source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    ELIZABETH EGAN ET AL. v. PLANNING BOARD OF THE CITY OF STAMFORD ET AL.
    (AC 32371)
    DiPentima, C. J., and Alvord and West, Js.

      Argued January 17
    officially released July 10, 2012

      John W. Mullin, assistant corporation counsel, for the appellant (named defendant).

      Daniel A. Benjamin, with whom were Ronald M. Gold and, on the brief, Derek Mello, for the cross appellant (defendant Michael Innaurato).

      John R. Harness, for the appellees (named plaintiff et al.).
   Opinion

WEST, J.

The defendants, the planning board of the city of Stamford and subdivision applicant Michael Innaurato, appeal from the judgment of the trial court sustaining the aggrieved plaintiffs’ appeal from the planning board’s approval of Innaurato’s subdivision application. On appeal, the defendants claim that the trial court improperly substituted its judgment for that of the planning board when the court interpreted (1) a conservation easement to be inconsistent with the zoning requirement that an accessway lot provide an “unobstructed legal accessway” to the street and (2) a lot frontage regulation to require frontage to be measured along a street “which affords the principal means of access” to the lot. We affirm the judgment of the trial court.

The following facts are not in dispute. On February 13, 2008, Innaurato filed an application to subdivide his 6.39 acre lot located on Ingleside Drive in Stamford. The lot borders Spring Hill Lane East (private lane), a private road, to the north, over which the lot does not have any access rights. Approximately 40 percent of the western side of the lot is occupied by a pond and wetlands. The lot is zoned RA-2 for single-family dwellings, requiring a minimum lot size of approximately two acres and minimum frontage of 200 feet. The subdivision plan submitted by Innaurato divided the lot into three lots, B-l, B-2, and B-3. All three lots are approximately two acres each. On lots B-l and B-2, Innaurato proposed to build six-bedroom, single-family dwellings. Lot B-l abuts the private lane to the north for a total length of approximately 288 feet and Ingleside Drive to the east, for a total length of 87 feet. Access to lot B-1 is through a driveway off of Ingleside Drive. There are no access rights to the private lane from lot B-l. Lot B-2 is an interior “accessway” lot and abuts lot B-1 to the north and B-3 to the south. Lot B-2 does not abut a street except for a twenty-five foot wide accessway abutting Ingleside Drive. The accessway to lot B-2 has a steep slope and is heavily wooded. Vehicular access to lot B-2 is provided through a common driveway through lot B-l. Lot B-3 contains an existing dwelling and other buildings.

The planning board held a public hearing on the subdivision application on May 27 and June 17, 2008. At the conclusion of the June 17 hearing, the board approved the application subject to fourteen conditions. Conditions one and two required that Innaurato dedicate an “Open Space Preserve/Conservation Area” over 2.8 acres of the entire subdivided property and file a standard “[Conservation [e]asement [agreement” over those designated areas. Those conditions require that the area designated as a conservation easement must be “maintained in a natural state except as may be authorized by the Environmental Protection Board (EPB) . . . .” The accessway portion of lot B-2 was included as one of those areas subject to conditions one and two.

The plaintiffs appealed to the Superior Court, claiming that the board’s grant of Innaurato’s subdivision application violated the zoning regulations in the following ways: (1) lot B-2, as an accessway lot, is not served by an unobstructed legal accessway as required in the zoning regulations and (2) lot B-l does not meet the minimum frontage requirements of the zoning regulations. The court, in its memorandum of decision, sustained the plaintiffs’ appeal, finding that in both instances, there was no substantial evidence to support the planning board’s interpretation of the zoning regulations. The planning board and Innaurato appealed from the trial court’s judgment after this court granted their petitions for certification.

We now identify the applicable standard of review. “Our Supreme Court has stated that [u]nder our well established standard of review, [w]e have recognized that [a]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . We have determined, therefore, that . . . deference . . . to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] ... a governmental agency’s time-tested interpretation .... Heim v. Zoning Board of Appeals, 289 Conn. 709, 714-15, 960 A.2d 1018 (2008); Borrelli v. Zoning Board of Appeals, 106 Conn. App. 266, 270, 941 A.2d 966 (2008); Munroe v. Zoning Board of Appeals, 75 Conn. App. 796, 803, 818 A.2d 72 (2003) ([i]t is our job, as an appellate court, to construe the relevant zoning regulation because . . . the outcome . . . eventually will depend on a legal interpretation of the regulation by an appellate court).” (Internal quotation marks omitted.) Goulet v. Zoning Board of Appeals, 117 Conn. App. 333, 337, 978 A.2d 1160, cert. denied, 294 Conn. 909, 982 A.2d 1082 (2009).

“Because the interpretation of the regulations presents a question of law, our review is plenary. . . . Additionally, zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes. . . . Moreover, regulations must be inteipreted in accordance with the principle that a reasonable and rational result was intended .... The process of statutory interpretation involves the determination of the meaning of the statutory language [or . . . the relevant zoning regulation] as applied to the facts of the case, including the question of whether the language does so apply.” (Internal quotation marks omitted.) Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn. App. 17, 21-22, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006); see also Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 416, 920 A.2d 1000 (2007); R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 33:7, p. 261.

“A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance. . . . The words employed are to be interpreted in their natural and usual meaning. . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant. . . . The regulations must be construed as a whole and in such a way as to reconcile all their provisions as far as possible. . . . [Regulations are to be construed as a whole since particular words or sections of the regulations, considered separately, may be lacking in precision of meaning to afford a standard sufficient to sustain them. . . . Fedus v. Zoning & Planning Commission, 112 Conn. App. 844, 849-50, 964 A.2d 549, cert. denied, 292 Conn. 904, 905, 973 A.2d 103, 104 (2009); see 9A R. Fuller, supra, § 34:6, pp. 299-303.” (Internal quotation marks omitted.) Mountain Brook Assn., Inc. v. Zoning Board of Appeals, 133 Conn. App. 359, 368-69, 37 A.3d 748 (2012). At the same time, our review of the factual findings of the planning board is guided by the substantial evidence standard of review. See Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn. App. 533, 540, 738 A.2d 1157 (1999).

I

We first consider the issue of whether the placement of a conservation easement, among other restrictions, on the accessway of an accessway lot violates the Stamford zoning regulations. On the basis of the facts and record in this case, we disagree with the planning board’s interpretation and conclude that its determination that lot B-2 complied with the zoning regulations lacks substantial evidence in the record.

We now set forth the relevant language from the zoning regulation. Section 3 (A) (56) of the zoning regulations defines an accessway lot as “a lot which has less than the required minimum frontage but which complies with the provisions of [§ 7 (O) of the zoning regulations].” Stamford Zoning Regs., § 3 (A) (56). Section 7 (O) provides in relevant part that “[a]ccessway lots . . . shall be permitted . . . provided that each such accessway lot has access to a street by means of an unobstructed legal accessway held in the same ownership as the accessway lot . . . .” (Emphasis added.) Id., § 7 (O). The court concluded that the conservation easement was inconsistent with the requirement of an “unobstructed legal accessway.” In essence, the court found that restrictions on the accessway obstructed legal access to lot B-2. We agree.

The defendants make several arguments. First, the defendants argue that the planning board has engaged in a time-tested practice of interpreting “unobstructed legal accessway” in § 7 (O) of the zoning regulations to restrict only physical obstacles along with a time-tested practice of preserving natural resources through the use of common driveways in compliance with the subdivision regulations. The defendants also argue that the conditions placed over the accessway do not obstruct legal access to the lot because actual access to lot B-2 is provided by the common driveway.

A

First, we must determine whether the planning board’s interpretation of the zoning regulation is entitled to special deference, based on a time-tested interpretation. The defendants argue that the court should give special deference to the planning board’s interpretation of “unobstructed legal accessway” to restrict physical obstructions only in the accessway. Additionally, the defendants argue that the planning board has engaged in a time-tested practice of utilizing paper accessways to provide flexibility to preserve environmentally sensitive areas. Our Supreme Court has “determined . . . that . . . deference ... to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] ... a governmental agency’s time-tested interpretation . . . .” (Internal quotation marks omitted.) Heim v. Zoning Board of Appeals, supra, 289 Conn. 714. “We have accorded deference to such a time-tested agency interpretation of a [regulation], but only when the agency has consistently followed its construction over a long period of time, the [regulatory] language is ambiguous, and the agency’s interpretation is reasonable.” State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 719, 546 A.2d 830 (1988). The court found that “[t]he defendants have referred the court to nothing in the record to indicate that the board itself has engaged in a long-standing, time-tested practice of deeming similar conditions not to constitute obstructions to legal access.” On the basis of our own careful review of the record, we agree with the court. Additionally, the defendants have not cited any prior judicial interpretation of the zoning regulation. Therefore, we conclude that the planning board’s interpretation of “unobstructed legal accessway” is accorded no special deference.

