author: BISHOP, J.

text:
    CANDLEWOOD HILLS TAX DISTRICT v. PETER MEDINA ET AL.
    (AC 33564)
    DiPentima, C. J., and Alvord and Bishop, Js.

      Argued December 10, 2012
    officially released June 11, 2013

      Adam J. Cohen, for the appellants (named defendant et al.)

      Joseph L. Gegeny, for the appellee (plaintiff).
   Opinion

BISHOP, J.

The defendants, former board members and residents of the plaintiff, Candlewood Hills Tax District, appeal from the judgment of the trial court declaring invalid actions taken by the defendants to reduce the boundaries of the district containing the defendants’ property. The defendants claim that (1) the court improperly declared the boundary reduction invalid despite finding compliance with the statutoiy procedure, and (2) the court erroneously found that the defendants owed fiduciary duties to the district and breached these duties by calling the referendum on the boundary reduction. We reverse the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of this appeal. The plaintiff is a special taxing district originally created in 1971, pursuant to General Statutes §§ 7-324 through 7-329, for a residential neighborhood known as Candle-wood Hills, in the town of New Fairfield. The plaintiffs bylaws provide that the purpose of the district is to maintain the roads within the boundaries of the district. The plaintiff is governed by a nine member board of directors (board), whose members are elected from the residents of the district.

For many years, residents of the district who lived on portions of Candle Hill Road, Linda Lane, Carola Lane and Squantz View Drive had been unsatisfied with the allocation of the tax monies they paid to the district. In 2008, three residents of Squantz View Drive, the defendants Gregory Cross, Thomas Wahlig and John Benicewicz, drafted a letter demanding that the board cooperate in releasing their street from the district, with the result that they would no longer be subject to the tax responsibilities of the district. These residents brought the letter to two monthly meetings of the board but were informed that no new business could be considered until several vacancies on the board were filled. At a third meeting on June 19, 2008, a request was made by the board president, Raffaele Martino, for volunteers to fill the vacant seats. Five residents of Squantz View Drive, the defendants Gregory Cross, Rosie Cross, Thomas Wahlig, Donna Wahlig and John Benicewicz, three of whom had written the previous demand letter, volunteered for the open positions and were duly elected.

At the meeting of the board that convened that evening after the election, the defendants introduced their previous letter demanding removal of their street from the district’s boundaries during the new business portion of the meeting. No action was taken by the board on the matter that evening. Subsequently, the defendants asked Martino to call a special meeting to discuss the boundary reduction and to list the issue on the agenda of the next board meeting; he refused both requests. At the July 17,2008 board meeting, the defendants again raised the boundary reduction issue during the new business portion of the meeting. After a “ ‘lively debate’ ” regarding the complaints of the residents residing on Squantz View Drive and two other areas of the district, the board, by a bare majority vote, passed three resolutions for the exclusion of specific locales from the district. All of the votes in favor of the three resolutions came from the five defendants who lived on Squantz View Drive. The resolutions in favor of exclusion of specific locales also authorized a referendum to be held at a special meeting to determine whether the residents of the identified locales wished to reduce the district’s boundaries by removing these areas from the district. The announcement of the referendum was highly contentious within the district and two petitions were circulated. One sought to remove the defendants from the board, and the other sought to allow all the residents of the district to vote on the referendum, regardless of whether they lived in the specific locales under consideration for removal from the district. Both petitions were rejected by the district clerk on the ground that the requested actions were illegal.

The referendum held on August 14,2008, was of such sufficient public moment that the location of the vote had to be changed to accommodate the high volume of persons who attended, and a police officer was placed on duty to observe. Most of the eligible voters in the areas subject to the referendum attended the meeting. They voted unanimously to reduce the boundaries of the district by removal of their respective streets from the district. At a subsequent board meeting, the defendants who resided in the areas removed from the district were replaced with residents who remained in the district. The successor board then commenced this action on behalf of the district.

The plaintiff filed this declaratory judgment action, seeking a judicial determination as to whether the prior board properly reduced the district’s boundaries. In its operative complaint, the plaintiff alleged that, prior to their election to the board, the defendants had failed to make a good faith disclosure of their intention to reduce the plaintiffs geographical area and improperly put their own interests in excluding themselves from taxation ahead of the district’s best interests. In addition, the plaintiff alleged that the defendants violated General Statutes § 7-325 (b), which provides in relevant part: “Any district may enlarge or reduce its territorial limits if the board of directors of the district approves a resolution proposing such an enlargement or reduction . . . provided: (1) The board of directors of the district shall call a meeting of voters of the area proposed to be included or excluded, which meeting shall be held within thirty days of the board of directors’ approval of such resolution and shall be called by publication of a written notice of the same, signed by the members of the board of directors of the district, at least fourteen days before the time fixed for such meeting in two successive issues of some newspaper published or circulated in such town . . . [and] (2) a two-thirds majority of the voters of the area proposed to be included or excluded in attendance at such meeting . . . vote in favor of joining or leaving such district . . . .” In response to the plaintiffs complaint, the defendants filed a two count counterclaim, alleging that they had properly followed statutory dictates and seeking a declaration that the boundary reduction process and the outcome of the referendum were legally proper and binding.

