text:
    TYLER E. LYMAN, INC. v. ALBERT C. LODRINI ET AL.
    (AC 19480)
    Lavery, C. J., and Spear and Mihalakos, Js.
    Argued December 4, 2000
    officially released June 19, 2001

      James Colin Mulholland, for the appellants (defendants).

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

LAVERY, C. J.

The defendants, Albert Lodrini and Virginia Lodrini, appeal following the denial of their motion to set aside the default judgment previously entered against them by the court. On appeal, the defendants claim that the trial court improperly (1) refused to take into account when they received actual or constructive notice of the judgment in determining the date on which the four month period for filing a motion to set aside the judgment had begun to run and (2) refused to address the defendants’ claim that the judgment was flawed due to the plaintiffs failure to disclose a material fact to the court. We affirm the judgment of the trial court as to the defendant Virginia Lodrini and reverse the judgment as to the defendant Albert Lodrini on the basis of the first claim. We decline to address the second claim at this time because the trial court will, upon remand of the case, have a full opportunity to hear and to address Albert Lodrini’s claims in this regard.

The following facts and procedural history are relevant to our consideration of this appeal. On November 12,1994, the defendants entered into an agreement with the plaintiff to list a parcel of real property for sale. Pursuant to the listing agreement, the defendants promised to pay the plaintiff a commission of 10 percent of the sale price if the plaintiff produced a buyer ready, willing and able to purchase the property for a price acceptable to the defendants. The agreement was for a period of six months.

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

On October 25, 1995, the defendants accepted the department’s offer to purchase their property for $735,000. The defendants closed the sale with the department on December 11,1997. The defendants did not pay the plaintiff any commission on the sale.

On January 16, 1998, the plaintiff commenced this action, seeking the $73,500 in commissions to which it believed it was entitled pursuant to the terms of the listing agreement. The summons and complaint were served on Virginia Lodrini in hand. Service was made on Albert Lodrini at his residence. At the time, the Lodrinis were vacating their residence in Stonington as the result of an eviction action. In February, 1998, Virginia Lodrini went to live with relatives in Shakopee, Minnesota, and filed a change of address and forwarding order form with the United States Postal Service indicating her new address. On February 19, 1998, Albert Lodrini filed a change of address and forwarding order form with the postal service indicating a New Jersey relative’s address as his new mailing address. He subsequently moved to New Jersey and periodically stayed with that relative but spent much of his time on the road looking for employment. When he was with his relative, he checked his mail, but the relative picked his mail up at the post office while he was away.

On February 19, 1998, the court entered a default judgment against the defendants and in favor of the plaintiff in the amount of $73,732, which included the $73,500 commission plus $232 in interest. On February 26, 1998, the plaintiffs counsel mailed a notice of the default judgment to the defendants jointly at their previous address in Stonington. Also, on that date, the plaintiffs counsel filed a judgment lien on property owned by Albert Lodrini in Groton. That lien was certified to the defendants jointly at the Stonington address.

On March 12,1998, a deputy sheriff served a certified copy of the judgment lien on Virginia Lodrini by sending it via registered mail, return receipt requested, to the same forwarding address in Minnesota that she had given to the postal service. On March 17, 1998, the sheriff received the return receipt card, signed by Virginia Lodrini. The same deputy sheriff served a certified copy of the lien by sending it via registered mail, return receipt requested, to Albert Lodrini at the address to which he had arranged to have his mail forwarded in New Jersey. The sheriff received the envelope containing the lien, returned by the postal service marked “unclaimed” on April 9, 1998.

On July 2, 1998, the court issued a bank execution to the plaintiff. On July 21, 1998, Albert Lodrini signed and subsequently filed a bank execution exemption claim form, indicating that his address was in New Jersey. On August 10, 1998, the court heard his request for an exemption.

On August 17, 1998, the defendants filed a motion to set aside the default judgment and to restore the case to the civil docket. The court denied that motion without a hearing on October 8, 1998. The defendants then filed a motion to reargue on October 27, 1998. On October 28, 1998, the court granted that motion and scheduled argument for November 23, 1998. On March 16, 1999, following the hearing, the court, in an oral decision, denied the defendants’ motion to set aside the default judgment. This appeal followed.

General Statutes § 52-2 12 sets forth the procedure that a party must follow to open or set aside a default judgment. In addition to that statutory provision, several rules of practice address the procedures to open or set aside a default judgment. Practice Book § 17-28 provides that, after the court enters a default judgment, the plaintiff may not enforce it until twenty days have elapsed after the plaintiff or his attorney files with the court a certification that a copy of the judgment was served upon each judgment debtor. Practice Book § 10-12, which Practice Book § 17-28 cites as one of the provisions governing notice of a default judgment, also refers to each other party” and “the party sought to be defaulted . . . ,” (Emphasis added.) We also note that Practice Book § 10-15, which excuses, in part, the need for service of all pleadings on all parties, would be superfluous if, as the plaintiff asserts, notice to one party is sufficient to give notice to all parties.

“We interpret provisions of the Practice Book according to the same well settled principles of construction that we apply to the General Statutes. State v. Cain, 223 Conn. 731, 744, 613 A.2d 804 (1992); State v. Genotti, 220 Conn. 796, 807, 601 A.2d 1013 (1992). In determining the meaning of a statute, [it] must be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. . . . Fleming v. Garnett, 231 Conn. 77, 90, 646 A.2d 1308 (1994). We presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous. . . . Frillici v. Westport, 231 Conn. 418, 432, 650 A.2d 557 (1994).” (Emphasis added; internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 237, 654 A.2d 342 (1995).

Most telling on the issue of whether service on one defendant is sufficient or whether service on all is required is the actual form used, namely, form JD-CV-50 entitled, “Notice of judgment and order for weekly payments.” Section III of that form is entitled, “Certification of service of notice and judgment to all parties.” (Emphasis added.) The certification on the form provides: “This is to certify that a copy of this Notice and Judgment has been delivered/mailed via U.S. Mail, postage prepaid to the Defendants named below (Enter name(s) and address(es) of Defendant^)).” (Emphasis added.) The terminology on this form and the parenthetical inclusion of the plural forms indicate that the drafter envisioned that notice to multiple defendants would be required. Finally, the fact that the plaintiff sent copies of the judgment lien separately to the defendants at their respective new addresses shows the plaintiffs own recognition that it was required to serve both defendants.

It is, therefore, necessary to determine whether, as required by the rules of practice, notice of the default judgment was properly served on all defendants. It is undisputed that Virginia Lodrini received notice of the default judgment. We, therefore, confine our analysis to the questions of whether proper notice of the default judgment was made on Albert Lodrini and, if so, when such notice was given, because it is that event that triggered the four month period within which he could have moved to set aside the judgment.

