author: LAVERY, C. J.

text:
    COLLARD AND ROE, P.C. v. ARTHUR O. KLEIN ET AL. CHARLES D. ROCKWELL ET AL. v. ARTHUR O. KLEIN ET AL.
    (AC 21525)
    (AC 21526)
    Lavery, O. J., and Mihalakos and Flynn, Js.
    Argued March 19
    officially released October 1, 2002

      Arthur O. Klein, pro se, with whom was Diane L. Klein, pro se, the appellants (defendants).

      Aimee J. Wood, with whom, on the brief, was Edward P. McCreery III, for the appellee (plaintiff).

      Arthur O. Klein, pro se, with whom was Diane L. Klein, pro se, the appellants-appellees (named defendant et al.).

      Aimee J. Wood, with whom, on the brief, was Edward P. McCreery III, for the appellee-appellant (defendant Collard and Roe, P.C.).

      Richard E. Castiglioni, with whom, on the brief, was Merrie Hawley, for the appellee-appellants (defendant First American Title Insurance Company et al.).
   Opinion

LAVERY, C. J.

Arthur O. Klein and Diane L. Klein, the defendants in each of two related cases, one a fraudulent transfer action and the other an interpleader action, appeal from the judgments of the trial court. In the fraudulent transfer action, the court rendered judgment in accordance with the report of an attorney trial referee (referee) who recommended that damages be awarded to the plaintiff, Collard and Roe, P.C. (Collard and Roe), and that certain real estate transfers between the Kleins be set aside as fraudulent. On the basis of the judgment in the fraudulent transfer action, the court ordered the payout of funds deposited with the court to various defendants in the interpleader action. Collar'd and Roe is one of the defendants in the inter-pleader action and cross appeals from the judgment in that case. At oral argument, the parties were ordered to submit supplemental briefs addressing additional issues raised by this court. Because we agree with and find dispositive Arthur Klein’s and Diane Klein’s claim that they did not consent to have the fraudulent transfer case heard by a referee, we do not reach their remaining claims in that case, the claims and counterclaims in the interpleader action or the supplemental issues raised by this court. We reverse the judgments and remand the cases for new trials.

These appeals and cross appeals arise out of several complex and interrelated cases. The origin of the disputes lies in the short-lived merger of two law firms specializing in intellectual property law. Collard and Roe, a New York firm, and Klein & Vibber, P.C. (Klein & Vibber), a Connecticut firm in which the defendant Arthur Klein is a partner, merged in 1990. By the summer of 1991, however, the two firms parted ways following disputes over how certain fees and profits were to be divided between the firms. Collard and Roe subsequently filed an action against Klein & Vibber in a New York court, claiming misappropriation of approximately $70,000 in fees. Although Klein & Vibber initially appeared in the action and filed an answer and counterclaims, the firm failed to appear at trial and was defaulted. On February 28, 1997, Collard and Roe obtained a judgment against Klein & Vibber in the amount of $97,921, which included damages, interest and costs. Klein & Vibber unsuccessfully appealed from that judgment through the New York appellate system, and a final, conclusive judgment apparently was established.

Collard and Roe thereafter domesticated the New York judgment in Connecticut pursuant to the Uniform Enforcement of Foreign Judgments Act, General Statutes § 52-604 et seq. Having established a Connecticut judgment, Collard and Roe then filed an action to foreclose a judgment lien it had placed on Arthur Klein’s property at 391 North Main Street, Westport. Judgment of strict foreclosure was rendered in favor of Collard and Roe. Meanwhile, Arthur Klein quitclaimed to Diane Klein, who is his wife, his interest in 391 North Main Street and in other property at 7 Half Mile Common, Westport. Collard and Roe subsequently brought an action seeking to set aside those transfers as having been fraudulently made. The court referred the case to be heard by a referee, who recommended that judgment be rendered in favor of Collard and Roe. In a memorandum of decision dated December 12,2000, the trial court rendered judgment accepting the recommendations in the referee’s report and in AC 21525 the Kleins have appealed from that judgment.

While those proceedings were taking place, the Kleins entered into a contract to sell the 391 North Main Street property to Kirk Straight and Nicole Straight. Because of Collard and Roe’s judgment lien on the property, the Straights’ title insurance company, First American Title Company (First American), agreed to insure the title only on the condition that $150,000 of the sale proceeds be held in escrow. Pursuant to an agreement among all of the parties to these actions, Charles D. Rockwell and Michael A. Laux, who are the attorneys for the Straights and the Kleins, held the funds in escrow. The agreement further provided that the Kleins would indemnify First American for any loss, damages or attorney’s fees that it might incur as a result of any action on the judgment lien, and that they would take action to remove or release that lien. It provided further that if the Kleins failed to obtain removal or release of the lien, or if foreclosure thereon occurred, then First American could demand payout of the escrow funds to any claimant to release or to discharge the lien. Subsequently, when First American made such a demand, Rockwell and Laux did not comply.

Thereafter, because there were multiple claimants to the escrow funds, Rockwell and Laux brought the interpleader action and deposited the funds with the court for a determination of how they should be dispersed. See footnote 1. Relying on the referee’s findings in the fraudulent transfer action, the court, in a separate December 12, 2000 memorandum of decision, concluded that the funds should be dispersed as follows: (1) $10,000 to the Straights’ attorney; (2) $124,809.88 to Collard and Roe in satisfaction of its judgment lien, with interest continuing to accrue at a per diem rate of $19.58, provided that Collard and Roe withdraw its foreclosure action and its action to enforce the foreign judgment; and (3) the remaining balance to the Kleins. These appeals and cross appeal followed.

Among the numerous other claims they have raised on appeal, the Kleins argue that they never consented to have the fraudulent transfer action heard before a referee and, therefore, the court’s referral was improper. We agree.

In Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986), our Supreme Court held that General Statutes § 52-434 (a) (4) requires the consent of the parties for the referral of their case to a referee. Seal Audio, Inc. v. Bozak, Inc., supra, 510-16; see also Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 250, 524 A.2d 610 (1987). That holding is embodied in Practice Book § 19-2A, which provides that “[t]he court or judicial authority may refer to an attorney trial referee any civil nonjuiy case in which the issues have been closed, provided that the appearing parties or their counsel consent to the referral.” (Emphasis added.)

The court referred the fraudulent transfer action to the referee on January 12, 2000, citing § 52-434 (a) and Practice Book § 19-2A as the basis for its action. Implicit in the court’s referral, therefore, is a finding that the parties had consented thereto. A court’s determinations as to litigants’ consent in proceedings are findings of fact to which we must defer unless they are clearly erroneous. See Stein v. Hillebrand, 240 Conn. 35, 47, 688 A.2d 1317 (1997); State v. One 1987 Chevrolet Camaro, 23 Conn. App. 724, 726, 584 A.2d 477 (1991).

On December 6, 1999, notice had been posted on the trial assignment list that the fraudulent transfer case would be heard before a referee on January 12, 2000. On January 11,2000, the Kleins filed a written “objection to the assignment of the case for trial before an attorney trial referee,” stating therein that “the defendants consent [to having a referee oversee proposed discovery] but do not consent to have this case tried before [a referee].” (Emphasis in original.) On January 12, 2000, at the commencement of the hearing before the referee, Arthur Klein alerted the referee to the objection he had filed on January 11, 2000. The referee responded that she was unaware of any ruling on the objection and that she had been advised by the court that she was to proceed. Arthur Klein stated, “I protest vigorously . . . now it is on record that I do not agree to have this matter tried before [a referee].” Thereafter, the hearing proceeded.

The Kleins resubmitted their January 11, 2000 objection on March 17, 2000, following the hearing before the referee. The court never ruled on the January 11, 2000 objection, but did rule on the March 17,2000 resubmission on September 7, 2000, at which time it stated in a memorandum of decision that “[t]he objection to the attorney trial referee is denied as moot since this case was tried by a referee on January 12, 2000.” Our review of the entries to the court file between December 6, 1999, and January 11, 2000, does not disclose any indication of any explicit consent by the Kleins to the impending referral, nor does the plaintiff direct us to any.

The plaintiff argues instead that because the Kleins did not object to the reference until January 11, 2000, they had impliedly consented thereto. It claims that at that point, the court then had discretion to refuse to revoke that reference, which it properly did. The plaintiff cites our Supreme Court’s holding in Bowman v. 1477 Central Avenue Apartments, Inc., supra, 203 Conn. 246, and this court’s holding in Stamford v. Kovac, 31 Conn. App. 599, 626 A.2d 792 (1993), rev’d on other grounds, 229 Conn. 627, 642 A.2d 1190 (1994), in support of its argument.