On June 7, 2011, following a trial to the court, the court issued a memorandum of decision in which it found in favor of the plaintiff. The court found, inter alia, that the tax district was a quasi-municipal corporation, and, as such, both the district and its board members were akin to municipal officers and had narrow authority only as prescribed by statute. The court further found that, as municipal officers, the defendants had a fiduciary duty to the public whom they served, and they, therefore, could not serve on a matter in which they had a conflict of interest. The court found that the defendants breached their fiduciary duty “by pursuing [their] selfish interests [and] ignoring the public good.” As for the boundary reduction, the court stated that the board “exceeded its authority in reducing [the district’s] geographical area.” Accordingly, the court rendered judgment “invalidating the action of the 2008-2009 board reducing the geographical area of the plaintiff district.”

On June 29, 2011, the defendants filed a motion for articulation. The court, however, denied the motion for articulation, and the defendants subsequently filed a motion for review with this court. On October 19, 2011, this court granted the defendants’ motion to review and ordered the trial court to articulate: (1) the burden of proof it used and on which party that burden was imposed; (2) the factual basis for finding that the board breached its fiduciary duty to the district; and (3) the factual basis for finding that the board violated the procedures set forth in § 7-325 (b). On May 2, 2012, the court issued an articulation, clarifying that while the board did not violate the procedures set forth in § 7-325 (b), the defendants, as municipal officers, owed a fiduciary duty to the public whom they served and “found that the defendants breached their fiduciary duty by acting in derogation of the plaintiffs collective interests.”

On appeal, the question we must answer is whether a special taxing district’s reduction of its boundaries that followed the applicable statutory procedure, is nevertheless invalid because the district’s board members owed a fiduciary duty to the residents of the district and breached this duty by voting for a referendum when it was opposed by the majority of the district’s residents. Since all of the claims presented in this appeal are questions of law, our review is plenary. Biller Associates v. Peterken, 269 Conn. 716, 721-22, 849 A.2d 847 (2004) (“[T]he determination of whether a duty exists between individuals is a question of law. . . . Only if a duty is found to exist does the trier of fact go on to determine whether the defendant has violated that duty. . . . When the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” [Internal quotation marks omitted.]). We first address the defendants’ claim that the boundary reduction was valid under the applicable statutory procedure and then turn our attention to their claim regarding the court’s determination that the defendants owed a fiduciary duty to the district.

I

The defendants first claim that the court improperly failed to declare the boundary reduction valid because the court found that the board did not violate the statutory procedure for boundary reduction, § 7-325 (b), and did not find the requisite fraud, corruption or similar misconduct necessary to warrant judicial interference into municipal legislative decisions. We agree.

We begin our analysis of the defendants’ claim with a brief overview of the relevant law regarding municipal corporations. “A legally created tax district is a quasi-municipal corporation. . . . Quasi-municipal corporations are governed by the law applicable to municipal corporations.” (Citations omitted; internal quotation marks omitted.) Campanelli v. Candlewood Hills Tax District, 126 Conn. App. 135, 139-40, 10 A.3d 1073 (2011). The rule for judicial review of municipal legislative decisions is found in McAdam v. Sheldon, 153 Conn. 278, 216 A.2d 193 (1965), which follows the seminal case of Whitney v. New Haven, 58 Conn. 450, 20 A. 666 (1890). “When municipal authorities are acting within the limits of the formal powers conferred upon them and in due form of law, the right of courts to supervise, review or restrain them is necessarily exceedingly limited. In part, this stems from the constitutional separation of the legislative, executive and judicial functions and powers. . . . And where . . . the municipal authorities act in accordance with formal requirements, courts will interfere only ‘where fraud, corruption, improper motives or influences, plain disregard of duty, gross abuse of power, or violation of law, enter into or characterize’ the action taken. . . . Mere differences in opinion among municipal officers or members of the municipal electorate are never a sufficient ground for judicial interference. . . . Even without consideration of constitutional infirmities, any broader rule would potentially involve the courts in the review and revision of many, if not all, major controversial decisions of the legislative or executive authorities of a municipality.” (Citations omitted.) McAdam v. Sheldon, supra, 281.