The facts in this case disclose that the plaintiffs counsel sent notice of the default judgment to the defendants at the same address, in Stonington, at a time when both had moved from that location and had filed separate forwarding orders as to their respective mail. At the hearing on the motion to open the default judgment, the postmaster of the Stonington post office testified that if a single piece of mail was sent to both defendants after they each had filed separate change of address cards reflecting different forwarding addresses, the postal service would return the item and not deliver it to either addressee. The only conclusion that reasonably can be drawn from that testimony is that Albert Lodrini did not receive notice of the default judgment. The record also discloses that the copy of the judgment lien sent to him was returned to the sender by the postal service. Thus, Albert Lodrini did not receive notice of the judgment by that mechanism either. The four month period within which he could file a motion to open, therefore, did not commence until he received actual notice of the existence of the judgment, which took place in July, 1998.

“[I]t is axiomatic that the right to move to open and vacate a judgment assumes that the party who is to exercise the right be given the opportunity to know that there is a judgment to open. We have indicated that for the purpose of opening a default judgment . . . a delay in notifying the defendant of the judgment would . . . extend the time in which the defendant could move to set aside the judgment.” (Internal quotation marks omitted.) Handy v. Minwax Co., 46 Conn. App. 54, 57, 698 A.2d 339, cert. denied, 243 Conn. 921, 701 A.2d 342 (1997); Noethe v. Noethe, 18 Conn. App. 589, 595, 559 A.2d 1149 (1989). As in this case, the defaulted party in Handy did not receive actual notice of the judgment in a timely manner. Also, as in this case, it was a later collateral event in Handy, that is, having been informed by the opposing party in response to a request for depositions, that actually provided the party with notice. The Handy court found that this later, actual notice triggered the four month period to file a motion to open.

In Habura v. Kochanowicz, 40 Conn. App. 590, 592, 672 A.2d 512 (1996), this court stated: “Where the defendants have not received notice of the default judgment . . . the time within which they may move to set aside the judgment is extended by the delay in notification.” (Emphasis added.) While it is true, as the plaintiff claims, that the mailing of the default judgment to the defendants raised a presumption of its receipt, the plaintiff ignores the fact that that presumption is rebuttable. The mailing of the decision “raises a presumption that notice was sent and received in the absence of a finding to the contrary.” (Emphasis in original; internal quotation marks omitted.) Id., 594, quoting Morelli v. Manpower, Inc., 34 Conn. App. 419, 423, 642 A.2d 9 (1994).

In this case, the court, in its decision, focused not on whether there was actual receipt by both defendants of notice of the judgment, as the cases require, but merely on the plaintiffs efforts to notify the defendants of the judgment. While those efforts may be laudable, they were unsuccessful, at least as to Albert Lodrini.

Albert Lodrini proffered sufficient evidence at the hearing on his motion to open the judgment to rebut the presumption that he had received the notice that had been sent to him. The postmaster testified that the practice of the postal service when an item is addressed to two or more individuals at a single address, where all named recipients have moved to separate addresses and have filed forwarding orders reflecting those new addresses, is to return the item to the sender. That evidence, unrebutted by the plaintiff, constitutes evidence that Albert Lodrini did not actually receive notice of the judgment. While in the absence of such evidence the court might have indulged the presumption of receipt, after hearing such unrebutted testimony it could no longer indulge that presumption.

Therefore, as we stated in Habura, because of the delay in Albert Lodrini’s receiving notice of the default judgment, the time within which he could have moved to set aside the judgment was extended by the delay in notification. See Habura, v. Kochanowicz, supra, 40 Conn. App. 592. The evidence he put forth at the hearing on his motion to set aside the default judgment indicates that he did not become aware of the judgment until the plaintiff began to garnish his bank account in July, 1998. The motion to set aside the default judgment was filed on August 17, 1998, within four months of the time when he actually became aware of the existence of the judgment. Thus, under the principle we set forth in Habura, his motion to set aside the judgment was timely. Because there appears to be no dispute that Virginia Lodrini received notice of the judgment hen when it was originally sent, however, the motion to set aside is untimely as to her, and the court was correct in so finding.

The judgment is affirmed as to the defendant Virginia Lodrini. The judgment is reversed as to the defendant Albert Lodrini and the case is remanded for further proceedings to consider the merits of the motion to set aside the default judgment.

In this opinion the other judges concurred.

       Various conditions, including the need for bond commission approval, caused the period of twenty-six months between the agreement and the actual closing.

       General Statutes § 52-212 provides in relevant part: “(a) Any judgment rendered or decree passed upon a default, or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.
      “(b) The complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear. . . .”

       Practice Book § 17-28 provides in relevant part: “Execution upon [a default] judgment shall be stayed until twenty days after the clerk receives from the plaintiff, or plaintiffs attorney ... a certification that one copy [of the judgment] was served upon each judgment debtor. Service and proof thereof must be made in accordance with Sections 10-12 through 10-14.”

       Practice Book § 10-12 provides in relevantpart: “(a) It is the responsibility of counsel . . . filing [documents] to serve on each other party . . . one copy of . . . every paper relating to . . . claim, notice or similar paper.

        “(b) It shall be the responsibility of counsel ... at the time of filing a motion for default for failure to appear to serve the party sought to be defaulted with a copy of the motion. ...”

       Practice Book § 10-15 provides in relevant part: “In any action in which there is an unusually large number of defendants, the judicial authority, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that ... the filing of any [cross complaint, counterclaim, or matter constituting an avoidance or affirmative defense] and service thereof upon the plaintiff shall be deemed to constitute due notice of it to the parties. . . .”

       Although there are exceptions to the rule requiring a party who seeks to open a default judgment to do so within four months of entry of the judgment, Virginia Lodrini did not specifically allege the applicability of any of those exceptions as grounds for her late filing of the motion to open the judgment.


source: Caselaw Access Project

author: ZARELLA, J.

license: Public Domain

text:
    LOREN YOUNG MUNROE ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF BRANFORD ET AL.
    (AC 19672)
    Foti, Zarella and Dupont, Js.
    Argued September 25, 2000
    officially released June 19, 2001

      William F. Gallagher, with whom, on the brief, were Hugh D. Hughes and Roger Sullivan, for the appellants (plaintiffs).

      Leonard A. Fasano, for the appellees (named defendant et al.).
   Opinion

ZARELLA, J.