B

Without any special deference to the board’s interpretation, we now interpret what constitutes an obstruction to an “unobstructed legal accessway,” as required by § 7 (O). The term “unobstructed legal accessway” is not defined in the regulations. “[W]ords and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” (Internal quotation marks omitted.) Moon v. Zoning Board of Appeals, 291 Conn. 16, 21, 966 A.2d 722 (2009). “The words used in zoning ordinances are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms.” Coppola v. Zoning Board of Appeals, 23 Conn. App. 636, 641, 583 A.2d 650 (1990). “A term that is employed in the regulations may not be interpreted to mean whatever the commission chooses it to mean. That would render it impossible for a party to discern the true meaning of the term and, thus, to know whether compliance with the regulation is possible. ... A commission’s regulations must be reasonably precise in subject matter and reasonably adequate and sufficient to give both the commission and those affected by its decision notice of their rights and obligations.” (Internal quotation marks omitted.) 200 Associates, LLC v. Planning & Zoning Commission, 83 Conn. App. 167, 174, 851 A.2d 1175, cert. denied, 271 Conn. 906, 859 A.2d 567 (2004). “Whenever possible, the language of zoning regulations will be construed so that no clause is deemed superfluous, void or insignificant. . . . The regulations must be interpreted so as to reconcile their provisions and make them operative so far as possible.” (Internal quotation marks omitted.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 653, 894 A.2d 285 (2006).

We turn, therefore, to the text of the regulation. Section 7 (O) refers to the “accessway” separately from the entire “accessway lot.” Therefore, “accessway” in the context of “unobstructed legal accessway” refers to the part of the accessway lot connecting the interior portion of the lot with the street. For the meaning of the term “unobstructed,” which is not defined in the regulations, we turn to the dictionary. See Moon v. Zoning Board of Appeals, supra, 291 Conn. 25-26. The verb “to obstruct,” is defined as “1. [t]o block or fill (a passage) with obstacles; make impassable; 2. To interfere with, impede, or retard.” The American Heritage Dictionary (New College Ed. 1981) p. 907. An “obstruction” is defined as “1. [o]ne that gets in the way; an obstacle. 2. [a]n act or instance of impeding or obstructing.” Id. Both definitions reference the norm “obstacle,” which is defined as “[o]ne that opposes, stands in the way of, or holds up progress toward some goal.” Id.

On the basis of the common meaning of the terms contained in the phrase “unobstructed legal accessway,” we cannot say that conditions restricting the accessway to lot B-2 do not “[stand] in the way of’ nor “[hold] up progress” in the legal accessway to lot B-2. As part of the board’s approval of the subdivision application, it required that the accessway to lot B-2 “be maintained in a natural state except as may be authorized by the Environmental Protection Board (EPB) . . . .’’In addition, a standard conservation easement agreement would be required to be filed over those same designated areas. See footnote 5 of this opinion. Those conditions require the owner of lot B-2 to seek the permission of the EPB in order to utilize the accessway for any purpose other than open space. Here, the obstacle impeding the accessway is not physical, but rather an encumbrance requiring future approval from a municipal body. Such an encumbrance over the accessway of lot B-2 hinders the use and development of the accessway portion of the lot. The court, in its memorandum of decision, stated that “[t]he parties agree that there is nothing in the record to indicate that the EPB has granted such permission contingent upon a future need for access or that it has done so with respect to other conserved accessways or that a future EPB might do so.” This determination by the court has not been challenged on appeal. Indeed, the record is silent on any future approval by the EPB to use the conservation easement area for any purpose other than maintaining it in its natural state.

c

Next, the defendants argue that the conservation easement over lot B-2 does not obstruct legal access to the lot because actual access to lot B-2 is provided by the common driveway over the adjacent lot B-l. We disagree.

In its memorandum of decision, the court agreed with the defendants that “the regulations do not require construction of a driveway within the accessway. That, however, begs the question. The issue is rather whether the regulation mandates that the accessway be legally unobstructed, whether or not a driveway is ever constructed within its boundaries.” (Emphasis added.) We agree. The board argues that the common driveway complies with the provisions of Stamford subdivision regulation § 5.2.6. Although actual access to lot B-2 is provided by a common driveway, in accordance with the subdivision regulations, that does not eliminate the requirement of an “unobstructed legal accessway” under § 7 (O) of the zoning regulations. The subdivision regulations and zoning regulations must be read together. Therefore, a subdivision plan for an accessway lot that prescribes a paper accessway and an actual accessway via a common driveway can be compliant with both the zoning regulations and subdivision regulations. In the present case, however, the board added additional conditions for the paper accessway, namely, designating the area as open space/ conservation area and requiring the filing of a standard conservation easement agreement. Those conditions, as discussed previously, obstruct the accessway, therefore violating § 7 (O) of the zoning regulations, which requires an “unobstructed legal accessway . . . .”

Under the facts and circumstances of this case, we conclude that the planning board’s finding that lot B-2 complied with the accessway lot provisions of § 7 (O) of the zoning regulations was not supported by the record, and therefore, the court properly sustained the plaintiffs’ appeal with respect to this issue.

II

We next consider the issue of whether the planning board properly interpreted the lot frontage requirements to allow lot frontage for lot B-l to be measured along the private lane. On the basis of the facts and record in this case, we disagree with the board’s interpretation and conclude that its determination that lot B-l conforms to the frontage requirements lacks substantial evidence in the record.

We begin with the text of the regulations. Section 3 (A) (60) of the zoning regulations provides that “lot, frontage” is “[t]he distance between the side lines of a lot measured along the front lot line. ...” Stamford Zoning Regs., § 3 (A) (60). Lot B-l is a comer lot that abuts both Ingleside Drive and the private lane but lacks the minimum frontage along Ingleside Drive. In approving the subdivision, the planning board permitted Innaurato to measure frontage along the private lane. In sustaining the plaintiffs’ appeal, the court found that although § 3 (A) (60) does not expressly require that the front lot line abut a street, such a requirement is “necessarily implicit” based on the dictionary definition of frontage, which the court defined as “the measure in feet ... of the boundary between a street or highway and an abuttingproperty.” (Internal quotation marks omitted.) On the basis of the court’s determination that frontage must be measured along a street, the court turned to the definition of “street” in the zoning regulations. Section 3 (A) (96) provides that a “street” is “[a] public thoroughfare including road, highway, drive, lane, avenue, place, boulevard, and any other thoroughfare which affords the principal means of access to abutting property.” (Emphasis added.) The court interpreted § 3 (A) (60) and (96) together to require that frontage be measured along a street that abuts the lot and affords the principal means of access for that lot. Because the private lane does not afford the principal means of access to lot B-l, the court held that it lacked the minimum frontage requirements and therefore violated the zoning regulations. We agree.

On appeal, the defendants make several arguments. First, the defendants argue that the planning board has engaged in a time-tested interpretation of “lot, frontage” that does not require that the street provide the principal means of access. Second, the defendants argue that the court confused the definitions of “lot, frontage” and “street” and thereby engrafted a requirement that frontage be measured along a street that provides the principal means of access to that property.

As we did in part I of this opinion, we must first determine whether to afford any special deference to the board’s interpretation of the frontage requirements under the zoning regulations. Innaurato argues that the board has engaged in a time-tested interpretation, but has not pointed to any evidence of a time-tested practice of not requiring that the street measured for frontage purposes also afford the principal means of access. We conclude that the record lacks substantial evidence that the planning board has engaged in a time-tested interpretation and therefore we accord no special deference to the planning board’s interpretation. See State Medical Society v. Board of Examiners in Podiatry, supra, 208 Conn. 719.

As in part I of this opinion, our review of the interpretation of the zoning regulations is plenary. Although the definition of “lot, frontage,” defined in § 3 (A) (60) of the zoning regulations as “[t]he distance between the side lines of a lot measured along the front lot line,” does not make reference to an abutting street, we agree with the court’s construction that frontage is measured along an abutting street is “necessarily implicit.” “ [Regulations must be interpreted so as to reconcile their provisions and make them [all] operative so far as possible. . . . When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results.” (Internal quotation marks omitted.) Newman v. Planning & Zoning Commission, supra, 293 Conn. 217. The front lot line of a lot has to abut a street, otherwise it would not be a front lot line. “Front lot line” is not separately defined by the zoning regulations. Apart from § 3 (A) (60), there is only one reference to the term “front lot line” in the zoning regulations. Section 7 (M) provides in relevant part that “[i]n the case of equal frontages the owner may designate which street line shall be the front lot line for the purpose of determining the rear lot line.” (Emphasis added.) Section 3 (A) (65) defines a “[l]ot [s]treet [l]ine” as “[t]he dividing line between the street and the lot.” Reading the zoning regulations together, we interpret the regulations to require that a “front lot line” be measured along a “street line.” In our view, measuring frontage along a street renders the regulations workable, and avoids the unreasonable and bizarre results that would occur if lot frontage could be measured along any other abutting land besides a street. Because we interpret lot frontage to be measured along a street and the regulations require that a street afford “the principal means of access to abutting property,” frontage necessarily cannot be measured along a private street from which an abutting property does not have the right to access.

Innaurato cites KJC Real Estate Development, LLC v. Zoning Board of Appeals, 127 Conn. App. 16, 15 A.3d 166, cert. denied, 300 Conn. 938, 17 A.3d 472 (2011), in his argument that the definition of street should be considered separate and apart from a consideration of lot frontage. KJC Real Estate Development, LLC, is distinguishable from the present case because in that case, the Wilton zoning regulations’ definition of “frontage” explicitly stated that frontage “abut[s] on a public street.” (Emphasis in original; internal quotation marks omitted.) Id., 21. In that case, the court affirmed the trial court’s determination that the street in question constituted a street, but not a public street, which was required under the zoning regulations for frontage. Id. In the present case, the definition of “lot, frontage” is silent on whether frontage must be on a street — public or private. We have determined, however, that the Stamford zoning regulations require the frontage be measured along a street, based on the meaning of the term “front lot line” in the definition of “lot, frontage” in the regulations. Although we interpret the zoning regulations to require frontage on a street, we agree with the trial court’s determination that under § 3 (A) (96), “street” can refer to either a public or private street). Because the private lane qualifies as a “street” under the regulations, such a street must afford the principal means of access for any lot that uses that street to measure frontage. The owner of lot B-l does not have any right to use the private lane, and thus the private lane cannot afford the principal means of access for the lot. Therefore, because lot B-l cannot measure frontage along the private lane, and there is not sufficient frontage on Ingleside Drive, the lot fails to meet the frontage requirements.

