author: PETERS, J.

text:
    VERA FAIGEL v. FAIRFIELD UNIVERSITY
    (AC 22007)
    Foti, Mihalakos and Peters, Js.
    Argued October 22, 2002
    officially released February 11, 2003

      Dawne Westbrook, with whom, on the brief, was John R. Williams, for the appellant (plaintiff).

      Michael C. Jankovsky, for the appellee (defendant).
   Opinion

PETERS, J.

In this state, under special circumstances, a student may challenge her dismissal from an educational program as a breach of contract. Gupta v. New Britain General Hospital, 239 Conn. 574, 592-93, 687 A.2d 111 (1996). To limit judicial intrusion into educational decision making, the student must, however, allege nonperformance of a special promise, a promise outside the purview of normal educational expectations. Id. The central issue in this case is whether a student’s claim of breach of contract met this exacting standard. The trial court concluded that it did not and rendered judgment in favor of the educational institution. We agree.

The plaintiff, Vera Faigel, an immigrant from Russia, filed a four count complaint against the defendant, Fair-field University. She alleged that the defendant (1) failed to perform its contractual obligation to give her proper credit for her academic achievements in Russia, (2) obtained tuition payments by false pretenses, (3) intentionally or recklessly caused her to suffer emotional distress and (4) violated General Statutes § 42-110b of the Connecticut Unfair Trade Practices Act. She did not make a tort claim of educational malpractice.

The defendant responded by filing a motion for summary judgment with respect to each count of the plaintiffs complaint. In light of facts disclosed in an affidavit attached to the motion, the defendant asserted that the case presented no disputed material facts and no basis for an action for breach of a contractual promise.

The plaintiff opposed the motion, claiming that there were factual disputes about the reason why she agreed to withdraw from the defendant’s nursing school. She alleged that she would have been a student in good standing if the defendant had honored its contractual obligations to her. The plaintiff did not, however, file a counteraffidavit but submitted only her sworn interrogatory answers and her deposition testimony.

The trial court granted the motion for summary judgment and filed a memorandum of decision stating the reasons for its decision. Citing Gupta v. New Britain General Hospital, supra, 239 Conn. 592-93, the court held that “the information submitted by the plaintiff does not raise an issue that the decision of the [defendant] requiring her withdrawal from the nursing curriculum was anything other than a purely academic decision . . . or that it was based upon a breach of a‘contractual promise distinct from any overall obligation to offer a reasonable program.’ ”

The plaintiffs appeal challenges the propriety of the trial court’s order of summaiy judgment on the same grounds that she raised in her opposition to the defendant’s motion at trial. Our consideration of these claims is governed by a well established standard of review. “Pursuant to Practice Book § 17-49, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Such questions of law are subject to plenary appellate review.” (Internal quotation marks omitted.) Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002). In deciding whether the trial court properly determined that there was no genuine issue of material fact, we review the evidence in the light most favorable to the nonmoving party. B & D Associates, Inc. v. Russell, 73 Conn. App. 66, 69, 807 A.2d 1001 (2002); Yancey v. Connecticut Life & Casualty Ins. Co., 68 Conn. App. 556, 558, 791 A.2d 719 (2002).

We start our discussion of the plaintiffs appeal by examining the merits of the first count of the plaintiffs complaint, in which she alleged a breach of contract. Our resolution of the validity of this count is, as the trial court held, dispositive of the remaining counts of the plaintiffs complaint.

There is no dispute about the underlying facts. In 1991, the plaintiff enrolled in the defendant’s school of nursing in an eighteen month accelerated program for obtaining a bachelor of science degree in nursing. This was a nursing program designed for applicants who already had a bachelor of science degree in another field. Because the plaintiff had obtained a master of science degree in engineering in Russia, the defendant gave the plaintiff credit for some, but not all, of the courses she had successfully completed there. Thereafter, the defendant required the plaintiff to take additional liberal arts courses to provide the foundation for her nursing studies. After encountering serious academic and clinical difficulties, the plaintiff was dismissed from the nursing school in September, 1994, because she failed to pass a final motor performance examination. She had agreed, in writing, that failure to pass this examination would require her to withdraw from continuation in the nursing program.

According to the plaintiff, this factual showing did not establish that she was required to withdraw from the defendant’s nursing program for academic reasons, as the trial court held. Her argument has two parts.

First, the plaintiff argues that the withdrawal agreement was not enforceable because, as she had alleged in her complaint, she had signed the withdrawal agreement under protest because if she had not done so, she would have had “no chance to continue the nursing program.” In the absence of any further factual elaboration of this claim, this allegation does not give rise to a cognizable factual dispute.

Second, the plaintiff argues that, even if the withdrawal agreement was valid on its face, the academic and clinical problems that it documents are not the proper measure of her performance. This argument arises out of her allegation that the defendant failed to honor its oral promise that she would receive “many credits” for her Russian educational experience. As a result of this breach of promise, the plaintiff alleged, the defendant required her to take eleven additional liberal arts courses that impaired her timely completion of the nursing program. In the same vein, she alleged that, if she had not been required to take these additional courses, by the time of her withdrawal she would have fulfilled all of the criteria for good standing that existed when she enrolled. In effect, she argues that her performance was judged by a standard that differed from that of which she had been advised at the time of her enrollment in the nursing school.

The linchpin for the plaintiffs argument is her contention that the promise on which she allegedly relied is a promise that is enforceable. It is not dispositive that the alleged promise was oral. It is, however, dispositive that the alleged promise did not satisfy the criteria for an action for breach of contract in an educational context that were set out in Gupta.

In Gupta, our Supreme Court stated that a student contesting dismissal from an educational program could pursue an action for breach of contract only under one of two circumstances. To succeed, the student would have to make a showing that “the educational program failed in some fundamental respect, as by not offering any of the courses necessary to obtain certification in aparticular field” or that “the educational institution failed to fulfill a specific contractual promise distinct from any overall obligation to offer a reasonable program.” Gupta v. New Britain General Hospital, supra, 239 Conn. 592-93. Only the second of these alternatives is applicable in this case.

We must decide, therefore, whether an alleged promise that “the plaintiff would be allowed ‘many credits’ from her prior engineering studies” qualifies as a “specific contractual promise.” We conclude that it does not. How many is many? None of the plaintiffs allegations of fact sheds any light on the answer to this question. Bearing in mind that it was the plaintiffs burden to allege a factual basis for her claim of breach of promise, we conclude that the promise that she has alleged is too imprecise to qualify for consideration as a “specific contractual promise.”

We have searched Connecticut case law to ascertain whether cases decided since Gupta have moved away from the requirement that a claim of breach of contract by an educational institution must be based on the breach of a “specific contractual promise.” We have found none that does so.

The closest case is Craine v. Trinity College, 259 Conn. 625, 791 A.2d 518 (2002). In that case, our Supreme Court, after citing Gupta, concluded that a college was hable for breach of contract because it had denied tenure to a college professor on the basis of standards that differed significantly from those of which she had previously been informed. Id., 654-59.

Craine resembles this case because it, too, addresses a claim of a shift in standards for academic achievements. Craine differs from this case in that the plaintiffs complaint rested on the contents of a faculty handbook. The court held that the faculty handbook was a binding employment contract. Id., 655. The handbook contained specific provisions with respect to tenure with which the college did not comply. Id., 656. Craine illustrates that the possibility of pleading a “specific contractual promise” is not ephemeral. In our view, Craine is consistent with our application of the Gupta standards in this case.

In two other cases, our courts have found Gupta to be inapplicable. A plaintiff need not allege a “specific contractual promise” to pursue a claim of physical injury resulting from a breach of an educational institution’s “common-law duty not to cause physical injury by negligent conduct . . . .” Doe v. Yale University, 252 Conn. 641, 659, 748 A.2d 834 (2000); Vogel v. Maimonides Academy of Western Connecticut, Inc., 58 Conn. App. 624, 631, 754 A.2d 824 (2000). As a matter of law, these cases do not address the enforceability of any other claim of breach of contract. As a matter of fact, these cases are distinguishable because the plaintiff in this case has not claimed that the defendant has caused her to suffer physical injury.

