previous use and is an impermissible expansion of the previous use; and (3) the zoning permit should not be issued for the additional reason that it would be in violation of § 1.4.4.2 of the zoning regulations.

The plaintiffs appealed from the board’s decision to the trial court. See General Statutes § 8-8 (b). Among their claims, the plaintiffs alleged in their complaint that the board misinterpreted and misapplied the zoning regulations and that the proposed use as a fast food restaurant was a vested nonconforming use. On February 22,2011, the plaintiffs filed a motion seeking permission to introduce evidence at the hearing to support their contention that the town was estopped from prohibiting the operation of a Dunldn Donuts franchise at the proposed location. The court held a hearing on March 4, 2011, at which time it granted the plaintiffs’ motion to present additional evidence. Thomas Briggs, the owner of EYRE, LLC, then testified as to the expenses the company incurred in connection with the construction of the building, which would have housed tenants including the Dunldn Donuts restaurant. Following the hearing, the parties filed posttrial briefs.

The court issued a memorandum of decision on May 25, 2011. After finding that the plaintiffs were aggrieved by the board’s decision, the court addressed the parties’ claims. Contrary to the board’s position, the court concluded that Corey’s restaurant had been a nonconforming rather than a conforming use of the property. See footnote 1 of this opinion. Following a summary of the evidence before the board, the court stated that the proposed year-round use as a Dunkin Donuts restaurant would expand, by between thirteen and twenty-one weeks, the previous seasonal use as Corey’s restaurant. The court determined that there was substantial evidence in the record to support the board’s conclusion that the “proposed use was an impermissible expansion of a nonconforming use by the substantial extension and expansion of the time period in which the nonconforming Corey’s restaurant was open for business.” With respect to the plaintiffs’ municipal estoppel claim, the court concluded: “[W]hile the court agrees that the [board] is estopped from taking any action to preclude the nonconforming Corey’s restaurant use on the [p]remises, the court finds in the [board’s] favor on [the] plaintiffs’ estoppel claim with respect to the current application.” The plaintiffs filed the present appeal after this court granted their petition for certification.

I

The plaintiffs’ first claim is that the trial court improperly determined that there was substantial evidence in the record to support the board’s conclusion that the proposed year-round use as a fast food restaurant was an impermissible expansion of the previous nonconforming use by Corey’s as a seasonal fast food restaurant. Specifically, the plaintiffs argue that the 2006 special permit issued by the commission expressly authorized the proposed use as a fast food restaurant and that the proposed use was simply a continuation of the prior, legal nonconforming use as a fast food restaurant. The plaintiffs claim that the proposed year-round use was not an impermissible expansion of the previous seasonal use because the 2006 special permit did not contain any seasonal restrictions, and Woodb-ury’s zoning regulations do not distinguish between seasonal and year-round use of properties. Additional facts are necessary for the resolution of this claim.

The record before the trial court included the exhibits submitted to the board and the transcripts from the public hearing. From the evidence presented at the public hearing, the board reasonably could have found the following facts. At all relevant times, the zoning regulations for the Middle Quarter District expressly prohibited the use of any property within that district as a “[f]ast food, predominantly take-out [restaurant].” Woodbury Zoning Regs., art. II, § 5.2.3.1 (C). The Middle Quarter District was created in or about 1977. Prior to 1995 or 1996, when Corey’s restaurant began its operation, the property had been occupied by an A&W Root Beer restaurant and later by a restaurant called Toppers.

In 1995, Brian Elias came before the commission seeking permission to change the use of the property from Toppers restaurant to Corey’s restaurant. At that time, Elias represented that the proposed use would be seasonal and that the restaurant’s unwrapped food would be consumed primarily on-site. According to Elias, the restaurant would be open for business from 11 a.m. to 9 p.m. daily during the months of May through November. The commission approved the proposed use as Corey’s restaurant and considered it to be a continuation of a preexisting, legal nonconforming use.

In its first year of operation, Corey’s restaurant may have remained open for all but two weeks. After that year, however, for the next eight to ten years, the business closed the week of Thanksgiving and reopened sometime in March of the following year. Corey’s restaurant served food that was prepared on the premises. Customers could eat their food outdoors at tables or inside of the building; there were a total of seventy-two seats. According to one resident of the town, the restaurant’s building was a carport type structure that basically protected the customers from precipitation: “It was never walled, floored, heated, air conditioned and certainly not enclosed . . . .”