In Bowman, the court held that parties “are deemed to have given their implicit consent to the referral by failing to raise their objection in a timely fashion.” Bowman v. 1477 Central Avenue Apartments, Inc., supra, 203 Conn. 251. It thereafter rejected the defendants’ argument that they had objected timely because “[t]he defendants ‘utterly neglected’ to raise the issue of their lack of consent until after the hearing had ended and the referee had filed his report.” The court noted that “[t]he appropriate time to object in this case would have been at the time of the referral, or at least prior to the commencement of the hearing before the referee.” (Emphasis added.) Id. The court similarly found implicit consent in Seal Audio, Inc. v. Bozak, Inc., supra, 199 Conn. 496, in which the defendant did not object to the reference until it filed its appeal. Id., 517.

In Kovac, we noted, citing Bowman, that an objection to a reference made on the date a hearing was to commence was timely, but concluded that under the circumstances of the case, the defendant’s claimed objection really was a request to revoke a reference to which the defendant earlier had consented, which request the court properly refused. Stamford v. Kovac, supra, 31 Conn. App. 603-604. In that case, however, “the matter had been previously scheduled several times [over the course of the prior year] for trial before an attorney trial referee with the consent of the parties, only to be continued to a later date, and . . . the objection was made on the date of trial after the court had ordered no further postponements.” Id., 604.

In this case, we conclude that the Kleins timely objected pursuant to Bowman, because, according to the court’s file and docket entry, the case was not actually referred until January 12, 2000, the date of the hearing. Further, unlike in Kovac, notice that the matter would be scheduled for a hearing before a referee was issued for the first time on December 6, 1999, and there is nothing in the record indicating that the Kleins, either explicitly or implicitly, consented thereafter. In fact their filings to the court following the December 6,1999 notice suggest quite the opposite.

“Where the parties consent, a case may be referred to a referee. Practice Book § 19-2A.” Killion v. Davis, 69 Conn. App. 366, 369, 471 A.2d 970, cert. denied, 260 Conn. 931, 799 A.2d 295 (2002); see also Douglas-Mellers v. Windsor Ins. Co., 68 Conn. App. 707, 709-10, 792 A.2d 899 (2002). Conversely, “parties to a case that qualifies for the attorney trial referee process may withhold consent to the referral of the matter . . . .” Douglas-Mellers v. Windsor Ins. Co., supra, 715. In this case, it is apparent from the record that the Kleins did not consent to the court’s referral and that their repeated objections, both written and oral, were timely. The court’s finding of consent, therefore, was clearly erroneous.

The judgments are reversed and the cases are remanded for new trials.

In this opinion the other judges concurred.

       “The purpose of an interpleader action is to bring all adverse claimants together in a single action for an adjudication of all matters in controversy-related to a particular fund to which the adverse claimants seek entitlement. ” Millman v. Paige, 55 Conn. App. 238, 241, 738 A.2d 737 (1999), citing 2 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 263, p. 1088; see also General Statutes § 52-84.

       The other defendants are Kirk Straight, Nicole Straight and First American Title Company. They, too, filed a cross appeal, but withdrew it at oral argument before this court. The plaintiffs are attorneys Charles D. Rockwell and Michael A. Laux, who brought the interpleader action seeking a determination as to how they should distribute funds deposited with them as escrow agents among the various defendants. Rockwell and Laux are not parties to the appeal. To avoid confusion, we will refer to all of the parties by name.

       General Statutes § 52-605 (b) provides in relevant part that if a judgment creditor files a certified copy of a foreign judgment, along with certain other information, in a Connecticut court, that judgment “shall be treated in the same manner as a judgment of a court of this state . . . [having] the same effect and [being] subject to the same procedures ... for reopening, vacating or staying as a judgment of a court of this state and [the judgment] may be enforced or satisfied in like manner.”

       The objection is dated January 10, 2000.

       The same italicized statement was included in the Kleins’ motion to reargue an earlier order of the court, which motion was filed on January 11, 2000, and denied by the court on January 12, 2000.

       The resubmission appears to be a photocopy of the earlier objection, bearing the date January 10, 2000. See footnote 4.


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    JOHN FITZPATRICK ET AL. v. HALL-BROOKE FOUNDATION, INC.
    (AC 19807)
    Mihalakos, Dranginis and Flynn, Js.

      Argued February 27
    officially released October 1, 2002

      Robert F. Kappes, for the appellant (defendant).

      Thomas J. Weihing, with whom, on the brief, were Laurence V. Parnoff and John T. Bochanis, for the appellees (plaintiff Jennie Fitzpatrick et al.).
   Opinion

DRANGINIS, J.

The defendant, Hall-Brooke Foundation, Inc., appeals from the judgment of the trial court granting the plaintiff Jennie Fitzpatrick a new trial pursuant to General Statutes § 52-270. On appeal, the defendant claims that the court improperly granted the plaintiffs motion for a new trial because (1) it did not have jurisdiction to do so and (2) § 52-270 does not apply in this case. We reverse the judgment of the trial court.

The following facts and procedural history are necessary for our resolution of the defendant’s appeal. The present case arises from a collection action brought by the defendant against the plaintiff to recover costs for services rendered at the defendant’s health care facility. The plaintiff claimed the matter to the jury. The plaintiff filed a motion for a continuance of the trial date on December 20, 1993, which was not acted on by the court. An arbitration hearing was scheduled for January 7,1994, pursuant to General Statutes §§ 52-549n through 52-549aa. On that date, however, the plaintiff and her counsel failed to appear. The defendant’s witnesses also failed to appear due to a severe snowstorm that morning. The defendant’s counsel, however, was present and filed a motion for a default judgment. The court noted that the plaintiffs motion for a continuance was outstanding, but agreed with the defendant that the claimed reason for the continuance, to take a deposition, did not warrant a continuance, and granted the defendant’s motion for a default on the basis of the plaintiffs failure to appear. The defendant was not prepared to proceed to a hearing in damages that day and requested that it be able to file an affidavit of debt on January 10,1994. The court agreed. On January 11,1994, the defendant filed its affidavit of debt and, the same day, the clerk issued notice that the plaintiff was defaulted for failure to appear at the arbitration hearing and informed the plaintiff that “after a hearing in damages,” judgment had entered in the amount of $14,045.20.

The plaintiff tiled a motion to set aside the judgment, which the court denied. She filed her appeal on March 31, 1994, which this court dismissed as untimely. The plaintiff petitioned the Supreme Court for certification to appeal, which also was denied. Hal-Brook Hospital v. Fitzpatrick, 230 Conn. 901, 644 A.2d 916 (1994). The plaintiff thereafter petitioned for a new trial, which the trial court granted. This appeal followed.

I

The defendant first claims that the court’s judgment granting the plaintiff’s petition for a new trial is voidable pursuant to General Statutes § 51-183b. Specifically, it argues that the court’s order is voidable because the judgment was rendered more than 120 days after briefs were due and it did not waive the jurisdictional defect. We disagree.

The following additional facts are necessary for our resolution of the defendant’s claim. The plaintiff petitioned for a new trial by complaint filed July 29, 1994. On May 18, 1999, the court, although inclined to grant the plaintiff a new trial, ordered the parties to submit their positions on whether the judgment lien that the defendant had filed against the plaintiff’s real property should be released immediately on the granting of a new trial. The plaintiff submitted her position on May 28, 1999. The defendant was to submit its position by June 8. By motion dated June 4, 1999, the defendant instead sought the revocation of the referral of the petition for new trial to Judge Nadeau pursuant to General Statutes § 51-183c. The court denied the motion and granted the plaintiff a new trial by order dated July 9, 1999.

“Section 51-183b applies to all civil causes, and unless the parties waive its provisions, a trial court must render its decision within 120 days of the completion of the trial, which ends with the filing of the briefs when requested. ... In determining that ‘the completion date’ includes the filing of briefs, the trial court held that briefing of the legal issues was a component of the judicial gathering of the materials necessary to a well-reasoned decision. In related contexts, ‘completion’ has been held to encompass the availability of all the elements directly or indirectly to be considered in the rendering of a decision.” (Citations omitted; internal quotation marks omitted.) Northeast Savings, F.A. v. Scherban, 47 Conn. App. 225, 231, 702 A.2d 659 (1997), cert. denied, 244 Conn. 907, 714 A.2d 2 (1998).

We conclude that the court’s order that the parties submit their positions on the release of the judgment lien constituted a request for briefs which, when filed, would begin the 120 day period. The plaintiff filed its position on May 28,1999, and the court issued its order granting the motion for a new trial on July 9,1999, well within the 120 day requirement of § 51-183b. Accordingly, the court’s judgment was not voidable for lack of jurisdiction.