In sum, we conclude that none of the allegations contained in count one of the plaintiffs complaint was supported sufficiently by allegations of fact to rebut the defendant’s motion for summary judgment. In light of the criteria set out in Gupta, the trial court properly granted the defendant’s motion for summary judgment with respect to count one.

We turn now to the remaining counts of the plaintiffs complaint, in which she alleged that the defendant had obtained money from her under false pretenses, had caused her to suffer emotional distress and had committed an unfair trade practice. The trial court granted the defendant’s motion for summary judgment with respect to each of these counts. We agree.

Our conclusion that the plaintiff failed to allege sufficient facts with respect to her contract claims is dispositive of these counts. Each of them is predicated on the allegation that the defendant engaged in some act that fairly can be characterized as misconduct.

The factual basis for each of these claims of misconduct is, however, the same set of factual allegations on which the plaintiff relied in count one. In light of this factual footing, where and when and how did the defendant engage in misconduct of any kind? The failure to honor an unenforceable promise is not misconduct. The plaintiff has not identified any other alleged act of misconduct. It follows that the defendant was entitled to summary judgment on these counts as well.

The trial court properly granted the motion of the defendant for summary judgment on all counts of the plaintiffs complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff submitted these documents to the court in their entirety, without identifying any statement therein that might have rebutted the allegations in the defendant’s affidavit.

       Nonetheless, irrespective of the outcome of this litigation, in its most important aspect the plaintiffs story has a happy ending. The plaintiffs commitment to her chosen profession is laudable. She has become a licensed registered nurse because of her success in completing a different nursing program.


source: Caselaw Access Project

license: Public Domain

text:
    MOHICAN VALLEY CONCRETE CORPORATION ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF FAIRFIELD ET AL.
    (AC 21794)
    Schaller, West and Peters, Js.
    Argued October 22, 2002
    officially released February 11, 2003

      Carolyn W. Kone, for the appellants (plaintiffs).

      John F. Fallon, for the appellees (defendant Geza Scap et al.).

      Richard H. Saxl, town attorney, for the appellee (named defendant).
   Opinion

PETERS, J.

General Statutes § 14-54 requires a person who contemplates establishing a new automobile dealership in this state to obtain a state license. A state license, in turn, is conditioned upon approval of the proposed location by a local zoning board. This case concerns the validity of a zoning board’s decision to grant such an approval.

The trial court held that the board had given sufficient notice of its proceedings and had properly applied the relevant provisions of the town’s zoning regulations. The court, however, declined to rule on the sufficiency of the evidence to support the board’s decision because, in violation of General Statutes § 14-55, the board had failed to state the reasons for its decision on the record. In light of this violation, the court remanded the case to the zoning board with direction to state the reasons for its decision. We disagree with the court’s remand order but affirm its judgment in all other respects.

The defendants Geza Scap and Julie M. Scap obtained a certificate of approval from the defendant zoning board of appeals of the town of Fairfield (zoning board) to locate a proposed automobile dealership at 251 Commerce Drive in Fairfield. Under § 27.1 of the Fairfield zoning regulations, the approval took the form of granting the defendants a special exception. The plaintiffs, Mohican Valley Concrete Corporation, Thomas Greenawalt II, Donna Sedgewick and Mark A. Greenawalt, who had contested the defendants’ application before the zoning board, appealed to the trial court. The court upheld the action of the zoning board but remanded the case for the purpose of eliciting a statement of its reasoning. The plaintiffs have appealed.

The record discloses the following undisputed facts. The proposed site, 251 Commerce Drive, is located in a designed industrial district, in which automobile dealerships are a permitted use. The property previously had been used as a tractor trailer truck depot. Although the zoning board approved this location for the defendants’ proposed automobile dealership, it did not grant the defendants an unconditional special exception. The defendants agreed that there would be “no tractor trailer delivery of inventory on site” and that “all employee parking would be on site.”

In their appeal, the plaintiffs challenge the decision of the zoning board on several grounds. In their view, the zoning board (1) published a misleading notice of the public hearing in violation of § 14-55, (2) issued inadequate posthearing notice of its decision in violation of § 14-55, (3) misconstrued Fairfield zoning regulations and (4) reached its decision without sufficient evidentiary support. With respect to the last ground, they also challenge the propriety of the court’s decision not to address this issue on its merits.

Each of the issues raised by the plaintiffs concerns a question of law. See, e.g., State v. Russo, 259 Conn. 436, 447, 790 A.2d 1132 (statutory construction), cert. denied, 537 U.S. 879, 123 S. Ct. 79, 154 L. Ed. 2d 134 (2002); Lauer v. Zoning Commission, 220 Conn. 455, 461-62, 600 A.2d 310 (1991) (prehearing notice); Zachs v. Zoning Board of Appeals, 218 Conn. 324, 331, 589 A.2d 351 (1991) (sufficiency of evidence); Akin v. Norwalk, 163 Conn. 68, 74, 301 A.2d 258 (1972) (posthearing notice). We must, therefore, undertake a plenary review of each of them.

We are persuaded that the trial court properly upheld the decision of the zoning board. With respect to the remand order, however, we agree with the plaintiffs that the trial court should itself have determined the sufficiency of the zoning board record to sustain the board’s decision.

I

REMAND ORDER

The trial court’s order of remand led this court to ask the parties to brief whether this court has jurisdiction to hear this appeal. We were concerned that the judgment rendered by the court might not be a final judgment for the purposes of appellate review. In Schieffelin & Co. v. Dept. of Liquor Control, 202 Conn. 405, 409-12, 521 A.2d 566 (1987), our Supreme Court held that a remand order for further evidentiary determinations is not immediately reviewable.

For two reasons, we conclude that we have jurisdiction to hear the plaintiffs’ appeal. First, Schieffelin & Co. does not control this case. An order of remand for articulation of the reasoning behind the agency’s decision does not require further proceedings with additional evidentiary presentation. Second, and more important, the trial court’s remand order was improper.

The court based its remand order on the text of § 14-55, which requires a local zoning board to state the reasons for its decision to approve the location of a proposed automobile dealership. The question posed by this statute is whether the legislature intended § 14-55 to guide the proceedings of a zoning board or to limit the scope of judicial review of a trial court. The trial court assumed that the statute was addressed to the court. We disagree.

Well established principles govern our construction of a state statute. “[0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Furthermore, it is an elementary rule of statutory construction that we must read the legislative scheme as a whole in order to give effect to and harmonize all of the parts.” (Citation omitted; internal quotation marks omitted.) Coregis Ins. Co. v. Fleet National Bank, 68 Conn. App. 716, 720, 793 A.2d 254 (2002).

On their face, the instructions contained in § 14-55 do not address the scope of judicial review of zoning board decisions. In our view, that omission was deliberate.

We are persuaded that the statute should be construed literally and narrowly because it is reasonable to assume that the legislature understands how zoning boards operate. It is common knowledge that members of a zoning board typically are laypersons more familiar with their community than with the niceties of applicable law. See Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 554, 600 A.2d 757 (1991). Zoning boards “ordinarily conduct their proceedings with some degree of informality.” Caserta v. Zoning Board of Appeals, 219 Conn. 352, 362, 593 A.2d 118 (1991). In light of these institutional realities, the legislature may well have thought it useful to provide specific statutory guidance for the manner in which zoning boards should conduct their proceedings under §§ 14-54 and 14-55. Trial courts do not need such guidance.