Under the facts and circumstances of this case, we conclude that the planning board’s finding that lot B-l complied with the frontage requirements of the zoning regulations was not supported reasonably by the record, and, therefore, the court properly sustained the plaintiffs’ appeal with respect to this issue.

The judgment is affirmed.

In this opinion the other judges concurred.

       Innaurato is designated as a cross appellant in this appeal and has filed a separate brief. Because the planning board and Innaurato raise the same issues on appeal, we collectively refer to them as the defendants.

       The plaintiffs who originally brought this case were Elizabeth Egan, Dana Tyler, Jean Barden, Robert Barden, Philip Stolz and Suzanne Stolz. Egan and the Bardens were found by the trial court to be statutorily aggrieved because they own property abutting or within 100 feet of the proposed subdivision. The trial court found that the other plaintiffs were not aggrieved because no evidence was presented as to their status, and, therefore, they are not parties to this appeal.

       Under the Stamford zoning regulations, an accessway lot lacks the minimum frontage requirement but is permitted under the zoning regulations so long as access to the lot is provided through an “unobstructed legal accessway” held in the same ownership as the accessway lot. See Stamford Zoning Regs., §§ 3 (A) (56) and 7 (O).

       The plaintiffs do not challenge the legality of the driveway easement to lot B-2. Stamford subdivision regulation § 5.2.6 provides in relevant part that “[t]he applicant’s intent to provide vehicular access from a lot to a street via easement over one or more abutting lots shall be subject to review and approval by the Board. . . .”

       The record provides a copy of a standard easement agreement which applies to the accessway area of lot B-2 and provides in relevant part: “That no structures of any kind, including without limitation fences, sewage disposal systems, wells, and watering systems, shall be placed or erected upon or within the Conservation Areas until application therefore (with plans and specifications of such structures, together with a statement of the purpose for which such structures will be used) has been filed with, and prior written approval obtained from, the EPB or its successor agencies.”

       The plaintiffs made a third claim in their appeal to the Superior Court, claiming that the lot lines were tortured in violation of the zoning regulations. Because the court sustained the plaintiffs’ appeal, the court did not address this third claim.

       Section 7 (O) of the zoning regulations also requires accessway lots in zone RA-2 to be “designed [so] that a circle of [200 feet] can be drawn within the boundaries of the lot . . . .” Additionally, § 7 (O) specifies the setback requirements for an accessway lot.

       The defendants use the term “paper accessway” to mean an accessway that is designated as the legal accessway for the lot but one that does not actually provide the vehicular ingress and egress to and from the lot.

       The planning board cites Newman v. Planning & Zoning Commission, 293 Conn. 209, 217, 976 A.2d 698 (2009), as a recent example of our Supreme Court’s deference to a commission’s historical interpretation of a regulation. In concluding that the commission had engaged in a historical interpretation, the court in Newman determined that not only had the commission consistently interpreted the regulation but the commission’s interpretation had been memorialized in a checklist prepared by the commission “many years ago . . . .” Id., 218.

       The defendants argue that the term “unobstructed legal accessway” is ambiguous and direct us to extratextual evidence in support of their interpretation. Under the principles of statutory construction, only if the text of the regulation is ambiguous may we consider extratextual evidence. See State v. Peeler, 271 Conn. 338, 434, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). Because we do not conclude that the phrase “unobstructed legal accessway” is ambiguous, we do not examine any extratextual evidence.

       Whether the “accessway” is “legally unobstructed” as the trial court construed the language, or the “legal accessway” is “unobstructed” as the defendants argue, the root of the issue is the meaning of the term “unobstructed.”

       Our Supreme Court has held that when analyzing the administrative action of one agency depends upon the later approval by another agency, there must be substantial evidence in the record that the second agency’s approval of such action was reasonably probable. Gerlt v. Planning & Zoning Commission, 290 Conn. 313, 326, 963 A.2d 31 (2009); see also Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 50-51, 301 A.2d 244 (1972) (record contained insufficient evidence to support conclusion that state road serving proposed development would be improved); Wilson v. Planning & Zoning Commission, 162 Conn. 19, 24-26, 291 A.2d 230 (1971) (record contained no evidence that provision would be made for highway and traffic flow changes required to alleviate congestion caused by zone change); Faubel v. Zoning Commission, 154 Conn. 202, 211, 224 A.2d 538 (1966) (record contained no evidence that town would supply roads and utilities necessary to comply with zoning laws); cf. Stiles v. Town Council, 159 Conn. 212, 222, 268 A.2d 395 (1970) (on basis of evidence presented, town council reasonably could have concluded that interstate highways essential to successful operation of proposed development would be constructed).
      Because the record in this case is silent with regard to any probability of future approval by the EPB, there is no substantial evidence that the EPB would approve of any deviation from the terms of the conservation easement. Innaurato argues that because condition three for the board’s approval of the subdivision application restricts vehicular access to lot B-2 to the common driveway easement over lot B-l, the approval by the board is not dependent upon the later actions of the EPB. Essentially, Innaurato seems to argue that condition three forecloses the ability of the EPB to ever approve of any vehicular access to lot B-2 other than via the common driveway easement. Whether or not, at some future date, the EPB would have the discretion to approve vehicular access to lot B-2 is irrelevant to our inquiry. Conditions one and two require the approval of the EPB if the owner of lot B-2 wants to alter the natural state of the accessway. As we determined previously, these conditions amount to an obstruction of the accessway.

       Section 5.2.6 of the subdivision regulations provides in relevant part: “The applicant’s intent to provide vehicular access from a lot to a street via easement or common driveway over one or more abutting lots shall be subject to review and approval by the Board. . . .”

       The subdivision regulations incorporate the zoning regulations by reference. Section 3.6.3 of the subdivision regulations provides in relevant part that“[t]he [Planning] Board shall consider the layout of the proposed subdivision with due regard to the . . . purpose and intent of zoning regulations . . . .”

       The board and Innaurato both argue that if this court affirms the trial court’s interpretation of an “unobstructed legal accessway,” it will subvert the public policy goals of protecting sensitive environmental areas because lot owners will be forced to construct driveways through environmentally delicate areas. We reject this argument. Our interpretation cannot be construed to prevent the use of paper accessways to protect environmentally sensitive areas, but we hold more narrowly, that the additional conditions placed on the accessway to lot B-2 violate the zoning regulation requirement of an “unobstructed legal accessway . . . .” Stamford Zoning Regs., § 7 (O).

       Section 4 (AA) (1) (1.5) of the zoning regulations requires that lots in the RA-2 zone have a minimum frontage of 200 feet.

       The plaintiffs argue that § 3 (A) (60) does not define “lot, frontage” but rather explains how lot frontage is measured. Although the trial court turned to the dictionary definition of “frontage,” we do not. Whether § 3 (A) (60) defines frontage or explains how it is measured is irrelevant to the inquiry because our analysis turns on the meaning of the term “front lot line.”

       Innaurato references the remarks of chairman of the planning board, who stated at June 17, 2008 meeting, that “the regulations state — now whether it’s clear or not — that any road whether it’s public or private can be used for frontage even if you don’t have — cannot use it directly for access.” (Emphasis added.) This statement by the chairman demonstrates that the planning board was not clear what the zoning regulations required for frontage along a private street. The planning board’s confusion over the frontage requirements as they relate to private streets further demonstrates that the board has not engaged in a time-tested interpretation.

       The court determined that the private lane qualifies as “any other thoroughfare” under § 3 (A) (96) of the zoning regulations.

       Innaurato argues that the regulation should be interpreted so that once a right-of-way qualifies as a street, it can be used for frontage purposes for any lot that abuts the street, including lot B-l. That argument fails because we have interpreted the regulations to require that lot frontage be measured along a street that affords the principal means of access to that lot. Therefore, lot frontage could not be measured along a right-of-way that has been determined to be a “street” under the regulations yet does not afford the principal means of access for the lot.


author: ROBINSON, J.

text:
    L AND V CONTRACTORS, LLC v. HERITAGE WARRANTY INSURANCE RISK RETENTION GROUP, INC., ET AL.
    (AC 33099)
    Robinson, Espinosa and Bishop, Js.
    Argued April 10
    officially released July 10, 2012

      Joseph C. Merschman, with whom was Erika L. Amarante, for the appellant (defendant AAMCO Transmissions, Inc.).

      Michael T. Petela, Jr., with whom, on the brief, was Angelo Cicchiello, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant AAMCO Transmissions, Inc. (AAMCO), appeals from the judgment of the trial court finding AAMCO vicariously liable to the plaintiff, L & V Contractors, LLC, for the actions of Drive Train Unlimited, LLC (Drive Train). On appeal, AAMCO contends that the court erred in determining that (1) Drive Train was an agent of AAMCO and (2) Drive Train had apparent authority to act as AAMCO’s agent. We agree and, accordingly, reverse the judgment of the trial court.