When EYRE, LLC, was unable to negotiate a renewal lease with Corey’s restaurant for the proposed new building, Woodbury Donuts, LLC, became the proposed replacement tenant for that location. In the September 22, 2008 application for a zoning permit to operate a Dunkin Donuts franchise, the description of the proposed use stated that (1) the business would include a small seating area for customers consisting of eight tables with a total of sixteen seats, (2) the hours of operation would be 5 a.m. to 9 p.m. seven days a week, (3) the store would employ thirteen to seventeen employees, with two to seven employees present on-site at any given time, and (4) bakery deliveries to the site would be made before 5 a.m. During the public hearing, the plaintiffs confirmed that the proposed use would be year-round.

When the commission issued the 2006 special permit allowing the construction of a 42,000 square foot commercial retail center and the “relocation of an existing legal non-conforming use within the same portion of the lot,” there had been no mention of a Dunkin Donuts franchise as a proposed use. The application for the special permit expressly stated that “[t]he proposed nonconforming Corey’s use is being relocated to proposed Building A, as shown on the attached plans.” At the time of the hearing before the commission, the attorney for the applicant, when asked if any tenants were known, responded that Corey’s restaurant was the only “certain” tenant for the new development. When the chairman of the commission asked about the relocation of Corey’s restaurant, the attorney responded that Corey’s was a preexisting, nonconforming fast food restaurant, which normally is not permitted, but that it would continue to be located within the same portion of the property. On the basis of that evidence in the record, the board reasonably could have concluded that the commission considered Corey’s restaurant to be the preexisting, legal nonconforming use to be relocated within the same portion of the lot of the subject property when it granted the 2006 application for a special permit.

Now the plaintiffs claim that the 2006 special permit authorized the use of any fast food restaurant at the proposed location. They argue that the expanded hours and months of operation for the proposed Dunldn Donuts franchise represented an intensification, not an expansion, of the previous legal nonconforming use. For that reason, they claim that the board improperly upheld the decision of the zoning enforcement officer denying their application for a zoning permit. We disagree.

We begin by setting forth the legal principles and standard of review that guide our analysis. Our starting point is the decision of the board following the zoning enforcement officer’s denial of the plaintiffs’ application for a zoning permit. “In Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82, 626 A.2d 744 (1993), our Supreme Court concluded that ‘following an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board.’ We also are mindful that the zoning board of appeals makes a de novo determination of the issue before it, without deference to the actions of the zoning enforcement officer.” Mountain Brook Assn., Inc. v. Zoning Board, of Appeals, 133 Conn. App. 359, 363-64, 37 A.3d 748 (2012).

“In reviewing the actions of a zoning board of appeals, we note that the board is endowed with liberal discretion and that its actions are subject to review by the courts only to determine whether they are unreasonable, arbitrary or illegal. . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision. . . . [A] zoning board of appeals hears and decides an appeal de novo. ... It is the board’s responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts. ... In doing so, the board is endowed with a liberal discretion .... Indeed, under appropriate circumstances, the board may act upon facts which are known to it even though they are not produced at the hearing. . . . Upon an appeal from the board, the court must focus on the decision of the board and the record before it. . . .

“It is well settled that the courts should not substitute their own judgment for that of the board and that the decisions of the board will not be disturbed as long as an honest judgment has been reasonably and fairly made after a full hearing. . . . The court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings. . . . Upon an appeal from the judgment of the trial court, we review the record to see if there is factual support for the board’s decision, not for the contentions of the applicant ... to determine whether the judgment was clearly erroneous or contrary to law.” (Citations omitted; internal quotation marks omitted.) Wing v. Zoning Board of Appeals, 61 Conn. App. 639, 643-44, 767 A.2d 131, cert. denied, 256 Conn. 908, 772 A.2d 602 (2001).

“In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [conclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board]. . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached. ... If the trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board. ... If there is conflicting evidence in support of the zoning commission’s stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission. . . . The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.” (Internal quotation marks omitted.) Walgreen Eastern Co. v. Zoning Board of Appeals, 130 Conn. App. 422, 428, 24 A.3d 27, cert. denied, 302 Conn. 930, 28 A.3d 346 (2011).