“The wisdom, expediency, or advisability of changing municipal boundaries is not subject to review. A reviewing court may not inquire into the motives of municipal authorities or others with respect to annexation or detachment of municipal areas, unless the proceedings are tainted by malice, fraud, corruption, or gross abuse of discretion. Rather, review of a municipality’s fulfillment of statutory requirements for annexation is governed by assessment of compliance or noncompliance with those requirements .... The reviewing court will not substitute its discretion or judgment for that of the . . . municipal body whose judgment is being reviewed, especially upon the question of the sufficiency of reasons for the annexation or detachment of territory.” 2A E. McQuillin, Municipal Corporations (3d Ed. Rev. 2006) § 7.41, pp. 19-25.

The challenged actions of the defendants in passing resolutions to eliminate certain areas from the district and submitting these resolutions to a vote of affected residents were municipal legislative decisions. The court’s inquiry, therefore, should have been limited to whether the defendants acted in accordance with the statutory procedure for reducing the boundaries of the district and whether, in voting in favor of a resolution to reduce the district and to conduct a referendum on the resolution, the defendants were guilty of any form of misconduct. As noted, the reduction of a special taxing district’s boundaries is governed by § 7-325 (b), which proscribes a very specific set of steps for a district to follow when reducing its boundaries. Here, the court specifically held that the board did not violate § 7-325 (b). Thus, once concluding that the statutory procedure was followed, the court’s inquiry should have been limited to whether “fraud, corruption, improper motives, or influences, plain disregard of duty, gross abuse of power, or violation of law, enter into or characterize the action taken.” (Internal quotation marks omitted.) LaTorre v. Hartford, 167 Conn. 1, 9, 355 A.2d 101 (1974). Here, the court made no finding regarding any of the special circumstances that could justify judicial interference in the municipal legislative function. The defendants passed resolutions authorizing the residents of three areas in the district to vote pursuant to § 7-325 (b). The plaintiff did not allege that these resolutions were tainted by fraud, corruption or similar misconduct, but, rather, it argued, and the court agreed, that the vote was invalid because it went against the wishes of the remainder of the district’s residents. The court was critical of the defendants, in this regard, in its finding that the defendants improperly voted in favor of the resolutions when they were aware that the majority of the taxing district opposed the boundary reduction and that they failed to disclose to the public their intention to seek the reduction of the district’s boundaries prior to their election to the board.

While it is clear from the record that political rancor existed as a result of the defendants seeking a reduction in the district’s boundaries, the resolution of these issues was determined legislatively in a manner authorized by statute, and, as previously noted, the role of the court in reviewing a municipal legislative determination is a limited one. See McAdam v. Sheldon, supra, 153 Conn. 281. (“[m]ere differences in opinion among . . . members of the municipal electorate are never a sufficient ground for judicial interference”). “When the considerations entering into the decision of a local authority are fairly debatable, courts cannot substitute their judgment of local needs for that of the local authority.” Peterson v. Norwalk, 150 Conn. 366, 378, 190 A.2d 33 (1963); see Robb v. Watertown, Superior Court, judicial district of Waterbury, Docket No. 085166 (November 21, 1990) (2 Conn. L. Rptr. 830, 832) (“[f]or the courts to frustrate the majority’s wishes in the absence of compelling reasons is to denigrate the power of the coequal legislative and executive branches of government and undermine the democratic principles upon which our system of government is based”). That the defendants, as members of the board, chose to enact an unpopular or controversial course of action does not mean that their actions constituted misconduct. Therefore, the issue of whether the remaining residents of the district were displeased by the resolutions and subsequent referendum is legally irrelevant to whether the defendants’ actions are invalid.

Further, whether the defendants failed to disclose to the public, prior to their election to the board, their intention to seek the reduction of the district’s boundaries does not affect the validity of the board’s actions. While the trial court may have disapproved of the political methods by which the defendants obtained the boundary reduction, we see no legal reason that public officials should have to disclose all of their political intentions to the electorate before election in order to avoid invalidation of their acts once elected. “This court will not disturb a discretionary action of local government absent a showing of fraud or a gross abuse of discretion.” Double I Limited Partnership v. Glastonbury, 14 Conn. App. 77, 81, 540 A.2d 81, cert. denied, 208 Conn. 802, 545 A.2d 1100 (1988). “We have stated . . . that municipal authorities should administer discretionary powers in a manner which avoids weakening public confidence in government. Flexibility in the process of decisionmaking, however, and a decision in favor of one party rather than the other, do not constitute ethical breaches. Absent a clear showing of fraud, illegality, or corruption, courts will not intervene in the legislative process. ... [A party’s] dissatisfaction with the exercise of discretion by city authorities can be expressed through the political process.” (Citations omitted.) Northeast Electronics Corp. v. Royal Associates, 184 Conn. 589, 593, 440 A.2d 239 (1981).