The plaintiffs, Patrick Munroe, Loren Munroe, John Palluzzi and Marcia Palluzzi, appeal from the judgment of the trial court affirming the denial by the defendant zoning board of appeals of the town of Branford (board) of the plaintiffs’ appeal of the zoning enforcement officer’s decision to issue a certificate of zoning compliance and the building official’s decision to reissue a building permit to the defendant Thomas Simjian. On appeal, the plaintiffs argue, in part, that the court improperly affirmed the board’s decision because the board’s interpretation of § 5.7 of the Branford zoning regulations was unreasonable.

Following oral argument in this court, this court, sua sponte, asked the parties to submit supplemental briefs on the following question: “Whether the zoning board of appeals lacked jurisdiction to hear the plaintiff-appellants’ appeal from the zoning enforcement officer’s issuance of the certificate of zoning compliance?” We further requested that the parties comment on whether the thirty day period for appealing from a zoning enforcement officer’s action pursuant to General Statutes § 8-7 has an effect on the facts of this case. In their supplemental brief, the plaintiffs respond that the board did not lack jurisdiction to hear their appeal, notwithstanding that it was brought well beyond the thirty day appeal period set forth in § 8-7, because our “Supreme Court has held that the only reasonable construction of statutory time limits to appeal is that the time period runs from the date of notice.” The plaintiffs conclude that the board had jurisdiction to hear their appeal because they appealed within thirty days of receiving actual or constructive notice of the zoning enforcement officer’s action.

The defendants respond that the board lacked jurisdiction to hear that portion of the plaintiffs’ appeal challenging the zoning enforcement officer’s action because the plaintiffs did not file the appeal within the prescribed thirty day appeal period set forth in § 8-7. The defendants further argue that the board lacked jurisdiction to hear the plaintiffs’ challenge to the building officer’s action because the board has no authority to hear such appeals under § 8-7 and because the appeal should have been filed with the building board of appeals pursuant to General Statutes § 29-266. Because we hold that the board lacked jurisdiction to hear the plaintiffs’ appeal, we set aside the trial court’s judgment of affirmance and remand the case to the trial court with direction to render judgment dismissing the plaintiffs’ appeal.

The following facts are relevant to this appeal. Sim-jian owns a parcel of real property on Etzel Road in Branford on which there is a freestanding garage. Pursuant to the Branford zoning regulations, the garage is a nonconforming structure because its footprint does not conform with area setback regulations. On May 1,1997, Simjian applied separately for a certificate of zoning compliance and a building permit to build a second story addition to the garage. After altering the construction plan to conform to the structure’s footprint, the Branford zoning enforcement officer issued the requested certificate on August 26,1997. On September 8, 1997, the town’s building official also issued the requested building permit.

On April 2, 1998, Simjian commenced demolition of the garage roof in preparation for construction of the second story addition. The plaintiffs, all of whom are abutting property owners, promptly lodged objections with the zoning enforcement officer and the building official. The zoning enforcement officer refused to revoke the certificate of zoning compliance as the plaintiffs requested. The building official did not rescind Simjian’s building permit because it effectively had lapsed on March 8, 1998. The building official acted, however, on Simjian’s application for a second building permit dated April 2, 1998, and, thereafter, issued a second building permit on April 7, 1998.

On or about April 7, 1998, the plaintiffs appealed to the board from the issuance of the certificate and the building permits. The plaintiffs’ appeal rested, in part, on the ground that the second story addition was a prohibited increase in a nonconformity under § 5.7. On May 19,1998, the board held a hearing on the plaintiffs’ appeal, at which the plaintiffs argued that “since June, 1997, the zoning authorities for the town of Branford have interpreted the nonconformity section of the Bran-ford zoning regulations to require that an applicant obtain a variance (1) if a structure which is nonconforming as to setback is to be increased vertically within its existing footprint.” They further argued that Simjian did not obtain the required variance, although the addition would increase the vertical height of the garage and, therefore, the certificate of zoning compliance and building permit were improperly granted. The plaintiffs requested that the board revoke the certificate and the building permit.

Following the hearing, the board voted to deny the plaintiffs’ appeal. The board concluded that the certificate of zoning compliance had been properly issued because the zoning enforcement officer had acted consistently with the law and rules as she knew them at the time. The board further ruled that the zoning compliance officer “was doing what has always been done when someone requests a building permit and a [certificate] of compliance is issued at the time. Once a certificate was issued it doesn’t expire and generally the building permit is just renewed when requested. A certificate of occupancy may not be issued when the building is complete if it does not comply with the site plan.”

The plaintiffs thereafter appealed to the Superior Court from the board’s decision. In their complaint, dated May 27,1998, the plaintiffs alleged, inter alia, that the board had acted illegally, arbitrarily and in abuse of its discretion “[b]y failing to correctly interpret the zoning regulations applicable to the issues and applying them with reasonable discretion to the facts . . . .” The court rejected the plaintiffs’ argument and affirmed the board’s decision. Before reaching the substantive issues on appeal, however, the court determined that the plaintiffs had filed a timely appeal with the board. Notwithstanding the defendants’ argument that the plaintiffs had appealed to the board well after the thirty day appeal period under § 8-7, the court found that the plaintiffs had timely appealed to the board from the zoning enforcement officer’s decision. Citing Loulis v. Parrott, 241 Conn. 180, 695 A.2d 1040 (1997), the court reasoned that without actual or constructive notice of the zoning enforcement officer’s decision, the prospective appellants’ statutory right to appeal is meaningless. The court then concluded that because the plaintiffs did not receive actual or constructive notice of the issuance of the certificate until April, 1998, and the board treated the appeal as timely, the court also would treat the appeal to the board as timely.

The court further determined, inter alia, that the board had conducted a de novo hearing on whether the issuance of the certificate was contrary to the Branford zoning regulations, as the board interpreted them at the time the documents were issued. Implicit in the court’s decision was the determination that the board’s interpretation of § 5.7 was reasonable. The court concluded that the board did not act illegally, arbitrarily or in abuse of discretion when it denied the plaintiffs’ appeal. This appeal followed.

Section 8-7 provides in relevant part that “[a]n appeal may be taken to the zoning board of appeals by any person aggrieved . . . and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days . . . .” There is no indication in the record that the board has adopted a local rule and, therefore, pursuant to § 8-7, the plaintiffs were required to file their appeal within thirty days of the issuance of the certificate of zoning compliance.