In the present case, the trial court was required to determine whether there was substantial evidence in the record to support the board’s determination that the plaintiffs’ proposed year-round use of the property as a Dunkin Donuts franchise was an impermissible expansion of the preexisting, legal nonconforming use established by Corey’s as a seasonal fast food restaurant. “A nonconforming use is merely an existing use the continuance of which is authorized by the zoning regulations. . . . To be a nonconforming use the use must be actual. It is not enough that it be a contemplated use nor that the property was bought for the particular use. The property must be so utilized as to be irrevocably committed to that use. . . . [T]o be irrevocably committed to a particular use, there must have been a significant amount of preliminary or preparatory work done on the property prior to the enactment of the zoning regulations which unequivocally indicates that the property was going to be used for that particular purpose.” (Citations omitted; internal quotation marks omitted.) Wing v. Zoning Board of Appeals, supra, 61 Conn. App. 644-45.

“Zoning regulations in general seek the elimination of nonconforming uses, not their creation or enlargement.” Planning & Zoning Commission v. Craft, 12 Conn. App. 90, 96, 529 A.2d 1328, cert. denied, 206 Conn. 804, 531 A.2d 937 (1987). “[T]he accepted policy of zoning ... is to prevent the extension of nonconforming uses . . . and that it is the indisputable goal of zoning to reduce nonconforming to conforming uses with all the speed justice will tolerate. . . . Nevertheless, the rule concerning the continuance of a nonconforming use protects the right of a user to continue the same use of the property as it existed before the date of the adoption of the zoning regulations.” (Citations omitted; emphasis added; internal quotation marks omitted.) Helbig v. Zoning Commission, 185 Conn. 294, 306, 440 A.2d 940 (1981). “Where a nonconformity exists, it is a vested right which adheres to the land itself. And the right is not forfeited by a purchaser who takes with knowledge of the regulations which are inconsistent with the existing use.” (Internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, 65 Conn. App. 687, 694, 783 A.2d 526 (2001).

The nonconforming use established by Corey’s was a seasonal fast food restaurant that operated out of a nonconforming structure. The evidence before the board was that Corey’s restaurant intended to serve customers between 11 a.m. and 9 p.m. during the months of May through November. The evidence also indicated that Corey’s restaurant may have attempted to remain open year-round for the first year of its operation but was unable to do so because the building was not heated. Thereafter, Corey’s restaurant opened sometime in March of each year and closed during the week of Thanksgiving; it finally ceased operations in the fall of 2006. The issue is whether the plaintiffs’ proposed year-round use as a Dunkin Donuts franchise was an impermissible expansion of the seasonal use actually established by Corey’s restaurant.

Our Supreme Court previously has held that “a mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use. ... A change in the character of a use, however, does constitute an unlawful extension of the prior use.” (Citations omitted.) Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 716, 519 A.2d 49 (1986). “In deciding whether the current activity is within the scope of a nonconforming use consideration should be given to three factors: (1) the extent to which the current use reflects the nature and purpose of the original use; (2) any differences in the character, nature and kind of use involved; and (3) any substantial difference in effect upon the neighborhood resulting from differences in the activities conducted on the property.” Zachs v. Zoning Board of Appeals, 218 Conn. 324, 332, 589 A.2d 351 (1991).

Connecticut case law supports the board’s determination that the proposed change of a nonconforming use from seasonal to year-round would constitute a change in character of the previous use and, therefore, would be an impermissible expansion of that use. “To be illegal, an extension of a permitted use need not necessarily consist of additional uses of a different character. It may consist of uses of the same character carried on over a substantially additional period of the year. . . . The legality of an extension of a nonconforming use is essentially a question of fact.” (Citations omitted; internal quotation marks omitted.) Planning & Zoning Commission v. Craft, supra, 12 Conn. App. 96-97.

As early as 1958, our Supreme Court acknowledged that the extension of a nonconforming use over a substantially additional period of the year constituted an illegal use. In Beerwort v. Zoning Board of Appeals, 144 Conn. 731, 732, 137 A.2d 756 (1958), the plaintiff operated a trailer park on a seasonal basis. He made some improvements in the park, prior to the town’s adoption of zoning regulations, with the expectation that he would operate it on a year-round basis. Id. After the adoption of the regulations, he began operating the park during the winter months, and the zoning enforcement officer issued a cease and desist order for his illegal extension of a nonconforming use. Id., 732-33. The plaintiff appealed from the order to the zoning board of appeals, which sustained the order of the zoning enforcement officer. Id., 733. The Supreme Court stated: “Here there was aprolongation of a nonconforming use into a season in which the use had not existed at the time of the passage of the regulations. Year-round use of the trailer park may then have been contemplated by the owner, but it had never become an accomplished fact, and the actual use was limited to the warmer months. Any extension of the use of the park beyond the months during which it had previously been used would be in fact, as well as in law, the extension of a nonconforming use at the expense of a conforming one.” Id., 734.