Accordingly, in light of the court’s finding that the defendants followed the statutory requirements for reducing the district’s boundaries, a finding that has ample support in the record, and a record that reflects that the defendants’ actions did not constitute fraud, corruption or other misconduct, we conclude that the court improperly declared the boundary reduction invalid.

II

The defendants next claim that the court improperly held that they owed fiduciary duties to the district and breached these duties by calling the referendum on the boundary reduction while they were burdened by a conflict of interest. Specifically, the defendants argue that a municipal officer’s duties cannot be correctly characterized as fiduciary, which is a status typically reserved for more direct and intimate relationships than that enjoyed by a public office holder. We agree with the defendants.

The following additional facts are relevant to our analysis of this claim. The court stated in its memorandum of decision that “Connecticut case law makes clear that municipal officers owe a fiduciary duty to the public whom they serve and that they cannot serve on a matter in which they have a conflict of interest.” In its articulation, the court “found that the defendants breached their fiduciary duty by acting in derogation of the plaintiffs collective interests . . . .” When the court issued its articulation, it indicated that it based its conclusion that the defendants had a conflict of interest in violation of their fiduciary duty, on several factual findings. Specifically, the court relied on testimony by other members of the board that, during 2008-2009, in their opinion, the defendants were acting against the best interests of the entire district by reducing the district’s tax income and simultaneously were promoting their own personal interests by eliminating their tax obligations to the district. The court also found significant that the defendants were “well aware of the community’s opposition” to the boundary reduction, finding that “[t]he board knew full well that its actions were vigorously opposed by the taxing district community . . . yet it proceeded to vote to affirm the resolution.” (Citation omitted.)

We begin with a discussion of fiduciary relationships. “It is axiomatic that a party cannot breach a fiduciary duty to another party unless a fiduciary relationship exists between them.” Biller Associates v. Peterken, supra, 269 Conn. 723. “[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other.” (Emphasis added; internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38, 761 A.2d 1268 (2000). “Although [our Supreme] [C]ourt has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations . . . we have recognized that not all business relationships implicate the duty of a fiduciary. . . . In particular instances, certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary.” (Citations omitted; internal quotation marks omitted.) Id. “The fact that one party trusts another is not dispositive of whether a fiduciary relationship exists . . . rather, proof of a fiduciary duty requires an eviden-tiary showing of a unique degree of trust and confidence between the parties such that the [defendant] undertook to act primarily for the benefit of the plaintiff.” (Citation omitted; internal quotation marks omitted.) Golek v. Saint Mary’s Hospital, Inc., 133 Conn. App. 182, 197, 34 A.3d 452 (2012). “All fiduciary relationships, to some degree, [require] confidence of one in another and a certain inequity or dependence arising from weakness of age, mental strength, business intelligence, knowledge of facts involved, or other conditions which give one an advantage over the other.” (Internal quotation marks omitted.) Murphy v. Wakelee, 247 Conn. 396, 407, 721 A.2d 1181 (1998).

The court did not cite to any Connecticut precedent or statutory provision establishing that a municipal officer has a fiduciary relationship with his or her constituents. Instead, the court examined the law of fiduciary relationships, as well as municipal corporation law underscoring the special trust placed in public officials to avoid conflicts of interest, and extrapolated that municipal officers owe fiduciary duties to the public they serve. While our courts have recognized fiduciary relationships in a number of contexts, all have featured circumstances in which the fiduciary was in a dominant position, such as an attorney or a trustee, or was under a specific duty to act for the benefit of another, as in the case of business partners or corporate directors. See Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 56, 717 A.2d 724 (1998) (attorney-client relationship imposes fiduciary duty on attorney); Katz Corp. v. T. H. Canty & Co., 168 Conn. 201, 207, 362 A.2d 975 (1975) (officer and director of corporation owes fiduciary duty to corporation); Spector v. Konover, 57 Conn. App. 121, 127, 747 A.2d 39 (fiduciary relationship exists between partners), cert. denied, 254 Conn. 913, 759 A.2d 507 (2000).

