text:
    JOHN GLADYSZ ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF PLAINVILLE ET AL.
    (AC 18601)
    Schaller, Spear and Stoughton, Js.
    Argued January 11
    officially released May 23, 2000

      Lawrence J. Golden, for the appellants (plaintiff Carol Salyards et al.).

      Hugh I. Manke, with whom, on the brief, was Christopher L. Brigham, for the appellee (defendant Plainville NWD Limited Partnership).

      Kenneth R. Slater, Jr., for the appellee (named defendant).
   Opinion

STOUGHTON, J.

This is an appeal by the statutorily aggrieved plaintiffs from a judgment dismissing an appeal from a decision of the named defendant, the planning and zoning commission of the town of Plainville (commission), which approved a site plan application made by the defendant Plainville NWD Limited Partnership (partnership) for the construction of a 102,000 square foot retail development. We granted certification to appeal on June 17, 1998.

The dispositive issue in this appeal is whether the applicant for site plan approval was barred by principles of collateral estoppel from litigating the issue of whether it had an interest in the subject property and, thus, standing to apply for land use approval. We conclude that it was barred and reverse the judgment of the trial court.

The following facts are pertinent to this appeal. The property that was the subject of the application was owned by the Tyler Farms Group. The owners entered into an option agreement and purchase and sale agreement (option) for the subject property with Plainville NWD Real Estate Trust (trust). The site plan application was made by the partnership, which paid all of the option costs and application expenses. The trust and the partnership had an oral agreement that the trust would assign the option to the partnership upon the issuance of the permits necessary for the development. The partnership is made up of the beneficiaries of the trust, with Charter House Development Corporation as general partner.

In November, 1994, the partnership applied for site plan approval for construction of a retail development of more than 135,000 square feet. This application was denied by the commission and by the inland wetlands and watercourses commission. The partnership appealed from those denials, and the trial court, Handy, J., dismissed both appeals. The partnership’s aggrievement was not contested in those appeals, and the court found, in part on the basis of testimony that the owners had entered into an agreement with the partnership for an option to purchase the property, that the partnership was aggrieved.

On April 13,1995, the partnership filed an application for site plan approval for a 102,000 square foot development. The commission approved that application with conditions on November 30, 1995. The partnership appealed, contesting the permit conditions, and the plaintiffs appealed from the decision to approve the site plan application.

The commission moved to dismiss the partnership’s appeal, claiming that the partnership had no legally cognizable interest in the subject real estate and, thus, was not aggrieved, and that the court therefore lacked subject matter jurisdiction. The trial court, Handy, J., after a hearing, granted the motion in a memorandum of decision dated January 21, 1997, stating that there was no evidence before the court that the partnership possessed an interest in the property and therefore it was not aggrieved, that the option existed between the trust and the owners, and that the trust and the partnership were separate legal entities. The partnership did not appeal.

In their appeal from the decision approving the site plan application, the plaintiffs claimed, inter alia, that the partnership lacked standing to apply for site plan approval. Under Connecticut law, a party applying to a planning and zoning commission must have a sufficient interest in the subject property to have standing to apply; Richards v. Planning & Zoning Commission, 170 Conn. 318, 321-22, 365 A.2d 1130 (1976); and, here, the plaintiffs claimed that the partnership lacked such an interest. The trial court, McWeeny, J., dismissed the appeal, deciding that the partnership was a real party in interest and had standing to apply. The court found that the partnership had an equitable interest in the property by virtue of its agreement with the trust, and the payment of the option costs and expenses incurred in pursuing the application. The court recognized that in a related case involving the partnership’s appeal from the decision of the commission imposing conditions on site plan approval, the commission had successfully contested the aggrievement of the partnership and that the appeal was dismissed because the partnership had no interest in the property and, thus, was not aggrieved. The court noted, however, that standing and aggrievement may constitute separate issues and that it was not “persuaded by such decision.”

The plaintiffs filed a motion to reargue, claiming that Judge Handy’s decision that the partnership lacked an interest in the property precluded the partnership from litigating that issue in the plaintiffs’ appeal under the doctrine of collateral estoppel. The motion to reargue was denied on the ground that standing was not an issue in the previous case involving the partnership’s appeal of the conditions of site plan approval, and the reference in Judge Handy’s memorandum of decision to the partnership’s lack of interest in the property was dicta. The plaintiffs appeal from the decisions of the trial court dismissing their appeal and denying their motion to reargue.

“ ‘It is well established that an appellate court will not retry the facts. Our review is to determine whether the judgment of the trial court was clearly erroneous or contrary to the law.’ Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn. App. 284, 290-91, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998).” Gangemi v. Zoning Board of Appeals, 54 Conn. App. 559, 563, 736 A.2d 167, cert. granted on other grounds, 251 Conn. 911, 739 A.2d 1248 (1999). In the present case, the court determined that the doctrine of collateral estoppel did not apply to preclude litigation of an issue. We therefore are called upon to review a legal conclusion of the Superior Court. See Ancona, v. Manafort Bros., Inc., 56 Conn. App. 701, 707, 746 A.2d 184, cert. denied, 252 Conn. 954, 749 A.2d 1202 (2000). “When . . . the trial court draws conclusions of law, [the scope of our appellate] review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Gangemi v. Zoning Board of Appeals, supra, 563-64.

“Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action.” Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991). The issue must have been fully and fairly litigated in the first action, and it must have been actually decided and necessary to the judgment. Id. “An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. ... 1 Restatement (Second), Judgments § 27, comment (d) (1982). An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 11.19. If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta. . . . Dowling v. Finley Associates, Inc., [248 Conn. 364, 374, 727 A.2d 1245 (1999)]. . . . Pitchell v. Williams, 55 Conn. App. 571, 577-78, 739 A.2d 726 (1999) [cert. denied, 252 Conn. 925, 746 A.2d 789 (2000)].” (Internal quotation marks omitted.) Ancona v. Manafort Bros., Inc., supra, 56 Conn. App. 706. “Furthermore, [t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding.” (Internal quotation marks omitted.) Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 812, 695 A.2d 1010 (1997).

The plaintiffs claim that the court improperly failed to apply the doctrine of collateral estoppel to preclude the partnership from litigating the issue of whether it had an interest in the subject property sufficient to give it standing to apply for site plan approval because that issue had been litigated and decided in a related action. In this case, two separate appeals were taken from the commission’s November 30, 1995 decision approving the partnership’s site plan application with conditions. Judge Handy dismissed the partnership’s appeal because she found that the partnership did not possess an interest in the subject property and therefore was not aggrieved. In the plaintiffs’ appeal, the sole issue is whether the partnership had standing to apply for site plan approval, which involves a determination of whether the partnership possesses a sufficient interest in the property. Thus, according to the plaintiffs, because the issue of whether the partnership had an interest in the property already was decided in the related case, the partnership was precluded from litigating it here. The plaintiffs claim that all of the elements of collateral estoppel are present here, namely, the issue was actually litigated and determined in a valid final judgment, the issues in both cases are the same and even though the plaintiffs were not parties to the other-action, they may properly invoke the doctrine of collateral estoppel.* **

The partnership counters that collateral estoppel is not applicable to the present case. The partnership claims that the issue sought to be litigated in the present case is not the same as the one previously decided, that is, the question of whether the partnership has standing to apply is different from the question of whether it is properly aggrieved. The partnership claims further that because the issue of standing to apply was not actually litigated or necessarily determined in the other appeal, the court properly refused to bar litigation of that issue. The partnership also claims that collateral estoppel does not apply because there is no mutuality of parties, as the plaintiffs were not parties to the other appeal, and that Judge Handy’s finding of “no interest” was nonbinding dicta. We are not persuaded.

Although the plaintiffs were not parties to the partnership’s appeal from the conditions imposed on the site plan approval in which Judge Handy determined that the partnership was not aggrieved, the mutuality of parties rule has been abandoned in Connecticut. Aetna Casualty & Surety Co. v. Jones, supra, 220 Conn. 302. To allow a party who has fully and fairly litigated an issue at a prior trial to avoid the force of a ruling against him simply because he later finds himself faced by a different opponent is inappropriate and unnecessary. Id. Although circumstances may exist in which the lack of mutuality would render application of collateral estoppel unfair; id., 303; we are able to discern no such circumstances here. See Labbe v. Hartford Pension Commission, 239 Conn. 168, 187, 682 A.2d 490 (1996).

One who claims to be aggrieved in a zoning matter must demonstrate that he has a specific, personal and legal interest in the subject matter of the decision. Munhall v. Inland Wetlands Commission, 221 Conn. 46, 51, 602 A.2d 566 (1992). To have standing to apply for a permit, a nonowner must have substantial interests in the subject property. Richards v. Planning & Zoning Commission, supra, 170 Conn. 321-22; see also Michel v. Planning & Zoning Commission, 28 Conn. App. 314, 324-25, 612 A.2d 778, cert. denied, 223 Conn. 923, 614 A.2d 824 (1992). “The question of aggrievement is essentially one of standing. Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978).” DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 373, 588 A.2d 244, cert. denied, 219 Conn. 903, 593 A.2d 129 (1991).

The issue before the court in the present case was whether the partnership had a substantial interest in the subject property so as to have standing to apply for site plan approval. In an earlier case, a different trial court decided that the partnership had no interest in the subject property. While the earlier case involved aggrievement and the present case involves standing, the underlying question common to both cases is whether the partnership has an interest in the subject property. Thus, in the context of this zoning case involving a site plan application by a nonowner, the issue to be decided is essentially the same one decided by the earlier trial court. The determination by Judge Handy that there was no evidence that the partnership possessed an interest in the property necessarily precludes any claim that the partnership possessed a substantial interest in that property.