Our construction of § 14-55 finds further support in our case law construing other statutes that require zoning boards or administrative agencies to put on the record an express statement of the reasoning behind their decisions. See, e.g., General Statutes §§ 8-3 (g) (site plans), 8-26 (subdivision plans), 22a-109 (coastal site plans), 22a-128 and 22a-275e (solid waste disposal). If a board has nonetheless failed to state its reasoning, reviewing courts must themselves search the record of the land use proceedings to determine the sufficiency of the evidence to support the decision of the board. See Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995); Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588-89, 628 A.2d 1286 (1993); Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 743, 626 A.2d 705 (1993); see also R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 33.6, p. 168, § 33.8, p. 175, § 33.9, p. 179, § 33.10, p. 188; T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 473-76. The same rule applies to administrative appeals under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq. See, e.g., Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 600-601, 590 A.2d 447 (1991); Bard v. Commissioner of Motor Vehicles, 62 Conn. App. 45, 51-52, 768 A.2d 960, cert. denied, 256 Conn. 906, 772 A.2d 595 (2001).

The task of searching the records falls, in the first instance, on trial courts, but if they fail to make the required search, appellate courts must do so. Bloom v. Zoning Board of Appeals, supra, 233 Conn. 208-209.

We conclude, therefore, that § 14-55 was intended to direct zoning boards to conduct their proceedings in accordance with the requirements stated therein. It was not intended to authorize a judicial remand order to cure the failure of a zoning board to state the reasons for its decision. The court should have searched the record to ascertain whether the board’s decision had sufficient evidentiary support.

II

PREHEARING NOTICE

Before we address the sufficiency of the evidence, we must consider whether the prehearing notice that was published by the zoning board complied with § 14-55. Although notice requirements may be jurisdictional; Koepke v. Zoning Board of Appeals, 223 Conn. 171, 174-75, 610 A.2d 1301 (1992); in this case the plaintiffs make no such claim. Their contention is that the notice was defective because it was misleading.

Section 14-55 states the jurisdictional requirements for a prehearing notice. An applicant must publish timely notices that will inform the members of the public of the time and place of a public hearing with respect to a pending application for approval of the location of an automobile dealership.

It is accepted wisdom that the purpose of a prehearing notice is to permit members of the general public to prepare intelligently for a public hearing at which they may be heard about the merits of a pending application. See id.; Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972).

In this case, the plaintiffs claim that the notice was defective because its contents were misleading. The burden of proving that a notice was defective rests on the plaintiffs. See Peters v. Environmental Protection Board, 25 Conn. App. 164, 170, 593 A.2d 975 (1991).

The plaintiffs argue that the notice was misleading in three respects. First, it did not cite §§ 14-54 and 14-55. Second, it referred to the defendants’ application, which, in turn, was misleading because of clerical errors and because of its failure to reference a related pending application before the Fairfield planning and zoning commission. Third, the notice must have been misleading because it led the zoning board to grant the defendants an inapplicable permit that they had not sought. Like the trial court, we are not persuaded.

Once basic jurisdictional requirements have been met, imperfections in the contents of a notice do not automatically deprive a zoning board of the authority to act on an application. A notice is not misleading even though it does not describe the proposed action “in detail or with exactitude.” Welles v. East Windsor, 185 Conn. 556, 559, 441 A.2d 174 (1981). “Notice of a hearing is not required to contain an accurate forecast of the precise action which will be taken upon the subject matter referred to in the notice.” Neuger v. Zoning Board, 145 Conn. 625, 630, 145 A.2d 738 (1958); see also R. Fuller, supra, § 46.3, pp. 417-18. Presumably, our courts have allowed zoning boards and administrative agencies some latitude with respect to such defects so as to avoid the harsh consequences of a jurisdictional defect, which permits a disappointed litigant to question a zoning board decision long after board proceedings have concluded, even if no appeal was taken. See Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 101, 616 A.2d 793 (1992); Moscowitz v. Planning & Zoning Commission, 16 Conn. App. 303, 313, 547 A.2d 569 (1988).

The plaintiffs maintain that the absence of a reference to §§ 14-54 and 14-55 was misleading because it did not inform the general public “of the nature and character of the proposed action and the standards for the relief sought.” These standards require a consideration of matters such as proximity to schools, churches and theaters, and effect on public travel. Because a notice need not include a detailed statement of the issues that are relevant to an application for site plan approval, we conclude that the notice was legally sufficient. See Welles v. East Windsor, supra, 185 Conn. 558-59; R.B. Kent & Son, Inc. v. Planning Commission, 21 Conn. App. 370, 378, 573 A.2d 760 (1990). To the extent to which the plaintiffs object to the notice’s references to the Fairfield zoning regulations, we disagree with that objection as well. It was appropriate to advise the public of the regulations that would govern the defendants’ application for a special exception.

The plaintiffs further claim that the notice was misleading because of clerical errors in the defendants’ application for site approval. The plaintiffs do not allege that these errors in fact confused anyone. We know of no authority for the proposition that a notice is defective because of inaccuracies in another document to which the notice refers.

The plaintiffs’ last claim is that the prehearing notice must have been misleading because the zoning board granted the defendants’ application for an improper reason. It denominated its action as the grant of a variance rather than the grant of special exception. For notice purposes, this clerical error is irrelevant. The plaintiffs have not explained how the general public to whom a prehearing notice is addressed could have been misled by a posthearing action by the board.

For the reasons stated, we conclude that the plaintiffs have not sustained their burden of showing that the prehearing notice issued by the zoning board was so misleading that it deprived the general public of an opportunity to consider whether to participate in the board’s public hearing. The board had ample authority to act on the defendants’ application for approval of the proposed location of their automobile dealership.

Ill

PUBLISHED NOTICE OF DECISION

The plaintiffs also claim that the decision of the zoning board cannot be sustained because of defects in the notice that, in accordance with § 14-55, was published after the hearing. Like a prehearing notice, a posthearing notice must comply with statutory requirements to publish notice of its decision within the prescribed time period. Failure to meet these threshold requirements is a jurisdictional defect. Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 388, 311 A.2d 77 (1972); see also R. Fuller, supra, § 34.2, p. 195, § 41.8, p. 315. The plaintiffs do not argue that the notice was jurisdictionally defective.

The plaintiffs do challenge the contents of the post-hearing notice. The test for the merits of a claimed defect in the contents of a posthearing notice is straightforward. The question is whether the notice adequately informed a reader of the action taken by the board or agency. “In reviewing the adequacy of the notice of decision employed here, we are mindful of the purpose such notice is meant to serve. The right of appeal, if it is to have any value, must necessarily contemplate that the person who is to exercise the right be given the opportunity of knowing that there is a decision to appeal from and of forming an opinion as to whether that decision presents an appealable issue. Until the prospective appellant has either actual or constructive notice that a decision has been reached, the right of appeal is meaningless.” (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 281-82, 487 A.2d 559 (1985); see also R. Fuller, supra, § 46.5, p. 423. Employing this standard, we conclude that the notice in this case was adequate.

According to the plaintiffs, the notice of decision was defective because it failed to mention (1) the activity for which the application had been filed or (2) the statutory authority under which the petition had been granted. They acknowledge, however, that they had constructive notice of the information contained in the prehearing notice, which contained the relevant facts. See Jarvis Acres, Inc. v. Zoning Commission, supra, 163 Conn. 47. Nonetheless, in their view, reference to that earlier notice did not cure the defect. Why not? The plaintiffs argue, once again, that the prehearing notice was defective because it was misleading.

The plaintiffs’ argument hinges, therefore, on the claimed inadequacy of the prehearing notice. We have already rejected that claim in part II. Accordingly, we conclude that the notice of decision adequately informed the plaintiffs about the issues that they could pursue on appeal.

IV

FAIRFIELD ZONING REGULATIONS

The plaintiffs also argue that the defendants were not entitled to approval of their proposed location because their planned usage of the site, even though it complied with § 27.1 of the Fairfield zoning regulations, did not comply with the requirements of § 21.4 of the Fairfield zoning regulations. The latter section provides in relevant part that “[t]he outside storage ... of merchandise, supplies, machinery and refuse . . . shall be limited to an aggregate area not to exceed ten (10) percent of the area of the lot . . . .” The parties have stipulated that the defendants intend an outdoor display of cars that will exceed 10 percent of their lot.