II

The defendant next claims that the court improperly granted a new trial because none of the requirements of § 52-270 have been met. Specifically, it argues that the plaintiff should not be granted a new trial because she had the opportunity to appeal and, in fact, did appeal from the default judgment, although in an untimely manner. We agree.

Our standard of review of a court’s decision with respect to a petition for a new trial is the abuse of discretion standard. Shabazz v. State, 259 Conn. 811, 820, 792 A.2d 797 (2002). “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.” (Internal quotation marks omitted.) Channer v. State, 54 Conn. App. 620, 628-29, 738 A.2d 202, cert. denied, 251 Conn. 910, 739 A.2d 1247 (1999). “[T]he proceeding is essentially equitable in nature; the petitioner has the burden of alleging and proving facts which would, in conformity with our settled equitable construction of the statutes, entitle him to a new trial on the grounds claimed . . . .” (Internal quotation marks omitted.) Rizzo v. Pack, 15 Conn. App. 312, 315, 544 A.2d 252 (1988).

“A petition will never be granted except upon substantial grounds. It does not furnish a substitute for, or an alternative to, an ordinary appeal but applies only when no other remedy is adequate and when in equity and good conscience relief against a judgment should be granted. ... In considering a petition, trial judges must give first consideration to the proposition that there must be an end to litigation. . . .

“Although General Statutes § 52-270 permits the court to grant a new trial upon proof of ‘reasonable cause,’ the circumstances in which reasonable cause may be found are limited. . . . The basic test of ‘reasonable cause’ is whether a litigant, despite the exercise of due diligence, has been deprived of a fair opportunity to have a case heard on appeal. ... A new trial may be granted to prevent injustice in cases where the usual remedy by appeal does not lie or where, if there is an adequate remedy by appeal, the party has been prevented from pursuing it by fraud, mistake or accident. . . . Absent such special circumstances, [a] petition for a new trial does not furnish a substitute for, or an alternative to, an ordinary appeal.” (Citations omitted; internal quotation marks omitted.) Bleidner v. Searles, 19 Conn. App. 76, 78-79, 561 A.2d 954 (1989). “Due diligence is a necessary condition to success in prosecuting a petition for a new trial. . . . Under § 52-270 the exercise of due diligence is a condition precedent to a finding of reasonable cause.” (Citation omitted; internal quotation marks omitted.) Jacobs v. Fazzano, 59 Conn. App. 716, 724, 757 A.2d 1215 (2000).

In this case, the court concluded that the plaintiff, under an apparent mistaken belief that an arbitrator had proceeded with the hearing and issued a decision, timely filed a motion to set aside the judgment within the four month time period set forth in Practice Book § 23-65. The court reasoned that the plaintiff, having received only notice of a judgment against her, mistakenly thought that a trial de novo was the next procedural step. The court concluded that the plaintiffs failure to file an appeal from the judgment was understandable due to an apparent conflict between Practice Book 63-1 (a), which requires the plaintiff to file her appeal within twenty days of notice of the judgment, and Practice Book § 23-65, which gives a party four months within which to file a motion to set aside an arbitrator’s decision. Because the plaintiff had the usual remedy of appeal, but failed to file a timely appeal, we must determine whether the court properly concluded that mistake prevented the plaintiff from timely pursuing her appeal.

Practice Book § 63-1 requires a party to file an appeal within twenty days of the date of notice of a judgment. Pursuant to Practice Book § 63-1 (c), a motion to set aside a judgment will start a new appeal period on the day that notice of the ruling is given on the motion. The plaintiff, however, failed to file either her appeal or the motion to set aside the judgment within the original twenty day appeal period. Section 63-1 (a) clearly provides that “[i]f a motion is filed within the appeal period that might give rise to a new appeal period as provided in subsection (c) of this rule, the appeal may be filed either in the original appeal period, which continues to run, or in the new appeal period. ...” (Emphasis added.) Section 23-65 gives a party four months to file a motion to set aside a judgment. If a motion to set aside the judgment is filed beyond twenty days from the notice of judgment and is denied, the party may appeal only from the court’s decision on the motion, not from the underlying judgment. To preserve one’s right to appeal from the underlying judgment, a party must file the motion to set aside the judgment within the twenty day period pursuant to Practice Book § 63-1. Regardless of whether the case was sent to an arbitrator invoking Practice Book § 23-65, the plaintiff was not relieved of her duty to comply with the requirements of Practice Book § 63-1.

We therefore are not persuaded that the untimely appeal in this case is the kind of “mistake” that warrants a new trial. Accordingly, we conclude that this case does not present a situation in which a litigant has been deprived of a fair opportunity to have her case heard on appeal so as to constitute “reasonable cause” or any other ground entitling her to a new trial pursuant to § 52-270.

The judgment is reversed and the case is remanded with direction to deny the petition for a new trial.

In this opinion the other judges concurred.

       The original plaintiffs were John Fitzpatrick and Jennie Fitzpatrick. During the pendency of the case, John Fitzpatrick died, and Jennie Fitzpatrick, as the administratrix of his estate, was substituted as a plaintiff, making her a party in her individual and representative capacities. For clarity, we refer in this opinion to Jennie Fitzpatrick as the plaintiff.

       General Statutes § 52-270 (a) provides in relevant part: “The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rales in such cases. The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.”

       Although the plaintiff claims she was unable to appear at the hearing, the record reveals that the plaintiff and her counsel failed to appear due to a mistake in counsel’s personal calendaring.

       General Statutes § 51-1831) provides: “Any judge of the Superior Court and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”

       The defendant also claims that the plaintiff should not have been granted a new trial because she did not demonstrate or even allege due diligence, she had actual notice of the default judgment and she had a reasonable opportunity to appear. Because we conclude that the plaintiff failed timely to appeal, we do not reach those issues.

       Practice Book § 23-65 (a) provides in relevant part: “Where a party fails to appear at the [arbitration] hearing, the arbitrator shall nonetheless proceed with the hearing and shall render a decision, which shall be rendered as a judgment by the court. Such judgment may not be opened or set aside unless a motion to open or set aside is filed withinfour months succeeding the date on which notice was sent. . . .” (Emphasis added.)
      Both parties disagree as to whether the case ever was before an arbitrator. The court file reveals that the case was scheduled to be heard on January 7, 1994, with other cases “[that] have all been identified as being eligible for reference to arbitrators . . . .” (Emphasis added.) On January 7, the court, Vertefeuille, J., presided over the case, and on January 11, the clerk issued notice that the plaintiff had been defaulted for failure to appear. We conclude that although this case was identified as being eligible to be assigned to an arbitrator, it was not so assigned because of the defendant’s failure to appear on January 7.

       Practice Book 63-1 (a) provides in relevant part: “[A]n appeal must be filed within twenty days of the date notice of the judgment or decision is given. . .


author: FOTI, J.

text:
    FIDELITY BANK v. JOHN M. KRENISKY ET AL.
    (AC 21862)
    Lavery, C. J., and Foti and Dranginis, Js.

      Argued June 5
    officially released October 1, 2002

      John A. Keyes, with whom, on the brief, was Martin M. Looney, for the appellant (defendants).

      David F. Borrino, for the appellee (plaintiff).
   Opinion

FOTI, J.

In this foreclosure action, the defendants, John M. Krenisky and Frances G. Krenisky, appeal from the summary judgment as to liability rendered by the trial court in favor of the plaintiff, Fidelity Bank. On appeal, the defendants claim that the court improperly (1) granted the plaintiff’s motion for summary judgment by concluding that their special defenses were legally insufficient and (2) struck their six count counterclaim. We affirm the judgment of the trial court.On April 3, 1987, the defendants executed a promissory note payable to the order of Connecticut Bank and Trust Company, which was secured with a mortgage for their property at 512 Yale Avenue in New Haven. The note and mortgage provided for monthly payments of principal and interest to the plaintiff. Following several assignments of the note and mortgage, the plaintiff became the holder and owner of both on October 31, 1995.

Following an audit of the plaintiffs files, it came to the plaintiffs attention that current property tax receipts for the defendants’ property were absent. Thereafter, on May 29, 1996, the plaintiff demanded, in accordance with its rights under the mortgage documents, that the defendants provide such receipts. Having not received the property tax receipts as demanded and after confirming with the city of New Haven that the defendants had failed to pay their property taxes when such taxes became due, the plaintiff sent another demand letter to the defendants. The letter informed the defendants that they had thirty days to provide the plaintiff with copies of property tax receipts. It further informed them that failure to do so would result in the bank’s setting up an escrow account, in accordance with its rights under the mortgage documents, for the purpose of paying present and future property taxes. Again, the defendants failed to perform as demanded, and the plaintiff paid the taxes to the city and set up an escrow account. The defendants refused to make any additional monthly payments into the escrow account. What followed was an extended dispute between the parties regarding the tax escrow account.