“Dictum includes those discussions that are ‘merely passing commentary’; [Dacey v. Connecticut Bar Assn., 184 Conn. 21, 24, 441 A.2d 49 (1981)]; those that go ‘beyond the facts’ at issue; Sharkiewicz v. Smith, 142 Conn. 410, 412, 114 A.2d 691 (1955); and those that are unnecessary to the holding in the case. Diamond National Corp. v. Dwelle, 164 Conn. 540, 544, 325 A.2d 259 (1973).” Middletown Commercial Associates Ltd. Partnership v. Middletown, 53 Conn. App. 432, 435, 730 A.2d 1201, cert. denied, 250 Conn. 919, 738 A.2d 657 (1999). The determination that the partnership possessed no interest in the property was necessary to the determination that it was not aggrieved and therefore was not mere obiter dictum, as asserted by the partnership. See Zoning Commission v. Fairfield Resources Management, Inc., 41 Conn. App. 89, 109, 674 A.2d 1335 (1996).

The evidence regarding the partnership’s interest in the property was the same as regards aggrievement and standing. When the issue of the partnership’s aggrievement was contested in its appeal from the conditions imposed on approval of the site plan, Judge Handy conducted a hearing and reached a decision on that issue. When, subsequently, the standing of the partnership to apply for the site plan was raised in the appeal by these plaintiffs from the decision approving the application, no new evidence was presented to Judge McWeeny, and the partnership relied on the evidence that had been produced in the earlier hearing. That is to say, the same evidence was offered to establish standing as had previously been offered on the question of aggrievement.

The finding by Judge Handy that the partnership possessed no interest in the property was essential to the decision that it lacked aggrievement. While a different judge in a subsequent proceeding was not persuaded by Judge Handy’s decision and was instead persuaded that the partnership’s standing and aggrievement constituted separate issues; see D. S. Associates v. Planning & Zoning Commission, 27 Conn. App. 508, 511, 607 A.2d 455 (1992); the question is not whether he was persuaded but rather, whether he was bound by principles of collateral estoppel to follow that decision. We have determined that those principles apply in this case.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the appeal by the plaintiffs Carol Salyards and Lawrence Salyards.

In this opinion the other judges concurred.

       The plaintiffs at trial were John Gladysz, Carol Salyards and Lawrence Salyards. Only the Salyards were found to be aggrieved and have brought this appeal. We therefore refer to the Salyards as the plaintiffs in this opinion.

       Although it made the site plan application and paid all of the costs and expenses necessary thereto, the partnership has never owned the subject property. The facts, which are not in dispute, are that the trust had an option to purchase the property and had agreed to assign that option to the partnership upon the issuance of the permits necessary for the proposed development.

       The inland wetlands and watercourses commission also had approved the application with conditions. The partnership appealed from those conditions but withdrew that appeal.

       Because we reverse the judgment dismissing the plaintiffs’ appeal, we do not address the plaintiffs’ claims as to the denial of their motion to reargue.

       The plaintiffs also claim that even if principles of collateral estoppel do not apply, the applicant did not have a substantial interest in the property and lacked standing. Because we determine that collateral estoppel principles apply, we do not decide this issue.

       The partnership also claims that the requirement of privity is not satisfied. The partnership, however, confuses the privity requirement. “Collateral estoppel may be invoked against a party to a prior adverse proceeding or against those in privity with that party. . . . While it is commonly recognized that privity is difficult to define, the concept exists to ensure that the interests of the party against whom collateral estoppel is being asserted have been adequately represented because of his purported privity with a party at the initial proceeding.” (Citations omitted; emphasis added; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, supra, 220 Conn. 303-304. Here, collateral estoppel is being invoked against a party to the prior proceeding and, therefore, the privity requirement is not an issue.

       This case does not involve a situation where one judge was not bound to follow an interlocutory order or ruling of another judge made at an earlier stage of the proceedings. See Westbrook v. Savin Rock Condominiums Assn., Inc., 50 Conn. App. 236, 239-40, 717 A.2d 789 (1998). The decision of Judge Handy dismissing the plaintiffs’ appeal was final and not merely interlocutory and, therefore, it cannot be disregarded under the doctrine of the law of the case. See CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 403-404, 685 A.2d 1108 (1996), overruled in part on other grounds, State v. Salmon, 250 Conn. 147, 154-55, 735 A.2d 333 (1999).


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    MARIA OSAKOWICZ v. HENRY OSAKOWICZ
    (AC 18740)
    O’Connell, C. J., and Landau and Spear, Js.

    Argued January 24
    officially released May 23, 2000

      Gayle C. Carr, for the appellant (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

O’CONNELL, C. J.

The plaintiff, Maria Osakowicz, appeals from the judgment of the trial court dissolving her marriage to the defendant, Henry Osakowicz, claiming that the court improperly allocated certain of the parties’ marital property in its financial orders. The plaintiff claims that the court improperly (1) found her responsible for the breakdown of the marriage, (2) ordered her to be responsible for the defendant’s undisclosed credit card debts and (3) ordered disposition of jointly held real estate. We reverse the judgment in part.

On August 28, 1997, the court rendered judgment dissolving the parties’ nineteen year marriage and awarding custody of the two minor children to the plaintiff. The judgment also included orders providing for the allocation and distribution of the marital property, which the plaintiff challenges on appeal.

I

The plaintiff first claims that the court erroneously attributed to her responsibility for the breakdown of the marriage and, as a result, improperly penalized her in the distribution of marital assets and liabilities. We are not persuaded. A review of the court’s memorandum of decision does not support this contention.

The court’s memorandum of decision is unambiguous. It clearly articulated the court’s conclusions as to why the parties grew apart and eventually became incompatible. The court expressly found that the marriage broke down because of incompatibility and therefore declined to blame either party totally. We cannot construe this language in the memorandum of decision to mean that the court found the plaintiff to be responsible for the breakdown of the marriage.

Because this claim lacks a factual basis, it has no merit.

II

The plaintiff next challenges the court’s order imposing liability on her for the defendant’s undisclosed credit card debts. The defendant’s financial affidavit listed VISA and Getty credit card debts, and the court ordered the defendant to be solely responsible for them. The court went further, however, and ordered that “[the] plaintiff shall be liable for any other credit cards in her name or in that of the defendant.” (Emphasis added.) At the time of the dissolution, the parties had been separated for about two years so that neither the court nor the plaintiff had knowledge of the existence or the extent of debts on any credit cards in the defendant’s name, which he failed to list on his affidavit. There was no way to quantify the magnitude of this possible debt.

It is beyond dispute that a court rendering a dissolution judgment may order one party to assume the joint liabilities of both parties. General Statutes § 46b-81 (a); Beede v. Beede, 186 Conn. 191, 195, 440 A.2d 283 (1982).

It is well settled that appellate review in family relations cases is restricted to a determination of whether the trial court abused its discretion. The reviewing court is limited to consideration of two questions: Did the trial court correctly apply the law? Could the trial court reasonably have concluded as it did? Glinsky v. Glinsky, 26 Conn. App. 617, 620, 602 A.2d 1070 (1992). An appellate court will not substitute its own judgment for that of the trial court and will not disturb an order of the trial court unless there was an abuse of discretion or the trial court’s findings lack a reasonable basis in the facts. Cattaneo v. Cattaneo, 19 Conn. App. 161, 166, 561 A.2d 967 (1989). In the present case, we can find nothing in the record to justify requiring the plaintiff to assume undisclosed, open-ended debt that the defendant may have incurred. Accordingly, the court’s order must be reversed.

Ill

The plaintiff also complains that the court’s financial orders concerning the future of the marital residence are inequitable. Because the court’s order as to the defendant’s credit card debt must be reversed; see part I of this opinion; it is not necessary that we reach the issue of the marital residence. Nevertheless, because our silence might be misconstrued as approval, we also consider this claim to determine whether the court’s orders as to the marital residence properly might be repeated in a new judgment. We conclude that they cannot.

At the time of the dissolution, two of the marital assets were jointly held real estate—a condominium in Bridgeport and the marital residence in Shelton. The court awarded the Bridgeport condominium exclusively to the defendant. In an effort to assure a residence for the minor children, the court awarded the plaintiff exclusive possession of the marital residence until the youngest child’s eighteenth birthday or age nineteen if he had not graduated from high school. This would be three or four years from the date of the judgment.

The court accepted the value of the marital residence as $180,000 in accordance with the parties’ stipulation. The plaintiff was given the right to sell the property at any time, but if she put it up for sale, the defendant had the right to purchase it for $180,000. If the property was not previously sold by the time of the youngest child’s eighteenth or nineteenth birthday, the defendant could advise the plaintiff of his intent to purchase it for $180,000. If he did not so notify her, the parties would be required to put the residence up for sale under a procedure in which each party would select one real estate broker who in turn would select a third broker who would decide the sale price of the property.

The plaintiff argues that the foregoing marital property order was improper because it failed to provide an opportunity for the plaintiff to purchase the residence, it fixed the sale of the residence for the defendant at a static value and failed to provide the plaintiff with any credit for her postjudgment contributions to the mortgage or capital improvements to the property. We agree with the plaintiff. This order must be reversed.

“The issues involving financial orders are entirely interwoven. The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989). Accordingly, the judgment must be reversed except for the granting of the dissolution of marriage and the awarding of custody of the minor children.