In Koepke v. Zoning Board of Appeals, 30 Conn. App. 395, 398, 620 A.2d 811 (1993), rev’d, 230 Conn. 452, 645 A.2d 983 (1994), we determined that an August 12, 1986 appeal to a board of appeals was untimely because the thirty day appeal period of § 8-7 began to run on July 11, 1986, the date on which the zoning enforcement officer issued the original zoning permit, and not on August 7, 1986, the date on which a superseding zoning permit was issued. We concluded that “the thirty day limit of § 8-7 is mandatory in nature and, thus, any appeal not taken within thirty days is invalid.” Id.; Pinchbeck v. Zoning Board of Appeals, 58 Conn. App. 74, 79, 751 A.2d 849 (2000); Bosley v. Zoning Board of Appeals, 30 Conn. App. 797, 800, 622 A.2d 1020 (1993). In so deciding, we rejected the same reasoning the court gave in the present case, namely, that the thirty day period did not commence until the plaintiffs received actual or constructive notice of the issuance of the certificate. Koepke v. Zoning Board of Appeals, supra, 30 Conn. App. 400-401.

We noted in Koepke that the statutes specifically require local zoning authorities to provide notice under limited circumstances, including when a variance or special permit is granted or when a subdivision or resub-division is approved. Id., 401-402; see General Statutes §§ 8-3c (b) (special permit or special exception) and 8-26 (approval of subdivision or resubdivision). “While it is true that an aggrieved person has the right to take issue with the granting of a zoning permit, the legislature has not required that notice of the granting of a permit be given nor would it seem practical to give such notice for the literally thousands of such zoning and building permits that are issued on an almost daily basis across the state.” Koepke v. Zoning Board of Appeals, supra, 30 Conn. App. 402. We further concluded that whether the appellant received actual or constructive notice is irrelevant because the time to appeal commences at the time of the issuance of the certificate of zoning compliance. Id., 402-403.

Our Supreme Court subsequently reversed our decision in Koepke v. Zoning Board of Appeals, 230 Conn. 452, 645 A.2d 983 (1994). The court concluded that the appeal to the board was timely filed because the thirty day period under § 8-7 began to run on August 7, 1986, the date of the issuance of the second zoning permit, and not, as we decided, on July 11, 1986, the date on which the original zoning permit was issued. Id., 456. Nevertheless, the court expressly declined to consider whether an appeal to a zoning board of appeals filed after the thirty day time limit prescribed by § 8-7 deprives the board of subject matter jurisdiction to hear the appeal. Id., 455-56 & 456 n.2. Thus, notwithstanding the subsequent reversal, our conclusion in Koepke v. Zoning Board of Appeals, supra, 30 Conn. App. 385, that an appeal of a zoning action must be taken within the thirty day period under § 8-7 is still valid law.

The plaintiffs argue, however, that in Loulis v. Par-rott, supra, 241 Conn. 193, our Supreme Court explicitly “rejected the reasoning of Appellate Court cases holding that a failure of notice did not toll § 8-7’s time limit to appeal.” We are not persuaded.

Unlike the plaintiffs in the present case, who are appealing a decision of an administrative body, the plaintiffs in Loulis were seeking injunctive relief outside of the administrative context. In Loulis, the plaintiffs sought an injunction barring the defendants from using a certain property as a package store in the town of Monroe. Id., 181. The plaintiffs argued that such use would violate the town’s zoning regulations. Id. The plaintiffs’ action was in response to the issuance of a certificate of zoning compliance on May 4, 1994. Loulis v. Parrott, 42 Conn. App. 272, 275, 679 A.2d 967 (1996), rev’d on other grounds, 241 Conn. 180, 695 A.2d 1040 (1997). On that date, the planning administrator of the town of Monroe issued the certificate to the defendant Dean Parrott, the operator of a proposed liquor store on the property. Id., 274. The plaintiffs did not appeal from the issuance of the May, 1994 certificate to the zoning board of appeals, and instead commenced a declaratory judgment action. Id., 274-75. While the action was pending in the trial court, the town’s zoning enforcement officer subsequently found that the proposed store complied with all zoning regulations and, on March 27, 1995, issued Parrott a permanent certificate of zoning compliance. Id., 275.

The defendants filed a motion to dismiss the action on the ground that the plaintiffs had failed to exhaust their administrative remedies because they had failed to appeal from the zoning enforcement officer’s May, 1994 certificate decision to the board pursuant to General Statutes §§ 8-6 and 8-7. Loulis v. Parrott, supra, 42 Conn. App. 275. They subsequently filed a supplemental motion to dismiss on the ground that the plaintiffs’ appeal of the issuance of the March, 1995 certificate “constituted an adequate administrative remedy that deprived the trial court of subject matter jurisdiction.” Id. The trial court dismissed the plaintiffs’ action on the ground that they had failed to exhaust their administrative remedies as to the issuance of the March, 1995 certificate and, therefore, the court lacked jurisdiction to hear the action. Id., 276.

The plaintiffs appealed to this court from that decision, arguing that the trial court improperly found that they did not exhaust their administrative remedies with respect to the March, 1995 certificate. Id., 273. We affirmed the judgment of the trial court, but on a different ground. We held that “the action should have been dismissed on the basis of the plaintiffs’ failure to exhaust their administrative remedies with respect to the May, 1994 certification.” Id., 276-77. We reasoned that the plaintiffs could not maintain an action for equitable relief without first exhausting their administrative remedies. Id., 278-79.

The plaintiffs thereafter appealed to the Supreme Court from our decision, arguing that the doctrine of exhaustion of administrative remedies is inapplicable to an action for injunctive relief. Loulis v. Parrott, supra, 241 Conn. 181-82. Our Supreme Court agreed and reversed our decision. The court reasoned that although “[i]t is true that the legislature has not required notice to be given regarding an administrative action such as a zoning or building [permit,] [t]hat does not necessarily mean . . . that the legislature also intended to bar aggrieved persons from the courts based on their failure to exhaust an administrative remedy when they seek to challenge the issuance of a permit of which they had no notice.” Id., 193-94. “Indeed, it is only proper to allow such an aggrieved party to challenge the permit’s validity in an appropriate judicial forum, given the lack of notice and consequent lack of meaningful opportunity to pursue an administrative appeal.” Id., 194. Thus, although the failure to take an appeal from a zoning action within the thirty day period deprives the court of subject matter jurisdiction to hear the appeal, it does not deprive a party who has received no notice from seeking injunctive remedies. In short, Loulis is inapplicable to the facts of this case.

As discussed, the plaintiffs in the present case are appealing from a decision of an administrative body pursuant to § 8-7. Section 8-7 requires a person who is aggrieved by an action or decision of a local zoning enforcement officer to appeal from such action or decision to the town’s zoning board of appeals within thirty days of such action. Here, the zoning enforcement officer issued a certificate of zoning compliance to Simjian on August 26, 1997. The plaintiffs did not appeal from the zoning enforcement officer’s decision until April 7, 1998, well beyond the thirty day period for bringing such an appeal. We conclude, therefore, that the board lacked subject matter jurisdiction with respect to the certificate of zoning compliance.