Similarly, in Weyls v. Zoning Board of Appeals, 161 Conn. 516, 290 A.2d 350 (1971), our Supreme Court concluded that the plaintiffs year-round occupancy of a cabin that had been occupied on a seasonal basis prior to the adoption of zoning regulations constituted an impermissible extension of a nonconforming use. The court stated: “An increase in the use of property from the summer months to a year-round use is clearly a type of enlargement intended to be proscribed by the Trumbull zoning regulations.” Id., 520.

Again, our Supreme Court affirmed this principle in Cummings v. Tripp, 204 Conn. 67, 527 A.2d 230 (1987), when it upheld the trial court’s finding of an illegal extension of a nonconforming use. In that case, the defendant had purchased cottages that had been rented, in accordance with a nonconforming use, during the summer months. After renovating the cottages, the defendant proceeded to rent them year-round. Id., 70-71. The court concluded that the renovation and year-round rental constituted a new business undertaking and was a substantial departure from the original nature and purpose of the legal nonconforming use. Id., 85. Significantly, the defendant in Cummings argued, as do the plaintiffs in the present case, that because the zoning regulations did not make a distinction between seasonal and year-round use, there was no basis to prohibit year-round use of seasonal buildings. The Supreme Court was not persuaded: “We disagree that such a provision in the zoning regulations is a prerequisite to a judicial finding that a change from seasonal to nonseasonal use is an extension of a nonconforming use.” Id., 86 n.16.

The board in the present case, after a four day public hearing, concluded that the proposed year-round use as a Dunldn Donuts franchise was significantly different in character from the previous seasonal use as Corey’s restaurant and was an impermissible expansion of the previous nonconforming use. That conclusion finds support in the record, in the town’s zoning regulations and in our case law. The board focused on the expansion of the business into additional months of the year. Further, because the Dunkin Donuts intended to open at 5 a.m. and receive truck deliveries prior to 5 a.m., the board members voiced concerns that the character of the use would change by adversely impacting the residents of a nearby elderly housing development. Further, the reduction in seating available for customers supported the inference that the proposed use primarily would be take-out whereas the proprietor of Corey’s restaurant, in 1995, stated that 80 percent of Corey’s patronage would be eating on-site. For the foregoing reasons, we conclude that there was substantial evidence to support the board’s determination that the proposed use was an impermissible extension of the previous legal, nonconforming use.

II

The plaintiffs further claim that the doctrine of municipal estoppel is applicable because they reasonably relied on the 2006 special permit issued by the commission and made significant expenditures in demolishing the old Corey’s restaurant structure and constructing the new building to house the Dunkin Donuts franchise. They argue that the 2006 special permit expressly authorized the continuation of a fast food restaurant and that the board should be estopped from refusing to issue the zoning permit for the proposed use.

We first set forth the appropriate principles guiding our review. Our Supreme Court has acknowledged that there are situations where the doctrine of estoppel may be applicable to municipalities in the enforcement of zoning laws. See Bloom v. Zoning Board of Appeals, 233 Conn. 198, 204, 658 A.2d 559 (1995); Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 354, 365 A.2d 1093 (1976). “There are two essential elements to an estoppel — the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done. . . . [I]n order for a court to invoke municipal estoppel, the aggrieved party must establish that: (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents.” (Citation omitted; internal quotation marks omitted.) O’Connor v. Waterbury, 286 Conn. 732, 757-58, 945 A.2d 936 (2008).

“[B]ecause municipal estoppel should be invoked only with great caution, our case law clearly imposes a substantial burden of proof on the party who seeks to do so.” Cortese v. Planning & Zoning Board of Appeals, 274 Conn. 411, 418-19, 876 A.2d 640 (2006). The question of whether a plaintiff has met his burden to establish the elements of estoppel is a question of fact. See Russo v. Waterbury, 304 Conn. 710, 737, 41 A.3d 1033 (2012). “[A] claim of municipal estoppel is . . . inherently fact bound. . . . The party claiming estoppel . . . has the burden of proof. . . . Whether that burden has been met is a question of fact that will not be overturned unless it is clearly erroneous. . . . A court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Citation omitted; internal quotation marks omitted.) Conservation Commission v. Red 11, LLC, 119 Conn. App. 377, 387, 987 A.2d 398, cert. denied, 296 Conn. 924, 991 A.2d 566 (2010).