The judgment is reversed as to the property and financial awards only and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiffs appeal form indicates that the appeal was also taken from the denial of her motion for articulation. Practice Book § 66-5 provides that the “sole remedy of any party desiring the court having appellate jurisdiction to review the trial court’s decision on [a motion for articulation] . . . shall be by motion for review under Section 66-7.” Therefore, to the extent that the plaintiff attempts to appeal from the denial of her motion for articulation, that portion of her appeal is improper and consequently will not be considered by this court.

       The relevant part of the court’s memorandum of decision is as follows: “What seems to have caused [the breakdown of the marriage] is the change in the plaintiffs status from an immigrant without knowledge of the language to an articulate, knowledgeable woman who, in effect, changed with the change in their economic status, and a man who did not change but kept continuing in the same pattern of head of the family with total control of the family’s finances.
      “Consequently, the court finds that neither party is totally to blame for the breakdown of the marriage. The marriage broke down because of incompatibility and this is, therefore, a no fault divorce.” (Emphasis added.)

       General Statutes § 46b-81 (a) provides: “At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.”

       The youngest child was bom November 17, 1982.


author: Per Curiam.

text:
    CITICORP MORTGAGE, INC. v. TODD R. BAINER ET AL.
    (AC 19618)
    Landau, Spear and Hennessy, Js.
    Argued March 2
    officially released April 18, 2000
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. HENRI D. MORIN
    (AC 17994)
    Spear, Hennessy and Mihalakos, Js.
    Argued March 21
    officially released April 18, 2000
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. RUDOLPH SAINT VICTOR
    (AC 18862)
    Spear, Hennessy and Mihalakos, Js.
    Argued March 21
    officially released April 18, 2000
   Per Curiam.

The judgment is affirmed.


text:
    THOMAS W. COHN v. PETER JOHL ET AL.
    (AC 18463)
    Foti, Lavery and Hennessy, Js.*
    Argued March 2
    officially released April 18, 2000
   Per Curiam.

The judgment is affirmed.


text:
    JUNE BATTISTONI v. DAVID BATTISTONI
    (AC 19571)
    Lavery, Schaller and Mihalakos, Js.*
    Argued March 2
    officially released April 18, 2000
   Per Curiam.

The judgment is affirmed.


text:
    JOSEPH GAYMON v. STATE OF CONNECTICUT
    (AC 19220)
    O’Connell, C. J., and Mihalakos and Zarella, Js.

    Argued January 20
    officially released April 18, 2000

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Per Curiam.

The judgment is affirmed.


text:
    TOWN OF NEW MILFORD v. WILFRED J. MEGIN II
    (AC 19824)
    Lavery, C. J., and Spear and Pellegrino, Js.

    Submitted on briefs March 22
    officially released April 18, 2000

      The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Per Curiam.

The judgment is affirmed.


text:
    TOWN OF NEW MILFORD v. WILFRED J. MEGIN II, TRUSTEE
    (AC 19866)
    Lavery, C. J., and Spear and Pellegrino, Js*
    Submitted on briefs March 22
    officially released April 18, 2000
   Per Curiam.

The judgment is affirmed.


text:
    RONALD PROVOST v. WESTVACO CORPORATION
    (AC 19384)
    Lavery, C. J., and Spear and Hennessy, Js.
    Argued March 20
    officially released April 25, 2000
   Per Curiam.

The decision of the workers’ compensation commissioner is affirmed.


text:
    STATEWIDE GRIEVANCE COMMITTEE v. SAMUEL E. DIXON, JR.
    (AC 18977)
    Mihalakos, Zarella and O’Connell, Js.
    Submitted on briefs March 20
    officially released April 25, 2000
   Per Curiam.

The judgment is affirmed.


text:
    BEN GYADU v. FLEET MORTGAGE GROUP, INC., ET AL.
    (AC 19627)
    Foti, Mihalakos and Zarella, Js.
    Submitted on briefs March 22
    officially released April 25, 2000
   Per Curiam.

The judgment is affirmed.


text:
    JOHN DELGARDO v. ARRA CONSTRUCTION ET AL.
    (AC 20032)
    Foti, Mihalakos and Zarella, Js.
    Submitted on briefs March 22
    officially released April 25, 2000
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    ROBERT J. NICHOLS, TRUSTEE, ET AL. v. ROGER B. CLARK ET AL.
    (AC 18928)
    Lavery, C. J., and Schaller and Zarella, Js.
    Argued March 27
    officially released April 25, 2000
   Per Curiam.

The judgment is affirmed.


text:
    LOUIS G. BATTAGLIA v. JANET A. BATTAGLIA
    (AC 19887)
    Landau, Schaller and Hennessy, Js.
    Submitted on briefs March 22
    officially released April 25, 2000
   Per Curiam.

The judgment is affirmed.


text:
    TIMOTHY WHITFIELD v. COMMISSIONER OF CORRECTION
    (AC 19232)
    Foti, Mihalakos and Spallone, Js.
    Argued April 3
    officially released April 25, 2000
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. PEDRO OLIVERO
    (AC 19083)
    Schaller, Hermessy and Pellegrino, Js.
    Argued April 3
    officially released April 25, 2000
   Per Curiam.

The judgment is affirmed.


author: STOUGHTON, J.

text:
    THE JEWISH HOME FOR THE ELDERLY OF FAIRFIELD COUNTY, INC. v. J. MICHAEL CANTORE, JR., CONSERVATOR (PERSON AND ESTATE OF DIANA KOSMINER), ET AL.
    (AC 18515)
    Schaller, Spear and Stoughton, Js.
    Argued December 1, 1999
    officially released May 30, 2000

      Elizabeth J. Stewart, with whom were Martha Everett Meng and, on the brief, April Lieberman, for the appellant (plaintiff).

      James J. Farrell, for the appellees (defendants).
   Opinion

STOUGHTON, J.

The plaintiff, The Jewish Home for the Elderly of Fairfield County, Inc., appeals from the judgment rendered after the trial court granted the motion filed by the defendants, J. Michael Cantore, Jr., and Continental Casualty Company (Continental), to strike the plaintiffs complaint. On appeal, the plaintiff claims that the court improperly (1) determined that the complaint for breach of the probate bond consisted of a negligence cause of action and (2) failed to determine that the complaint stated a legally sufficient cause of action for breach of the probate bond.

The plaintiff argues that Cantore, as conservator of the person and the estate of Diana Kosminer, breached his fiduciary duty by failing to provide for Kosminer’s care and maintenance because that failure could have resulted in her being discharged from the plaintiffs facility. Kosminer was admitted to the facility as a patient in 1989 and resided there until her death in 1995. The plaintiff further argues that his three year delay in spending down Kosminer’s assets and completing the medicaid application process delayed her medicaid eligibility and cost the estate and the plaintiff thousands of dollars. Although we conclude that the trial court incorrectly viewed the complaint as an action sounding in negligence, we nevertheless affirm the judgment of the trial court.

“In an appeal from a judgment granting a motion to strike, we operate in accordance with well established rules. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on the defendants’ motions is plenary. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127 (1996) [cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997)]. . . . [W]e take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); see also Mingachos v. CBS, Inc., 196 Conn. 91, 108-109, 491 A.2d 368 (1985). Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996). Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. Clohessy v. Bachelor, 237 Conn. 31, 33 n.4, 675 A.2d 852 (1996). . . . Knight v. F. L. Roberts & Co., 241 Conn. 466, 470-71, 696 A.2d 1249 (1997).” (Internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 307-308, 709 A.2d 1089 (1998).

For purposes of this appeal, we take as true the following facts alleged in the complaint. See Sassone v. Lepore, 226 Conn. 773, 780, 629 A.2d 357 (1993). On June 8, 1987, the Court of Probate for the District of Stamford duly appointed Cantore as conservator of the person and estate of Kosminer, then an alleged incapable person, and as such, he was responsible for her financial affairs. As a condition of his conservatorship appointment, on May 19, 1987, Cantore, as principal, and Continental, as surety, executed and filed with the Probate Court a $50,000 probate bond payable to the state of Connecticut. As a condition of the probate bond, Cantore agreed to perform his duties as conservator faithfully according to law.

In the complaint, the plaintiff alleged that as conservator of Kosminer’s estate and person, Cantore had a fiduciary duty to use her income and assets to pay for the cost of her care and services rendered and, further, to make prompt application for Title XIX (medicaid) assistance on her behalf when those assets approached $1600. On August 29, 1989, Cantore arranged to have Kosminer admitted to the plaintiffs facility as a private, self-pay patient. While there, she received care and services as a patient until her death on August 29, 1995. During Kosminer’s stay in the facility, Cantore retained access to and control over her income and assets. At the time of her admission to the plaintiff’s facility, Kos-miner’s assets were more than $160,000. On May 2, 1990, November 5, 1991, and January 15, 1992, Cantore filed applications with the department of income maintenance (department) on behalf of Kosminer for medicaid assistance. The first application was denied because Cantore failed to provide the department with the standard verification of asset information. The second application was denied because Cantore failed to provide the department with the requested verification of asset information. The third application was denied because the value of stocks owned by Kosminer exceeded the $1600 threshold for medicaid assistance. On June 20, 1992, Cantore liquidated Kosminer’s assets to below the $1600 program limit for medicaid eligibility. Thereafter, Cantore filed a fourth application for medicaid assistance, which was granted in August, 1992.

The plaintiff brought this action on the probate bond as an unpaid creditor of Kosminer. In the complaint, the plaintiff alleged that it was owed $63,000 as a result of Cantore’s breach of his fiduciary duty.

I

The plaintiff claims that in granting the defendants’ motion to strike, the court improperly construed the complaint for breach of the probate bond as a negligence cause of action. We agree with the plaintiff.