Regarding the defendants’ refusal to make payments into the escrow account as a breach of their obligations under the mortgage documents, the plaintiff notified the defendants of their default and accelerated the entire debt. Thereafter, the plaintiff commenced its first foreclosure action, which the court dismissed under its dormancy program on June 2, 1999. On the basis of the default that gave rise to the first foreclosure action, the plaintiff commenced its second foreclosure action on July 12,1999. In response, the defendants asserted various special defenses and filed a six count counterclaim. Upon the plaintiffs motion, the court struck the defendants’ counterclaim, and the plaintiff filed a motion for summary judgment as to liability. Having found the defendants’ special defenses to be legally insufficient, the court granted the plaintiffs motion for summary judgment. Subsequently, the court ordered foreclosure by sale, and this appeal followed. Additional facts will be discussed as necessary.

I

The defendants claim that the court improperly granted the plaintiffs motion for summary judgment despite their special defenses alleging that (1) the plaintiff gave them improper notice of default, (2) they had substantially complied with the terms of the note and mortgage, (3) the plaintiff violated the principles of good faith and faith dealing, (4) foreclosure was inequitable under the circumstances and (5) the parties had resolved the dispute by an accord and satisfaction. We will address each claim and special defense in sequence.

Before doing so, however, we set forth the standard of review that we employ when evaluating a court’s decision to grant a motion for summary judgment. “On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [plaintiff] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citation omitted; internal quotation marks omitted.) Yancey v. Connecticut Life & Casualty Ins. Co., 68 Conn. App. 556, 558, 791 A.2d 719 (2002).

“Practice Book § 384 [now § 17-49] provides that 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. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . .

“A material fact is a fact that will make a difference in the outcome of the case. . . . Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue .... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 380 [now § 17-45], . . . The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and documents.” (Citations omitted; internal quotation marks omitted.) Yancey v. Connecticut Life & Casualty Ins. Co., supra, 68 Conn. App. 558-59.

Further, because the plaintiff sought summary judgment in a foreclosure action, which is an equitable proceeding, we note that “the trial court may examine all relevant factors to ensure that complete justice is done. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Internal quotation marks omitted.) LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn. App. 824, 833, 798 A.2d 445 (2002).

Moreover, because the defendants have asserted various special defenses, we set forth the legal principles regarding defenses to foreclosure actions. “Historically, defenses to a foreclosure action have been limited to payment, discharge, release or satisfaction ... or, if there had never been a valid lien. . . . The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. ... A valid special defense at law to a foreclosure proceeding must be legally sufficient and address the making, validity or enforcement of the mortgage, the note or both. . . . Where the plaintiffs conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles. . . . [0]ur courts have permitted several equitable defenses to a foreclosure action. [I]f the mortgagor is prevented by accident, mistake or fraud, from fulfilling a condition of the mortgage, foreclosure cannot be had .... Other equitable defenses that our Supreme Court has recognized in foreclosure actions include unconscionability . . . abandonment of security . . . and usury.” (Citation omitted; internal quotation marks omitted.) Id., 833-34. In light of the foregoing, we first determine whether the court properly concluded that no genuine issues of material fact existed and, if so, whether its conclusion, based on the undisputed facts, was legally and logically accurate.

A

The defendants’ first claim and special defense is that the plaintiff failed to provide them with sufficient notice as required by paragraph nineteen of the mortgage. Specifically, the defendants assert that (1) an additional notice of default was required before the plaintiff could commence its second foreclosure action, and (2) if an additional notice of default was not required, then the first notice of default was “deficient on its face and improper.” Conversely, the plaintiff argues that a single notice of default before acceleration is the only notice requirement in the mortgage documents, and that such notice, which was given to the defendants prior to the first foreclosure action, was sufficient under the circumstances. We agree with the plaintiff.

1

It is not disputed that the plaintiff gave notice of default to the defendants prior to accelerating the mortgage debt and commencing its first foreclosure action. Following the court’s dismissal of that action, the plaintiff commenced the present action absent any further notice of default to the defendants.

It is well established that “[n]otices of default and acceleration are controlled by the mortgage documents. Construction of a mortgage deed is governed by the same rules of interpretation that apply to written instruments or contracts generally, and to deeds particularly. The primary rule of construction is to ascertain the intention of the parties. This is done not only from the face of the instrument, but also from the situation of the parties and the nature and object of their transactions. ... A promissory note and a mortgage deed are deemed parts of one transaction and must be construed together as such. . . . Where the terms of the note and mortgage require notice of default, proper notice is a condition precedent to an action for foreclosure.” (Citations omitted; internal quotation marks omitted.) New Haven Savings Bank v. LaPlace, 66 Conn. App. 1, 12, 783 A.2d 1174, cert. denied, 258 Conn. 942, 786 A.2d 426 (2001).

“In construing a deed, a court must consider the language and terms of the instrument as a whole. . . . Moreover, the words [in the deed] are to be given their ordinary popular meaning, unless their context, or the circumstances, show that a special meaning was intended.” (Internal quotation marks omitted.) Bank of America, FSB v. Hanlon, 65 Conn. App. 577, 582, 783 A.2d 88 (2001).

“A promissory note is nothing more than a written contract for the payment of money, and, as such, contract law applies. ... In construing a contract, the controlling factor is normally the intent expressed in the contract, not the intent which the parties may have had or which the court believes they ought to have had. . . . Where . . . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. ... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard. . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. ” (Internal quotation marks omitted.) New Haven Savings Bank v. LaPlace, supra, 66 Conn. App. 13.

In this case, paragraph 6 (C) of the note contains clear and unambiguous language, which leaves no room for ambiguity. It states in relevant part: “[T]he Note Holder may send [the borrower] a written notice telling [the borrower] that if [he and or she does] not pay the overdue amount by a certain date, the Note Holder may require [the borrower] to pay immediately the full amount of principal which has not been paid and all the interest that [the borrower] owe[s] on that amount. That date must be at least 30 days after the date on which the notice is delivered or mailed to [the borrower].” In addition, paragraph nineteen of the mortgage, which also is clear and unambiguous, states in relevant part: “Lender shall give notice to Borrower prior to acceleration following Borrower’s breach

On the basis of the clear and unambiguous language of the note and mortgage, the plaintiff was required only to give notice of default to the defendant prior to accelerating the entire debt. The plaintiff provided such a notice before accelerating the debt and commencing its first foreclosure action; no further notice, such as a subsequent notice of default, notice of acceleration or foreclosure, was required prior to the plaintiff commencing its second foreclosure action. By instituting its first foreclosure action, the plaintiff validly exercised its right to accelerate the entire mortgage debt. See Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 180, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). The court’s dismissal of the first foreclosure action did not wipe the slate clean, so to speak, for the defendants because they already had been notified of their default and the mortgage debt already had been accelerated. The debt, therefore, remained accelerated. “To rule otherwise would nullify the effect of the acceleration clause.” City Savings Bank of Bridgeport v. Dessoff 3 Conn. App. 644, 650, 491 A.2d 424, cert. denied, 196 Conn. 811, 495 A.2d 279 (1985).

Because the mortgage documents required no additional notice of default prior to the plaintiffs commencement of its second foreclosure action, that component of the defendants’ first special defense is legally insufficient, and the court’s conclusion that it presented no genuine issue of material fact was legally and logically correct. We next address the sufficiency of the notice.

2

The defendants further argue that even if no additional notice of default was required, the plaintiffs March 21, 1997 notice, which preceded its acceleration of the mortgage debt and its first foreclosure action, was insufficient because it did not comply with the notice provision in the mortgage. Specifically, the defendants claim that the notice of default failed to inform them of (1) their right to reinstate the mortgage after the debt had been acceleration and (2) their right to contest foreclosure in court, thereby rendering summary judgment improper and the order of foreclosure void. We will address each claim in sequence.