In the present case, the 2006 special permit permitted the “relocation of an existing legal non-conforming use within the same portion of the lot.” As discussed in part I of this opinion, the existing legal nonconforming use of the property at that time was a seasonal fast food restaurant. The special permit did not authorize the expansion of that use; it allowed only the continuation of the use that then existed. Although it was not required that Corey’s restaurant move into the new building, it was required that a use of the same character as Corey’s restaurant continue in the new building.

As the trial court aptly stated: “The only way to have a fast food restaurant in any of the five buildings the plaintiffs propose to build is for that restaurant to be a continuation of the nonconforming Corey’s restaurant use. . . . [T]he proposed usage must not be a significant impermissible expansion of that nonconforming use. ... It is clear that the [plaintiffs were] not given license to put any entity into the five buildings on the [premises, but knowingly built such buildings with a known restriction. . . . [Wjhile the court agrees that the [board] is estopped from taking any action to preclude the nonconforming Corey’s restaurant use on the [premises, the court finds in the [board’s] favor on [the] plaintiffs’ estoppel claim with respect to the current application.” We conclude that the court did not improperly determine that the plaintiffs failed to prove their claim of municipal estoppel under the circumstances of this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The board claims that Corey’s use as a fast food restaurant was a permitted use because the zoning regulations, at the time of its operation, prohibited only “[f]ast food, predominantly take-out restaurants . . . ." (Emphasis added.) Woodbury Zoning Regs, art. n, § 5.2.3.1 (C). The board argues that the food served at Corey’s restaurant was consumed predominantly on-

        site and the use, therefore, was in compliance with the regulations. Accordingly, the board maintains that the use proposed by the plaintiffs, which the plaintiffs concede is a prohibited use in the Middle Quarter District, could not be considered the continuation of a preexisting, legal nonconforming use.
      Because we affirm the judgment of the trial court on the ground decided by the trial court, we need not address the board’s claim as an alternate ground for affirmance.

       It was to satisfy this condition that the plaintiffs applied to the zoning enforcement officer for a zoning permit to operate a Dunkin Donuts franchise at the property.

       General Statutes § 8-6 (a) provides in relevant part: “The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter . . . .”

       Articlel, § 1.4.4.1oftheWoodburyzoningregulationsprovides inrelevant part: “Such [nonconforming] use may continue subject to the provisions of this section, may be changed to an equally or less intensive non-conforming use providing a special exception is granted by the Zoning Board of Appeals as provided in Section 8.2, or may be changed to a conforming use.”
      Appendix A, titled “Definitions,” of the Woodbury zoning regulations defines “expansion” as “an increase in area or volume occupied or devoted to a use; the increase in living space or occupant capacity of a structure or adding uses or structures accessory to a non-residential use or structure; the addition of weeks or months to a use’s operating season; additional hours of operation; or the increase in net floor area or ground area devoted to a particular use.” (Emphasis added.)

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

       The attorney for the zoning enforcement officer stated at the public hearing that the A&W Root Beer restaurant and Toppers restaurant both operated on a seasonal basis.

       Brian Elias was the proprietor of Corey’s restaurant.

       The building housing the restaurant had no heat. In 1999, two electric baseboard heaters were installed in the two bathrooms that were added to the building.

       Elias estimated that approximately 80 percent of the restaurant’s patronage would be eating on-site.

       “This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. . . . The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration. . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) Huck v. Inland Wetland & Watercourses Agency, 203 Conn. 525, 541, 525 A.2d 940 (1987).

       “The appropriate standard of review of a zoning agency’s finding that a current use represents an expansion of a prior nonconforming use . . . is whether that finding is supported by substantial evidence.” (Internal quotation marks omitted.) Hall v. Brazzale, 31 Conn. App. 342, 344 n.1, 624 A.2d 916, cert. denied, 227 Conn. 905, 632 A.2d 691 (1993).