The court construed the complaint as an action seeking damages for Cantore’s negligence rather than as an action on the probate bond because, as the court noted, the plaintiff alleged that Cantore breached his fiduciary duty to Kosminer by failing to provide certain information to the department and negligently failing to liquidate her assets to obtain medicaid assistance. The court decided that Cantore did not owe a fiduciary duty to the plaintiff to liquidate Kosminer’s assets to obtain medicaid assistance for her, concluded that the complaint did not plead a legally sufficient cause of action sounding in negligence and granted the motion to strike. A motion to reargue was granted, but the court refused to change its decision.

In its complaint, the plaintiff did not allege that it was owed a fiduciary duty by Cantore. The plaintiff alleged that Cantore breached his fiduciary duty to Kos-miner by failing to utilize her assets to make prompt payment to the plaintiff for care and services rendered to her. The plaintiff further alleged that Cantore breached his fiduciary duty as a result of his three year delay in spending down Kosminer’s assets and completing the medicaid application process. General Statutes (Rev. to 1991) § 45a-144 (a) provides in relevant part that “[a]ny person claiming to be aggrieved by the breach of a probate bond ... in his own right . . . may bring an action to recover for the breach in his own name [if that person meets] the following [condition]: (1) Before bringing the action, the person shall secure the consent of the judge of the court of probate in which the bond was given . ...” As stated in the complaint, the Probate Court for the District of Stamford had specifically authorized the plaintiffs action on the probate bond by order dated August 21, 1995. We conclude that the trial court improperly construed the plaintiffs complaint as a negligence cause of action.

II

The plaintiffs second claim is that in granting the defendants’ motion to strike, the court improperly failed to determine that the plaintiffs complaint stated a legally sufficient cause of action for breach of the probate bond. The plaintiff alleges that Cantore had a fiduciary duty as Kosminer’s conservator to use her income and assets to pay for the cost of her care and for the services rendered to her by the plaintiff and, further, that Cantore had a fiduciary duty to make prompt application for medicaid assistance on Kosminer’s behalf when her assets approached $1600. The plaintiff claimed that the complaint stated a legally sufficient cause of action entitling it to recover the sum of $63,000. We disagree.

Although the plaintiff alleged that Cantore’s failure to provide for Kosminer’s care and maintenance was a breach of his fiduciary duty because it could have resulted in her discharge from the plaintiffs facility, the complaint also alleged that Kosminer received, at Cantore’s request, care and maintenance at the facility until her death. Furthermore, there was no allegation that she ever was discharged or threatened with discharge. As conservator of the person, Cantore was obligated to see to Kosminer’s care and maintenance so far as he was able within the limits of her assets. See General Statutes § 45a-656 (a). There was no allegation that he did not perform this duty.

Furthermore, the complaint alleged that Cantore had a fiduciary duty to make prompt application for medicaid assistance on Kosminer’s behalf when her assets approached $1600. The complaint also alleged, however, that it was not until June 20, 1992, that Cantore liquidated Kosminer’s assets to less than $1600. Soon thereafter, Cantore applied for medicaid assistance, which the department granted on August 20,1992. Cant-ore had a duty to protect Kosminer’s assets and to use them for her benefit. See Dept. of Social Services v. Saunders, 247 Conn. 686, 697, 724 A.2d 1093 (1999). There is no allegation that this duty was not fulfilled. We are aware of no authority that would require Cantore to spend Kosminer’s assets more quickly than he did. See Marcus’ Appeal From Probate, 199 Conn. 524, 536-37, 509 A.2d 1 (1986).

We conclude that the facts alleged in the complaint are insufficient to support a cause of action alleging that Cantore breached his fiduciary duty to Kosminer. Therefore, the court properly granted the plaintiffs motion to strike.

The judgment is affirmed.

In this opinion the other judges concurred.

       “We can sustain a right decision although it may have been placed on a wrong ground.” Stapleton v. Lombardo, 151 Conn. 414, 417, 198 A.2d 697 (1964).

       The plaintiff also alleged that Cantore had a duty to provide all information requested by the department of income maintenance (now known as the department of social services) in accordance with its deadlines.

       The plaintiff further alleges that following this initial denial, Cantore failed to appeal promptly from the denial or to take appropriate action to obtain medicaid assistance for Kosminer.


author: MIHALAKOS, J.

text:
    BILLER ASSOCIATES v. WILLIAM H. PETERKEN ET AL.
    (AC 17768)
    (AC 17850)
    O’Connell, C. J., and Spear and Mihalalcos, Js.

    Argued January 10
    officially released May 30, 2000

      William H. Peterken, pro se, with whom, on the brief, was Jill H. Peterken, pro se, the appellants (named defendant et al).

      Ridgely W. Brown, pro se, the appellant (defendant).

      David B. Rozwaski, with whom were Frank Raio, and, on the brief, Jon D. Biller, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

MIHALAKOS, J.

In this action for breach of an employment contract, the defendants, William H. Peterken, Jill Peterken and Ridgely W. Brown, appeal from the judgment in favor of the plaintiff, rendered after a trial to the court. William Peterken and Jill Peterken claim that the court improperly (1) found that the plaintiff, Biller Associates, had a valid and enforceable contract, (2) found in favor of the plaintiff on its quantum meruit claim, (3) calculated damages and (4) denied the named defendant’s motion to dismiss for lack of subject matter jurisdiction. Brown claims that the court improperly found that he breached his fiduciary duty to the plaintiff when, acting as an attorney representing William Peterken and Jill Peterken, he failed to take steps to ensure that the plaintiff would have an opportunity to obtain its interest in the proceeds of an insurance settlement Brown procured for his clients. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. On July 9, 1991, a fire occurred on the Peterkens’ property in Higganum. Later that day, the Peterkens hired Biller, a public insurance adjusting firm doing business in Connecticut since 1959, to survey and estimate the loss to the Peterkens’ property. That night, an estimate was agreed to by the plaintiff and the Peterkens, and a public insurance adjusting contract (employment contract) was signed.

The Peterkens’ damaged property then was inspected by law enforcement officials, who discovered the presence of accelerants at the site of the fire. Throughout the inspection, William Peterken was uncooperative. The plaintiff also determined that the Peterkens’ property insurance was higher than originally believed. On the basis of these facts, the fire was determined to be “suspicious,” and William Peterken was deemed the prime suspect in an arson investigation. As a result, Middlesex Mutual Assurance Company (insurance company), which had been negotiating a settlement with the Peterkens, refused to pay for the loss.

The Peterkens then retained Brown to represent them in an action against the insurance company. Brown successfully negotiated a settlement agreement with the insurance company before trial. While facts still existed indicating that William Peterken may have started the fire, the insurance company agreed to a settlement and paid for the loss.

In the settlement agreement with the insurance company, Brown used and relied on the proof of loss and property damage calculations previously prepared by the plaintiff. Unbeknownst to the plaintiff, however, Brown settled the insurance claim conditioned on the agreement of the insurance company to exclude the plaintiffs name from any settlement checks or drafts. The employment contract specifically provided that the Peterkens pay to the plaintiff 10 percent of the amount recovered. The Peterkens received their insurance money, but refused to pay the plaintiff for its services.

The plaintiff subsequently brought a five count action against the Peterkens and Brown. In the first count of its complaint, the plaintiff alleged that the Peterkens breached the employment contract and failed to pay the plaintiff in full for its services. In the four counts against Brown, the plaintiff alleged breach of fiduciary duty, violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., conversion and tortious interference with the plaintiffs contractual relationship with the Peterkens. The Peterkens filed a counterclaim for emotional distress. The court rendered judgment in favor of the plaintiff on its breach of contract claim against the Peterkens and for the plaintiff on the Peterkens’ counterclaim. The court also rendered judgment for the plaintiff against Brown on the breach of fiduciary duty count. The court rendered judgment for Brown on the tortious interference and CUTPA counts, and dismissed the count sounding in conversion. The court calculated the fee owed to the plaintiff as $33,351.16 plus interest in the amount of $15,529.29. The Peterkens and Brown separately filed appeals, which thereafter were consolidated.

I

The Peterkens first claim that the court improperly concluded that they had a valid and enforceable contract with the plaintiff. We do not agree.

“The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence. ... To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties. ... To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties.” (Citations omitted; internal quotation marks omitted.) L & R Realty v. Connecticut National Bank, 53 Conn. App. 524, 534, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999).

“Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Thompson, 56 Conn. App. 82, 86, 741 A.2d 972 (1999).

In this case, there is no dispute over the actual execution of a contract between the plaintiff and the Peterkens. The Peterkens, however, questioned the plaintiffs performance and alleged several special defenses as to why the employment contract was not valid.

A

The Peterkens first claim that the plaintiff failed adequately to perform its duties required by the terms of the contract. They claim that the plaintiff failed to meet its obligations to do everything that was necessary to handle the insurance claim from beginning to end and to obtain all pertinent appraisals. We do not agree.

“Whether a contractual commitment has been undertaken is ultimately a question of the intention of the parties. Intention is an inference of fact, and the conclusion is not reviewable unless it was one that the trier could not reasonably make.” (Internal quotation marks omitted.) Otto Contracting Co. v. S. Schinella & Son, Inc., 179 Conn. 704, 709, 427 A.2d 856 (1980).