We further conclude that the board lacked jurisdiction to hear the plaintiffs’ appeal with respect to the building permits because the board lacks jurisdiction over the issuance of a building permit. The trial court concluded that “[t]he plaintiffs cite no provision in the zoning regulations authorizing the [board] to reverse a decision by the Branford building official to renew a building permit. The [board] wisely confined itself to a review of the [zoning enforcement officer’s] decision to issue a certificate of zoning compliance. Issuance of a certificate of zoning compliance is a prerequisite to the issuance of a building permit. Had the [board] reversed said decision by the [zoning enforcement officer], the plaintiffs would be free to pursue the implications of such decision on the building permit in another forum.” The court further concluded that “[different towns have differing schemes of regulation. The zoning regulations of some towns specify a [board’s] authority over a building official; in some towns, the functions of building inspector and zoning enforcement officer are vested in the same individual. Such was not the case in Branford at the time of the events giving rise to this appeal. The plaintiffs have failed to establish that the [board] had the authority to act on their appeal of the building official’s decisions to grant or renew the said building permit.” We agree.

As the trial court properly recognized, the board’s statutory authority is limited to zoning matters. See General Statutes § 8-6 (a). Pursuant to § 29-266 (b), “[w]hen a person other than such owner claims to be aggrieved by any decision of the building official, such person or his authorized agent may appeal, in writing, from the decision of the building official to the [building] board of appeals . . . .” Rather than appealing from the building official’s decision to the building board of appeals, the plaintiffs appealed to the board. Notwithstanding the plaintiffs’ attempt to link the building official’s decision to issue or reissue the building permit to the zoning enforcement officer’s decision to issue the certificate of zoning compliance, the record indicates that the building official issued such permits and not the zoning enforcement officer. Such actions by a town’s building official shall be appealed to the town’s building board of appeals in accordance with § 29-266. For those reasons, we conclude that the court properly determined that the board lacked jurisdiction to hear the plaintiffs’ appeal of the building permits.

Because the board lacked subject matter jurisdiction with respect to the certificate of zoning compliance and also with respect to the reissuance of the building permit, the case should have been dismissed for such lack of jurisdiction.

The judgment is set aside and the case is remanded to the trial court with direction to render judgment dismissing the plaintiffs’ appeal for lack of jurisdiction of the zoning board of appeals for the town of Branford.

In this opinion the other judges concurred.

       Also named as defendants were Thomas Simjian, Branford town clerk Georgette A. Laske, Branford zoning enforcement officer Justine K. Gillen and Branford building official Perry Smart.

       Section 5.7 of the zoning regulations of the town of Branford provides: “No nonconforming use of land shall be enlarged, extended or altered, and no building or other structure or part thereof devoted to a nonconforming use shall be enlarged, extended, reconstructed or structurally altered, except whore the result of such changes is to reduce or eliminate 1 he nonconformity. No nonconforming use of a building or other structure shall be extended to occupy land outside such building or other structure or space in another building or other structure. No nonconforming building or structure shall be enlarged, extended, reconstructed or structurally altered, if the result would be an increase in nonconformity.”

       General Statutes § 8-7 provides in relevant part: “An appeal may be taken to the zoning board of appeals by any person aggrieved or by any officer, department, board or bureau of any municipality aggrieved and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days, by filing with the zoning commission or the officer from whom the appeal has been taken and with said board a notice of appeal specifying the grounds thereof. ...”

       General Statutes § 29-266 provides in relevant part: “Municipal board of appeals. Filing of appeals in absence of board of appeals, (a) A board of appeals shall be appointed by each municipality. Such board shall consist of five members, all of whom shall meet the qualifications set forth in the State Building Code. . . .
      “(b) . . . When a person other than such owner claims to be aggrieved by any decision of the building official, such person or his authorized agent may appeal, in writing, from the decision of the building official to the board of appeals, and before determining the merits of such appeal the board of appeals shall first determine whether such person has a right to appeal. Upon . . . approval of an appeal by a person other than the owner, the chairman of the board of appeals shall appoint a panel of not less than three members of such board to hear such appeal. Such appeal shall be heard in the municipality for which the building official serves within five days, exclusive of Saturdays, Sundays and legal holidays, after the date of receipt, of such appeal. . . .
      “(<•) If, at the time that a building official makes a decision under subsection (b) of this section, there is no board of appeals for the municipality in which the building official serves, a person who claims to be aggrieved by such decision may submit an appeal, in writing, to the chief executive officer of such municipality. If, within five days, exclusive of Saturdays, Sundays and legal holidays, after the date of receipt of such appeal by such officer, the municipality fails to appoint, a board of appeals from among either its own residents or residents of other municipalities, such officer shall file a notice of such failure with the building official from whom the appeal has been taken and, prior to such filing, mail a copy of the notice to the person taking the appeal. Such person may appeal the decision of the building official to the Codes and Standards Committee within fourteen days after the filing of such notice with the building official. . . .
      “(d) Any person aggrieved by any ruling of the Codes and Standards Committee may appeal to the superior court for the judicial district where such building or structure has been or is being erected.”

       Pursuant to § 113.2.1 of the Connecticut Building Code, “[a]ny permit issued shall lapse if the building official finds that the authorized work was not started within a period of six (6) months after the permit was issued or shall be terminated if the building official finds that the authorized work, once started, was suspended for a period of six (6) months . . . .”
      In the present case, Simjian was issued the permit on September 8, 1997, yet he did not begin the authorized work until April 2, 1998, more than six months after the issuance of the permit. Assuming that the permit no longer was valid, Simjian applied for a second building permit on April 2, 1998. We assume, without deciding, that the building official determined that Simjian did not commence the authorized work until after six months from the date of issuance and, therefore, determined that the permit had lapsed when he issued the second building permit.

       The Palluzzis appealed the zoning enforcement officer’s issuance of the certificate of zoning compliance on April 7, 1998. Although the Munroe appeal to the board lacks a date, we infer from the written appeal that it was filed on or after April 7, 1998. The board consolidated and heard the appeals together.

       The notice of the board’s decision was issued on May 19, 1998.

       On March 29,1999, the plaintiffs filed a petition for certification to appeal pursuant to General Statutes (Rev. to 1997) § 8-8 (o), which this court granted on May 19, 1999.

       The plaintiffs appealed the issuance of the March, 1995 certificate to the zoning board of appeals. Loulis v. Parrott, supra, 42 Conn. App. 275.