       Because municipal estoppel is an equitable claim, it is for the trial court and not the board to determine whether the conduct of municipal officials justifies the invocation of the doctrine. See Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898 (1969); Collins Group, Inc. v. Zoning Board of Appeals, 78 Conn. App. 561, 581, 827 A.2d 764, cert. denied, 266 Conn. 911, 832 A.2d 68 (2003).


author: SHELDON, J.

text:
    ANTHONY J. PELLECCHIA, ADMINISTRATOR (ESTATE OF ANTHONY E. PELLECCHIA) v. CONNECTICUT LIGHT AND POWER COMPANY ET AL.
    (AC 33647)
    Robinson, Espinosa and Sheldon, Js.

      Argued September 14
    officially released December 25, 2012

      Peter D. Clark, for the appellant (defendant-third party plaintiff).

      Giovanna Tiberii Weller, with whom were Lauren J. Taylor and, on the brief, Richard L. Street, for the appellees (named defendant-third party defendant et al.).
   Opinion

SHELDON, J.

In this appeal, the principal issue is whether one of two unrelated tortfeasors, whose separate and independent acts of negligence both allegedly caused the death by electrocution of a motorcyclist by exposing him, without warning, to the risk of electrocution arising from a downed electric power line on a public roadway, can lawfully seek indemnification from the other on the common-law theory of active-passive negligence, as recognized by our Supreme Court in Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 207 A.2d 732 (1965). “The Kaplan case established a narrow exception to the general common law principle that there is no contribution among joint tortfeasors.” (Emphasis in original.) Hammond v. Waterbury, 219 Conn. 569, 576, 594 A.2d 939 (1991). ‘Kaplan impose[d] an implied obligation of indemnity on a tortfeasor whose active negligence is primarily responsible for a plaintiffs injuries, thus superseding the indemnitee’s passive negligence.” (Emphasis in original.) Smith v. New Haven, 258 Conn. 56, 66, 779 A.2d 104 (2001). “[Ijndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest .... Indemnity shifts the impact of liability from passive joint tortfeasors to active ones.” (Emphasis in original; internal quotation marks omitted.) Bristol v. Dickau Bus Co., 63 Conn. App. 770, 773, 779 A.2d 152 (2001).

To establish that a third party is hable to indemnify it for damages awarded against it to the plaintiff for negligently causing harm to the plaintiffs decedent, a defendant seeking indemnification must plead and prove that “(1) the [third] party against whom the indemnification is sought was negligent; (2) [the third] party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting [harm]; (3) the [third] party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the [third] party’s negligence, had no reason to anticipate it, and reasonably could rely on the [third] party not to be negligent.” Smith v. New Haven, supra, 258 Conn. 66.

The case is now before this court on the appeal of the defendant-third party plaintiff, Quinebaug Valley Emergency Communications, Inc. (Quinebaug), from the judgment rendered by the trial court in favor of the third party defendants, Connecticut Light and Power Company, Northeast Utilities and Northeast Utilities Service Company (collectively, power company), after striking Quinebaug’s third party complaint seeking indemnification on the theory of active-passive negligence. The court ruled, more particularly, that the allegations of the stricken complaint were insufficient as a matter of law to plead the third essential element of common-law indemnification, to wit: that the power company “was in control of the situation” that caused the death of the plaintiffs decedent, for which damages are sought in the underlying action, “to the exclusion of [Quinebaug] the party seeking reimbursement” for any such damages that may ultimately be awarded against it in that action.

In the underlying action, the plaintiff, Anthony J. Pel-lecchia, administrator of the estate of Anthony E. Pellec-chia, claimed that Quinebaug, a company hired to provide emergency communication services to the town of Killingly, negligently caused the death of his decedent by failing to notify the power company, the electric utility company that supplied energy to and serviced the downed electric power line that caused his decedent’s death, of a tip it had received, several hours before the death, that the line was down. Quinebaug, in turn, alleged, in its third party complaint against the power company, that the power company failed to deenergize the downed line after it received, in that same time frame, a separate tip from a member of the public that the line was down. Quinebaug claimed that its own alleged negligence in failing to notify the power company of the tip it had received was passive, whereas the power company’s failure to deenergize the line after receiving the other tip was active, in that the power company was the only entity responsible for and capable of deenergizing the downed line before the plaintiffs decedent or any other motorist struck and was injured by it. On that basis, Quinebaug claimed that the active negligence of the power company, in failing to do what it alone could do to eliminate danger to the general public from the downed line, was the direct and immediate cause of the plaintiffs decedent’s death.