There was no evidence adduced at trial showing that the Peterkens ever complained to the plaintiff or to anyone about the plaintiffs work performance until after the Peterkens received their money and chose not to pay the plaintiffs fee. In accordance with the employment contract, the facts showed that the plaintiff (1) estimated the building damage claim, (2) advised and assisted the Peterkens with respect to the preparation of a contents claim, (3) interpreted and helped apply the insurance policy and its provisions, and (4) negotiated and discussed with company representatives the general adjustment of the Peterkens’ loss. The plaintiff also helped the Peterkens find an electrician, carpenter and dumpster on the day of the fire, and provided cleanup and a monetary advance for the Peterkens. Evidence also was presented showing that the Peterkens provided their attorney with a proof of loss and property damage calculations prepared by the plaintiff, which were utilized and relied on in their settlement agreement with the insurance company. The Peterkens’ allegation that the plaintiff did not adequately perform its obligations as set forth in their employment contract is without merit.

B

The Peterkens also assert various special defenses to the plaintiffs breach of contract claim. We are not persuaded.

The Peterkens’ special defense asserting that the contract was not valid because the plaintiff was not licensed is without merit. The court found that the plaintiff was incorporated in Connecticut in 1959 and was licensed by the state insurance department as a public insurance adjusting coiporation along with each of its public insurance adjuster employees. The plaintiff also produced in court its 1991 corporate license, and its two employees who worked with the Peterkens on the employment contract were licensed public insurance adjusters.

We also axe not persuaded by the Peterkens’ special defense asserting that they were fraudulently induced into entering the employment contract. They claim that they were misled by the plaintiffs employees as to the plaintiffs corporate status. William Peterken stated that he was under the impression that the plaintiff was a partnership when in fact it was a corporation. The Peterkens, however, at no time ever inquired of any employee of the plaintiff as to whether the plaintiff was a partnership or a corporation. In fact, an employee of the plaintiff did provide William Peterken with some literature about the plaintiff.

The Peterkens also claim that they were misled by representations made by the plaintiffs employees promising a quick settlement. The facts show that the plaintiff actually did effect an early settlement, but it was revoked because of the suspicion of arson by the Peterkens, which was beyond the plaintiffs control. There was no evidence presented at trial giving any indication that the Peterkens intentionally were misled into believing that the plaintiff was a partnership, nor was there any evidence of misleading statements made by the plaintiffs employees.

The court properly rejected the Peterkens’ special defense asserting that the plaintiff was guilty of improper solicitation because the contract was executed after 8 p.m., which was prohibited under the terms of the employment contract.* On the basis of the evidence produced at trial, it was not clear whether, in fact, these discussions occurred before or after 8 p.m. Furthermore, the Peterkens were aware of the prohibition on solicitation after 8 p.m. and chose to conduct discussions with an employee of the plaintiff anyway. While this prohibition does not allow solicitations after 8 p.m., it does not prohibit all other activity between the public adjuster and its clients occurring after 8 p.m. The facts showed that an employee of the plaintiff first solicited the Peterkens in the early afternoon hours and was asked to remain in attendance until Jill Peterkeri returned from work. After she returned from work, the Peterkens then went to vote and, upon returning from the polling place, the Peterkens chose to resume discussions with the plaintiffs employee. Since the Peterkens willingly chose to negotiate with the plaintiff at that time, the puipose of the prohibition, which is to protect consumers from solicitations occurring late at night in their homes, was not violated.

The Peterkens’ special defense asserting that the contract is unconscionable also is without substance. The Peterkens offered no evidence to support their claim that the employment contract is unconscionable. The court also found that the Peterkens were aware of the clause in the employment contract allowing them to rescind the contract within forty-eight hours of its execution. The Peterkens chose not to rescind the contract.

The Peterkens next assert that the court improperly rejected their special defense that the plaintiff violated the Home Improvement Act (act), General Statutes § 20-418 et seq. General Statutes § 20-428 (4), in relevant part, exempts “any person holding a current professional or occupational license . . . provided such person engages only in that work for which he is licensed.” This provision of the act is dispositive of this issue because the plaintiff and its employees were licensed public adjusters engaged in adjusting and, therefore, were exempt from the act.

The facts showed that the plaintiff adequately performed the terms of the contract. Furthermore, there was no evidence that supported any of the Peterkens’ special defenses. The court, therefore, properly found that the contract was valid and enforceable.

II

The Peterkens next claim that the court improperly found for the plaintiff on its claim for recovery under a quantum meruit theory.

“Quantum meruit is the remedy available to a party when the trier of fact determines that an implied contract for services existed between the parties, and that, therefore, the plaintiff is entitled to the reasonable value of services rendered. . . . Such contracts are determined from evidence of the parties’ course of conduct which implies a promise to pay for the services rendered.” (Citation omitted.) Burns v. Koellmer, 11 Conn. App. 375, 383, 527 A.2d 1210 (1987).

We concluded in part I of this opinion that the court properly determined that a valid and enforceable express employment contract existed between the plaintiff and the Peterkens, and that the Peterkens breached the contract, causing the plaintiff damages. Because quantum meruit is an alternative allegation to breach of contract, it is, therefore, unnecessary to consider the merits of this claim as a basis for liability. See John T. Brady & Co. v. Stamford, 220 Conn. 432, 446, 599 A.2d 370 (1991).

Ill

The Peterkens’ third claim is that the court improperly calculated the amount of damages for the plaintiff. We disagree.

“As a general rule, the determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.” Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 545, 651 A.2d 1302 (1995). “We have often stated that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result.” (Citations omitted; internal quotation marks omitted.) Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990).

Here, the insurance company’s attorney testified that the settlement was $335,918, from which the Peterkens received $333,511.63. The court awarded the plaintiff $33,351.16, before interest, finding that pursuant to the provision in the employment contract, the plaintiff was entitled to a fee of 10 percent of the sum recovered by the Peterkens. There was undisputed testimony showing that the Peterkens were aware of the provisions of the employment contract and never disputed them. Furthermore, the Peterkens produced no evidence at trial showing that the sum awarded to the plaintiff was improper. We therefore will not disturb the court’s award of damages.

IV

The Peterkens claim that the court improperly denied the motion to dismiss for lack of subject matter jurisdiction filed by William Peterken. The Peterkens assert that the plaintiff lacked standing to bring an action as a licensed public adjuster because it was not a licensed public adjuster and was not the licensed entity that entered into the employment contract. We are not persuaded.

As we concluded in part I of this opinion, the plaintiff clearly established that it was a licensed public adjuster and was the licensed entity that entered into the employment contract. The Peterkens’ contention that the plaintiff did not file a trade certificate to transact under the name of the licensed public adjuster is without merit because, it did, in fact, transact business under its own name and was a licensed public adjuster. The court properly denied the motion to dismiss for lack of standing.

V

Brown claims that court improperly found that he breached his fiduciary duties. He claims that the court improperly found that the assignment language of the employment contract, which entitled the plaintiff to 10 percent of the amount recovered in the insurance settlement, gave rise to a breach of his fiduciary duties as an attorney when, unbeknownst to the plaintiff, he settled the insurance claim conditioned on the agreement by the insurance company to exclude the plaintiffs name from any settlement checks or drafts. We disagree.

As we concluded in part I of this opinion, a valid and enforceable employment contract existed between the Peterkens and the plaintiff. A provision in the employment contract mandated that the Peterkens assign to the plaintiff, out of the proceeds, 10 percent of the amount recovered from the insurance settlement, thereby providing an irrevocable assignment. The court found that Brown, acting on the Peterkens’ behalf, had knowledge that an employment contract existed between the Peterkens and the plaintiff, settled with the insurance company and intentionally excluded the plaintiff from any settlement checks and drafts to enable his client to avoid paying the plaintiff. Rule 1.15 (b) of the Rules of Professional Conduct provides that “[u]pon receiving funds or other property in which a . . . third person has an interest, a lawyer shall promptly notify the client or third person . . . [and] a lawyer shall promptly deliver to the . . . third person any funds . . . that the . . . third person is entitled to receive . . . .” Here, Brown disregarded the clause in the employment contract, which entitled the plaintiff to 10 percent of the amount received under the settlement agreement, and failed to notify or deliver the money owed to the plaintiff. Brown, therefore, violated rule 1.15 (b), and the court properly found that he breached his fiduciary duties as an attorney representing the Peterkens.

The judgment is affirmed.

In this opinion the other judges concurred.

       As required by General Statutes § 20-429 (a) (6) of the Home Improvement Act, General Statutes § 20-418 et seq., the employment contract contains a forty-eight hour cancellation clause under which the insured property owner, could, without obligation, cancel the terms of the contract. The Peterkens acknowledged that at the time that they signed the employment contract, they were aware of this clause.

       William H. Peterken refused to be interviewed by law enforcement officials regarding his damaged property.

       The prohibition in the contract states that public adjusters “are not allowed ... to solicit your employment between 8:00 p.m and 8:00 a.m.”

       The Peterkens refer to 1he clause in the contract stating that the fee is set at 10 percent “of the amount of the loss when adjusted with the Insurance Companies or otherwise recovered.”

       Though this minor reduction of $2406.37 in the total settlement was not explained, the court noted that it likely was the result of various court costs.


author: LAVERY, J.

text:
    JOHN PENDER ET AL. v. JOSEPH MATRANGA ET AL.
    (AC 19049)
    O’Connell, C. J., and Laveiy and Hennessy, Js.1

      Argued January 13
    officially released May 30, 2000

      Michael J. Mannion, for the appellants (named plaintiff et al.).

      Monte E. Frank, with whom, on the brief, was Neil R. Marcus, for the appellees (defendants).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

LAVERY, J.

The plaintiffs John Pender and Mary Pender appeal from the trial court’s judgment determining that the defendants Joseph Matranga and Christina Matranga have certain easements across the property of the plaintiffs. The plaintiffs contend that the court improperly (1) found that various easements exist and (2) refused to admit certain testimony under a statutory exception to the hearsay rule. We affirm that portion of the judgment ruling that a fourteen foot express easement exists across the property of the plaintiffs and reverse that portion finding that a twelve foot easement of necessity and an eight foot easement by implication exist across the property.