The following facts, as found by the trial court, and procedural history are relevant to the resolution of AAMCO’s claims. The plaintiff purchased a 2002 GMC Savannah van (vehicle) in February, 2003. The plaintiff, at that time, also bought an extended warranty for the vehicle through Heritage Warranty Insurance Risk Retention Group, Inc. (Heritage). In December, 2007, the transmission in the vehicle failed, and the plaintiff brought the vehicle to Crowley Chevrolet to be repaired. Heritage would not pay Crowley Chevrolet’s rates, so it had the vehicle transported to Drive Train in East Hartford, which was owned at that time by Gary Gross and Michael Corrigan. Heritage authorized Drive Train to examine the transmission; however, it refused to pay for the transmission to be repaired.

Alejandro Leone, a member of the plaintiff, received a letter from Gross, dated January 21,2008, which stated: “You have failed to respond, as of this date, $25.00 per day storage applies. If we do not hear from you within 10 days, a mechanic[’s] hen will be placed on your vehicle and it will be sold at auction.” A few days later, Leone went to Drive Train to speak with Gross about the letter and to inform Gross that he was trying to work things out with Heritage.

Leone received another letter from Gross dated March 11, 2008. That letter stated: “To Whom it May Concern, Re: Abandoned GMC 2003 Savanna. . . . This vehicle is being auctioned.” Leone then authorized Drive Train to repair the vehicle’s transmission. In June, 2008, after not hearing from Drive Train, Leone went to check on the progress of the transmission work and was informed by Gross that the vehicle had been sold.

After the plaintiff left the vehicle with Drive Train, Gross added approximately nine hundred miles to the vehicle’s mileage. In July, 2008, Gross drove the vehicle from East Hartford to Woodbridge on at least eight occasions to “loosen a knock in the engine.” In response to a request for admission, Gross admitted that he used the vehicle for personal use.

The plaintiff filed an amended complaint in the present action on December 18, 2008, asserting counts against Heritage, Drive Train and AAMCO. The plaintiff alleged statutory theft under General Statutes § 52-564, conversion, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., fraudulent misrepresentation and negligent misrepresentation against Drive Train and AAMCO. The claims against AAMCO stemmed from the plaintiffs contention in its complaint that “[a]t all times mentioned herein, [Drive Train] was the agent, servant and/ or employee of [AAMCO] and was acting within the scope of its agency and/or employment with [AAMCO].” Drive Train filed a counterclaim against the plaintiff seeking the cost of breaking down the transmission for inspection, the cost of repairing the transmission and storage fees.

A one day trial was held on October 26, 2010. The court concluded that Drive Train was an agent of AAMCO and that AAMCO was vicariously liable for Drive Train’s actions. The court concluded that “Drive Train’s torts occurred within the scope of AAMCO’s employment of Drive Train and was done to further AAMCO’s business.” The court found that Drive Train had actual authority to act on AAMCO’s behalf as “Drive Train’s agreement with AAMCO was to pay 7 [percent] of revenue for advertising and other expenses and was authorized to use AAMCO’s name. As a matter of fact, many of the exhibits from Drive Train have at the heading of the document the letterhead of AAMCO.”

The court also determined that Drive Train had apparent authority to act for AAMCO. The court stated, “by permitting the use of AAMCO’s name, AAMCO held Drive Train out as possessing sufficient authority to embrace the act of repairing transmissions and, therefore, had apparent authority. The plaintiff dealing with Drive Train must have and did have in good faith a reasonable belief that Drive Train had the necessary authority to bind AAMCO to Drive Train’s actions. . . . It should be noted that plaintiffs exhibits [one] through [four] are letters from Drive Train written on AAMCO letterhead without identifying Drive Train anywhere on the document. Accordingly, to the plaintiff these were letters from AAMCO.” The court further determined that because AAMCO advertises that it has a distributor in East Hartford, the general public “had a right to rely on the expertise and high reputation of AAMCO in deciding whether or not to have the transmission repaired at Drive Train.” The court thereafter found in favor of the plaintiff as to each of its claims against Drive Train. AAMCO filed a motion to reargue, which was denied by the court. This appeal followed.

On appeal, AAMCO contends that the court erred in determining that Drive Train was its agent or had apparent authority to bind AAMCO for its actions. It is well settled that “[t]he nature and extent of an agent’s authority is a question of fact for the trier where the evidence is conflicting or where there are several reasonable inferences which can be drawn [therefrom]. . . . Accordingly, we review the court’s findings with regard to agency and an agent’s authority under the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) LeBlanc v. New England Raceway, LLC, 116 Conn. App. 267, 273-74, 976 A.2d 750 (2009).

“The burden of proving agency is on the party asserting its existence.” Lee v. Duncan, 88 Conn. App. 319, 324, 870 A.2d 1, cert. denied, 274 Conn. 902, 876 A.2d 12 (2005). “Under § 1 of 1 Restatement (Second) of Agency (1958), [ajgency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act .... Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking.” (Internal quotation marks omitted.) Hollister v. Thomas, 110 Conn. App. 692, 706, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008).

We begin with AAMCO’s claim that the court erred in determining that Drive Train was. its agent. AAMCO contends that the plaintiff failed to submit any evidence on the issue of AAMCO’s control of Drive Train. Accordingly, AAMCO asserts that the plaintiff failed to prove that there was an agency relationship between Drive Train and AAMCO. We agree.

The plaintiff introduced no evidence that demonstrated that AAMCO controlled any part of the business of Drive Train. The only evidence presented that relates to the relationship between AAMCO and Drive Train is that Drive Train and AAMCO have an agreement, whereby, in exchange for the use of AAMCO’s name, Drive Train pays approximately 7 percent of its sales to AAMCO for advertisements. The mere fact that there was an agreement that allowed for Drive Train to use AAMCO’s name is not evidence that it exercised any control over Drive Train’s operations. See McLaughlin v. Chicken Delight, Inc., 164 Conn. 317, 324, 321 A.2d 456 (1973) (principal evidence of agency was franchise agreement and court concluded that “[t]he plaintiff has totally failed to point to any portion of the contract or to any other evidence in the case which would sustain his burden of establishing that [the operator of the vehicle owned by the franchisee] was an agent of Chicken Delight”). A necessary element of demonstrating that there is a principal and agent relationship is to show that the principal is in control. See Hollister v. Thomas, supra, 110 Conn. App. 706. The plaintiff failed to provide any evidence that AAMCO controls Drive Train in any relevant manner.

The plaintiff asserts that AAMCO “failed to produce a purported representative to testify about the supposed franchise relationship. [The plaintiff also alleges that AAMCO] failed to produce any franchise agreement between [it] and Drive Train in discovery, and failed to introduce any evidence on this issue at trial.” The plaintiff fails to recognize, however, that the burden rests with the party seeking to prove that an agency relationship exists. See Lee v. Duncan, supra, 88 Conn. App. 324. AAMCO had no obligation to provide evidence relating to the relationship between it and Drive Train; rather, that burden rested solely on the plaintiff if it wanted to demonstrate that there was in fact a principal and agent relationship. The plaintiff failed to do so. We therefore conclude that because the there was no evidence presented by the plaintiff to provide a sufficient basis from which an inference of control could be derived, the court’s finding of agency and the nature and scope of said agency was clearly erroneous. See Botticello v. Stefanovicz, 177 Conn. 22, 27, 411 A.2d 16 (1979).

We next determine whether the court erred in determining that Drive Train had apparent authority to act as AAMCO’s agent. A party can be held hable to a third party if its actions caused a third party to believe that there was a principal and agent relationship between it and another. See Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 140, 464 A.2d 6 (1983) (despite no principal and agent relationship court still needed to determine if there was apparent authority). “Apparent authority is derived not from the acts of the agent but from the deliberate or inadvertent acts of the principal. . . . Apparent authority has two elements. First, it must appear from the acts of the principal that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority .... Second, the party seeking to bind the principal must have acted in good faith reliance on that appearance of authority.” (Internal quotation marks omitted.) 111 Whitney Avenue, Inc. v. Commissioner of Mental Retardation, 70 Conn. App. 692, 703-704, 802 A.2d 117 (2002).

Connecticut, nevertheless, has yet to apply the doctrine of apparent authority to allow for a principal to be held hable to a third person who was harmed by the tortious conduct of a person held out as the principal’s agent. In Mullen v. Horton, 46 Conn. App. 759, 771, 700 A.2d 1377 (1997), this court observed that other states have used the doctrine of apparent authority “to hold a principal, who represents that another is his servant or agent and thereby causes a third person to rely justifiably on the care or skill of such agent, vicariously liable for harm caused to the third person by the lack of care or skill of his servant or agent.” The court, however, noted that the doctrine had never been used in such a manner in Connecticut and, therefore, concluded that the doctrine of apparent authority was inapplicable to the case before it. Id., 772.

In Davies v. General Tours, Inc., 63 Conn. App. 17, 31, 774 A.2d 1063 (2001), cert. granted on other grounds, 256 Conn. 926, 776 A.2d 1143 (2001) (appeal withdrawn October 18, 2001), this court again determined that the doctrine of apparent authority should not be used to hold a principal hable for the tortious conduct of a person held out as its agent. Citing Mullen, we determined that apparent authority “is not a viable ground on which to premise liability against a [principal] sued for the torts of an alleged agent.” Id.

In the present case, the claims against AAMCO sound in tort and are based on the tortious conduct of Drive Train, which the plaintiff alleges AAMCO held out as its agent. Because this court has held that the doctrine of apparent authority cannot be used to hold a principal hable for the tortious actions of its alleged agent, we conclude that the trial court erred in determining that Drive Train had apparent authority to bind AAMCO.