The defendants argue that this regulation is inapplicable because § 27.4.8 lists automobile dealerships as one of the permissible uses of property in a designed industrial district. The trial court found this argument persuasive and so do we.

The trial court emphasized the text of subsection 27.4.8, which states the conditions under which site approval in the form of a special exception may be granted for “establishments for the sale or rental of new and used automobiles . . . .” One of those conditions is that “outside storage and display of vehicles” must conform with setback requirements in designed business districts. Section 27 imposes no other relevant conditions.

The plaintiffs do not take issue with this description of § 27.4. They concede that an automobile dealership is a permitted use at 351 Commerce Drive. They argue, however, that the court misread § 27.1, which states that an applicant for a special exception must comply not only with § 27 but also with “all other requirements applicable to the district in which the Special Exception use is located.” In the plaintiffs’ view, § 21.4 states one of these “other requirements.” It is common ground that, if § 21.4 applies, the zoning board should have denied the defendants’ application for a special exception.

In our view, the proper resolution of the relationship between §§ 27 and 21.4 turns on whether § 21.4 applies to an automobile dealership. The plaintiffs acknowledge that, for present purposes, § 21.4 applies only if automobiles are “merchandise.” It is not intuitively obvious that automobiles are a good fit for “merchandise,” especially when automobiles are compared to the other items listed in the section.

Furthermore, the plaintiffs’ argument overlooks the significance of the fact that § 27 demonstrates that the drafters of the Fairfield zoning regulations knew how to address directly the concerns raised by outdoor storage of automobiles. The fact that § 27 deals with outdoor storage by requiring setbacks rather than by imposing outright limitations on such storage does not persuade us to the contrary. Fairfield had the authority to write zoning regulations as it thought best.

We hold, therefore, that the specific inclusion of automobile dealerships in § 27 indicates that § 21.4 was not intended to include automobiles within the term “merchandise.” “It is a well-settled principle of [statutory] construction that specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling.” (Internal quotation marks omitted.) Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 346, 680 A.2d 1261 (1996); see also Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn. App. 342, 351, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002).

In sum, we conclude that the zoning board properly construed and applied the Fairfield zoning regulations applicable to this case. The defendants were entitled to a special exception without regard to the restrictions contained in § 21.4 of the regulations.

V

SUFFICIENCY OF THE EVIDENCE

Finally, we must determine whether the record of the proceedings before the zoning board demonstrates that the board had sufficient evidence to sustain its approval of the defendants’ proposed location. Our review of the evidence is governed by § 4-183 (j) (5) of the Uniform Administrative Procedure Act. Although § 14-45 of the General Statutes requires local zoning boards to decide the suitability of the location of an automobile dealership, under this statute a zoning board acts as an administrative agency. See Mason v. Board of Zoning Appeals, 143 Conn. 634, 637, 124 A.2d 920 (1956); see also New Haven College, Inc. v. Zoning Board of Appeals, 154 Conn. 540, 542, 227 A.2d 427 (1967).

General Statutes § 4-183 (j) defines the scope of judicial review of an administrative agency’s action. A court “shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . clearly erroneous in view of the rehable, probative, and substantial evidence on the whole record . . . .” Our courts have termed this the substantial evidence rule. “Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review. . . . The burden is on the [plaintiffs] to demonstrate that the [zoning board’s] factual conclusions were not supported by the weight of substantial evidence on the whole record.” (Internal quotation marks omitted.) MacDemnid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 137, 778 A.2d 7 (2001); see also Elf v. Dept. of Public Health, 66 Conn. App. 410, 417-19, 784 A.2d 979 (2001).

In this appeal, the plaintiffs fault the decision of the zoning board on the ground that the zoning board failed to assign sufficient weight to the negative evidence presented by their expert traffic consultant about traffic conditions on Commerce Drive. That expert testimony was particularly trustworthy, according to the plaintiffs, because it relied in part on a Fairfield traffic study, conducted several years earlier, that urged widening of Commerce Drive to correct undesirable road conditions. We disagree.

As the defendants point out, much of the plaintiffs’ evidence was directed to traffic concerns with respect to Commerce Drive in general rather than to 351 Commerce Drive in particular. This lack of specificity diminished the significance of the testimony of the plaintiffs’ expert witness, Herbert Levinson. Although Levinson apparently was well versed in an industry treatise describing traffic problems, he had had only minimal contact with the actual site. He had explored the site for no more than one hour in a visit that he himself characterized as “a very quick, cursory series of observations.” He had not reviewed the defendants’ building plans, nor had he any awareness of the prior use of the property. He based his concern about an exacerbated risk of automobile accidents only on his own intuition. The zoning board was entitled to find this expert evidence unpersuasive.

Furthermore, the plaintiffs’ appellate emphasis on traffic concerns fails to take account of the testimony of the plaintiff Mark A. Greenawalt before the zoning board. Mark A. Greenawalt can fairly be assumed to have spoken for all the plaintiffs. His opposition to the proposed location of the dealership was based not on traffic congestion but on possible devaluation of his own abutting property, which was used for industrial purposes. He stated that he would not have opposed the defendants’ use of 351 Commerce Drive if they had intended to build an industrial building, such as a trucking terminal, rather than an automobile dealership. Because automobile dealerships are a permitted use in an industrial zone, his position was untenable. Nonetheless, the zoning board reasonably might have understood his testimony as casting doubt on the significance of the traffic concerns about which the plaintiffs’ expert witness had opined.

The plaintiffs maintain that, even if their opposition to the proposed location was unpersuasive, it was still the defendants’ responsibility to establish their entitlement to a special exception. That is not so. “The burden is on the [plaintiffs] to demonstrate that the [zoning board’s] factual conclusions were not supported by the weight of substantial evidence on the whole record.” (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, supra, 257 Conn. 137.

In any case, the zoning board had a substantial basis of fact for its decision. In addition to the fact that an automobile dealership was permissible at 351 Commerce Drive, the record shows that the dealership would improve traffic conditions at that location because a dealership would generate less traffic than that associated with the prior user, a truck trailer depot. The plaintiff Mark A. Greenawalt testified that the depot routinely had unloaded a significant number of vehicles from tractor trailers in a manner that obstructed entrance to and exit from his own property. By contrast, the defendants agreed that no tractor trailers would unload vehicles at their dealership. In addition, the defendants’ proposed building plan indicated that the site would be used in a manner designed to minimize the risk of traffic congestion on Commerce Drive. Finally, the board might have taken account of the willingness of the defendants to accept a certificate of approval with conditions designed to mitigate some of the concerns raised by the plaintiffs.

In addition to the extrinsic evidence presented to the zoning board, its members were entitled to take into account their personal knowledge of traffic conditions at and near 251 Commerce Drive. Zoning boards may rely upon their own knowledge in reaching decisions about matters such as traffic congestion and street safety. Feinson v. Conservation Commission, 180 Conn. 421, 427, 429 A.2d 910 (1980); Welch v. Zoning Board of Appeals, 158 Conn. 208, 213-14, 257 A.2d 795 (1969). Although the plaintiffs now take issue with this proposition, at the public hearing their counsel addressed the board with reference to “the location, you’ve all been out there.” It is disingenuous now to argue to the contrary.

Taken as a whole, the record before the zoning board contained substantial evidence to sustain its decision to approve the location of the defendants’ automobile dealership evidence. Sections 14-54 and 14-55 require nothing more.

The judgment is reversed only as to the remand to the defendant zoning board, and the case is remanded to the trial court with direction to render a judgment in favor of the defendants.

In this opinion the other judges concurred.

         General Statutes § 14-54 provides in relevant part: “Location to be approved by local authority. Any person who desires to obtain a license for dealing in or repairing motor vehicles shall first obtain and present to the commissioner a certificate of approval of the location for which such license is desired from the selectmen or town manager of the town, the mayor of the city or the warden of the borough, wherein the business is located or is proposed to be located, except in any city or town having a zoning commission and a board of appeals, in which case such certificate shall be obtained from the board of appeals. . . .”