Referring to the legal principles previously stated regarding notices of default, we note that paragraph nineteen of the mortgage states in relevant part: “Lender . . . shall further inform Borrower of the right to reinstate after acceleration and the right to assert in court the nonexistence of a default or any other defense of Borrower to acceleration and foreclosure or sale.”

a

The plaintiff acknowledges in its brief that its “notice of default did not expressly set forth” the information regarding reinstatement of the mortgage after acceleration, but argues, nevertheless, that written notice in that regard was not required because the defendants had actual notice of that right. We agree with plaintiff and note, however, that our analysis pertains only to the plaintiffs failure to include in its notice of default the information regarding the defendants’ right to reinstatement after acceleration and does not pertain to any other notice requirement as set forth in the mortgage documents.

Notice provisions in mortgage documents usually require default notices to contain specific information, which serves a very clear and specific purpose; it informs mortgagors of their rights so that they may act to protect them. Therefore, when “the terms of the note and mortgage require notice of default, proper notice is a condition precedent to an action for foreclosure.” New Haven Savings Bank v. LaPlace, supra, 66 Conn. App. 12. Consequently, we must determine whether such a condition precedent has been satisfied. Because the notice of default did not comply with the notice provision regarding the defendants’ right to reinstate the mortgage after acceleration, we look to the record to determine if, in fact, the defendants had actual notice of that right.

The record, indeed, demonstrates that the defendants were fully aware and had actual notice of their right to reinstate the mortgage subsequent to acceleration of the debt, which is demonstrated in the following colloquy at the July 7, 2000 pretrial hearing:

“The Court: And what do you feel is properly owed?
* * *
“[Defendants’ Counsel]: . . . [T]hat’s why we would like to talk to a judge, to talk about the reinstatement
* * *
“The Court: ... Do you want to continue with this defendant as a mortgagor relative to being represented?
íjí s}i ifc
“[Plaintiffs Counsel]: Yes. As far as communication with our client, if the [defendants are] obviously willing and able to reinstate the note and mortgage—
“The Court: Well, have they indicated to you a position upon which they would reinstate the mortgage?
“[Plaintiff’s Counsel]: Yes, Your Honor, they have.
* * *
“ [Plaintiff s Counsel]: They provided us with the reinstatement figure.
* * *
“The Court: Have you disclosed them to [the defendants]?
“[Plaintiffs Counsel]: Yes.
“The Court: Is it something you can work on?
5jc Hí
“[Defendants’ Counsel]: . . . [W]e are down to one last payment, and we have got everything fairly much cleared up, and now we would like to go to the next stage and talk to someone about the reinstatement proposals.” (Emphasis added.)

At the December 22, 2000 pretrial hearing, the court ordered the defendants to make payments on the mortgage debt. In so concluding, the court stated that such payments were “simply for the purpose of [the defendants’] showing their good faith and their willingness to at least make a payment on [their] obligation.” The plaintiffs counsel responded that “[we] will accept [payment] and hold it, to be applied against either the debt or reinstatement, but without waiving the acceleration or the notice of default of the foreclosure.” (Emphasis added.) Finally, at the February 9, 2001 pretrial hearing, the plaintiffs counsel informed the court that he had “provided [the defendants’ counsel] with figures with regard to what it will take to reinstate to pay off the indebtedness.” (Emphasis added.)

It is patently obvious from the record that the defendants had actual notice of their right to reinstate the mortgage after the debt had been accelerated. At the July 7, 2000 pretrial hearing, the defendants’ counsel specifically stated to the court that the defendants wanted to discuss reinstatement. The plaintiff also made it very clear that it was willing to reinstate the mortgage, provided the parties reach an agreement as to the amount of money that the defendants would have to pay for reinstatement. In fact, the parties negotiated several times in that regard, but failed to reach an agreement.

Mindful of our obligation to view the evidence in the light most favorable to the defendants, we nonetheless conclude that literal enforcement of the relevant notice provision would serve no purpose because the defendants had actual notice of their right to reinstate the mortgage after acceleration. Further, the plaintiffs deficient written notice caused no harm to the defendants. See Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 418, 538 A.2d 219 (1988) (“[lateral enforcement of notice provisions when there is no prejudice is no more appropriate than literal enforcement of liquidated damages clauses when there are no damages”). Moreover, the plaintiffs failure to provide sufficient written notice does not frustrate the purpose of the notice provision because the defendants had actual notice of their right to reinstate the mortgage and acted to protect that right, as demonstrated before the court. See Lauer v. Zoning Commission, 220 Conn. 455, 462, 600 A.2d 310 (1991). Consequently, that component of the defendants’ special defense is legally insufficient, and the court’s conclusion that it presented no genuine issue of material fact and that it was inadequate as a matter of law was legally and logically correct.

b

The defendants also claim that the court improperly concluded that the notice of default substantially complied with the relevant notice requirement regarding their right to contest the foreclosure in court.

Paragraph nineteen of the mortgage specifically states that the plaintiff shall inform the defendants of the “right to assert in court the non-existence of a default or any other defense of Borrower to acceleration and foreclosure or sale.” As the court stated: “The notice of default sent by the plaintiff does not directly inform the defendants of their right to contest foreclosure in court.” The defendants argue that the plaintiffs failure to inform them properly rendered the notice insufficient. On the other hand, citing Saunders v. Stig-ers, 62 Conn. App. 138, 143, 773 A.2d 971 (2001), the plaintiff argues that the notice of default substantially complied with the relevant notice requirement. We agree.

In Saunders, we were confronted with a similar issue. The defendant challenged the plaintiffs notice of default because it failed to strictly comply with the notice requirement in the mortgage. The court concluded that a notice of default is sufficient if “it is apparent from the language of the notice that the defendant was” adequately informed of his or her rights. Id., 147.

In this case, the notice of default stated: “If you notify our office in writing within the thirty (30) day period described [in this notice] that the debt, or any portion thereof, is disputed, or if you request the name and address of the original creditor, our office shall cease collection of the debt, or any disputed portion thereof, until we obtain verification of the debt or the name and address of the original creditor. A copy of such verification or name and address of the original creditor will be mailed to you by our office immediately. If you do not indicate a dispute in writing within thirty (30) days of this letter, we will assume the claim to be valid, and refer for foreclosure.” The notice further stated that “failure to dispute the validity of the debt under the Fair Debt Collection Practices Act [(act) 15 U.S.C. § 1692 et seq.] may not be construed by any Court as an admission of liability on [the borrower’s] part.” (Emphasis added.)

Although the notice of default did not specifically state that the defendants may “assert in court the nonexistence of a default or any other defense of Borrower to acceleration and foreclosure or sale,” as stated in paragraph nineteen of the mortgage, the court concluded, and we agree, that the defendants were sufficiently apprised of their rights in that regard. The notice of default specifically informed the defendants of their right to contest the debt; it informed them, albeit indirectly, via the language regarding the act, that they had the right to assert defenses if they existed and that their failure to dispute the validity of the debt pursuant to the act did not constitute an admission of liability on their part. Therefore, the possibility of asserting defenses to liability was clear.

Though exact compliance with the notice requirement in the mortgage would have avoided any question as to the sufficiency of the notice of default, we conclude, on the basis of its language, that the notice of default substantially complied with the relevant notice provision. That component of the defendants’ special defense, therefore, is legally insufficient, and the court’s conclusion that it presented no genuine issue of material fact was legally and logically correct.

B

The defendants’ next claim and second special defense is that the court improperly concluded that they had not substantially performed their obligations pursuant to the terms of the note and mortgage. Specifically, the defendants argue that by timely making their mortgage payments for nine years, they had substantially performed their obligations despite their failure to make timely payments of property taxes and to send receipts of property tax payments to the plaintiff. The defendants’ claim has no merit.

The defendants have failed to show, in their brief or otherwise, that the doctrine of substantial performance applies in the context of a mortgagor’s obligation to make payments to a mortgagee pursuant to a note and mortgage. The defendants argue that Aetna Casualty & Surety Co. v. Murphy, supra, 206 Conn. 409, and Collins v. Sears Roebuck & Co., 164 Conn. 369, 382, 321 A.2d 444 (1973), allow for such an application. The defendants’ argument is misguided.

In Murphy, our Supreme Court examined what role prejudice should play in the judicial enforcement of standard notice clauses in insurance policies that operate to entirely discharge an insurance carrier from any further liability on its insurance contract if the insured unreasonably delays its notification of claim to the insurer, thereby causing a “ ‘disproportionate forfeiture’ Aetna Casualty & Surety Co. v. Murphy, supra, 206 Conn. 413; to one of the contracting parties. Our Supreme Court stated that “[i]n numerous cases, [it] has held that, especially in the absence of conduct that is ‘wilful,’ a contracting party may, despite his own departure from the specifications of his contract, enforce the obligations of the other party with whom he has dealt in good faith.” Id.