In support of its motion to strike, the power company argued that Quinebaug could not seek common-law indemnification from it under the allegations of the challenged third party complaint because those allegations described alleged acts of negligence by the power company that were entirely separate from and independent of the alleged negligence of Quinebaug, as described in the plaintiffs underlying complaint. The power company contended that the independence of Quinebaug’s alleged negligence from its own made it impossible for Quinebaug to prove two essential elements of common-law indemnification, to wit: that Quinebaug’s negligence was passive instead of active and that the power company was in control of the situation that caused the injuries and death of the plaintiffs decedent to the exclusion of Quinebaug. On this score, the power company asserted that, if Quinebaug’s independent negligence was a proximate cause of the injuries and death of the plaintiffs decedent, it must have been a form of active, rather than passive, negligence, for its causative effects would necessarily have remained in operation until the setting in motion of the final active injurious force that immediately produced or preceded such harm. In addition, it argued that Quin-ebaug’s allegedly separate negligent contribution to the causation of the injuries and death of the plaintiffs decedent is irreconcilably inconsistent with the notion that the power company, by its own independent acts of negligence, was in control of the situation that caused the harm to the exclusion of Quinebaug.

Following the power company’s reasoning, the court held that the issue of exclusive control of the situation must be resolved by comparing the allegations against the power company in the third party complaint to those against Quinebaug in the underlying complaint. On the basis of that comparison, the court concluded that the power company did not exercise the requisite degree of control over “the situation” to incur liability for common-law indemnification because “the situation” alleged in the underlying complaint, involving Quinebaug’s alleged failure to notify the power company of the downed power line, “goes well beyond and differs from allegations [of the third party complaint] concerning the downed power lines, and the means and methods of deenergizing them or otherwise rendering them safe.” (Internal quotation marks omitted.) The court therefore struck the third party complaint for failure to state a claim upon which relief could be granted and later rendered judgment in favor of the power company when Quinebaug elected not to replead. This appeal followed.

On appeal, Quinebaug claims that the trial court improperly struck its challenged claim for failure to allege sufficient facts that satisfy the third essential element of common-law indemnification. The power company disagrees, arguing both that the trial court’s ruling was legally correct as rendered and that, even if it was not, the judgment can nonetheless be affirmed on alternative grounds. For the following reasons, we conclude that the trial court’s judgment must be reversed and that this case must be remanded for further proceedings on the defendant’s claim for common-law indemnification.

“The standard of review in an appeal challenging a trial court’s granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Lestorti v. DeLeo, 298 Conn. 466, 472, 4 A.3d 269 (2010).

At issue in this appeal is whether the trial court properly determined, as a matter of law, that Quinebaug did not sufficiently allege the third essential element of common-law indemnification as established in Kaplan. Our Supreme Court has defined “exclusive control of the situation,” for the purpose of a common-law indemnification claim, as “exclusive control over the dangerous condition that gives rise to the accident.” Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 706, 694 A.2d 788 (1997). Generally, the question of control should not be resolved on a motion to strike because it is a question of fact. Id., 704. In a given case, however, “special circumstances may give rise to the question of whether, in fight of the facts alleged in the third party complaint, any reasonable juror could find that the third party defendants had exclusive control of the situation.” Id., 705.

The focus of this appeal is on the meaning of the term “the situation” as used in Kaplan and later cases to define the third essential element of active-passive negligence. In characterizing “the situation” as Quine-baug’s allegedly negligent conduct, as described by the plaintiff in his underlying complaint, the trial court confused such allegedly negligent conduct with the dangerous condition that allegedly exposed the plaintiffs decedent to harm by virtue of such conduct — here, of course, the downed electric power line in the public roadway. Although the plaintiffs allegations of negligence against Quinebaug surely constitute the factual theory upon which he seeks to prove that Quinebaug negligently caused his decedent’s injuries and death, the dangerous condition, or “situation,” that allegedly caused such harm by virtue of the defendant’s negligence was plainly the downed power fine, not the negligent conduct itself. The downed fine, simply stated, was the condition of danger from which a foreseeable risk of harm to the plaintiffs decedent is claimed to have arisen due to the negligence of both Quinebaug and the power company. It, then, was “the situation” over which the power company must be shown to have had exclusive control before its liability to indemnify Quinebaug can be established.