       General Statutes § 14-55 provides in relevant part that “[t]he reasons for granting or denying such application shall be stated by the board or official.”

       For the sake of convenience, we will refer to the individual defendants as the defendants and to the zoning board of appeals as the zoning board.

       Section 27.1 of the Fairfield zoning regulations provides: “The Commission may grant a Special Exception for the establishment of a use designated as a Special Exception use in these Zoning Regulations in accordance with these Special Exception Regulations, and provided that, in the case of the Designed Business Districts and the Designed Industrial District, the requirements of Sect. 25.0 of the Zoning Regulations, wherever applicable, have also been met. All requirements of this section are in addition to all other requirements applicable to the district in which the Special Exception use is located.”

       Except for the Mohican Valley Concrete Corporation, all of the plaintiffs are members of the Greenawalt family. They own a parcel of property that abuts the property that was to be used for the proposed automobile dealership. Mohican Valley Concrete Corporation is their long-term tenant. Mark A. Greenawalt was the only member of the family who spoke at the zoning board public hearing.

       Although the plaintiffs’ appeal challenges the decision of a local zoning board, their appeal is governed not by General Statutes § 8-8, but by General Statutes § 14-57. The latter statute incorporates the rules contained in General Statutes § 4-183 of the Uniform Administrative Procedure Act.

       After a subsequent hearing before the Fairfield plan and zoning commission, the defendants also agreed that “1. There shall be no unloading of cars in the right of way of Commerce Drive. 2. There shall be no vehicles displayed in front of the building. 3. Curbs and sidewalks are required per recommendations of the Engineering Department. 4. Plans for site fencing shall be submitted to the Commission.”

       The zoning board, in timely fashion, published the following:
      “ZONING BOARD OF APPEALS NOTICE OF PUBLIC HEARING
      SEPTEMBER 3, 1998
      “The Zoning Board of Appeals, under the Zoning Regulations of the Town of Fairfield will hear the following appeals in Meeting Room 1, Independence Hall, 725 Old Post Road, September 3, 1998 at 3:00 p.m. Executive Session follows public hearing. . . . 98-9-137 14. 251 Commerce Drive. Map 80 Parcel 19. Petition of Geza Scap and Julie Scap for an approval of new and used car location in accordance with Sections 21.3.1 and 27.4.8 of the Zoning Regulations. Permission to establish new automobile dealership. Premises: Designed Industrial District.”

       Although the plaintiffs have argued the relevance of § 21.4 of the Fairfield zoning regulations, they have not taken the position that the notice was defective for failure to refer to that regulation.

       Because of its remand order, the trial court dismissed this claim as moot. Having concluded that the remand order was improper, we address the plaintiffs’ claim on its merits.

       The zoning board published the following notice:
      “NOTICE OF DECISION
      “On September 3, 1998, the Zoning Board of Appeals voted to GRANT WITH CONDITIONS, your application for variance (sic) pertaining to application of Geza Scap and Julie Scap
      Site address: 251 Commerce Drive Mailing address: do John Fallon, Esq.,
      1305 Post Road, Fairfield, CT 06430 Case No.: 98-9-137. . . .
      “Conditions of Approval: ... 1. No tractor trailer inventory on site. All employee parking to be on site.”

       See footnote 4 for the text of § 27.1 of the Fairfield zoning regulations.

       Section 21,4 of the Fairfield zoning regulations provides: “The outside storage or display of merchandise, supplies, machinery and refuse and/or the outside manufacture, processing or assembling of goods shall be limited to an aggregate area not to exceed ten (10) percent of the area of the lot. Any area used for outside storage or display and/or outside manufacture, processing or assembling of goods shall be appropriately screened from streets and adjoining property in such a manner as to conceal the foregoing materials from view to a height of five (5) feet with fences, walls or embankments in combination with other landscaping or shall be provided with evergreen shrubs and/or trees planted to grow so as to accomplish such screening within one (1) year. The Commission at the time of approval of a Special Permit as provided in Section 25.0 of the Zoning Regulations may adjust the aforesaid landscape requirements to particular circumstances of lot lines, topography, soil conditions and site design, while preserving the purpose and intent of the Zoning Regulations. This provision shall not apply to areas used for parking of registered motor vehicles in daily use.”

       According to § 27.4.8 of the Fairfield zoning regulations, an establishment for the sale or rental of new and used automobiles must conform to the setback requirements of the Center Designed Business District.

       Another condition states requirements for ingress and egress. No one has suggested that the defendants’ proposed use of the property fails to satisfy these conditions.

       See footnote 13.

       Our discussion is equally dispositive of the plaintiffs’ claim that the defendants were obligated to comply with the screening requirements contained in § 21.4.

       See footnote 5.


author: DRANGINIS, J.

text:
    JEROME G. TERRACINO ET AL. v. FAIRWAY ASSET MANAGEMENT, INC.
    (AC 21888)
    Schaller, Dranginis and Bishop, Js.

      Argued October 15, 2002
    officially released February 11, 2003

      Michael S. Lynch, for the appellants (plaintiffs).

      Michael J. Mannion, for the appellee (defendant).
   Opinion

DRANGINIS, J.

The plaintiffs, Jerome G. Terracino and Guardian Systems, Inc. (Guardian), appeal from the judgment of the trial court denying their petition for a new trial, filed pursuant to General Statutes § 52-270, on the ground of newly discovered evidence. On appeal, the plaintiffs claim that the court improperly (1) concluded that they failed to exercise due diligence in their efforts to discover the new evidence prior to trial and (2) found that it was not likely that the newly discovered evidence, if presented during a new trial, would have led the court to reach a different result in the matter. We affirm the judgment of the trial court.

This appeal arises out of the plaintiffs’ prior appeal to this court in Federal Deposit Ins. Corp. v. Mutual Communications Associates, Inc., 66 Conn. App. 397, 784 A.2d 970, cert. granted, 258 Conn. 949, 788 A.2d 98

(2001) (argued January 13, 2003). The plaintiffs in the present case were two of five defendants in Federal Deposit Ins. Corp.

The relevant background facts are set out in Federal Deposit Ins. Corp. v. Mutual Communications Associates, Inc., supra, 66 Conn. App. 397, as follows. “On July 19,1991, Mutual [Communications Associates, Inc. (Mutual) ] entered into a loan agreement with Brookfield Bank (Brookfield) to borrow $270,000. Mutual, through two of its corporate officers, [Richard T.] DeMarsico and Terracino, signed a promissory note for the loan amount. Mutual secured the debt by a mortgage on one of its properties. DeMarsico, Terracino and [Robert] Rossman, another corporate officer, signed personal guarantees as well. Terracino and Rossman signed an additional guarantee as principals and officers of Guardian, an alarm company in which they were the only shareholders.

“On May 8, 1992, the Federal Deposit Insurance Corporation (FDIC) took possession of Brookfield’s assets, including the promissory note, mortgage and guarantees. At about the same time, Mutual defaulted on the loan. On or about November 30, 1994, the FDIC commenced a foreclosure action against Mutual and the other defendants. A judgment of foreclosure by sale was rendered on December 16, 1996.

“Thereafter, the judgment was opened and a judgment of strict foreclosure was rendered with law days commencing March 25, 1997. Prior to the judgment of strict foreclosure, JLM Services Corporation (JLM) succeeded the FDIC as plaintiff, and title vested in JLM when Mutual failed to redeem its equity within the set law days. JLM filed a motion for a deficiency judgment on April 1, 1997.” Id., 399.

While JLM’s motion was pending, relations between guarantors Terracino and Rossman deteriorated, as the two became embroiled in various business disputes. Also, during that time, Rossman allegedly asked his friend and attorney, Andrew Buzzi, Jr., to attempt to purchase the note, guarantees and deficiency claim from JLM on his behalf. JLM eventually sold the note, guarantees and deficiency claim to “Andrew J. Buzzi, Jr., Trustee” for $30,000. Buzzi, in turn, assigned the note, guarantees and deficiency claim to Consolidated Asset Management, LLC (Consolidated), a limited liability company that he had formed with Rossman’s wife, Catherine Rossman. “Thereafter, Consolidated assigned the note, guarantees and deficiency claim to Fairway Asset Management, Inc. (Fairway), [which became] the substituted plaintiff and judgment creditor.” Id., 400.