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


author: PELLEGRINO, J.

text:
    MICHAEL W. LYONS v. CHARLES W. NICHOLS, JR.
    (AC 19740)
    Foti, Landau and Pellegrino, Js.
    Argued November 2, 2000
    officially released June 19, 2001

      Ridgely W. Brown, for the appellant (defendant).

      Lawrence P. Weisman, with whom, on the brief, was Michael W. Lyons, for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

The defendant, Charles W. Nichols, Jr., appeals from the judgment in a defamation action in which nominal and punitive damages were awarded to the plaintiff, Michael W. Lyons. On appeal, the defendant claims that the trial court improperly (1) allowed the introduction of evidence that was at variance with the allegations included in the complaint, (2) awarded nominal and punitive damages in the absence of an award of compensatory damages and (3) deprived him of his right to a jury trial. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The plaintiff, an attorney active in local Norwalk politics, who was also the chairman of the district Republican Committee and an attorney for the town’s third taxing district, instituted the present action against the defendant, a political critic, for damages resulting from his alleged defamatory statements. The operative amended complaint, dated September 6, 1994, alleged that between the period of January, 1992, through August, 1993, the defendant made numerous public defamatory statements directed at the plaintiff. The court, in its memorandum of decision, examined all of the various statements attributed to the defendant and concluded that only one statement made by the defendant was libelous per se. That statement was contained in a letter that was written by the defendant and published in a newspaper on September 11, 1996. Because the letter was not published until September, 1996, it does not fall within the time period alleged in the complaint. The court, however, allowed the letter to be entered into evidence as exhibit A-32.

The court found that the contents of exhibit A-32 amounted to libel per se because they falsely charged the plaintiff with the commission of a crime described under General Statutes (Rev. to 1995) § 9-333x (6). The court further found that after the letter appeared in the newspaper, the plaintiff demanded from the defendant a retraction of the statement, claiming that it had charged him with the commission of a crime. The defendant responded to the plaintiffs request by another letter to the editor explaining his allegation, but did not retract the defamatory content of exhibit A-32. The court found that the subsequent letter written by the defendant did not constitute a legally sufficient retraction, that the plaintiff was a public official and that the defendant had acted with malice. The court further found that the plaintiff had not proven actual damages and, therefore, awarded nominal damages of $100. Concluding that punitive damages should be limited to the plaintiffs litigation expenses, the court determined that those expenses were $2500 and awarded punitive damages in that amount.

I

The defendant first claims that the court improperly entered exhibit A-32 into evidence because it was at variance with the allegations included in the complaint and, therefore, the judgment of the court should be reversed. Specifically, the defendant argues that exhibit A-32 should not have been entered into evidence because it was not referenced in or did not fall within the time frame alleged in the operative complaint. In rebuttal, the plaintiff argues that any variance between the evidence offered at trial and the complaint is immaterial and did not prejudice the defendant. We agree with the plaintiff.

Our review of an evidentiary ruling by the trial court is well settled. “[T]he trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Internal quotation marks omitted.) State v. Banks, 59 Conn. App. 112, 127-28, 755 A.2d 951, cert. denied, 254 Conn. 950, 762 A.2d 904 (2000); New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 92, 709 A.2d 14 (1998).

The central issue of the defendant’s claim is whether exhibit A-32 is a material variance from the allegations contained within the plaintiffs complaint. “The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. . . . The complaint is required only to fairly put the defendant on notice of the claims against him.” (Citations omitted; internal quotation marks omitted.) Marchetti v. Ramirez, 40 Conn. App. 740, 747, 673 A.2d 567 (1996), aff'd, 240 Conn. 49, 688 A.2d 1325 (1997). “[T]he interpretation of pleadings is always a question of law for the court .... Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985). The modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988) .... Although essential allegations may not be supplied by conjecture or remote implication; Cahill v. Board of Education, supra, 236; the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not suiprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.” (Citation omitted; internal quotation marks omitted.) Emerick v. Kuhn, 52 Conn. App. 724, 738-39, 737 A.2d 456, cert. denied, 249 Conn. 929, 738 A.2d 653, cert. denied sub nom. Emerick v. United Technologies Corp., 528 U.S. 1005, 120 S. Ct. 500, 145 L. Ed. 2d 386 (1999).

“A variance is a departure of the proof from the facts as alleged.” (Internal quotation marks omitted.) Marchetti v. Ramirez, supra, 40 Conn. App. 747; A. V. Giordano Co. v. American Diamond Exchange, Inc., 31 Conn. App. 163, 166-67, 623 A.2d 1048 (1993). If a variance is immaterial, it “shall be wholly disregarded.” Practice Book § 10-62. “An immaterial variance is one in which the difference between the allegations and the proof is so slight and unimportant that the adverse party is not misled as to the charge he is required to meet or prejudiced in maintaining his defense on the merits of the case.” (Internal quotation marks omitted.) DiLieto v. Better Homes Insulation Co., 16 Conn. App. 100, 106, 546 A.2d 957 (1988); LaFaive v. DiLoreto, 2 Conn. App. 58, 62, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984). “Therefore, an otherwise valid judgment will not be invalidated if a variance does not change the theory of the cause of action and if the party complaining of the variance was, at all times, in a position to know the true state of the facts.” DiLieto v. Better Homes Insulation Co., supra, 106; Marchetti v. Ramirez, supra, 748; LaFaive v. DiLoreto, supra, 62.

In the present case, it is clear that the variance between the complaint and exhibit A-32 is immaterial. The defendant was not misled as to the charge outlined in the complaint, nor was he prejudiced in maintaining his defense on the merits of the case. The operative complaint outlined facts that alleged that the defendant had defamed the plaintiff, and exhibit A-32 was offered as proof of that defamation. The court found that the plaintiff notified the defendant of the claim and demanded a retraction in connection with the publication of the letter that was entered into evidence as exhibit A-32. The court further found that the defendant knew that the defamatory nature of exhibit A-32 was among the claims being raised by the plaintiff at trial, and the defendant offered evidence in his defense. It is of no consequence that the contents of exhibit A-32 were not specifically mentioned in the complaint or did not fall within the time frame alleged in the complaint. Therefore, because the defendant was not misled as to the plaintiffs charge of defamation and was not prejudiced in maintaining a defense, the variance in the present case is immaterial. Accordingly, we decline to reverse the judgment of the court.

II

The defendant next claims that the court improperly awarded nominal and punitive damages where the plaintiff, a public figure, could not prove compensatory damages. In rebuttal, the plaintiff argues that our case law allows for the awards of nominal and punitive damages, in libel actions concerning public figures, where there has been a finding of actual malice. We agree with the plaintiff.