The judgment is reversed only as to the finding that AAMCO Transmissions, Inc., is vicariously hable to the plaintiff and the case is remanded with direction to render judgment in favor of AAMCO Transmissions, Inc. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The plaintiff brought this action against three defendants, Heritage Warranty Insurance Risk Retention Group, Inc., Drive Train Unlimited, LLC, and AAMCO Transmissions, Inc. AAMCO is the only defendant to appeal the trial court’s decision.

       AAMCO argues that there was no evidence to support the court’s conclusion that Drive Train was an “actual agent” or an “apparent agent” of AAMCO. After reading AAMCO’s brief, we construe its first argument to be that the court erred in determining that there was an agency relationship between it and Drive Train. We construe AAMCO’s second argument as it is set forth in its brief, namely, that the court erred in concluding that Drive Train had apparent authority to bind AAMCO for its actions.

       Gross is no longer affiliated with Drive Train.

       The vehicle, however, had not been sold and, as of the date of trial, still remained in Drive Train’s possession.

       The plaintiff originally filed a complaint on October 8,2008, against Drive Train and Heritage. The plaintiff sought leave from the court to cite AAMCO as an additional party defendant. The plaintiffs motion was granted on November 26,2008, and, thereafter, the plaintiff filed the amended complaint.

       Before trial, the plaintiff settled its claim with Heritage.

       The trial court made an explicit finding that Drive Train was not a franchisee of AAMCO; however, AAMCO did not appeal this finding.

       The trial court concluded that Drive Train was AAMCO’s agent and had actual authority to act on its behalf. “Actual authority exists when [an agent’s] action [is] expressly authorized . . . or . . . although not authorized, [is] subsequently ratified by the [principal].” (Internal quotation marks omitted.) Maharishi School of Vedic Sciences, Inc. (Connecticut) v. Connecticut Constitution Associates Ltd. Partnership, 260 Conn. 598, 606-607, 799 A.2d 1027 (2002). “Authority is the power of the agent to affect the legal relations of the principal by acts done in accordance with the principal’s manifestations of consent to him.” 1 Restatement (Second), Agency § 7, p. 28 (1958). Because we conclude that the plaintiff failed to meet its burden to prove that there was a principal agent relationship between AAMCO and Drive Train, it necessarily follows that the plaintiff failed to carry its burden to prove that Drive Train had actual authority to act on AAMCO’s behalf. We further note that even if the record did show evidence of agency or apparent authority between Drive Train and AAMCO for the purposes of repairing automobiles, there was no evidence adduced at trial that the tortious conduct alleged in this matter fell within the purported relationship.


text:
    LAKE ROAD TRUST LTD. ET AL. v. ABB POWERTECH (PTY) LTD. ET AL.
    (AC 33585)
    DiPentima, C. J., and Gruendel and Robinson, Js.
    Argued March 15
    officially released July 10, 2012

      Paul V. Esposito, pro hac vice, with whom were Derek E. Donnelly and, on the brief, Edward M. Kay, pro hac vice, Alexander X. Saunders, pro hac vice, and Stuart G. Blackburn, for the appellants (plaintiffs).

      Robert G. Clemente, with whom, on the brief, was David A. Post, for the appellees (defendant Nynas Naphthenics, AB et al.).
   Opinion

ROBINSON, J.

The plaintiffs, Lake Road Trust Ltd. and Lake Road Generating Company Limited Partnership, appeal from the judgment of the trial court dismissing for lack of personal jurisdiction those counts of their product liability complaint directed at the defendants Nynas Naphthenics, AB (Naphthenics), and Nynas AB, and from the court’s subsequent denial of the plaintiffs’ motion to reargue the judgment of dismissal. The plaintiffs claim on appeal that the court improperly granted the defendants’ motions to dismiss and denied the motion to reargue without first giving the plaintiffs an opportunity to obtain jurisdictional discovery from the defendants and without conducting an evidentiary hearing in accordance with our Supreme Court’s decision in Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 459 A.2d 503 (1983). We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our review. The plaintiffs own and operate an electrical power generating plant (power plant) located in the Dayville section of Killingly. The power plant consists of three turbine generators that use three generator step-up transformers to alter the current produced by the turbines for connection to an electrical substation. The electricity generated by the power plant is sold through the ISO New England market.

In May, 2005, the power plant was shut down by an electrical arcing event in one of the transformers. An investigation revealed that the event was caused in part by contaminated oil in the transformer. A similar event occurred in another transformer at the plaintiffs’ power plant in February, 2007, which, again, was attributed in part to contaminated transformer oil. The transformer oil used in the transformers was supplied by Naphthenics, which was located and incorporated in Sweden. In January, 2008, Naphthenics merged into its parent company, AB Nynas Petroleum, which, in March, 2008, changed its name to Nynas AB.

In February, 2010, the plaintiffs commenced this product liability action. Count four of the complaint alleges that there were defects in the transformer oil supplied by Naphthenics and that Naphthenics is liable to the plaintiffs under General Statutes § 52-572m for damages to their property caused by the defective oil. Count five of the complaint alleges that Nynas AB, as the successor in interest of Naphthenics, is liable for the acts and/or omissions of Naphthenics and for any resulting property damage.

On April 7, 2010, Naphthenics and Nynas AB each filed a motion to dismiss. Both of the motions to dismiss were accompanied by an affidavit from an employee of Nynas AB who attested that she was familiar with the business dealings of the defendants. Each defendant argued that the sole count against it should be dismissed for lack of personal jurisdiction because it had insufficient contacts with Connecticut to satisfy General Statutes § 33-929 (f) or constitutional principles of due process and because the plaintiffs failed to comply with the service of process requirements of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 16, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, 668 U.N.T.S. 163 (Hague Convention), and § 33-929 (b). Naphthenics also argued that the court lacked personal jurisdiction over it because it no longer existed as a legal entity.

The plaintiffs filed motions asking to extend the time in which to reply to the motions to dismiss to June 7, 2010, which were granted by the court. On June 7,2010, the plaintiffs filed a motion seeking to further postpone argument on the motions to dismiss for six months so that the plaintiffs could “conduct jurisdictional discovery to develop the facts necessary to support their [objection to the [mjotions to [dismiss.” The defendants filed an opposition to that motion, which was overruled by the court on July 26, 2010.

On July 15, 2010, the plaintiffs issued interrogatories to the defendants, directed, in part, at establishing the extent of the defendants’ contacts with Connecticut. The defendants filed objections to the interrogatories on August 16, 2010. The case was transferred to the complex litigation docket in November, 2010, at which time the plaintiffs filed a motion to compel the defendants to respond to their discovery requests. The court issued an order denying the motion to compel without prejudice on January 3, 2011. According to the court, the motion to compel failed to mention that the defendants had filed objections to the plaintiffs’ discovery requests and, although the motion indicated that a judge had ordered compliance at a status conference, the plaintiffs had failed to attach a copy of such an order to their motion to compel. The court also noted that the motion to compel was not accompanied by an affidavit indicating that the plaintiffs had made a good faith effort to resolve the objections in accordance with Practice Book §§ 13-8 (b) and 13-10 (c).

On January 11, 2011, the defendants filed requests for adjudication of their pending motions to dismiss, indicating that the motions had gone unopposed for nearly nine months. The court issued an order on January 25, 2011, that it would hold a hearing concerning the motions to dismiss on February 10, 2011, and that any opposition by the plaintiffs should be filed by February 4, 2011. The plaintiffs filed their oppositions to the motions to dismiss on February 1, 2011, to which they attached affidavits and other exhibits. In their oppositions, the plaintiffs indicated to the court that the defendants had refused to provide any discovery regarding jurisdiction and service, and, therefore, if the court concluded that factual issues remained in dispute regarding the jurisdictional and service issues, the court should afford them an opportunity to conduct discovery and hold a Standard Tallow Corp. hearing.

After hearing argument on the motions to dismiss, the court issued a memorandum of decision granting the motions on the ground that the court lacked personal jurisdiction over the defendants. Specifically, the court found that the undisputed facts showed “that Naphthen-ics supplied the [transformer] oil in question; that it made a sale to a Connecticut company in 2002; and, as of 2004, it distributed its products throughout the United States, with a smaller amount sent to a New Jersey depot to serve the northeastern United States.” On the basis of those facts, the court determined that the applicable long arm statute, § 33-929 (f) (3), would have authorized the assertion of jurisdiction over Naphthen-ics and, therefore, also reached Nynas AB as its successor in interest. The court also determined, however, that, “since Naphthenics’ separate existence ceased, it may not be sued here, and the court lacks personal jurisdiction over it.”

Having found that it was statutorily authorized to exercise jurisdiction over Nynas AB, the court proceeded to analyze whether such exercise of jurisdiction would violate constitutional principles of due process. The court first determined that it lacked specific jurisdiction because the transformers at issue in the lawsuit were manufactured in 2000 and the only contacts between Naphthenics and Connecticut occurred in 2002. Accordingly, the court determined that “[t]he necessary causal connection between Naphthenics’ contacts with Connecticut and the plaintiffs’ cause of action [had] not been shown.” Finally, the court determined that it lacked general jurisdiction over Nynas AB because the single sale to a Connecticut company and the existence of the depot in New Jersey to serve the northeastern United States did not establish “continuous and systematic general business contacts” with the state. (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 524, 923 A.2d 638 (2007).