“The defendants filed three special defenses, a cross complaint and a counterclaim in response to the motion for a deficiency judgment. The special defenses, as amended, alleged facts that occurred subsequent to the judgment of strict foreclosure. The defendants claimed that Rossman breached the fiduciary duty that he owed them because of his role in assigning the note to Consolidated .... The counterclaim and cross complaint . . . requested a judgment that Fairway and its predecessors could enforce the note only to claim a proportionate contribution toward funds actually paid on behalf of Rossman for the note, or a judgment declaring the note null and void.” Id. At trial, Buzzi testified that he did not purchase the note on behalf of Rossman. He testified, instead, that he had purchased the note on behalf of Consolidated.

“The court granted the motion for a deficiency judgment. It rejected the third special defense and concluded that there was insufficient evidence to find that either Buzzi or Catherine Rossman acted as Rossman’s agent [in purchasing the note from JLM], and, therefore, there was no need to address the defendants’ other claims premised on a theory of agency. The court also concluded that the defendants had not met their burden of proof on the counterclaim and cross claim.” Id. On or about January 28, 2000, the court rendered judgment for the substitute plaintiff, Fairway, in the amount of $324,631.08, plus attorney’s fees. Thereafter, Terracino and Guardian appealed to this court from that judgment. This court, with Chief Judge William J. Lavery dissenting, affirmed the judgment of the trial court. Id., 406.

While the appeal in Federal Deposit Ins. Corp. was pending, the plaintiffs, Terracino and Guardian, filed the present petition for a new trial on the ground that they had discovered new evidence that likely would have produced a different result had it been presented to the court during the trial. That new evidence consisted of three pieces of correspondence, which, some four months after judgment had entered in the original action, counsel for the plaintiffs received from the law firm that had represented JLM in conjunction with its sale of the note, guarantees and deficiency claim to Buzzi. In their petition, the plaintiffs claimed that the new evidence demonstrated that JLM had accepted Rossman’s offer to purchase the note and, therefore, the defenses that the plaintiffs raised in the original trial were applicable. They also claimed that Buzzi, Rossman and Rossman’s wife, Catherine Rossman, prevented them from discovering that correspondence before or during the trial, and that the correspondence demonstrated that Buzzi and the Rossmans testified falsely at trial that Buzzi had not purchased the note, guarantees and deficiency claim from JLM on behalf of Rossman. Finally, the plaintiffs claimed that the testimony of Buzzi and the Rossmans was intended to mislead the court and to prevent the plaintiffs from fairly presenting their defenses to Fairway’s claims.

In a memorandum of decision filed March 8, 2001, the court denied the plaintiffs’ petition for a new trial. It concluded that although the evidence presented by the plaintiffs had, in fact, been newly discovered and would be material to the issue of whether Buzzi had purchased the note on behalf of Rossman, the plaintiffs failed to demonstrate that they had exercised due diligence in their efforts to discover that evidence prior to trial. The court further concluded that the plaintiffs also failed to establish that had the newly discovered evidence been produced at the trial, it likely would have produced a different result. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiffs first claim that the court improperly concluded that they had failed to exercise due diligence in their efforts to discover the new evidence prior to the 1999 trial. The plaintiffs advance two arguments in support of their claim. First, they argue that the court improperly applied a legal standard of due diligence to the conduct of the plaintiffs’ counsel, which was greater than that required by law. Second, they argue that the court improperly determined that the plaintiffs’ counsel failed to exercise due diligence in conducting pretrial discovery, particularly in failing to discover the three pieces of correspondence relating to JLM’s sale of the note, guarantees and deficiency claim to Buzzi. We address each of those arguments in turn.

The following additional facts are relevant to our analysis of the plaintiffs’ due diligence claim. During the fall of 1997, in preparation for the original trial, attorney A. Reynolds Gordon, counsel for the plaintiffs, issued two subpoenas and deposition notices, both of which were directed at Buzzi. One notice was directed at Buzzi in his individual capacity, and the other notice was directed at Buzzi as the representative of Consolidated, the limited liability company he had formed with Catherine Rossman. The subpoena directed at Buzzi in his individual capacity directed him to bring to the deposition his files and records relating to the purchase and negotiations to purchase, sell or enforce the note that was the subject of the foreclosure action. The subpoena directed at Consolidated compelled Buzzi to bring to the deposition all files and records relating to the negotiations, purchase, sale or enforcement of the note. Consolidated was represented at the deposition by attorney Gerald Hecht.

Although Buzzi brought all of the applicable documentation with him to the deposition, he refused to allow Gordon to review the files in their entirety at that time. Buzzi claimed that some of the documentation in the files was protected by an attorney-client privilege and stated that he was not about to give the plaintiffs’ counsel “carte blanche” to peruse his client’s files. Accordingly, Gordon, Buzzi and Hecht came to an agreement regarding the production of the documentation contained in Buzzi’s files, which was as follows. Buzzi’s files were spread out on Gordon’s conference table. In response to questions posed by Gordon to Buzzi, either Hecht or Buzzi would remove the applicable correspondence from the files and hand it to Gordon.

During the course of the deposition, Gordon asked Buzzi about his communications with attorney Darcy Kochiss Ellis, the attorney who had represented JLM in conjunction with its sale of the note. In response, Buzzi thumbed through one of the files and produced a letter dated June 4, 1997, which he indicated was the first communication he had with Ellis regarding the sale of the note. Thereafter, the following colloquy took place between Gordon and Buzzi:

“[Gordon]: Is there more correspondence in negotiations with attorney Ellis other than the first letter?

“[Buzzi]: Yeah, there is.

“[Gordon]: Do you want to pull that out, please. Can I peek at the ones you have pulled out just to save us a minute.

“[Buzzi]: Just give me a minute.

“[Gordon]: Sure.”

Buzzi looked through his file and handed a group of letters, all of which contained various June, 1997 dates, to Gordon. None of those letters indicated that Buzzi had purchased the note, guarantees and deficiency claim on behalf of Rossman. Gordon marked the group of letters as exhibit four.

The colloquy then continued as follows:

“[Gordon]: Showing the witness exhibit four for identification, do these represent correspondence between you and Darcy Ellis representing JLM in the spring and summer of 1997?

“[Buzzi]: Yes.”

Gordon did not further pursue that line of questioning. He also did not ask Buzzi if he had any additional documentation relating to the sale of the note.

Buzzi also was subpoenaed to testify at trial concerning his negotiations with Ellis. That subpoena directed him to bring to court the files containing the correspondence relating to the note. Buzzi brought the applicable files, which contained all of the relevant correspondence, including the correspondence at issue here. The parties agreed at trial to employ a procedure for the production of file documentation that was similar to the procedure employed at the deposition, whereby Gordon would ask questions and, in response, Buzzi would produce for Gordon the applicable documentation. Although Buzzi testified at trial regarding his role in purchasing the note from JLM, Gordon never asked Buzzi if he had given Gordon all of the correspondence that he, Buzzi, had in his files relating to the sale and purchase of the note, and Buzzi never volunteered that he had any additional correspondence. Gordon never contacted or deposed Ellis, nor did he subpoena her at trial.

Sometime after judgment entered in favor of Fairway in the original trial, at the urging of the plaintiffs, Gordon contacted the law firm where Ellis had worked at the time JLM sold the note to Buzzi. In May, 2000, Gordon learned from a representative of that firm that there were three additional pieces of correspondence relating to JLM’s sale of the note, which Gordon had never received from Buzzi.

At the hearing on the plaintiffs’ petition, those three pieces of correspondence were introduced and marked as exhibits one, two and three. The piece of correspondence marked exhibit one is a July 2, 1997 letter from Ellis to Buzzi, which seems to indicate that JLM may have accepted the last offer made by Buzzi on behalf of his friend and client, Robert Rossman.