We have recognized that “[t]he law does not provide a bright line test for determining whether a fiduciary relationship exists, yet courts look to well established principles that are the hallmark of such relationships.” Iacurci v. Sax, 139 Conn. App. 386, 401, 57 A.3d 736 (2012), cert. granted on other grounds, 308 Conn. 910, 61 A.3d 1100 (2013). Here, the parties were not engaged in a relationship of special trust and confidence such as that of fiduciaries. Rather, while the defendants stood in their official capacity as representatives of the residents of the taxing district, they did not have a relationship with the general public of the taxing district characterized by a unique degree of trust and confidence associated with a fiduciary. At least one Connecticut trial court decision has addressed this question and similarly concluded that under Connecticut law, government entities, such as taxing districts, do not automatically have a fiduciary duty toward residents. See Silberstein v. 54 Hillcrest Park, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-07-5004549-S (November 5, 2010), aff'd on other grounds, 135 Conn. App. 262, 41 A.3d 1147 (2012). In Silberstein, the court explained: “This result makes sense because the majority of activities conducted by a government are for the benefit of the public as a whole as opposed to certain individuals. Without a close relationship based on trust and a specific duty to act for another, there cannot be a fiduciary relationship.” Id. We agree with the reasoning of the court in Silb-erstein and conclude that, under Connecticut law, municipal officers, such as the defendants, do not owe a fiduciary duty to the public whom they serve except as may be imposed by statute under specific circumstances.

We turn now to address the plaintiffs claim that the defendants’ actions establishing the referendum were invalid because they were acting under a conflict of interest. The plaintiff points to the court’s citation of Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority, 192 Conn. 638, 474 A.2d 752, cert. denied, 469 U.S. 932, 105 S. Ct. 328, 83 L. Ed. 2d 265 (1984), for the authority that when the defendants used their position on the board to remove their properties from the taxing district, they did so under a conflict of interest. In Gaynor-Stafford Industries, Inc., our Supreme Court stated: “We recognize and reaffirm the principle first declared in Low v. Madison, [135 Conn. 1, 60 A.2d 774 (1948)] that the appearance of impropriety created by a public official’s participation in a matter in which he has a pecuniary or personal interest is alone sufficient to require disqualification. This prophylactic rule serves the salutary purposes of promoting public confidence in the fairness of the decision-making process and preventing the public official from placing himself in a position where he might be tempted to breach the public trust bestowed upon him. . . . Whether a particular interest justifies disqualification is necessarily a factual question, for not every interest, no matter how remote and infinitesimal, may be said to possess the likely capacity to tempt the public official to depart from his sworn duty.” (Citation omitted; internal quotation marks omitted.) Id., 649-50.

This conflict of interest disqualification rule originally was applied in the context of zoning boards sitting in a quasi-judicial capacity, hearing petitions and making individualized determinations, and ultimately was encapsulated in statutes that apply specifically to zoning boards. See General Statutes §§ 8-11 and 8-21. This standard has been applied outside of the zoning context to members of a school board of trustees adjudicating an employment termination hearing. See Petrowski v. Norwich Free Academy, 199 Conn. 231, 241, 506 A.2d 139 (1986). In LaTorre v. Hartford, supra, 167 Conn. 8-9, however, our Supreme Court held that the conflict of interest standard in Low, subsequently applied in Gaynor-Stafford Industries, Inc., and its progeny, is inapplicable to municipal legislative decisions. Instead, under LaTorre, the correct standard is to use the more deferential standard set forth in McAdam, in which courts will interfere with legislative decisions made by municipalities only where the party seeking review can characterize the legislative act as illegal, fraudulent, or corrupt. See id., 9; see also R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 47:3, p. 40 (“[t]he conflict of interest rules apply to administrative and quasi-judicial decisions of administrative agencies, and a less strict standard applies to municipal legislative decisions”). The court in LaTorre stated: “This court has consistently applied the standards enunciated in Low ... to zoning boards and commissions, and to public officials acting in administrative or quasi-judicial capacities, and had held disqualified those whose interests or relationships have created the appearance of possible partiality. Nevertheless, with a due regard for the legislative magistracy and with a reluctance to involve the courts in political controversies, and in the review and revision of many, if not all, major controversial decisions of the legislative or executive authorities of a municipality, the same standard, desirable as it may be, has not been applied in the judicial review of municipal legislative decisions.” LaTorre v. Hartford, supra, 8. Under LaTorre, the decision challenged here is a municipal legislative decision and, as discussed previously, is entitled to a more deferential standard of review.