The trial court found the following facts. The plaintiffs own certain lots on the west shore of Candlewood Lake in New Fairfield. The Matrangas own a ten acre undeveloped parcel that abuts the plaintiffs’ smaller lots and overlooks Candlewood Lake. The boundaries of the parties’ parcels are stated on a property map, titled, “MAP SHOWING SUBDIVISION OF PROPERTY OF BURTON F. SHERWOOD LOCATED ON THE WEST SHORE OF LAKE CANDLEWOOD IN THE TOWN OF NEW FAIRFIELD, FAIRFIELD COUNTY CONNECTICUT.” (Rapp map). The Rapp map was prepared and certified as being substantially correct by Sydney Rapp, and was recorded in the New Fairfield land records on December 7, 1953.

Both the plaintiffs and the Matrangas trace title to a common grantor, Burton F. Sherwood, who was a seasoned real estate developer in the area. On October 23, 1944, Sherwood and a group of landowners known as the Kellogg Point residents signed an agreement. The agreement gave those residents access to a nearby thoroughfare through a “private road” across Sherwood’s land. The agreement gave Sherwood “the right to pass and repass for all purposes whatsoever over the existing roadway 14 feet in width from a point marking the common bound of land of the Estate of Stanley T. Kellogg, land formerly of Rosalind D. Martel, now of said Sherwood, and the 440 foot contour line of The Connecticut Light & Power Company’s Rocky River Datum, over and across land of the Kellogg Point Residents to a point of land of Louise F. Taylor, and thence in a Northerly direction in a course marked by iron pipes to other land of said Sherwood at a point approximately 100 feet Southerly of land of Neil G. Hayes.” The defendant Chris Wallace constructed a road on behalf of the Matrangas, which bisects the property owned by the plaintiffs, following the “wood road” as noted on the Rapp map. The plaintiffs brought an action seeking to enjoin the defendants from using or improving this wood road, which runs through the rear of the plaintiffs’ property and provides access to the Matrangas’ lot. The Matrangas wanted to construct a dwelling on their property. The plaintiffs have admitted that the Matrangas have “the right to pass and repass over a right-of-way traversing [the plaintiffs’] . . . property,” but challenge the width of the right-of-way and whether the Matrangas have a right to construct, maintain or use the road on the right-of-way located on the plaintiffs’ property.

David Ryan, a licensed land surveyor, was called by the defendants to testify at trial as an expert witness. He explained the meaning of double dotted lines that signify the presence of the wood road on the Rapp map. Ryan stated that the double dotted lines on the Rapp map signify a traveled way or road, while a single dotted line indicates a path. Ryan noted that in 1991 he observed the wood road to be between seven feet and ten feet wide, but that the double dotted lines scale to eight feet wide on the Rapp map.

Ryan also examined the agreement with the Kellogg Point residents and compared that agreement with the Rapp map. While performing field work, Ryan located an iron pipe where the wood road begins a generally northerly path toward the Matrangas’ lot. Ryan concluded that the road referred to in the Rapp map creating the right-of-way is the same wood road that passes over the property of the plaintiffs.

The court found that a fourteen foot express easement, a twelve foot easement of necessity and an eight foot easement by implication existed over the plaintiffs’ property in favor of the Matrangas. The court further found that the Matrangas may maintain, construct and repair those easements when necessary.

I

The plaintiffs first contend that the court improperly found that the Matrangas hold certain easements over the subject property. We agree with the trial court that there is an express easement of fourteen feet in width.

The determination of the scope of an easement is a question of fact. Strollo v. Iannantuoni, 53 Conn. App. 658, 659, 734 A.2d 144, cert. denied, 250 Conn. 924, 738 A.2d 662 (1999). The court’s factual findings are “binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole .... We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Food Studio, Inc. v. Fabiola’s, 56 Conn. App. 858, 862, 747 A.2d 7 (2000); see Powers v. Olson, 252 Conn. 98, 104-105, 742 A.2d 799 (2000). The plaintiffs have admitted that an express easement exists in favor of the Matrangas over the plaintiffs’ land. The issue remaining in dispute is the width of that express easement and the presence of any nonexpress easements.

A

The court concluded that a fourteen foot easement exists over the plaintiffs’ land pursuant to the October, 1944 agreement. The court reasoned in part: “Here, we are presented with a general grant of authority to pass and repass ‘for all purposes whatsoever.’ . . . [The Matrangas’ land] is almost inaccessible by any other means, and contains ten acres overlooking Candlewood Lake. The testimony of both David Ryan and Christina Matranga affirmed that a steep grade renders access . . . unfeasible. Since the actual road was approximately eight feet in width in 1952, according to rehable testimony, one must conclude that either Burton F. Sherwood had the foresight to reserve fourteen feet as an easement in the event access to this ten acre parcel was necessary for development or he grossly miscalculated the width of the existing road by a full six feet prior to signing the agreement with the Kellogg Point residents.” The court concluded that the plaintiffs’ deed to the property and the mortgage instrument executed on the property referenced the easement. The court concluded that the plaintiffs took title to their property subject to the agreement between Sherwood and the Kellogg Point residents. We agree.

The phrase “for all purposes whatsoever” is a broad one, without any restrictions as to the use of the right to pass or repass. See Birdsey v. Kosienski, 140 Conn. 403, 412-13, 101 A.2d 274 (1953); Lichteig v. Churinetz, 9 Conn. App. 406, 410, 519 A.2d 99 (1986). The phrase permits any use reasonably connected to the reasonable use of the land. Lichteig v. Churinetz, supra, 410.

The agreement uses the phrase “over the existing roadway 14 feet in width,” even though no testimony indicated that the wood road actually was fourteen feet at any recorded time. This indicates the intention to develop the parcel at a later time and to reserve sufficient width in the travel spaces for the development to occur. As the defendants rightly note in their brief, it is very unlikely that Sherwood, an experienced real estate developer, would intentionally fail to provide access to ten acres overlooking Candlewood Lake and render them essentially useless for development. See Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982) (effect of deed considered in light of surrounding circumstances).

We also look to the intent of the parties when interpreting the meaning of the easement. Birdsey v. Kosienski, supra, 140 Conn. 410. The intention of the parties, as shown by the language of the 1944 agreement, further supports the court’s conclusion. The “whereas” clauses in the agreement, as set forth by the parties, reveal that “the Kellogg Point Residents desire to have free access from their land to the public highway,” “Sherwood owns other land ... to which access is difficult without passing through land of the Kellogg Point Residents” and “the parties hereto feel that it would be mutually beneficial to exchange rights of way.” In essence, the Kellogg Point residents received access to a nearby highway in exchange for Sherwood’s gaining access to his property over the wood road. The fact that a fourteen foot easement over the plaintiffs’ land has significant value to the dominant tenement is a relevant factor in determining the easement’s scope. See id., 410-11.

“A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .. . .” HLO Land Ownership Associates Ltd. Partnership v. Hartford, 248 Conn. 350, 357, 727 A.2d 1260 (1999). The plain meaning of the easement grants an express right-of-way of fourteen feet over a specified route, which includes the plaintiffs’ property. The court so found, and we conclude that sufficient evidence exists in the record to support this conclusion.

B

Since we agree with the trial court that an express easement exists over the subject property, any implied easements or easements of necessity that may have existed over the same right-of-way are extinguished. An easement of necessity may occur when a parcel has become landlocked from outside access such that the owner would have no reasonable means of ingress or egress except over lands promised by another and a right-of-way is necessary for the enjoyment of the parcel. Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 398-99, 324 A.2d 247 (1973); Collins v. Prentice, 15 Conn. 39, 43-44 (1842); see Friedman v. Westport, 50 Conn. App. 209, 214, 717 A.2d 797, cert. denied, 247 Conn. 937, 722 A.2d 1216 (1998). The inverse also is true; that is, a common-law right-of-way based on necessity expires when the owner of a dominant estate acquires access to a public or private road through another means. See R. Powell & P. Rohan, Powell on Real Property (1999) § 34.07, p. 34-67 n.29, citing Parham v. Reddick, 537 So. 2d 132, 135 (Fla. Dist. Ct. App. 1988) (right-of-way based on necessity expires when owner of dominant estate acquires adjoining lands that provide access to public or private road).

Similarly, an easement by implication does not arise by mere convenience or economy, but exists because of some significant or unreasonable burden as to access that demands the easement’s presence. “In this state, the law regarding easements by implication arising out of the severance of title of two adjoining or commonly owned properties is well settled. Where, during the unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another, which at the time of the severance is in use, and is reasonably necessary for the fair enjoyment of the other, then, upon a severance of such ownership . . . there arises by implication of law a . . . reservation of the right to continue such use. . . . [I]n so far as necessity is significant it is sufficient if the easement is highly convenient and beneficial for the enjoyment of the dominant estate.” (Internal quotation marks omitted.) Schultz v. Barker, 15 Conn. App. 696, 700-701, 546 A.2d 324 (1988).

Here, the Matrangas possess an express easement of fourteen feet in width by which to access and develop the parcel. No reason exists to retain an implied easement or easement of necessity over the exact same tract of land. We therefore conclude that because the fourteen foot express easement exists along the wood road in the Rapp map, no implied easement or easement of necessity can be found.

II

The plaintiffs next contend that the court improperly refused to admit testimony about the 1944 agreement under the exception to the hearsay rule embodied in General Statutes § 52-172, which is commonly known as the dead man’s statute. We disagree.