In its memorandum, the court also addressed the jurisdictional discovery issue raised by the plaintiffs. It concluded that no additional discovery or an eviden-tiary hearing was needed because there were no disputed factual issues relevant to the court’s adjudication of the issue of personal jurisdiction. The court also noted that the plaintiffs previously had sought time to conduct jurisdictional discovery, but “did not diligently pursue it” and, therefore, were “not entitled to another opportunity to conduct jurisdictional discovery.” The plaintiffs filed a motion to reargue, which the court denied. This appeal followed.

“The standard of review for a court’s decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200-201, 994 A.2d 106 (2010).

“When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction.” Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 54. “[A] determination of whether sufficient minimum contacts with Connecticut exist is a fact question. ... A motion to dismiss may . . . raise issues of fact and would, therefore, require a . . . hearing [to determine the facts]. . . . [Affidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists. . . . When issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Citations omitted; internal quotation marks omitted.) Id., 56.

Our Supreme Court has “long recognized that the granting or denial of a discovery request rests in the sound discretion of the [trial] court, and is subject to reversal only if such an order constitutes an abuse of that discretion. . . . [I]t is only in rare instances that the trial court’s decision will be disturbed.” (Internal quotation marks omitted.) Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 7, 826 A.2d 1088 (2003). When, however, the trial court recognizes that a factual presentation is necessary, it is an abuse of discretion for the court to deny an opportunity for discovery. Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 60. “The standard of review for a court’s denial of a motion to reargue also is abuse of discretion.” Housing Authority v. Goodwin, 108 Conn. App. 500, 506 n.10, 949 A.2d 494 (2008).

On appeal, the plaintiffs claim that the court improperly granted the defendants’ motions to dismiss and denied the plaintiffs’ motion to reargue without allowing the plaintiffs an opportunity to obtain jurisdictional discovery from the defendants and without conducting an evidentiary hearing in accordance with Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 48. Under the circumstances of the present case, we do not agree that the court abused its discretion by refusing to allow the plaintiffs additional time for jurisdictional discovery or by failing to conduct an evidentiary hearing prior to ruling on the motions to dismiss.

In Standard Tallow Corp., shortly after one of the defendants filed a motion to dismiss claiming a lack of personal jurisdiction, the plaintiff filed a motion to postpone any hearing on the motion to dismiss until that defendant complied with discovery requests that the plaintiff indicated it intended to file and that were necessary to elicit facts from which personal jurisdiction could be shown. Id., 50. The defendant objected to the motion to postpone. Id. During argument on those motions, the trial court denied the plaintiffs request for a trial-like hearing and also denied the motion to poslpone. Id. The court then immediately heard argument on the motion to dismiss; id., 55; and later issued a decision granting the motion. Id., 50. On appeal, our Supreme Court determined that the court’s actions effectively had denied the plaintiff any opportunity to conduct discovery “on an issue which the court clearly recognized as requiring a resolution of contested fact.” Id., 57. Our Supreme Court reversed the trial court’s judgment of dismissal, concluding that, because the court should have recognized that a factual presentation was necessary to resolve the personal jurisdiction issue, the court erred by not holding an evidentiary hearing and by denying the plaintiff an opportunity for discovery. Id., 60.

We are not persuaded that the present case falls squarely within the holding of Standard Tallow Corp. Unlike in Standard Tallow Corp., the court here did not deny the plaintiffs an opportunity to conduct discovery prior to ruling on the motions to dismiss. The motions to dismiss were filed in April, 2010. The court initially granted the plaintiffs a two month extension of time in which to respond to the motions. There is nothing in the record to indicate that the plaintiffs attempted to conduct discovery during that period; rather, on the final day of the extension period, the plaintiffs filed a motion seeking to postpone the court’s consideration of the motions to dismiss for an additional six months to allow them time to conduct jurisdictional discovery. The defendants objected to the motion to postpone. The court never issued an express ruling on the motion to postpone, but the court overruled the defendants’ objection on July 26, 2010, effectively granting the extension. In contrast, the court in Standard Tallow Corp. not only denied the plaintiffs motion for extension, but immediately proceeded to hear argument on the motion to dismiss. The plaintiffs in the present case received the extra time they sought to conduct discovery and to respond to the motions to dismiss. In fact, the court did not order the plaintiffs to file a response to the defendants’ motions to dismiss or hold a hearing on those motions until February, 2011, in effect giving the plaintiffs two additional months in which to resolve their discovery issues.

Not only were the plaintiffs afforded an opportunity to conduct discovery, the plaintiffs actually served interrogatories on the defendants in July, 2010. The plaintiffs nevertheless claim that the defendants engaged in a “strategy of nondisclosure” and that it was improper for the court to have imposed “an arbitrary time limit on the discovery process,” citing the Supreme Court’s decision in Ramin v. Ramin, 281 Conn. 324, 915 A.2d 790 (2007).

In Ramin, the court held that it was an abuse of discretion for the trial court to force the plaintiff to proceed to trial without completing discovery and to refuse to consider the plaintiff’s pretrial motion for contempt and sanctions against the defendant for failure to comply with the plaintiffs discovery requests. Id., 340-43. Our Supreme Court reasoned that the trial court’s decision improperly rewarded the defendant, who it found had abused the discovery process by not responding to the plaintiffs discovery requests and by ignoring numerous orders of the court mandating compliance, and that it was the defendant’s abuse of the discovery process that was responsible for the lengthy delay in getting the case ready for trial. Id.

In the present case, the record reveals that the defendants properly objected to the plaintiffs’ interrogatories and request for production and, based on their objections, refused to provide responses to the plaintiffs’ discovery requests. The plaintiffs failed to avail themselves of judicial intervention as provided for in Practice Book § 13-14 until November, 2010, at which time the plaintiffs filed a motion to compel compliance. The court determined, however, that the motion to compel failed to comply with our rules of practice, and it denied the motion without prejudice. The plaintiffs never attempted to refile a compliant motion to compel. Unlike in Ramin, in which the defendant had failed to abide by multiple court orders to comply with the plaintiffs discovery requests, the plaintiffs in the present case never obtained any order from the trial court overruling the defendants’ objections and compelling the defendants to comply with their discovery requests. The record does not support an argument that it was the defendants’ abuse of the discovery process that prevented the plaintiffs from obtaining discovery in the present case. Accordingly, the Ramin decision is inap-posite to our review of the court’s decision not to allow the plaintiffs additional time to conduct discovery.

Further, nothing in the Standard Tallow Corp. decision imposes a duty on the court to intervene on behalf of a plaintiff having difficulty obtaining jurisdictional discovery; it only requires that the plaintiff be given an opportunity to conduct such discovery and to hold an evidentiary hearing if the court determines that issues of disputed fact exist regarding jurisdiction. Ultimately, the court determined that the relevant facts necessary for it to rule on the defendants’ motions to dismiss were not in dispute and, therefore, no additional discovery by the plaintiffs was necessary to ensure due process. “The trial court has a responsibility to avoid unnecessary interruptions, to maintain the orderly procedure of the court docket, and to prevent any interference with the fair administration of justice. . . . In addition, matters involving judicial economy, docket management [and control of] courtroom proceedings . . . are particularly within the province of a trial court.” (Internal quotation marks omitted.) West Haven Lumber Co. v. Sentry Construction Corp., 117 Conn. App. 465, 469, 979 A.2d 591, cert. denied, 294 Conn. 919, 984 A.2d 70 (2009). When, as in the present case, a plaintiff has had a meaningful opportunity to conduct discovery, but has failed effectively to take advantage of that opportunity, and there has been no determination by the court that a factual dispute exists, we cannot conclude that, by adjudicating the motions to dismiss on the basis of the record before it, the court has abused its considerable discretion over discovery matters, in managing its docket and in ensuring the due administration of justice as to all parties involved.

Other than their argument that they should have been provided with additional time to conduct jurisdictional discovery, the plaintiffs have not raised any claims of error directly challenging the legal or factual bases of the court’s decision on the motions to dismiss or the motion to reargue. Accordingly, we need not address the merits of those decisions.

The judgment is affirmed.

In this opinion the other judges concurred.

       This opinion will refer to Naphthenics and Nynas AB collectively as the defendants. Additional counts of the complaint remain pending against the defendants ABB Powertech (Pty) Ltd. and Powertech Transformers (Pty) Ltd. but they are not parties to the present appeal.

       “When a defendant challenges personal jurisdiction in a motion to dismiss, the court must undertake a two part inquiry to determine the propriety of its exercising such jurisdiction over the defendant. The trial court must first decide whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process.” (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 514-15, 923 A.2d 638 (2007).


author: DiPENTIMA, C. J.

text:
    COLDWELL BANKER MANNING REALTY, INC. v. CUSHMAN AND WAKEFIELD OF CONNECTICUT, INC., ET AL.
    (AC 32925)
    DiPentima, C. J., and Alvord and Pellegrino, Js.
    Argued January 9
    officially released July 10, 2012

      Gwendolyn S. Bishop, with whom was P. Timothy Smith, for the appellant (plaintiff).

      Michael P. Shea, with whom was Daniel E. Wenner, for the appellees (defendants).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Coldwell Banker Manning Realty, Inc., appeals from the judgment rendered by the trial court granting the motion to dismiss filed by the defendants, Cushman & Wakefield of Connecticut, Inc. (Cushman), Joel M. Grieco and Robert E. Kelly. On appeal, the plaintiff argues that the court improperly concluded that it lacked standing. We affirm the judgment of the trial court.