The following additional facts are relevant to our resolution of the defendant’s claim. The court found that the plaintiff had proved by clear and convincing evidence that the defendant published the libelous statement with actual malice because it was made with reckless disregard for the truth of the allegation. The court then awarded nominal damages in the amount of $100 because the plaintiff had suffered a legal injury. Additionally, the court awarded punitive damages attributable to the plaintiffs litigation expenses in the amount of $2500. The court, however, refrained from awarding compensatory damages because the plaintiff could not provide the court with a reasonable means of calculating the extent of the harm his reputation had suffered from the libelous statement.

Our standard of review of an award of damages also is well settled. “[T]he trial court has broad discretion in determining whether damages are appropriate. . . . Its decision will not be disturbed on appeal absent a clear abuse of discretion.” (Internal quotation marks omitted.) Barber v. Mulrooney, 61 Conn. App. 108, 111, 762 A.2d 520 (2000); see Elm City Cheese Co. v. Federico, 251 Conn. 59, 90, 752 A.2d 1037 (1999).

The court found that the defamatory material contained in exhibit A-32 amounted to libel per se. “Libel per se ... is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages.” Battista v. United Illuminating Co., 10 Conn. App. 486, 491-92, 523 A.2d 1356, cert. denied, 204 Conn. 803, 525 A.2d 1352 (1987). “When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiffs reputation. He is required neither to plead nor to prove it. . . . The individual plaintiff is entitled to recover, as general damages, for the injury to his reputation and for the humiliation and mental suffering which the libel caused him.” (Citation omitted; internal quotation marks omitted.) Id., 492. Our law clearly allows “those who are properly classed as public figures and those who hold governmental office [to] recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with such actual malice.” (Internal quotation marks omitted.) Holbrook v. Casazza, 204 Conn. 336, 342, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S. Ct. 699, 98 L. Ed. 2d 651 (1988); New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964); Brown v. K.N.D. Corp., 7 Conn. App. 418, 422, 509 A.2d 533 (1986), rev’d on other grounds, 205 Conn. 8, 529 A.2d 1292 (1987).

Both nominal and punitive damages also may be awarded where the defamatory material is libel per se. Where the court has found that the plaintiff has suffered a technical legal injury, the plaintiff is entitled to at least nominal damages. Riccio v. Abate, 176 Conn. 415, 418-19,407 A.2d 1005 (1979); Letsch v. Slady, 145 Conn. 401, 402-403, 143 A.2d 642 (1958). In turn, an award of punitive damages is appropriate where the plaintiff has recovered nominal damages. Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 161 n.16, 645 A.2d 505 (1994); see generally 4 Restatement (Second), Torts § 908, p. 465 (1979); 5 M. Minzer, J. Nates, C. Kimball & D. Axelrod, Damages in Tort Actions (1994) § 40.13; annot., 40 A.L.R.4th 11, 36-38 § 6 (1985). Furthermore, punitive damages are appropriate in a libel action where the court has found that the defendant acted with actual malice when publishing the defamatory material. Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 127, 222 A.2d 220 (1966); Proto v. Bridgeport Herald Corp., 136 Conn. 557, 571, 72 A.2d 820 (1950).

In the present case, the court was not compelled to award compensatory damages. The award of nominal damages is appropriate when there is a clear invasion of a legal right, such as the one in the present case, but no finding of a compensable injury. See Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 218 Conn. 474, 477-79, 590 A.2d 431 (1991); Riccio v. Abate, supra, 176 Conn. 419. The award of punitive damages is also appropriate here because the court awarded nominal damages; See Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 230 Conn. 161 n.16; 4 Restatement (Second), supra, § 908, p. 465; and because it was established that the defendant had acted with malice. See Triangle Sheet Metal Works, Inc. v. Silver, supra, 154 Conn. 127. The plaintiffs inability to provide the court with a reasonable means of calculating the extent of the harm caused by the libelous statement does not bar the plaintiff from recovering otherwise valid awards of nominal and punitive damages. Accordingly, we conclude that the court did not abuse its discretion when awarding the plaintiff nominal damages in the amount of $100 and punitive damages in the amount of $2500.

Ill

The defendant finally claims that the court improperly deprived him of his right to a jury trial. Specifically, the defendant argues that because the defamatory material contained in exhibit A-32 was not referenced in or did not fall within the time frame alleged in the complaint, he was denied his right to request a jury trial pursuant to General Statutes § 52-215. We find no merit to the defendant’s claim.

“It is well settled that a claim for a jury trial must be filed no later than ten days after the pleadings have been closed. General Statutes § 52-215; see Home Oil Co. v. Todd, 195 Conn. 333, 339-40, 487 A.2d 1095 (1985).” Masto v. Board of Education, 200 Conn. 482, 488, 511 A.2d 344 (1986). In the present case, the defendant did not raise this issue until he moved for reargument after the court rendered judgment against him and awarded damages to the plaintiff. We therefore conclude that the court properly found that the defendant failed to assert timely, and thus waived, his right to a jury trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       A companion case brought by the plaintiff, Lyons v. Heid, Superior Court, judicial district of Fairfield, Docket No. CV 94-0311175 (May 29, 1998) (22 Conn. L. Rptr. 45), included a cause of action sounding in defamation, and was consolidated and tried with this action. The plaintiff did not appeal from the judgment in favor of the defendant, Blaise Heid, in that action.

       General Statutes (Rev. to 1995) § 9-333x provides in relevant part: “The following persons shall be guilty of corrupt practices ... (6) Any person who, in order to secure or promote his own nomination or election as a candidate, or that of any other person, directly or indirectly, promises to appoint, or promises to secure or assist in securing the appointment, nomination or election of any other person to any public posit ion, or to any position of honor, trust or emolument . . . .”

       Practice Book § 10-62 provides in relevant part: “In all cases of any material variance between allegation and proof, an amendment may be permitted at any stage of the trial. . . . Immaterial variances shall be wholly disregarded.”

         General Statutes § 52-215 provides in relevant part: “When ... an issue of fact is joined, the case may, within ten days after such issue of fact is joined, be entered in the docket as a jury case upon the request of either party made to the clerk . . . .”


author: LAVERY, C. J.

text:
    CITY OF BRISTOL ET AL. v. DICKAU BUS COMPANY, INC.
    (AC 20130)
    Lavery, C. J., and Foti and Daly, Js.

      Argued January 22
    officially released June 19, 2001

      Joseph A. Hourihan, for the appellant (defendant).

      John B. Farley, with whom, on the brief, were Brian P. learning and Kathleen A. St. Onge, for the appel-lees (plaintiffs).
   Opinion

LAVERY, C. J.