Murphy is distinguishable on its facts because the present case does not involve circumstances under which the traditional contract principles of strict compliance should yield. Here, the defendants failed to make tax payments as required by the terms of their note and mortgage, which resulted in foreclosure; they have suffered no prejudice and do not bear the burden of a disproportionate forfeiture by strictly enforcing the terms of their contract. Moreover, to allow mortgagors to make partial payments on their mortgages, and then avoid foreclosure by way of a claim of substantial performance, would result in the unsettling of the real estate market and an increase in litigation. Collins also is distinguishable on its facts. That case addresses an action arising from a lease agreement; it does not shed any light whatsoever on the issue before this court.

We conclude, absent any authority to the contrary, that the doctrine of substantial performance does not apply to the present situation. The court’s conclusion that no genuine issue of material fact existed in regard to the defendants’ special defense of substantial performance is legally and logically correct because it does not address the making, validity or enforcement of the note and mortgage.

C

The defendants’ next claim and third special defense is that the court improperly determined that the plaintiff did not violate the principles of good faith and fair dealing. That claim has no merit.

“We recently stated that special defenses and counterclaims alleging a breach of an implied covenant of good faith and fair dealing . . . are not equitable defenses to a mortgage foreclosure. . . . Even if a breach of the implied covenant of good faith and fair dealing were an equitable defense to a mortgage foreclosure, the clear language of the mortgage and the note fails to support the defendant’s claim that the plaintiff breached such an implied covenant”; (citations omitted; internal quotation marks omitted) LaSalle National Bank v. Freshfield Meadows, LLC, supra, 69 Conn. App. 835; because the plaintiff has acted in accordance with its rights as set forth in those documents.

Accordingly, the defendants’ special defense is legally insufficient and is not a valid legal or equitable defense to a foreclosure action. Therefore, the court’s conclusion that it presented no genuine issue of material fact was legally and logically correct.

D

The defendants’ next claim and fourth special defense is that the court improperly allowed foreclosure despite the fact that is was inequitable to do so. Specifically, the defendants argue that the plaintiff’s conduct regarding its enforcement of the note and mortgage was inequitable and that the court should have ordered a full hearing in that regard. We disagree.

A foreclosure action constitutes an equitable proceeding. Therefore, “[t]he determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Internal quotation marks omitted.) Id., 833.

The fourth special defense incorporates and relies on those allegations asserted in the second special defense. Because we have determined the defendants’ second special defense to be legally insufficient, the fourth special defense also must fail. Further, the defendants have failed to show even a single instance in which the plaintiffs actions might be considered inequitable. Therefore, the court acted within its sound discretion in not ordering a full hearing and allowing the foreclosure to proceed, and its conclusion that the fourth special defense presented no genuine issue of material fact was legally and logically correct.

E

The defendants’ next claim and fifth special defense asserts that that the court improperly determined that the parties did not settle the dispute that led to this foreclosure action via an accord and satisfaction. Specifically, the defendants claim that the court failed to consider an affidavit and various letters that allegedly support their claim. We disagree.

“The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Napert-Boyer Partnership, 40 Conn. App. 434, 445, 671 A.2d 1303 (1996). Further, we have stated that “[t]he applicable rule regarding the material facts to be considered on a motion for summary judgment is that the facts at issue are those alleged in the pleadings. ” New Haven Savings Bank v. LaPlace, supra, 66 Conn. App. 15.

The defendants have failed to allege any facts; their fifth special defense consists merely of one conclusory statement that “[o]n or about [May 2,1997], the plaintiff, by one Lisa Murry [a loan counselor for the plaintiff] and defendants entered into and accord, satisfaction and agreement, which resolves same.” The defendants’ mere assertion that an accord and satisfaction occurred is legally insufficient; they failed to plead any facts whatsoever in support thereof. See Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992) (motion to strike properly granted if pleading alleges mere conclusions of law unsupported by facts alleged); see also Melfi v. Dan- bury, 70 Conn. App. 679, 685 n.2, 800 A.2d 582, cert. denied, 261 Conn. 922, 806 A.2d 1061 (2002), citing Hendel’s Investors Co. v. Zoning Board of Appeals, 62 Conn. App. 263, 274, 771 A.2d 182 (2001) (conclusory statements purporting to allege aggrievement insufficient without adequate accompanying factual allegations).

The defendants further claim that John M. Krenisky’s affidavit and the various letters that the defendants sent to the plaintiff raise a genuine issue of material fact. The affidavit states in relevant part: “The matter was initially resolved in [April, 1997] and then the bank repudiated same. I sent them, as agreed, all the back mortgage payments along with check [no.] 3378 . . . made out to the City of New Haven, which was never cashed. Defendants] believed this resolved the dispute. Plaintiff repudiated same, and returned these checks, for no apparent reason.”

On the basis of our review of the affidavit and other documents submitted to the court, we conclude, contrary to the defendants’ assertion, that none of the documents raises a genuine issue of material fact as to the existence of an accord between the parties. Because the defendants failed to plead sufficiently any facts as to the existence of an accord, and because the record does not support the same, the court’s conclusion that the fifth special defense was legally insufficient was legally and logically correct.

II

The defendants next claim that the court improperly granted the plaintiffs motion to strike their six count counterclaim, in which they asserted one count alleging breach of contract, one count alleging breach of the covenant of good faith and fair dealing, three counts related to malicious prosecution and one count alleging abuse of process. We are not persuaded.

“A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. ... A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (Citation omitted; internal quotation marks omitted.) Donar v. King Associates, Inc., 67 Conn. App. 346, 349, 786 A.2d 1256 (2001).

Both the breach of contract claim and the breach of the covenant of good faith and fair dealing claim incorporate the allegations asserted in the defendants’ second special defense. We have determined that defense to be legally insufficient because it lacks any factual allegations. Counts one and two of the defendants’ counterclaim, therefore, are legally insufficient because they are mere conclusions of law unsupported by any factual allegations.

Counts three, four and five are related and allege malicious prosecution. Count three states some facts regarding the plaintiffs first foreclosure action against the defendants and, in reference to that action, alleges in relevant part that (1) “[s]aid action was commenced by plaintiff without probable cause,” (2) “[s]aid action was maliciously brought,” and (3) “[o]n account thereof, the defendants were embarrassed and humiliated and otherwise suffered anxiety and distress of mind, their reputation impugned and they had to rearrange their schedule to defend themselves and to attend Court for same and they incurred fees and expenses in the defense thereof and lost tax benefits thereon.”

Count three is legally insufficient because it alleges no facts in support of its mere conclusions of law. Counts four and five seek damages on the basis of count three, which is devoid of any factual allegations. Counts four and five, therefore, necessarily must fail. Finally, count six alleges abuse of process. Count six incorporates the allegations of count four, which we have determined to be legally insufficient because it lacks supportive factual allegations. Consequently, count six fails.

We conclude, on the basis of our plenary review, that the court properly granted the plaintiffs motion to strike all six counts of the defendants’ counterclaim. The stricken counts are legally insufficient because they consist of nothing more than mere conclusions of law unsupported by factual allegations.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

In this opinion the other judges concurred.

       We note, as did the court, that even though the plaintiffs motion to strike the counterclaim preceded the granting of the motion for summary judgment, we will first address the trial court’s decision to grant the motion for summary judgment before addressing its decision to grant the motion to strike the counterclaim. That is because our analysis of the decision to grant the motion for summary judgment necessarily involves a discussion of the defendants’ special defenses, which form the basis of the counterclaim asserted in this action.

       Count three alleges malicious prosecution, and counts four and five seek damages on the basis of such prosecution.


author: SCHALLER, J.

text:
    BASIL E. KEISER v. ZONING COMMISSION OF THE TOWN OF REDDING ET AL.
    (AC 19681)
    Schaller, Dranginis and Bishop, Js.

      Argued April 30
    officially released October 1, 2002

      Nancy Burton, for the appellant (plaintiff).

      Michael N. LaVelle, for the appellee (named defendant et al.).
   Opinion

SCHALLER, J.

This case comes to us on remand from our Supreme Court for reconsideration in light of the Supreme Court’s decision in Nizzardo v. State Traffic Commission, 259 Conn. 131, 788 A.2d 1158 (2002) (en banc). In accordance with the remand; Keiser v. Zoning Commission, 259 Conn. 921, 791 A.2d 568 (2002); we must address the issue of whether, under the dictates of Nizzardo, the plaintiff, Basil E. Keiser, had standing to intervene in the proceedings of the zoning commission of the town of Redding (zoning commission).