“ ‘The standard to be used to review a trial court’s decision on the relevance and admissibility of evidence is abuse of discretion.’ State v. Lindstrom, 46 Conn. App. 810, 818, 702 A.2d 410, cert. denied, 243 Conn. 947, 704 A.2d 802 (1997). ‘The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.’ ” State v. Markeveys, 56 Conn. App. 716, 718-19, 745 A.2d 212, cert. denied, 252 Conn. 953, 749 A.2d 1203 (2000).

Nancy Simmons, a plaintiff at trial, inherited property from her mother, Louise Taylor, one of the signatories to the Kellogg Point residents agreement. Simmons was asked at trial whether she recalled her late mother telling her about the reasons and purposes of the Kellogg Point residents’ agreement. The defendants objected on the ground that this testimony was inadmissible under the rule against hearsay. The plaintiffs argued that her testimony fell within the statutory exception outlined by § 52-172. The court disagreed and sustained the objection.

“The dead man’s statute creates an exception to the hearsay rule. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) §§ 11.1-11.25. Its purpose is to create an equal footing between the living and the dead parties.” Rosales v. Lupien, 50 Conn. App. 405, 407-408, 717 A.2d 821 (1998). Although it is to be interpreted liberally, “every utterance of a deceased person is not automatically entitled to come into evidence solely because the speaker has died. This is particularly true where its admission would violate another well established rule of evidence.” Id., 408.

The dead man’s statute requires not only that the declarant be a representative of a decedent, but that the action be by or against a representative of the deceased person. O’Brien v. Coburn, 46 Conn. App. 620, 632, 700 A.2d 81, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997). In other words, “the representative must sue or be sued in that representative capacity.” C. Tait & J. LaPlante, supra, § 11.8.4, p. 358; see Lockwood v. Lockwood, 56 Conn. 106, 108-109, 14 A. 293 (1887). Simmons did not bring this action as an official representative of her deceased mother and her testimony, therefore, does not fall within the bounds of the dead man’s statute.

The judgment is reversed only as to the trial court’s findings that the defendants have a twelve foot easement of necessity and an eight foot easement by implication over the plaintiffs’ property and the case is remanded with direction to vacate those findings. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The plaintiffs at trial were John Pender, Mary Pender, Nancy P. Simmons and Dorothy Kemp. Only John Pender and Mary Pender have appealed. We therefore refer in this opinion to John Pender and Mary Pender as the plaintiffs.

       The defendants are Joseph Matranga, Christina Matranga and Chris Wallace. The Matrangas own real property that the trial court found was benefited by easements over the plaintiffs’ property. Wallace was in the process of constructing a twelve foot wide roadway for the Matrangas on the plaintiffs’ property at the time the plaintiffs brought this injunction action.

       The plaintiffs contend that a decision in a prior case resolving the width of the wood road on an adjacent plot of land that the wood road crosses bars redetermination of the width of the easement in this case. See McEachern v. Matranga, Superior Court, judicial district of Danbury, Docket No. 0319038 (August 15,1997). As this question of issue preclusion was not raised before the trial court, we will not consider it on appeal. See Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 48, 717 A.2d 77 (1998).

       As noted earlier, neither Nancy Simmons nor Dorothy Kemp, who is Nancy Simmons’ sister, is a party to this appeal.


author: DALY, J.

text:
    IGOR BORIS ET AL. v. GARBO LOBSTER COMPANY, INC., ET AL.
    (AC 18500)
    Schaller, Hennessy and Daly, Js.

      Argued November 30, 1999
    officially released May 30, 2000

      Richard S. Cody, for the appellants (plaintiffs).

      Mark K. Branse, for the appellee (named defendant).

      Timothy D. Bates, for the appellees (defendant planning and zoning commission of the city of Groton).
   Opinion

DALY, J.

This is an appeal from the judgment of the trial court dismissing the plaintiffs’ appeal from the decision of the defendant planning and zoning commission of the city of Groton (commission) to amend its regulations to add new uses to its waterfront business residential zone (waterfront zone). We affirm the judgment of the trial court.

On appeal, the plaintiffs claim that the court improperly concluded that (1) General Statutes § 22a-104 (e),* which requires that the comments of the commissioner of the department of environmental protection be read into the record, is directory and not mandatoiy, and (2) the ex parte communication of the named defendant Garbo Lobster Company, Inc. (Garbo), with the commission was not prejudicial.

The following facts are undisputed. Garbo acquired 2.8 acres of real property (property) known as 359 Thames Street, which is in the waterfront zone. Garbo is in the business of distributing live lobsters and currently operates from a facility in Stonington. It obtains lobsters from Garbo’s facilities outside of Connecticut and from the local lobster fleet. In May, 1996, Garbo proposed an amendment to the zoning regulations that would permit it to operate a lobster distribution facility on the property.

On June 18, 1996, the commission received the amendment application and set a public hearing date of July 16, 1996. Appropriate notice was given. At the time of the public hearing, proponents and opponents of the amendment were given an opportunity to be heard. The commission tabled the proposed amendment at its August 20, 1996 meeting. By a vote of four to one, the commission approved the proposed amendment at its September 17, 1996 meeting. The plaintiffs claimed to be aggrieved by the action of the commission and appealed to the trial court. The court sustained the commission’s action and dismissed the appeal. Following this court’s grant of certification, the plaintiffs took the present appeal.

“Review of zoning commission decisions by the Superior Court is limited to a determination of whether the commission acted arbitrarily, illegally or unreasonably. ... In appeals from administrative zoning decisions, the commission’s conclusions will be invalidated only if they are not supported by substantial evidence in the record. . . . The 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. It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” (Citations omitted.) Cybulski v. Planning & Zoning Commission, 43 Conn. App. 105, 110-11, 682 A.2d 1073, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996).

I

The plaintiffs first claim that the court improperly concluded that the portion of § 22a-104 (e) providing that the comments of the commissioner of environmental protection “shall be read into the record” is directory and not mandatory. We do not agree.

The following additional facts are necessary for our resolution of this question of statutory interpretation, which is one of first impression. The court found that the commission notified the commissioner of environmental protection of the proposed amendment on May 28, 1996. The commissioner of environmental protection commented on the proposal by letter to the commission written by Joan Hoelzel, senior coastal planner with the department of environmental protection. At the hearing, Garbo’s attorney read into the record only the first page and a portion of the second page of the letter, which dealt directly with the proposed amendment before the commission and was favorable to the amendment. The attorney summarized the remainder of the letter, which concerned permits that might be needed in the future if the amendment were adopted. Copies of the entire letter were made available to the public. The plaintiffs claim that § 22a-104 (e) requires that the entire letter be read into the record, and failure to do so constitutes a procedural defect that invalidates the commission’s adoption of the amendment.

“Statutory interpretation is a question of law and, therefore, our review is plenary. North Haven v. Planning & Zoning Commission, 220 Conn. 556, 561, 600 A.2d 1004 (1991). When interpreting statutes, we rely on well established principles of statutory construction. [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. Castagno v. Wholean, 239 Conn. 336, 339, 684 A.2d 1181 (1996). It is axiomatic, however, that when the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary. See Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1174 (1990).” (Internal quotation marks omitted.) National Loan Investors Ltd. Partnership v. Heritage Square Associates, 54 Conn. App. 67, 71-72, 733 A.2d 876 (1999).

“In general, the word ‘shall’ is mandatory, not directory. . . . Use of the word ‘shall,’ however, does not always indicate that a clause is mandatory. . . . The determination must focus on whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. ... If it is a matter of substance, the [regulatory] provision is mandatory. ... If, however, the . . . provision is designed to secure order, system and dispatch ... it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. . . . Such a [regulatory] provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply. . . . Where the regulation contains no penalty for noncompliance, or where the language purports to establish procedure, it is deemed to be directory.” (Citations omitted; internal quotation marks omitted.) Lauer v. Zoning Commission, 44 Conn. App. 542, 547, 690 A.2d 893 (1997), rev’d in part on other grounds, 246 Conn. 251, 716 A.2d 840 (1998).

We conclude that § 22a-104 (e) is directory in nature, rather than mandatory. First, we observe that the statute does not require the commissioner of environmental protection to comment; General Statutes § 22a-104 (e) provides that “the commissioner may comment. . . .” (Emphasis added.) Second, the statute does not contain language to invalidate actions taken by the commission if the commissioner’s comments are not read into the record. Finally, the commissioner’s comments are in the form of an advisory opinion because General Statutes § 22a-110 provides that the commissioner “may appeal . . . whether or not he has appeared as a party before the municipal board or commission. . . .” For these reasons, we hold that the court did not abuse its discretion in dismissing the plaintiffs’ appeal with respect to this claim.

II

The plaintiffs next claim that the court improperly determined that they were not prejudiced by Garbo’s ex parte communication with the commission. We disagree.

The following facts, as found by the court, are relevant to this claim. At the conclusion of the public hearing, the commission voted unanimously to table further action on the proposed amendment. Sometime after the meeting, Michael J. Murphy, the city planner, telephoned Keith B. Neilson, Garbo’s engineer, to inform him that a limited number of commission members might attend the commission’s August, 1996 meeting. In response to this information, Neilson wrote a letter to Muiphy dated August 20, 1996, acknowledging his telephone call and asking Murphy to ask the commission to table the proposed amendment until the September, 1996 meeting “so that it can receive a favorable review by the entire Commission.” In asking Muiphy to make the request, Neilson acknowledged the impropriety of his communicating with the commission while the proposal was being deliberated. According to a date stamp it bears, the letter was received in the office of the city planner on August 23, 1996.