Additionally, at the petition hearing, Gordon conceded that he had begun discovery in the fall of 1997, in preparation for the 1999 trial, and, therefore, he had plenty of time to contact the law firm where Ellis had worked before the trial in the underlying action had begun. He explained that he did not contact that law firm because, although he initially suspected that Buzzi had purchased the note on behalf of Robert Rossman, none of the documentation Buzzi surrendered at the deposition indicated as much. He further explained that he trusted that Buzzi, a member of the bar, would have already provided him with all of the applicable correspondence at the time of the deposition and that he had no reason to doubt that Buzzi had not done so.

“Our standard of review of a court’s decision with respect to a petition for a new trial is the abuse of discretion standard. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Citation omitted; internal quotation marks omitted.) Fitzpatrick v. Hall-Brooke Foundation, Inc., 72 Conn. App. 692, 697, 807 A.2d 480, cert. denied, 262 Conn. 914, 811 A.2d 1291 (2002).

A petition for a new trial is governed by § 52-270 (a), which provides in relevant part: “The Superior Court may grant a new trial of any action that may come before it, for . . . the discovery of new evidence . . . .” “The standard that governs the granting of a petition for a new trial based on newly discovered evidence is well established. The petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence-, (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial.” (Emphasis added; internal quotation marks omitted.) Fisher v. State, 33 Conn. App. 122, 124, 634 A.2d 1177 (1993); see also Kubeck v. Foremost Foods Co., 190 Conn. 667, 670, 461 A.2d 1380 (1983). Proof that the petitioner exercised due diligence to discover the evidence prior to trial is a condition precedent to successfully prosecuting a petition for a new trial under § 52-270. Fitzpatrick v. Hall-Brooke Foundation, Inc., supra, 72 Conn. App. 698; Ginsburg v. Cadle Co., 61 Conn. App. 388, 392, 764 A.2d 210, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001); Jacobs v. Fazzano, 59 Conn. App. 716, 724, 757 A.2d 1215 (2000).

A

The plaintiffs first contend that the court improperly applied a legal standard of due diligence to the conduct of the plaintiffs’ counsel, which was greater than that required by law. In support of their claim, they argue that the court improperly failed to balance the equities involved in making a determination regarding due diligence because, although the court considered Gordon’s obligation to discover the evidence prior to trial, it refused to consider Buzzi’s obligation, as an attorney and officer of the court, to advise Gordon that he had not received all of the correspondence relating to the sale of the note. In other words, the plaintiffs argue that as a matter of law, the court improperly placed the burden of proving due diligence solely on them rather than distributing that burden between Gordon and Buzzi because both had obligations regarding the evidence at issue. Because that issue presents a question of law, it is subject to plenary appellate review. See Feldman v. Sebastian, 261 Conn. 721, 725, 805 A.2d 713 (2002).

Contrary to the plaintiffs’ argument, we conclude that the court did not hold the plaintiffs’ counsel to a legal standard of due diligence that was greater than that required by law. The plaintiffs’ argument that an appropriate determination of due diligence required consideration of the fact that Buzzi never indicated to Gordon that he had additional correspondence “totally overlooks the requisite that the party seeking the new trial and not the other party or his attorney in the underlying action, is required to exercise due diligence as a condition precedent to obtaining relief under § 52-270.” (Emphasis added.) Jacobs v. Fazzano, supra, 59 Conn. App. 725. In a hearing on a petition for a new trial, “[t]he burden of showing due diligence [rests] solely and throughout on the plaintiff.” Id., 727.

The plaintiffs are quick to point out that a petition for a new trial is equitable in nature; see State v. Grimes, 154 Conn. 314, 325, 228 A.2d 141 (1966); Labow v. Labow, 69 Conn. App. 760, 765, 796 A.2d 592, cert. denied, 261 Conn. 903, 802 A.2d 853 (2002); and that in this case, equity demands that the plaintiffs be granted a new trial because Buzzi was less than forthcoming with the relevant evidence. They fail, however, to point out that as an initial matter, “[h]e who seeks equity must do equity . . . .” (Internal quotation marks omitted.) Jacobs v. Fazzano, supra, 59 Conn. App. 730, citing 2 J. Pomeroy, Equity Jurisprudence (5th Ed. 1941) § 385 et seq.

In this case, the equity to be done by the plaintiffs before the court was required to consider the equities involved in their petition was that they demonstrate that they had exercised due diligence, meaning that they did all that was reasonable to discover the “new evidence” prior to trial. See Jacobs v. Fazzano, supra, 59 Conn. App. 725. It was not until the plaintiffs met that burden that the court was authorized to exercise its authority under § 52-270 to consider the equitable remedy sought by the plaintiffs, namely a new trial. See id., 722-24.

Whether the plaintiffs fulfilled their obligation to do all that was reasonable to discover the evidence prior to trial is not to be informed by Buzzi’s conduct. See id., 730-31. It is the conduct of the plaintiffs that is “subject to scrutiny, since he who claims equity must do equity.” (Internal quotation marks omitted.) Id., 732. The plaintiffs here attempt to shift to the defendants their burden of proving that they exercised due diligence to discover the evidence by claiming that Buzzi failed to advise Gordon that additional evidence existed. The plaintiffs’ attempt to do so demonstrates their failure to recognize that due diligence is always the petitioner’s burden and is not to be shared with the opposing party. See id., 725-26. Accordingly, we conclude that the court required no more of the plaintiffs than the law already requires, namely that it is solely the plaintiffs’ burden to prove that they exercised due diligence to discover the evidence prior to trial, which is in accordance with § 52-270 and the applicable case law. See Fitzpatrick v. Hall-Brooke Foundation, Inc., supra, 72 Conn. App. 698; Ginsburg v. Cadle Co., supra, 61 Conn. App. 392; Jacobs v. Fazzano, supra, 59 Conn. App. 724.

B

The plaintiffs next contend that the court improperly found that Gordon’s failure to discover the three pieces of correspondence prior to trial was due to a lack of due diligence rather than to Buzzi’s failure to produce the correspondence. They claim that the court should have found that Gordon’s failure to discover the correspondence was due solely to Buzzi’s attempts to conceal it, both at the deposition and at trial, and not due to any lack of diligence on Gordon’s part and, therefore, that their petition should have been granted. We disagree.

The plaintiffs challenge the court’s factual finding regarding due diligence. “A factual finding may be rejected by this court only if it is clearly erroneous.” (Internal quotation marks omitted.) Jucker v. Jucker, 190 Conn. 674, 679, 461 A.2d 1384 (1983). “Due diligence does not require omniscience. Due diligence means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) Jacobs v. Fazzano, supra, 59 Conn. App. 725. “[T]o entitle a party to a new trial for newly-discovered evidence, it is indispensable that he should have been diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted.” (Internal quotation marks omitted.) Ginsburg v. Cadle Co., supra, 61 Conn. App. 392.

The plaintiffs contend that they did everything reasonable to discover the new evidence prior to trial because they deposed Buzzi and, at the deposition, asked him for correspondence relating to the sale of the note, but that Buzzi simply failed to turn over all of the relevant correspondence. They maintain that on the basis of those facts, the court should have found that they satisfied the requirement of due diligence because it was reasonable for Gordon to rely on Buzzi’s responses to Gordon’s requests for documentation. They claim that it was reasonable for Gordon to do so because Buzzi is a member of the bar and is under a duty not to engage in conduct involving misrepresentation. See Rules of Professional Conduct 8.4 (3). In the context of the facts presented here, we disagree that the court’s finding that relying on Buzzi’s responses alone did not satisfy the plaintiffs’ burden of doing “everything reasonable” to discover the evidence was clearly erroneous.