The record reveals the following relevant facts and protracted procedural history. This action arises out of a dispute between real estate brokers over a commercial real estate commission, where the plaintiff and Cushman each had an agreement to represent Computer Sciences Corporation (Computer Sciences) in real estate transactions. In 2002, the plaintiff filed a complaint against the defendants alleging fraud, violation of statutory duty, breach of duty to deal in good faith, tortious interference with a contract, breach of contract and violation of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act.

The court ordered that the case and a companion case, Coldwell Banker Manning Realty, Inc. v. Computer Sciences Corp., Superior Court, judicial district of Hartford, Docket No. CV-03-0825180, be stayed pending arbitration. The arbitrator, the Greater Hartford Association of Realtors, refused to entertain the arbitration. The plaintiff filed a motion to lift the stay. The defendants subsequently filed a motion to confirm the arbitrator’s alleged award, which was granted. The plaintiff appealed from the court’s decisions as to the arbitrability of the dispute and the motion to confirm the award. Our Supreme Court reversed the judgment of the trial court and remanded the case for further proceedings. Coldwell Banker Manning Realty, Inc. v. Cushman & Wakefield of Connecticut, Inc., 293 Conn. 582, 980 A.2d 819 (2009). In 2010, the defendants filed a motion to dismiss, asserting that the court lacked subject matter jurisdiction because the plaintiff had never existed as a corporate entity and, therefore, lacked standing. The plaintiff filed an objection to the motion to dismiss. The court agreed that the plaintiff lacked standing and, accordingly, granted the motion to dismiss. This appeal followed.

We first set forth the applicable standard of review and legal principles governing our analysis. “If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause. ... A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our 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. . . .

“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings. . . .

“In ruling [on] whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . If . . . the plaintiffs standing does not adequately appear from all materials of record, the complaint must be dismissed.” (Citations omitted; internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue .... Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests. . . .

“Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved. . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific, personal and legal interest has been specially and injuriously affected by the [challenged action]. . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” (Internal quotation marks omitted.) St. Germain v. LaBrie, 108 Conn. App. 587, 591-92, 949 A.2d 518 (2008). With this background in mind, we now address the plaintiffs claim on appeal.

The plaintiff claims that the court improperly concluded that it lacked standing. Specifically, the plaintiff argues that the court improperly determined that (1) the plaintiffs name was fictitious and that the error therefore could not be cured pursuant to General Statutes § 52-123 and (2) prejudice is not a meaningful consideration when a party invokes § 52-123 to correct an incorrect description in a writ of summons or complaint.

I

The plaintiff first argues that the court improperly determined that the plaintiffs name was fictitious and therefore could not be cured pursuant to § 52-123. Specifically, the plaintiff argues that it is not a fictitious entity because the inclusion of the phrase “Coldwell Banker” to its name served only to add additional, extraneous information. We disagree.

“It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue. . . . Although a corporation is a legal entity with legal capacity to sue, a fictitious or assumed business name, a trade name, is not a legal entity; rather, it is merely a description of the person or corporation doing business under that name. . . . Because the trade name of a legal entity does not have a separate legal existence, a plaintiff bringing an action solely in a trade name cannot confer jurisdiction on the court.” (Citations omitted; internal quotation marks omitted.) America’s Wholesale Lender v. Pagano, 87 Conn. App. 474, 477, 866 A.2d 698 (2005).

Section 52-123 provides: “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.” “Section 52-123 is aremedial statute and therefore it must be liberally construed in favor of those whom the legislature intended to benefit. ... In interpreting this statute, however, we are mindful of the broader statutory scheme. Specifically, we must compare § 52-123 with General Statutes § 52-45a, which our Supreme Court has read to require the use of legal names, not fictitious ones, when commencing an action. Buxton v. Ullman, 147 Conn. 48, 60, 156 A.2d 508 (1959) ([t]he privilege of using fictitious names in actions should be granted only in the rare case where the nature of the issue litigated and the interest of the parties demand it and no harm can be done to the public interest), appeal dismissed sub nom. Poe v. Ullman, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961).” (Citation omitted; internal quotation marks omitted.) America’s Wholesale Lender v. Pagano, supra, 87 Conn. App. 477-78.

Here, the court noted that although the plaintiff sued under the name “Coldwell Banker Manning Realty, Inc.,” the actual name of the coiporation that is filed with the Connecticut secretary of the state’s office is “Manning Realty, Inc.” In concluding that the plaintiffs error was not amenable to cure under § 62-123, the court likened this case to America’s Wholesale Lender v. Pagano, supra, 87 Conn. App. 476-77, where this court dismissed an action in which the plaintiff mistakenly named itself “America’s Wholesale Lender,” the trade name of “Countrywide Home Loans, Inc.,” the true party in interest. The trial court also distinguished this case from Young v. Vlahos, 103 Conn. App. 470, 475, 929 A.2d 362 (2007), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008), in which we declined to dismiss an action where the named plaintiff was “Roy Young d/b/a Silvermine Investors, LLC,” but the true party in interest was “Silvermine Investors, LLC.” The court determined that the plaintiff, in naming itself “Coldwell Banker Manning Realty, Inc.,” employed a trade name like the plaintiff in America’s Wholesale Lender and, therefore, the named plaintiff was a fictitious entity. The court explained that “[u]nlike a d/b/a, a trade name provides no indication on its face that the party operates under a different name.” Further, the court stated that “there was no missing designation or incorrect description, but instead a fictitious name that did conceal the true identity of the party, Manning Realty, Inc.” The court concluded that “[w]hile it is troubling to dismiss a case that has been in litigation for over eight years, this situation illustrates the trouble presented by plaintiffs that file suit under unregistered trade names.”

We agree with the court that the plaintiff in this action used a fictitious name and, therefore, that it lacked standing. The plaintiff argues that because its true name, “Manning Realty, Inc.,” was embedded in the name of the designated plaintiff, “Coldwell Banker Manning Realty, Inc.,” and because Manning Realty, Inc., existed at the time the complaint was filed, this case is distinguishable from America’s Wholesale Lender. It is true that in America’s Wholesale Lender, the plaintiffs true corporate name was not embedded in the complaint, as it was in this case. We agree with the court, however, that the name “Coldwell Banker Manning Realty, Inc.,” is a trade name and that the plaintiff is therefore a fictitious entity, like the plaintiff in America’s Wholesale Lender. The plaintiffs reply brief states that the phrase “Coldwell Banker” was included at the beginning of its true corporate name because “Mr. Sid Manning held a franchise with the nationally known real estate brand Coldwell Banker under which he operated his realty company, Manning Realty, Inc.” The plaintiff, therefore, appears to concede that it invoked its trade name in bringing the action, but argues that this invocation merely resulted in the inclusion of “superfluous” language. We concluded in America’s Wholesale Lender, however, that the use of a trade name was not merely a circumstantial error, but rather a substantive one, not amenable to cure by § 62-123. America’s Wholesale Lender v. Pagano, supra, 87 Conn. App. 478.

Moreover, this clearly is not a case where a plaintiff was misnamed because of a typographical error, the fault of which was not attributable to the plaintiff; Dyck O’Neal, Inc. v. Wynne, 56 Conn. App. 161, 166-67, 742 A.2d 393 (1999); or because of a “ ‘poor and superfluous choice of words,’ ” as was the case in Young v. Vlahos, supra, 103 Conn. App. 478. As the court noted, in Young, the superfluous language contained the term “d/b/a,” indicating a legal separation between the preceding and subsequent terms. See Black’s Law Dictionary (8th Ed. 2004) (defining “d/b/a” as abbreviation that precedes a person’s or business’ assumed name). Here, the additional language, “Coldwell Banker,” is not separated from the plaintiffs true corporate name, but rather, the named plaintiff is presented as one entity without any separation between the words “Coldwell Banker” and “Manning Realty, Inc.” Therefore, the court properly concluded that the named plaintiff was a fictitious entity and lacked standing.

II

Second, the plaintiff argues that prejudice must be considered in determining whether § 52-123 may cure its misdescription. Under the facts of this case, we disagree. The court noted the plaintiffs argument that “the history of the [case] reveals not even a scintilla of evidence that the [defendants were] confused as to the identity of the plaintiff.” The court concluded, however, that “a motion to dismiss an action for the plaintiffs failure to bring suit under its true name must be granted regardless of prejudice, even when a defendant has conducted business with the plaintiff only under its trade name.” In reaching this conclusion, the court cited America’s Wholesale Lender v. Pagano, supra, 87 Conn. App. 480, where this court explained that although the defendant had conducted business with the plaintiff only under its trade name and, therefore, no prejudice was present, “[a] lack of subject matter jurisdiction . . . requires dismissal, regardless of whether prejudice exists.”