The commission’s August meeting was held on August 20,1996, where the following action was taken, as recorded in the minutes of the meeting. “Proposed Zoning Regulations Amendments, Section 3.14.k and 4.15 (Garbo Lobster Co., Applicant.) Staff stated that applicant anticipates this issue to be resolved at September meeting. Motion to TABLE made by [Wallace] Frankopoulos, seconded by [Marion] Orkney. VOTED: UNANIMOUS.”

“An ex parte communication raises a rebuttable presumption of prejudice. Once the plaintiff shows that an improper ex parte communication has occurred, the burden of showing that the communication was harmless shifts to the party seeking to uphold the validity of the zoning commission’s decision. Blaker v. Planning & Zoning Commission, [212 Conn. 471, 480, 562 A.2d 1093 (1989)]. The presumption of prejudice may be rebutted by evidence that the ex parte evidence or testimony was not received by the commission or was not considered by it and, therefore, did not affect the commission’s final decision. R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1993) § 47.4.” Daniel v. Zoning Commission, 35 Conn. App. 594, 597, 645 A.2d 1022 (1994).

The court determined that no improper ex parte communication had occurred. It held that the communication was on a purely procedural matter and was initiated not by Garbo or anyone on its behalf, but by Murphy, who easily could have communicated any concern he may have had about the taking of any action at the August meeting directly to the commission without involving Neilson. Furthermore, the letter, which merely confirmed the substance of the conversation, was not received by Murphy until three days after the meeting. Even if the letter were improper, it is difficult to comprehend how Murphy’s involving Neilson prejudiced the plaintiffs because the letter did not go to the substance of the proposed amendment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are Igor Boris, Suzanne M. Boris, Robert I. Boris, Joan M. Haiss, John Hugh Wallace, Jr., Harry G. Curry, Betty Curry and Sarah McGirr. Sherwood Cadorette was one of the parties who initiated the appeal in the trial court. The court determined, however, that pursuant to General Statutes § 8-8 Cadorette was not aggrieved and therefore lacked standing. The court’s ruling on the issue of standing has not been challenged.

       General Statutes § 22a-104 (e) provides: “Any proposed municipal plan of conservation and development or zoning regulations or changes thereto affecting the area within the coastal boundary, regardless of whether the municipality affected has adopted a municipal coastal program in accordance with sections 22a-101, 22a-102 and 22a-103, shall be consistent with the policies of section 22a-92 and the criteria of subsection (b) of said section 22a-102. The commissioner shall be notified of any such proposed municipal plan of conservation and development or zoning regulations or changes thereto at least thirty-five days prior to the commencement of the hearing thereon. The commissioner may comment on and make recommendations on such proposals or changes. Such comment shall be read into the record of the public hearing and shall be considered by the appropriate board or commission before final action on the proposals or changes. Failure to comment by the commissioner shall not be construed to be approval or disapproval.” (Emphasis added.)

       Garbo proposed the following amendments to § 314 of the waterfront business residential zone, special permit uses:
      “3.14.k Principal or accessory buildings and facilities for the storage, distribution and wholesale or retail sale of fresh seafood, subject to the requirements of Section 4.15, Supplementary Regulations. . . .
      “4.15 Principal and Accessory Buildings or Facilities for the Storage, Distribution and Wholesale and/or Retail Sale of Fresh Seafood.
      “The storage, distribution or wholesale and/or retail sale of fresh seafood are permitted uses in the Waterfront Business Residential (WBR) zone subject to special permit and site plan approval, and the following conditions:

        “a. The use shall be water dependent.
      “b. No outside storage or handling of seafood or waste products shall be permitted, other than delivery and loading.
      “c. No canning, drying or other type of industrial-type processing of seafood shall be permitted.
      “d. The use shall be an integral component of a commercial seafood operation, comprised of, but not necessarily limited to, seafood handling, commercial fishing, small marina/boat landing, and such other related and permitted uses.
      “e. A minimum lot size of 1 acre shall be required.”

       In their appeal to the trial court, the plaintiffs raised four issues with respect to the commission’s decision. They only claim two of those issues on appeal to this court.

       Hoelzel’s letter stated: “Thank you for notifying this office of the proposed zoning regulations amendment noted above. In particular, the amendment would allow the specially permitted use of principal or accessory buildings and facilities for the storage, distribution, and wholesale or retail sale of fresh seafood in the Waterfront Business Residence Zone, subject to specific use requirements. Acting as the Commissioner’s staff, our office has reviewed it for consistency with the policies and standards of the Connecticut Coastal Management Act (CCMA) [General Statutes § 22a-90 et seq.] and has found it consistent with the provisions of the CCMA. Our specific comments are as follows.
      “The application provides a thorough discussion of the intended use of the site and the rationale as to why this proposed zoning regulation’s text change is consistent with planning and zoning objectives and the CCMA. Section 3.11 of the zoning regulations states [that] the purposes of the Waterfront Business Residence Zone include the encouragement of waterfront access and water-dependent uses. As properly stated in the application materials, [Garbo] operations constitute a water-dependent use due to the need for a continuous flow of seawater to the facility. Water-dependent uses are defined by the CCMA to be those uses which: ‘require direct access to, or location in, marine or tidal waters and which therefore, cannot be located inland, including but not limited to: marinas, recreational and commercial fishing and boating facilities . . . shipyards . . . and uses which provide general public access to marine or tidal waters .... [General Statutes § 22a-93 (16)].’
      “[General Statutes] § 22a-92 (a) (3) of the CCMA requires the commission to give high priority and preference to uses and facilities which are dependent upon proximity to the water or the shore lands immediately adjacent to marine and tidal waters. Further, the CCMA requires the minimization of adverse impacts on future water-dependent development opportunities and activities. Such adverse impacts are defined to include locating non-water-dependent uses at sites that are physically suited for water-dependent uses for which there is reasonable demand or have been identified for water-dependent uses in the plan of development of the municipality or the zoning regulations [General Statutes § 22a-93 (17)]. The approval of this regulation amendment would allow for an additional water-dependent use along this stretch of Thames Street. Such use would be consistent with not only the CCMA, but also with Section 3.14 of the city’s zoning regulations, the city’s current Plan of Development, and its recently proposed update which encourage water-dependent development along the riverbank in this party of the city. Therefore, we recommend that the commission approve this proposed amendment.
      “Though not a direct zoning regulation amendment concern of the commission at this time, we applaud the applicant’s intent to open up this waterfront property to the public through improved pedestrian access around and through the site and through possible use of the site as a Heritage Park passenger ferry stop. The incorporation of a public access component into the future development of the site would be consistent with the intent of the city’s plan of development as well as the policies and standards of the CCMA. Therefore, we also recommend that the applicant work closely with the city and our office on any proposed future development of the site in order to include a public access component which meets the needs of all interested parties.
      “State and Federal Permits
      “The approval of this text amendment could result in site development which includes a variety of in-water activities requiring both state and federal authorizations. Therefore, we would like to take this opportunity to make the applicant aware of the need for permits for various aspects of the intended site development.
      “As indicated in the provided application materials, a state structures and dredging permit (SD-JB-89-110) was issued by this office for in-water activities associated with the proposed development of a 100-slip marina at this site. However, prior to performing any work in accordance with this permit on either new or existing in-water structures, the applicant should contact stall in this office regarding the proper transfer of this permit to the current property owner and the specific in-water activities authorized by the permit. The applicant should also be aware that the permit expires on February 17, 1997. Yvonne Bolton of the Office of Long Island Sound Programs (OLISP) permit staff can be contacted at . . . regarding the specifics of permit number SD-JB-89-110.
      “The submitted materials indicate the applicant’s desire to raise sunken vessels near the existing dock on site. Such activities are not included in SD-JB-89-110 and would also require authorization, in particular, a certificate of permission (COP), from this office. OLISPpermit staff should be contacted regarding the COP process prior to removing these structures.
      “Should a lobster distribution facility be developed which necessitates the withdrawal of water from the Thames River, the applicant would likely need a water diversion permit from the [department of environmental protection’s] Water Bureau. Appropriate staff can be contacted at . . . regarding that Bureau’s specific permit requirements. In addition, the installation of a water intake structure would require a permit from OLISP. Once again, information on OLISP permit requirements can be obtained by calling . . . .
      “As a final permit consideration, the [U.S.] Army Corps of Engineers should be contacted regarding their specific permit requirements for in-water activities. They can be contacted at ... .
      “We hope that these comments are helpful. They are being made in response to the review requirements contained in Section 22a-104 (e) of the Connecticut General Statutes, which requires that notification be sent to the Commissioner of Environmental Protection at least 35 days prior to the commencement of the public hearing. Once notified, our office is responsible for reviewing the proposal’s consistency with the policies of Section 22a-92 and the criteria of Section 22a-102 (b) of the CCMA.
      “Should you have any questions regarding this letter or any other coastal management or Long Island Sound matter, please contact me at . . . .”

       Assuming axguendo that § 22a-104 (e) is mandatory, we conclude that there was substantial compliance therewith. The salient pages of the letter were read into the record with a summary of the nonpertinent pages, and copies of the entire letter were made available to the public.

       The August 20,1996 letter from Neilson to Murphy states: “We appreciate your call regarding the possibility of a limited number of Commissioners being present at tonight’s meeting and respectfully request that our application for amendments to the Zoning Regulations be tabled until next month’s meeting so that it can receive a favorable review by the entire Commission.
      “We would appreciate it if you would make this request to the Commission tonight on our behalf since we are not supposed to have any contact with them while they deliberate their decision. Your assistance is appreciated.”