We first set forth the facts and procedural history, as stated in Keiser v. Zoning Commission, 62 Conn. App. 600, 771 A.2d 959 (2001). This case began when the defendants, Gilbert and Bennett Manufacturing Company and the water pollution control commission of the town of Redding (pollution control commission), jointly filed an application with the zoning commission for a special permit and site plan approval for the construction of a wastewater treatment facility on land owned by Gilbert and Bennett Manufacturing Company. Id., 602. The zoning commission scheduled a hearing to consider the application and, subsequently, the plaintiff filed a notice of intervention pursuant to General Statutes § 22a-19 (a). Id. The plaintiff alleged in his notice of intervention that the wastewater treatment facility would have a detrimental impact on the environment. Id., 602-603. At the zoning commission hearing, the plaintiff testified that the building site was contaminated with cinder fill and that any disturbance would cause hazardous materials to be released into the Nor-walk River, which abutted the proposed site. Id., 603. The zoning commission disagreed and approved the special permit and site plan. Id.

The plaintiff appealed from the zoning commission decision to the trial court. Id. The court, however, determined that the plaintiff lacked statutory standing under § 22a-19 (a) as well as classical standing to appeal from the zoning commission’s decision. Id. Despite its standing determination, the court went on to conclude that “even if the plaintiff had standing, he could not prevail on the merits of his claim because there was substantial evidence supporting the zoning commission’s decision.” Id. The plaintiff appealed to this court, claiming that the trial court improperly concluded that he did not have statutory standing under § 22a-19 (a). Id. We agreed with the plaintiff, reversed the court’s judgment and remanded the case for a hearing on the merits. Id., 603-604. We declined, however, to review the court’s decision on the merits because we concluded that once the trial court determined that the plaintiff did not have standing, it did not have authority to decide the case. Id., 602 n.2. We therefore stated that the court’s decision on the merits was null and void, and that we could not review a nullity. Id.

The zoning commission and the pollution control commission filed a petition for certification to appeal from our decision to the Supreme Court. The petition challenged our determination that we could not review the trial court’s decision on the merits. The Supreme Court granted the defendants’ petition and, in the same order, remanded the matter to us for reconsideration in light of its holding in Nizzardo v. State Traffic Commission, supra, 259 Conn. 131. Keiser v. Zoning Commission, supra, 259 Conn. 921. Specifically, the remand stated that “[t]he petition for certification by the defendants, the zoning commission of the town of Redding and the water pollution control commission of the town of Redding, for appeal from the Appellate Court, 62 Conn. App. 600 (AC 19681), is granted. The case is remanded to the Appellate Court for reconsideration in light of this court’s decision in Nizzardo v. State Traffic Commission, 259 Conn. 131, 788 A.2d 1158 (2002).” Keiser v. Zoning Commission, supra, 259 Conn. 921.

In Nizzardo, our Supreme Court determined that § 22a-19 (a) permits a party to intervene in an administrative proceeding to raise environmental issues when two conditions are met. First, the Nizzardo court concluded that “§ 22a-19 grants standing to intervenors to raise only those environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceeding into which the party seeks to intervene.” Nizzardo v. State Traffic Commission, supra, 259 Conn. 148. Second, the Nizzardo court determined that to qualify as a “verified pleading” under § 22a-19, a petition must “contain specific factual allegations setting forth the environmental issue that the inter-venor intends to raise.” Id., 164-65. The Supreme Court further stated that “[t]he facts contained therein should be sufficient to allow the agency to determine from the face of the petition whether the intervention implicates an issue within the agency’s jurisdiction.” Id., 165. “By requiring that intervention petitions under § 22a-19 allege facts setting forth the environmental claim that the intervenor intends to raise, we ensure that the agency will have the ability to determine upon a review of the petition whether the agency properly has jurisdiction over that environmental issue.” Id., 164.

In light of our Supreme Court’s remand and the Niz-zardo decision, we directed the parties in the present case to address in supplemental briefs and at oral argument whether Nizzardo has any impact on the present case. The plaintiff argues that he has met both of the conditions set forth in Nizzardo. He argues that unlike the notice of intervention m. Nizzardo, which was ruled insufficient to establish standing; id., 161; his notice contained specific factual allegations that set forth the environmental issues he intended to raise. He also contends that in contrast to the state traffic commission in Niz-zardo, which was determined not to have jurisdiction to consider environmental concerns; id., 165; the zoning commission in the present case has jurisdiction to consider the environmental concerns that he raised. The zoning commission argues that the application of Niz-zardo to the present case requires us to conclude that the plaintiff does not have standing. It contends that the plaintiffs notice did not meet the “verified pleading” standard articulated in Nizzardo and, even if the notice was sufficient, the zoning commission did not have jurisdiction to consider the environmental issues raised.

We first set forth our standard of review. “If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause.” (Internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 870, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). “Atrial court’s determination that it lacks subject matter jurisdiction because of a plaintiffs lack of standing is a conclusion of law that is subject to plenary review on appeal.” Connecticut Associated Builders & Contractors v. Anson, 251 Conn. 202, 209, 740 A.2d 804 (1999).

In accordance with Nizzardo, we first assess whether the zoning commission has jurisdiction over any environmental issues. After a thorough review of the zoning regulations, we conclude that the zoning commission does have such jurisdiction. Specifically, the regulations refer to environmental concerns in § 5.1, which is entitled Permitted Special Uses, § 5.2, which is entitled Site Plans, and § 5.3, which is entitled Environmental Protection Standards.

Section 5.1.1 discusses the special permit application and in subdivision (b) requires in relevant part the submission of “[a] complete site plan, as detailed in section 5.2. The foremost objective in site development shall be protection of the natural . . . environment of the site, with emphasis on measures to control . . . water contamination ... as [it] relate [s] to the surrounding area.” The applicant also may be required, pursuant to § 5.1.1 (e), to submit “[s]upplementaiy data and expert studies ... in any areas of concern related to protection of public health [and] safety . . . (such as . . . environmental impact evaluations).” Section 5.1.3 (b) refers to required findings that the zoning commission must make to grant a special permit and provides that before any special permit is granted, the commission must determine, among other things, that “[t]he location of the site, and the location, nature, size and intensity of proposed buildings . . . uses and activities . . . will not impair the . . . natural environment of the nearby area . . . .” Section 5.1.3 (d) requires that the “[standards for environmental protection [in § 5.3] will be fully met.” Moreover, § 5.1.5 discusses conditions of approval for a special permit and provides in relevant part that “the Commission may modify a proposed site plan, or limit proposed uses ... or establish other conditions of approval necessary to protect health, safety ... or natural environment ... in granting a special permit. ...”

Section 5.2 addresses site plans for nonresidential uses and makes reference to environmental concerns. In § 5.2.4 (c), which deals with standards for approving site plans, the regulation provides in relevant part that site plans shall comprise a layout designed to protect public health and safety, with specific respect to “environmental protection, including controls on hazardous discharges . . . .”

Finally, § 5.3, entitled Environmental Protection Standards, provides in its introduction that “[t]he following standards apply to all Zones and are intended to supplement relevant Federal, State and local codes . . . .” Section 5.3.1 subsequently provides in relevant part that “[a]ny use which results in contamination of air, ground, water or the natural environment, beyond the specific limits prescribed below is prohibited. . . .” Section 5.3.2 then specifically defines hazardous substances and further adds in subdivision (c) that “[i]n no instance may the discharge of hazardous substances to air, ground, or water exceed the allowable limits established and administered by the State of Connecticut Department of Environmental Protection, by the State Health Code, and by any applicable Town code or ordinance.”

We conclude that those regulations place environmental concerns within the jurisdiction of the zoning commission. We also note that we construe the Niz-zardo court’s use of the term “jurisdiction,” as used in the phrase “environmental concerns that are within the jurisdiction of the particular administrative agency conducting the proceeding”; Nizzardo v. State Traffic Commission, supra, 259 Conn. 148; to mean that the agency has the power and authority to hear a case and to decide the issues raised. We reach that conclusion on the basis of Tower v. Miller Johnson, Inc., 67 Conn. App. 71, 73-77, 787 A.2d 26 (2001), a case which addressed the workers’ compensation commissioner’s subject matter jurisdiction. We stated in Tower that “[j jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. ... It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation. . . . This concept, however, is not limited to courts. Administrative agencies [such as the commission] are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves. . . . We have recognized that [it] is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. ... It cannot modify, abridge or otherwise change the statutory provisions, under which acquires authority unless the statutes expressly grant it that power.” (Emphasis added; internal quotation marks omitted.) Id., 75.