We recognize that “[i]n determining whether a defect is merely circumstantial and not substantive, courts have considered, inter alia, whether the defendant had actual notice of the institution of an action and whether the defendant was in any way misled to its prejudice. . . . Invoking those considerations, we have applied § 52-123 to excuse defects in pleadings even when those defects implicate the trial court’s subject matter jurisdiction. See, e.g., Caruso v. Bridgeport, 285 Conn. 618, 626-29, 941 A.2d 266 (2008) (plaintiffs failure to cite in his complaint statute providing exclusive remedy in election dispute did not deprive court of subject matter jurisdiction where plaintiff complied with procedural requirements of statute and defendants were aware of trae nature of action and were not prejudiced by failure to cite statute); Andover Ltd. Partnership I v. Board of Tax Review, [232 Conn. 392, 400-401, 655 A.2d 759 (1995)] (plaintiffs naming of board of tax review as defendant instead of town, as required by General Statutes § 12-117a, did not deprive court of subject matter jurisdiction where town was served, had actual notice of action, filed answer and other documents with court, attempted settlement and did not contest defect in citation until litigation had been pending for more than three years) . . . .” (Citations omitted; emphasis added.) Bayer v. Showmotion, Inc., 292 Conn. 381, 391-92, 973 A.2d 1229 (2009).

This line of cases, in which prejudice has been considered in determining whether § 52-123 may excuse defects in pleadings, is inapposite. In Bayer, the issue was whether a defect in a notice to quit constituted a circumstantial or substantive error, not an issue of the plaintiff misnaming itself. Id., 389-90. Moreover, none of the cases cited by our Supreme Court in Bayer in support of the proposition that we “have applied § 52-123 to excuse defects in pleadings even when those defects implicate the trial court’s subject matter jurisdiction” involves issues factually similar to this case. Id., 391.

This court stated in America’s Wholesale Lender that we, as well as our Supreme Court, have held in numerous circumstances that the mislabeling or misnaming of a defendant constituted a circumstantial error that is curable under § 52-123 when it did not result in prejudice to either party. America’s Wholesale Lender v. Pagano, supra, 87 Conn. App. 478, citing Andover Ltd. Partnership I v. Board of Tax Review, supra, 232 Conn. 400-401 (permitting plaintiff to amend citation in order to name town instead of board of tax review as defendant). The court noted further that “[t]his is true even when the plaintiff used only the defendant’s trade name and not the defendant’s legal name.” America’s Wholesale Lender v. Pagano, supra, 478, citing Motiejaitis v. Johnson, 117 Conn. 631, 169 A. 606 (1933) (permitting plaintiff to substitute individual for nonexistent corporation under which individual was doing business). The court went on, however, to conclude that “[w]e decline ... to extend the use of § 52-123 in this manner to a plaintiff that has used a fictitious name for itself When. commencing an action.” (Citations omitted; emphasis altered.) America’s Wholesale Lender v. Pagano, supra, 478. Further, although Young v. Vlahos, supra, 103 Conn. App. 476, noted a lack of prejudice in declining to dismiss the plaintiffs action, that case, too, is distinguishable. In Young, this court concluded that the defendant was not “confused or prejudiced” by the erroneous designation of the plaintiff. Id., 476. In Young, however, this erroneous designation was merely a circumstantial error, and not a substantive one. Id., 478-79. This case is unlike Young because the named plaintiff here was a fictitious entity, and the error was not circumstantial.

Although this court’s statement in America’s Wholesale Lender, supra, 87 Conn. App. 480, that “[a] lack of subject matter jurisdiction, however, requires dismissal, regardless of whether prejudice exists” may appear overly broad in light of Bayer when taken out of context, under the specific factual situation where a plaintiff uses a fictitious name for itself, the consideration of prejudice is eliminated properly from our analysis. In reaching this conclusion, we note that the court in America’s Wholesale Lender distinguished the case of Dyck O’Neal, Inc. v. Wynne, supra, 56 Conn. App. 166-67, where we concluded that the court properly permitted the substituted plaintiff to amend his designation from “Dyck O’Neal,” individually, to “Dyck O’Neal, Inc.” America’s Wholesale Lender v. Pagano, supra, 478 n.5. We reasoned that “at no time was the plaintiffs true identity [in Dyck O’Neal, Inc.] concealed; rather, the omission of its designation amounted to an incorrect description of the plaintiff. Furthermore, the record in that case suggested the omission of the plaintiffs designation was a typographical error in the court’s judgment file, not an action necessarily attributable to the plaintiff.” Id., 479 n.5. As we have stated, because we conclude that the plaintiffs use of a fictitious name did not constitute a circumstantial error, we do not consider its argument that the defendants did not suffer any prejudice as a result of this mistake. We therefore reject the plaintiffs claim that, under the factual circumstances of this case, prejudice is a factor in our consideration of whether § 52-123 may cure its misdescription.

The judgment is affirmed.

In this opinion the other judges concurred.

       On appeal to our Supreme Court, the defendants had argued that the arbitrator’s dismissal of the plaintiffs request for arbitration constituted an arbitration award pursuant to General Statutes § 52-417. See Coldwell Banker Manning Realty, Inc. v. Cushman & Wakefield of Connecticut, Inc., 293 Conn. 582, 593, 980 A.2d 819 (2009). Our Supreme Court disagreed with the defendants’ contention and, accordingly, reversed the judgment of the trial court. Id., 585.

       In reaching this conclusion, this court in America’s Wholesale Lender noted the policy concerns underlying our legislature’s trade name regulation statute, General Statutes § 35-1, which requires legal entities doing business in this state under an assumed or fictitious name to file a trade name certification in the town in which such business is to be conducted prior to engaging in such business.
      We explained that “while § 35-1 may provide some protection to persons transacting business under a trade name, it is primarily intended to protect [those doing business with the trade name] by giving them constructive notice of the contents of the trade name certificate. . . . The object [of the registration requirement] is to enable a person dealing with another trading under a name not his own, to know the man behind the name, that he may know or make inquiry as to his business character or financial responsibility .... As court filings are a matter of public record, we cannot conclude that no harm would come to the public by permitting legal entities to commence actions under fictitious names, as court documents are another means by which the public may ascertain the identity and the character of those with whom they do business.” (Citations omitted; emphasis in original; internal quotation marks omitted.) America’s Wholesale Lender v. Pagano, supra, 87 Conn. App. 479-80.


text:
    COLDWELL BANKER MANNING REALTY, INC. v. COMPUTER SCIENCES CORPORATION
    (AC 32926)
    DiPentima, C. J., and Alvord and Pellegrino, Js.
    Argued January 9
    officially released July 10, 2012

      Gwendolyn S. Bishop, with whom was P. Timothy Smith, for the appellant (plaintiff).

      David M. Bizar, for the appellee (defendant).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Coldwell Banker Manning Realty, Inc., appeals from the judgment rendered by the trial court granting the motion to dismiss filed by the defendant, Computer Sciences Corporation. On appeal, the plaintiff argues that the court improperly concluded that it lacked standing. We affirm the judgment of the trial court.

The record reveals the following relevant facts and protracted procedural history. This action arises out of a dispute between real estate brokers over a commercial real estate commission, where the plaintiff and Cushman & Wakefield of Connecticut, Inc. (Cushman), each had an agreement to represent the defendant in real estate transactions. In 2003, the plaintiff filed a complaint against the defendant alleging fraud, violation of statutory duty, breach of duty to deal in good faith, tortious interference with a contract, breach of contract and violation of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act.

The court ordered that the case and a companion case, Coldwell Banker Manning Realty, Inc. v. Cushman & Wakefield of Connecticut, Inc., Superior Court, judicial district of Hartford, Docket No. CV-02-0816220, be stayed pending arbitration. The arbitrator, the Greater Hartford Association of Realtors, refused to entertain the arbitration. The plaintiff filed a motion to lift the stay. The defendant subsequently filed a motion to confirm the arbitrator’s alleged award, which was granted. The plaintiff appealed from the court’s decisions as to the arbitrability of the dispute and the motion to confirm the award. Our Supreme Court reversed the judgment of the trial court and remanded the case for further proceedings. Coldwell Banker Manning Realty, Inc. v. Computer Sciences Corp., 293 Conn. 628, 980 A.2d 812 (2009). In 2010, the defendant filed a motion to dismiss, asserting that the court lacked subject matter jurisdiction because the plaintiff had never existed as a coiporate entity and, therefore, lacked standing. The plaintiff filed an objection to the motion to dismiss. The court agreed that the plaintiff lacked standing and, accordingly, granted the motion to dismiss. This appeal followed.

The plaintiff claims that the court improperly concluded that it lacked standing. Specifically, the plaintiff argues that the court improperly determined that (1) the plaintiffs name was fictitious and therefore could not be cured pursuant to General Statutes § 52-123 and (2) prejudice is not a meaningful consideration when a party invokes § 62-123 to correct an incorrect description in a writ of summons or complaint. These claims are identical to those raised in Coldwell Banker Manning Realty, Inc. v. Cushman & Wakefield of Connecticut, Inc., 136 Conn. App. 683, 47 A.3d 394 (2012), also released today. In that case, we concluded that the named plaintiff, “Coldwell Banker Manning Realty Inc.,” lacked standing because it was a fictitious entity. We see no reason to repeat the analysis set forth in Coldwell Banker Manning Realty, Inc. v. Cushman & Wakefield of Connecticut, Inc., supra, 683. For the reasons stated therein, we conclude that the court properly dismissed this action because the plaintiff lacked standing.

The judgment is affirmed.

In this opinion the other judges concurred.

       On appeal to our Supreme Court, the defendant had argued that the arbitrator’s dismissal of the plaintiffs request for arbitration constituted an arbitration award pursuant to General Statutes § 52-417. See Coldwell Banker Manning Realty, Inc. v. Computer Sciences Corp., 293 Conn. 628, 638, 980 A.2d 812 (2009). Our Supreme Court disagreed with the defendant’s contention and, accordingly, reversed the judgment of the trial court. Id., 639.

       General Statutes § 52-123 provides: “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”