As the court noted, although Buzzi was not a party or counsel in the original action, he had represented persons or entities that had been involved in the transaction that was documented in his files. Accordingly, Buzzi was not a fully objective witness. The court also noted that at the deposition, after Buzzi had produced a number of letters relating to JLM’s sale of the note to Buzzi, Gordon never asked Buzzi to review his files to determine if he had surrendered all of the applicable correspondence. In so noting, the court did not, as the plaintiffs claim, impose on Gordon, the plaintiffs’ counsel, some legal duty to distrust another member of the bar. We conclude, instead, that the court simply recognized that Buzzi, although he is an attorney, is as capable as any other human being of misunderstanding a question that has been posed to him or of overlooking some relevant piece of documentation. Furthermore, at trial, Gordon had a second opportunity to ask Buzzi whether he had reviewed his files for any additional correspondence or whether he had given Gordon all of the correspondence relating to the sale of the note. Gordon never asked. Finally, and importantly, the court noted that months after judgment had entered in the original trial, Gordon obtained exhibits one, two and three from a source other than Buzzi, the law firm where Ellis had worked at the time she had represented JLM. Gordon, himself, admitted that he could have contacted that law firm prior to trial. He did not do so.

“The question which must be answered [in making a determination regarding due diligence] is not what evidence might have been discovered, but rather what evidence would have been discovered by a reasonable plaintiff by persevering application, [and] untiring efforts in good earnest.” (Internal quotation marks omitted.) Kubeck v. Foremost Foods Co., supra, 190 Conn. 672. The plaintiffs in the present case can hardly argue that the underlying facts show that they employed “ ‘persevering application [and] untiring efforts’ id.; to discover the correspondence at issue. The court’s finding that they failed to satisfy the requirement of due diligence was, therefore, not clearly erroneous.

As previously stated, our standard of review of a court’s denial of a petition for a new trial is the abuse of discretion standard. Fitzpatrick v. Hall-Brooke Foundation, Inc., supra, 72 Conn. App. 697. “[I]n determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Jacobs v. Fazzano, supra, 59 Conn. App. 731. On the basis of our review of the record, we conclude that the court could have reasonably determined that the plaintiffs were not entitled to a new trial because they failed to meet their burden of establishing that they exercised due diligence to discover the evidence at issue prior to trial. The court, therefore, did not abuse its discretion in denying the plaintiffs’ petition for a new trial.

II

After concluding that the plaintiffs failed to exercise due diligence to discover the new evidence prior to trial, the court proceeded to analyze whether the newly discovered evidence would have led the court to reach a different conclusion if it were presented during a new trial. Because due diligence is a condition precedent to successfully prosecuting a petition for a new trial; Fitzpatrick v. Hall Brooke Foundation, Inc., supra, 72 Conn. App. 698; and because we have already concluded that the court correctly concluded that the plaintiffs failed to satisfy the due diligence requirement, we need not address whether the newly discovered evidence would have led the court to reach a different result in a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       Our Supreme Court granted certification from this court’s decision limited to the following issue: “Did the Appellate Court properly conclude that, under the applicable equitable principles, the plaintiff was entitled to the full amount of the deficiency judgment in this case?” Federal Deposit Ins. Corp. v. Mutual Communications Associates, Inc., 258 Conn. 949, 788 A.2d 98 (2001).
      We note at the outset that our Supreme Court’s grant of certification to appeal limited to the previously stated issue does not moot the present appeal, which concerns the trial court’s denial of the plaintiffs’ petition for a new trial. “[Ajlthough [a petition for a new trial] is collateral to the action in which a new trial is sought, it is by its nature a distinct proceeding.” (Internal quotation marks omitted.) Cadle Co. v. Ginsburg, 51 Conn. App. 392, 409 n.5, 721 A.2d 1246 (1998), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999). Accordingly, a petition for a new trial must be determined solely on its own issues and without regard to the questions raised by an appeal from the judgment in the original action. Dudley v. Hull, 105 Conn. 710, 714, 136 A. 575 (1927).

       In Federal Deposit Ins. Corp. v. Mutual Communications Associates, Inc., supra, 66 Conn. App. 397, the defendants at trial were Terracino, Guardian, Mutual Communications Associates, Inc., Richard T. DeMarsico and Robert Rossman. Terracino and Guardian were the only defendants to appeal from the judgment in that case, and they are the plaintiffs in the present case.

       See footnote 2.

       The defendants claim was as follows. The note was purchased on behalf of Rossman, who was a coguarantor. A coguarantor is not entitled to pursue a deficiency judgment against other coguarantors. A coguarantor may seek only contribution toward the funds expended to purchase the note. Fairway purchased the note from Rossman. Accordingly, Fairway only purchased what Rossman had, which was a right to seek contribution.

       In the underlying action, Hecht filed an appearance solely on behalf of Consolidated. He did not file an appearance on behalf of Buzzi in either Buzzi’s individual or representative capacities.

       Gordon stated in relevant part: “I’m going to mark as exhibit four for identification a group of letters between Mr. Buzzi and Darcy Ellis .... There are six letters in all. They are June 5, 1997, Buzzi to Ellis; June 5, 1997, Buzzi to Ellis; June 6,1997, Ellis to Buzzi; June 17,1997, Buzzi to Ellis; June 17, 1997, Ellis to Buzzi; June 24, 1997, Buzzi to Ellis. All of these are one page letters, and they are being marked as a group.”

       At the hearing on the petition, Buzzi testified that he had no recollection as to which documents he had shown to Gordon at the deposition or as to which documents he had discussed during his testimony at trial. Buzzi further testified that he was “surprised” to learn that the correspondence at issue here, exhibits one, two and three, were not on the list of exhibits compiled at the time of the deposition.

       At the hearing on the petition, Buzzi conceded that the correspondence at issue fell within the plaintiffs’ demands to produce documentation relating to the sale of the note.

       Exhibit one is a copy of a letter from Ellis to Buzzi, which, in the lower left comer, contains a signature line for “Robert Rossman” to acknowledge the terms of acceptance contained in the body of the letter. Exhibit two is identical to exhibit one, except that Robert Rossman’s name has been deleted from below the signature line and “Andrew J. Buzzi, Jr., Trustee,” has been inserted in its place. That letter bears Buzzi’s signature, as trustee. Exhibit three is a facsimile cover sheet from Buzzi to Ellis, which references the acceptance of the July 2, 1997 offer.

       The plaintiffs rely on the Rules of Professional Conduct in assigning the respective obligations of Gordon and Buzzi. The plaintiffs indicate that Gordon’s obligation is to be found in rule 1.3 of the Rules of Professional Conduct, which requires that “[a] lawyer shall act with reasonable diligence ... in representing a client.” They indicate that Buzzi’s obligation is to found in rule 8.4 (3), which provides that a lawyer must not “[e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . .”

       The plaintiffs seem to claim that Buzzi violated rule 8.4 (3) of the Rules of Professional Conduct in failing to provide them with all of the applicable correspondence and, as a result, that they are entitled to a new trial.

       This court does not condone the intentional withholding of evidence. We note, however, that the court made no finding as to whether Buzzi intentionally concealed any of the correspondence indicating that JIM may have accepted Buzzi’s offer on behalf of Rossman. The court also made no finding that either Buzzi or the Rossmans had testified falsely at trial. As a reviewing court, “we must be mindful of the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided.” (Internal quotation marks omitted.) In re James L., 55 Conn. App. 336, 345, 738 A.2d 749, cert. denied, 252 Conn. 907, 743 A.2d 618 (1999).
      Furthermore, even if the court had found that Buzzi had intentionally concealed that evidence, that finding alone would not relieve the plaintiffs of their burden to exercise due diligence to discover the evidence. Doing so would take the plaintiffs’ “obligation to exercise due diligence out of the calculus . . . .” Jacobs v. Fazzano, supra, 59 Conn. App. 731. Such a finding of intentional concealment would relate only to whether the correspondence “ ‘could not have been discovered earlier’ ”; (emphasis added) Fisher v. State, supra, 33 Conn. App. 124; despite the plaintiffs’ exercise of due diligence.