Even if we were to examine the defendants’ actions under the more stringent standard of Low, we would conclude that the defendants were not burdened by a conflict of interest regarding the issue before the board requiring that their actions be invalidated. Here, the defendants’ personal interests were mirrored by the similar interests of all the residents of the areas subject to elimination from the district. Like all those residents, the defendants owned homes within one of the three areas proposed to be removed from the district. This personal interest in no way distinguishes the defendants from any of the other residents who were authorized by the resolutions to vote on the referendum. See State ex rel. Reynolds v. Pinkerman, 63 Conn. 176, 192, 28 A. 110 (1893) (“common parliamentary rule that no member of a legislative assembly shall vote on any question involving his . . . pecuniary interest . . . but . . . only . . . when it is immediate, particular, and distinct from the public interest” [emphasis added]). If owning property within a municipality’s boundaries could, alone, suffice to disqualify a municipal officer from participating in a legislative decision, a municipality would be incapable of any action. Thus, “[wjhether an interest justifies disqualification is necessarily a factual question and depends upon the circumstances of the particular case. ... In subjecting those circumstances to careful scrutiny, courts must exercise a great degree of caution. . . . Local governments and school boards would be seriously handicapped if any conceivable interest, no matter how remote and speculative, would require the disqualification of a [public] official.” (Citations omitted; internal quotation marks omitted.) Petrowski v. Norwich Free Academy, supra, 199 Conn. 242.

It would be extremely illogical and unworkable to hold that the only requirement for holding a position on the board of the taxing district, residence within the district, is the same requirement that would disqualify a board member from making legislative decisions simply because those decisions would affect him or her in the same manner that all residents of the district would be impacted. Here, the defendants advocated on behalf of not only themselves as residents, but on behalf of the owners of thirty-one other properties in the district that were also removed from the district by reason of the district vote on the resolutions. As we discussed previously, the fact that the residents of the taxing district who were not from the affected areas were unhappy with the board’s process does not establish that the defendants acted under a conflict of interest, or against the public interest.

The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendants.

In this opinion the other judges concurred.

       The defendants are the five former members of the board of directors, Gregory Cross, Rosie Cross, Thomas Wahlig, Donna Wahlig and John Beni-cewicz, who own property in the excluded area. In addition, the plaintiff also named as defendants the remaining property owners in the excluded area. On appeal, twenty-nine of the defendants who, individually or jointly, own eighteen of the affected properties have joined in this appeal. The other persons named as defendants are not parties to this appeal. For simplicity, in this opinion we refer to the five former members of the board of directors for the district as the defendants.

       The defendants also claim that the court improperly admitted into evidence and relied on lay opinion testimony. We do not address this claim in view of our conclusion that the court improperly declared the boundary reduction invalid.

       The specific locales to be excluded included Squantz View Drive and Carola Lane, and certain portions of Candle Hill Road and Linda Lane.

       It is particularly noteworthy that, in accordance with § 7-325 (b), only the voters from the affected locales within the district are entitled to vote on a proposed reduction of the district’s territorial boundaries.

       We note that in the court’s articulation, it did allude to testimony regarding “procedural deficiencies in the board’s actions,” specifically that the proposed reduction never appeared on a publicly available agenda and that decisions involving finances other than the annual budget normally went to a community-wide vote. In light of the court’s very specific finding that there was no violation of § 7-325 (b), we read these findings as underpinning the court’s conclusion that the board was acting in derogation of the district’s best interests and not as contrary to its finding of statutory compliance.
      We also note that the plaintiff alleges that the defendants failed to follow the notice requirement in § 7-325 (b) when they moved the location of the August 12, 2008 meeting during which the vote took place, and, therefore, the reduction should be invalid on this basis alone. While the plaintiff does not assert, specifically, that this claim provides an alternate basis for affirmance pursuant to Practice Book § 63-4 (a) (1), we could consider it as such if the plaintiff had, in fact, briefed the issue. See, e.g., Connecticut Ins. Guaranty Assn. v. Fontaine, 278 Conn. 779, 784 n.4, 900 A.2d 18 (2006) (alternate ground may be reviewed despite failure to comply with Practice Book § 63-4 [a] [1] when all parties briefed claim such that no party prejudiced by review). We decline to review this claim, however, as it is inadequately briefed. The plaintiff merely asserts, without any supporting legal argument, that by moving the meeting location and not providing notice of the change in the newspaper, the board was no longer acting within the purview of § 7-325 (b). “[Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010).