We can discern no compelling reason not to apply the definition of jurisdiction, as stated in Tower, to the present zoning commission context. We therefore conclude that in the present case, the zoning commission had the “power” and “authority” to hear and to determine environmental issues as they relate to its ultimate hearing and determination of the zoning application with which it was presented.

That conclusion is important in light of two arguments advanced by the zoning commission. The zoning commission argues that jurisdiction over the environmental issues in the present case rests with the department of environmental protection because of General Statutes § 22a-2 (a), which provides in relevant part that “[t]here shall be a Department of Environmental Protection which shall have jurisdiction over all matters relating to the preservation and protection of the air, water and other natural resources of the state. . . .” We are not persuaded by that argument.

Despite the use of the term “jurisdiction” m § 22a-2, the zoning commission has provided us with no authority to support the position that the department of environmental protection, and that department alone, is the only agency that can exercise jurisdiction in this area and promulgate regulations that are applicable. Furthermore, the zoning commission’s argument that only the department of environmental protection has jurisdiction implicitly assumes that the department’s grant or denial of a necessary permit vitiates the local zoning process. The zoning commission, however, also has failed to substantiate that assertion with any authority.

Indeed, we note that even though an applicant may have to obtain certain permits from the department of environmental protection for various reasons, it is entirely likely that the applicant ultimately may also have to obtain approval from the local zoning commission for the proposed project. In so doing, a local zoning commission might consider other agency environmental permits as requirements that it must take into account when considering environmental issues and reaching its ultimate conclusion on the application with which it is presented.

Moreover, the zoning commission’s regulations in the present case make it clear that the zoning commission will consider environmental issues beyond, or in addition to, those required by the department of environmental protection. Specifically, § 5.3 provides in relevant part that “[t]he following standards apply to all Zones and are intended to supplement relevant Federal, State and local codes . . . .” (Emphasis added.) Additionally, § 5.3.1 provides in relevant part that “[a]ny use which results in contamination of air, ground, water or the natural environment beyond the specific limits prescribed below is prohibited. . . .” (Emphasis added.) The language in those provisions indicates that the zoning regulations take account of environmental issues apart from those that the department of environmental protection may consider.

Without more from the zoning commission, we cannot conclude that the jurisdiction of the department of environmental protection in any way impedes or negates the zoning commission’s “jurisdiction,” as we have defined that term, with regard to its hearing of and determining of environmental issues as part of its ultimate hearing and determination of the zoning application with which it is presented.

The zoning commission also argues that the zoning regulations apply only to environmental consequences of the uses of the proposed project, not to the construction of the project or to environmental problems that already exist on the land. That argument is in response to the plaintiffs core assertion that digging up the ground and constructing the waste treatment plant will disturb the hazardous waste in the ground and release it into the river adjoining the proposed location. We do not agree with the zoning commission’s argument.

A fair reading of the zoning regulations indicates that they apply to environmental issues that arise from aspects of the application apart from the ultimate use of the proposed project. Specifically, § 5.1.1 (b) refers plainly to “the foremost objective in site development” (emphasis added) in its discussion of the submission of a site plan and the goal of protecting the environment. The phrase “site development” cannot be read so narrowly so as to include only a consideration of uses. Indeed, given the normal usage of the term “development,” the phrase “site development” can be taken to mean any step or action in the process of furthering or reaching the ultimate completion of the project. Such an interpretation, which we favor in this case, includes breaking ground and actual construction.

Moreover, the required findings in § 5.1.3 (b), necessary for the grant of a special permit, refer specifically to “[t]he location of the site” (emphasis added) with regard to not impairing the natural environment. The consideration of location obviously is different from a use consideration and implicitly contemplates an evaluation of the grounds on which a proposed project rests. The conditions of approval section, 5.1.5, also supports our conclusion that the zoning regulations provide for more than just an analysis of a proposed project’s use. That section provides in relevant part that “the Commission may modify a proposed site plan, or limit proposed uses” (emphasis added) to protect health, safety or the natural environment. That disjunctive language indicates that uses and siting are two different considerations.

Having concluded that the zoning commission does have jurisdiction, we next consider, in accordance with Nizzardo, whether the plaintiffs intervention petition qualified as a verified pleading. To qualify under Niz-zardo, the pleading must contain specific factual allegations that identify the environmental issues the intervenor intends to raise. It must also do so in a manner that will allow the zoning commission to determine whether the intervention implicates an issue within its jurisdiction.

We conclude that the plaintiffs petition satisfies that test. Of the statements alleged in the petition, one asserts a sufficiently specific factual allegation that identifies an environmental issue. Specifically, the plaintiff alleged that the application to construct the plant “includes the siting of such systems and facility in an area historically used for repose of hazardous waste.” That particular' allegation is factually specific. It asserts that the proposed land for the plant has been the site of hazardous waste release in the past. The allegation also identifies the environmental issue the plaintiff intended to raise. Although it is not worded with precision, the allegation identifies the issue because it reveals the plaintiffs implied concern, namely, that the hazardous waste that exists at the site will be stirred up and released in the process of constructing the plant.

Moreover, we conclude that the allegation is sufficient because it meets the desired effect of that prong of the Nizzardo test that seeks to ensure that the zoning commission will be able to determine, on the basis of the intervention petition, whether it has jurisdiction over the environmental issues raised. The allegation contained in the plaintiffs petition in the present case provides enough specificity to allow the zoning commission to make that determination. The allegation, taken in its barest form, alerted the zoning commission that the plaintiff had concerns about hazardous waste. The zoning regulations discuss the environment and hazardous waste. Specifically, § 5.1 discusses protecting the environment from water contamination, which obviously can occur by way of disturbing waste in the ground that may get into the river adjoining the land. Section 5.2 also applies and refers to controlling hazardous discharges for environmental protection. Finally, § 5.3 defines hazardous waste, then sets forth regulations regarding its discharge. In light of the allegation and the zoning regulations, we conclude that the zoning commission would be able to determine whether it has jurisdiction over the environmental issues raised by the plaintiff in this case.

Upon reconsideration in light of Nizzardo, in accordance with the remand from our Supreme Court, we conclude that the plaintiff has demonstrated that he has standing to intervene in the proceedings before the zoning commission and to participate in proceedings before the trial court.

The judgment is reversed and the case is remanded for a hearing on the merits.

In this opinion the other judges concurred.

       General Statutes § 22a-19 (a) provides in relevant part,: “In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law . . . any person . . . may intervene as a party on the filing of a verified pleading' asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state.”

       We note that although standing and jurisdiction have been at issue throughout the procedural history of the present case, we review the question of whether the plaintiff has standing apart from any previous decisions because the standing question has not been decided previously using the Nizzardo test. Nonetheless, the standard we have articulated still is applicable.

       We note that in addressing the zoning commission’s argument, we have not based our determination on any particular statute, permit requirement or permitting process involving the department of environmental protection or any other agency. Rather, we simply reveal the potential flaws in the zoning commission’s argument. We decline to rule more specifically in light of the zoning commission’s failure to provide more specific authority and the record in this particular appeal. Specifically, the record does not reveal the extent of the involvement by the department of environmental protection with the site, what permits were required for the project in question, what General Statutes apply or what permits were, in fact, granted or denied by the department.

       The four other allegations state, in essence, who the petitioner was, that he was familiar with the application in issue, the statutory language of General Statutes § 22a-19 and that an alternative to the proposed placement of the plant existed, namely, locating the plant elsewhere.


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. SEAN ADAMS
    (AC 22523)
    SchaUer, Dranginis and Bishop, Js.
    Argued April 30
    officially released October 1, 2002

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Sean Adams, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-54a (a) and 53a-8 (a), conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a), and two counts of assault in the first degree in violation of General Statutes §§ 53a-59 (a) (5) and 53a-8 (a). The defendant claims that the court improperly (1) admitted the testimony of an expert witness and (2) denied the defendant’s motions for a mistrial due to prosecutorial misconduct. We affirm the judgment of the trial court.

The defendant and three fellow members of a street gang, Darcus Henry, Carlos Ashe and Johnny Johnson, each were charged in a four count substitute information with murder, conspiracy to commit murder and two counts of assault in the first degree for firing automatic or semiautomatic weapons at three unarmed members of a rival street gang. All four cases were consolidated and tried jointly before a twelve person jury. The jury found the defendant and Darcus Henry guilty as charged, and both men appealed.

The defendant’s claims were fully addressed and rejected by this court in the companion case of State v. Henry, 72 Conn. App. 640, 805 A.2d 823 (2002), which we also have decided today. That decision therefore is dispositive of the defendant’s claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . .
      General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of 1 hem commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (5) with intent to cause physical iqjury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.”