The defendant, Dickau Bus Company, Inc., appeals from the judgment of the trial court ordering it to indemnify the plaintiffs for moneys expended by them in settling lawsuits arising from an accident involving one of the defendant’s school buses. On appeal, the defendant claims that the trial court improperly applied common-law principles concerning active versus passive negligence (1) in the absence of a judicial finding of negligence by the plaintiffs and (2) when any negligence on the plaintiffs’ part would have been premised on their own acts, unrelated to the defendant’s actions. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our consideration of the defendant’s claims. On September 18, 1992, Michael Courchesne and his three year old son, Brandon, were standing near a designated school bus stop located at the comer of Rockwell Avenue and Pierce Street in Bristol, awaiting the arrival from school of Michael’s daughter and Brandon’s older sister, Kailey. The bus Kailey was riding, which the defendant owned, was driven by Lorraine Clybum, an employee of the defendant. When the bus arrived, Brandon crossed the street on his bicycle to meet Kailey. After Kailey alighted from the bus and began to cross the street, Brandon turned his bicycle around and followed her. At that moment, the school bus moved forward, striking Brandon and causing injuries that ultimately resulted in his death.

Brandon’s parents subsequently brought actions, on their own behalf and on behalf of Brandon’s estate and Kailey, against Clybum, the defendant, the city of Bristol, the board of education of the city of Bristol, an official of the board of education and the principal of the school from which the bus originated. All of those actions were settled for varying amounts.

Subsequently, the plaintiffs here brought an action against the defendant seeking indemnification for the amounts that they had paid in the aforementioned settlements, including attorney’s fees and court costs. Following a trial, the court ordered the defendant to pay damages, offer of judgment interest, attorney’s fees and costs. This appeal followed.

I

The defendant first claims that the court improperly found that the plaintiffs were entitled to indemnification from the defendant without first finding that the plaintiffs were negligent. We disagree.

“In an action for indemnity . . . one tortfeasor seeks to impose total liability upon another [tortfeasor], . . . [Indemnity involves a claim for reimbursement in full from one on whom a prim,ary liability is claimed to rest .... Ordinarily there is no right of indemnity . . . between joint tortfeasors. . . . Where, however, one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury. . . . Under the circumstances described, we have distinguished between active or primary negligence, and passive or secondary negligence. . . . Indemnity shifts the impact of liability from passive joint tortfeasors to active ones. . . . Thus, the common-law doctrine of indemnification permits a tortfeasor to assert a claim only against another liable tortfeasor.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Crotta v. Home Depot, Inc., 249 Conn. 634, 641-42, 732 A.2d 767 (1999).

The defendant claims that the court improperly found that the plaintiffs were entitled to indemnification because no court has found that the plaintiffs were negligent. A necessary corollary of the defendant’s claim that the plaintiffs had to have been found negligent before seeking indemnification is that a party that has entered into a voluntary settlement or stipulated judgment can never recover under a theory of common-law indemnification. We note that, as a matter of public policy, our law favors the voluntary settlement of civil disputes. See Duni v. United Technologies Corp./ Pratt & Whitney Aircraft Division, 239 Conn. 19, 26-27, 682 A.2d 99 (1996). We note, also, that a claim for statutory indemnification can be based on a stipulated judgment. See Hammond v. Waterbury, 219 Conn. 569, 573, 594 A.2d 939 (1991). Similarly, an insurer that refuses to defend its insured and is subsequently found to have breached its duty to do so must indemnify the insured for any reasonable settlement entered into by the insured. Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 153, 681 A.2d 293 (1996). Furthermore, General Statutes § 52-598a provides: “Notwithstanding any provision of this chapter, an action for indemnification may be brought within three years from the date of the determination of the action against the party which is seeking indemnification by either judgment or settlement.” (Emphasis added.)

The defendant points to our Supreme Court’s statement in Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 415, 207 A.2d 732 (1965), that one seeking indemnity must show “that the negligence with which it had been found chargeable was passive or secondary,” as support for its contention that the absence of a finding of negligence on the plaintiffs’ part defeats their claim for indemnity. We note, however, that the Supreme Court did not state that one seeking indemnity must show that its own negligence was passive or secondary but only that the party must show that “the negligence with which it had been found chargeable was passive or secondary . . . .” (Emphasis added.) Id. That phrase encompasses parties who were allegedly negligent in their management or supervision of others and thus financially responsible for the active negligence of the others.

The plaintiffs in this case fall into the latter category. The accident victims sued them for negligent management and supervision (passive negligence), claiming that they were therefore liable for the negligent actions of their employees (active negligence). The absence of active negligence on their part does not bar their successfully maintaining an action for indemnity for those damages that they paid for their passive negligence.

II

The defendant also claims that any negligence found against the plaintiffs would have been based on the allegations of the complaints against the plaintiffs and, therefore, would have been based on their own actions and not the actions of the defendant’s driver. We disagree.

We already have stated in part I of this opinion that the plaintiffs’ successful maintenance of an action for indemnity does not depend on the court’s finding active negligence on the plaintiffs’ part. Under Kaplan v. Merb-erg Wrecking Carp., supra, 152 Conn. 416, the plaintiffs needed to prove only four things to prevail against the defendant: (1) that the defendant was negligent; (2) that the defendant’s negligence, rather than the negligence with which the plaintiffs were found chargeable, was the direct and immediate cause of the accident; (3) that the defendant was in exclusive control of the situation; and (4) that the plaintiffs did not know of the defendant’s negligence, had no reason to anticipate it and could reasonably rely on the defendant not to be negligent. The plaintiffs proved all of these in the context of the defendant’s hiring and supervision of the bus driver, Lorraine Clyburn. They needed to prove nothing else to prevail.

“An indemnitee may be chargeable with personal negligence, independent of any negligence of the indemnitor, and still not be chargeable with active or primary negligence.” Id., 415. As long as the plaintiffs were chargeable with some negligence, which they clearly were, and as long as that negligence was not active or primary, and the defendant does not contend that the plaintiffs’ negligence was primary, the plaintiffs are not precluded from recovering under common-law indemnification. Indeed, the defendant stipulated to two of the four Kaplan factors at trial, namely, that it was in control of the bus that caused the injuries and that the plaintiffs had no reason to anticipate the defendant’s negligence. The defendant further has never claimed either that it was not negligent or that its negligence was not the direct cause of the accident. The defendant is therefore bound by the trial court’s finding that its negligence was active and primary so that the plaintiffs’ negligence could not also have been active and primary.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are the city of Bristol, the board of education of the city of Bristol, the chairman of the board of education and the principal of one of its schools.