       The court also predicated its ruling on several other findings, including that the defendants did not immediately replace a resigning board member, made a dissenting board member feel “ ‘stonewalled,’ ” refused to certify a recall petition and did not allow the entire taxing district to vote on the boundary reduction. Upon our review of the record, none of these findings justified judicial interference into the board’s actions because none of the conduct cited by the court violated the dictates of § 7-325 (b) and the process embarked on by the defendants did not entail fraud, corruption or similar misconduct.

       General Statutes 8-11 states in relevant part: “No member of any zoning commission or board and no member of any zoning board of appeals shall participate in the hearing or decision of the board or commission of -which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense. .. .” General Statutes 8-21 states in relevant part: “No member of any planning commission shall participate in the hearing or decision of the commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense. . ."


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    RAFFAELE PRIORE, COADMINISTRATOR (ESTATE OF TYLER PRIORE), ET AL. v. ROSE LONGO-MCLEAN, COADMINISTRATOR (ESTATE OF GEORGE LUCAS MCLEAN), ET AL.
    (AC 33779)
    (AC 33796)
    Gruendel, Sheldon and Dupont, Js.

      Argued March 14
    officially released June 11, 2013

      Francis J. Drumm III, with whom was Anita M. Varanes, for the appellants (named defendant et al.).

      Jay T. DonFrancisco, for the appellees (apportionment defendant town of Wallingford et al.).
   Opinion

DUPONT, J.

The primary issue in this appeal is whether the liability of the alleged tortfeasors in the underlying action for damages arising out of a motor vehicle accident may be apportioned with a municipality and its employees. The defendants in the underlying action, George A. McLean and Rose Longo-McLean, in their capacity as coadministrators of the estate of George Lucas McLean, and George A. McLean, individually, appeal from the summary judgment rendered by the trial court in favor of the apportionment defendants, the town of Wallingford (town) and various town employees. The trial court determined that the apportionment action was governed by the municipal highway defect statute, General Statutes § 13a-149, and that, therefore, liability of the defendants could not be apportioned. The defendants claim that the court erred when it (1) construed the facts and allegations in their two similar apportionment complaints as raising a claim exclusively within the scope of § 13a-149, and (2) determined that the apportionment defendants were entitled to summary judgment because it improperly concluded that apportionment was not permitted under that statute. We affirm the judgment of the trial court.

A resolution of these issues requires a brief review of the pleadings filed in this case prior to the filing of the two apportionment complaints, and of the facts alleged in those pleadings. On December 16, 2009, the plaintiffs, Raffaele Priore and Cheryl Priore, both individually and as coadministrators of the estate of their son, Tyler Priore, commenced the underlying action against the defendants. The underlying complaint sought damages arising from a single automobile accident in which Tyler Priore, a passenger in the car, and George Lucas McLean, the sixteen year old driver of the car, were both killed. The underlying complaint alleged that on January 20, 2008, George Lucas McLean lost control of the vehicle while driving and caused the car to crash in the vicinity of 592 Williams Road in Wallingford, and alleged various claims for damages arising from negligence, recklessness, negligent entrustment of a motor vehicle and bystander emotional distress. The underlying complaint does not name the town or any town employees as defendants in that action, and the action has yet to be resolved.

Subsequently, in lieu of filing an answer, the defendants filed two separate apportionment complaints against the apportionment defendants in which they sought an apportionment of liability with the town and the six named town employees. In these apportionment complaints, the defendants alleged acts of negligence by the individual town employees in connection with a town construction project to install a drainage system in the road on which the fatal accident had occurred, and alleged that if the plaintiffs had suffered injuries, damages and losses, it was due to that negligence. They also alleged that the named town employees were negligent in designing and supervising the construction project and failing to warn drivers of its hazards. Further, they claimed that the town was required to indemnify these employees for their negligent conduct, and could be held liable for a proportionate share of any damages awarded. The defendants claimed relief pursuant to General Statutes §§ 52-572h and 52-557n.

On April 26,2011, the apportionment defendants filed a motion for summary judgment as to both apportionment complaints, claiming that there was no material issue of fact in dispute because the undisputed facts as alleged required application of § 13a-149, the municipal highway defect statute, and apportionment of liability is prohibited in causes of action created by that statute. The defendants objected to the motion, contending that the claims in their two apportionment complaints were not highway defect claims. Following oral argument, the trial court agreed with the apportionment defendants, concluding that the undisputed facts were necessarily considered as a claim governed by § 13a-149, and, as such, liability could not be apportioned. The court therefore granted the apportionment defendants’ motion for summary judgment. This appeal followed.

“Our standard of review is well established. Practice Book § 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. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a] . . . motion for summary judgment is plenary. . . .