Here, there is no question that both the alleged conduct of Quinebaug in failing to notify the power company of the downed power line in the roadway and the alleged conduct of the power company in failing to remove and/or to deenergize the downed power line after receiving separate notice of its presence in that location are claimed to have proximately caused the plaintiffs decedent’s injuries and death by exposing him, without notice, to the downed line. Quinebaug clearly has alleged that, at the time of the plaintiffs decedent’s injuries and death, the power company had control over the downed power line to the exclusion of Quinebaug because only the power company was responsible for and capable of deenergizing the line, and thus eliminating the danger of electrocution therefrom. Because such allegations are all pleaded in the challenged complaint, the complaint sufficiently pleads the third essential element of common-law indemnification.

As an alternative basis for affirming the trial court’s granting of its motion to strike, the power company argues that the challenged third party complaint also fails to allege sufficient facts to establish the second essential element of common-law indemnification, to wit: that the negligence of Quinebaug, as the party seeking indemnification, was passive. On this score, it argues, as it did before the trial court, that because Quinebaug’s alleged negligence, as described in the plaintiffs underlying complaint, was completely separate from and independent of its own alleged negligence, as pleaded in the challenged third party complaint, such negligence must be found to have been active rather than passive if it is ultimately found to have proximately caused the injuries and death of the plaintiffs decedent. Quinebaug rejects this claim on the basis of settled Supreme Court precedents, including Kaplan, which expressly hold that “[a]n indemnitee may be chargeable with personal negligence, independent of any negligence of the indemnitor, and still not be chargeable with active or primary negligence. Personal independent negligence may be passive or secondary negligence. It need not necessarily be active or primary negligence.” Kaplan v. Merberg Wrecking Corp., supra, 152 Conn. 415. It thus is possible to have common-law indemnification between unrelated parties whose separate and independent streams of negligence, one active and the other passive, give rise to a foreseeable risk of harm from the same condition of danger. Accord Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 702 (concluding that, “outside the context of workers’ compensation law, [a defendant seeking indemnification under the common-law theory of active-passive negligence] need not establish the existence of an independent legal relationship between itself and the alleged indemnitor as a condition for recovery”). In conclusion, Kaplan and its progeny stand for the proposition that, where two parties with independent duties to exercise reasonable care for the safety of another person separately breach those duties in ways that cause harm to the other person by exposing him to one and the same dangerous condition, equity permits the shifting of all responsibility for the injured person’s resulting damages to the party who, by virtue of its control of the dangerous condition to the exclusion of the other negligent party, was the direct and immediate cause of the accident.

According to the third party complaint in the present case, Quinebaug’s failure to act indirectly gave rise to a risk of harm from the dangerous condition, the downed power line, by failing to notify the power company of its need to act to deenergize the line, whereas the power company’s failure to deenergize the line in response to information received from another source was the direct and immediate cause of the harm. Quinebaug’s function of informing the power company of the downed power line on the public roadway allegedly constituted a preliminary step that would have preceded the power company’s ultimate act of deenergizing the downed power line and eliminating the risk of harm arising from it. Even if Quinebaug had relayed notice of the dangerous condition to the power company, the risk of harm from that dangerous condition would not have been eliminated unless or until the power company acted to eliminate it. Those allegations are sufficient to establish the second essential element of common-law indemnification. Accordingly, on this basis as well, Quinebaug’s claim should have survived the power company’s motion to strike.

The judgment is reversed and the case is remanded with direction to deny the motion to strike Quinebaug’s indemnification claim and for further proceedings according to law.

In this opinion the other judges concurred.

       We note that “superseding” in this context does not refer to a superseding cause as set forth in 2 Restatement (Second), Torts § 442 B (1965), the standard that our Supreme Court has adopted for an active tortfeasor does not relieve the passive tortfeasor of liability. See Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 607-608, 662 A.2d 753 (1995) (“[w]here the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct” [internal quotation marks omitted]). Instead, we use “superseding” to describe the fact that active negligence displaces passive negligence, which results in the shifting of the impact of liability between joint tort-feasors.

       As a second alternate basis for affirming the trial court’s decision, the power company argues that Quinebaug cannot satisfy the third element of common-law indemnification because Quinebaug cannot demonstrate that the power company exercised exclusive control over the dangerous condition that caused the harm for which the plaintiff seeks to recover damages from it to the exclusion of the defendant town of Killingly. In asserting this final claim, the power company misinterprets the third prong of Kaplan. To recover under the active-passive negligence doctrine, Quinebaug is required only to plead and to prove that the power company “was in control of the situation to the exclusion of the [party seeking indemnification]”; Kaplan v. Merberg Wrecking Corp., supra, 152 Conn. 416; not all other conceivable tortfeasors.