“An appellate court’s review of a trial court decision is circumscribed by the appropriate standard of review. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Bridgeport v. White Eagle's Society of Brotherly Help, Inc., 140 Conn. App. 663, 667-68, 59 A.3d 859 (2013).

I

The defendants first claim that the trial court erred when it concluded that the apportionment complaints were highway defect claims. They contend that the apportionment complaints were brought pursuant to §§ 52-572h and 52-557n, which govern negligence actions against municipalities, and, thus, liability could be apportioned pursuant to General Statutes § 52-102b. They further contend that the apportionment complaints could not properly be considered as highway defect claims because they did not adequately allege facts necessary to construe them as actions governed by § 13a-149. We are not persuaded.

The question we must resolve in this case is whether the defendants’ apportionment claims are sustainable in light of § 13a-149. The absence of a citation to that statute in the apportionment complaints is not controlling if, as a matter of law, the specific allegations of a pleading are sufficient to invoke § 13a-149. Ferreira v. Pringle, 255 Conn. 330, 340, 766 A.2d 400 (2001). “[T]he absence of citation to § 13a-149 ... is of no importance, as a complaint may still contain allegations sufficient to invoke that statute.” Himmelstein v. Windsor, 116 Conn. App. 28, 39, 974 A.2d 820 (2009), aff'd, 304 Conn. 298, 39 A.3d 1065 (2012). Accordingly, although the defendants did not allege that their claims are highway defect claims, § 13a-149 may nonetheless govern the outcome of this dispute.

“Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law .... [A] highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result. . . . [I]f there is a defective condition that is not in the roadway, it must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair. . . .

“To fall within the statute ... a person must [simply] be on the highway for some legitimate purpose connected with travel thereon .... Nor does the defect have to be on the actual traveled portion of the highway. . . . Reasonable latitude is allowed to meet the exigencies of travel. . . . Furthermore, a highway is defective within the meaning of § 13a-149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel.” (Citation omitted; internal quotation marks omitted.) Bellman v. West Hartford, 96 Conn. App. 387, 394-95, 900 A.2d 82 (2006).

The apportionment complaints specifically allege that “a construction project [resulted] in a narrowing of Williams Road, producing an uneven road surface, permitting the existence of a raised and exposed catch basin and which was left unlit in the area where the motor vehicle accident alleged by the plaintiffs occurred. . . . The construction project in and around the accident failed to have any signs, cones, barrels, markings, fights or warnings whatsoever that would have alerted drivers of the impending construction area. ... On January 20, 2008, George Lucas McLean was driving on Williams Road when he suddenly came upon the unsigned and unmarked construction area, causing him to lose control of his vehicle and collide with a tree causing his death and the death of Tyler Priore.”

These pleadings clearly raise a claim that is properly governed by § 13a-149. The defendants allege that a municipal road was unsafe for public travel because of the condition of the road caused by the town’s construction project, which is sufficient to satisfy the pleading requirements of the statute, regardless of whether they specifically brought their claims pursuant to § 13a-149. See Ferreira v. Pringle, supra, 255 Conn. 340-41 (concluding as matter of law that allegations in complaint invoked highway defect statute and plaintiffs exclusive remedy was therefore § 13a-149). The claims asserted by the defendants necessarily invoke § 13a-149 because they “contemplate that the plaintiff[s’] injury occurred as a result of a defective road that the town was bound to keep ... in repair.” (Internal quotation marks omitted.) Id., 343; see also Machado v. Hartford, 292 Conn. 364, 380-81, 972 A.2d 724 (2009) (allegations of negligence in roadwork creating defect in roadway that caused plaintiffs injuries properly invoked § 13a-149).

In arguing that their apportionment complaints do not allege a claim under the highway defect statute, the defendants rely on Kumah v. Brown, 127 Conn. App. 254, 14 A.3d 1012 (2011), aff'd, 307 Conn. 620, 58 A.3d 247 (2013), in which this court held that the plaintiffs’ claims against the defendant town were not barred by governmental immunity such that the town could be held hable for the alleged negligence of town officials when, inter aha, fire truck and lane closures were not adequately marked, resulting in an accident. Id., 257-58. The defendants’ reliance on Kumah is misplaced, however, because the plaintiffs in that case did not argue that the defendant’s negligence claims were within the purview of § 13a-149, but rather that they were barred by governmental immunity. Moreover, in Kumah, the plaintiffs did not allege that the town was “bound to keep [the road where the accident occurred] in repair” pursuant to § 13-149 because the accident at issue occurred on a major interstate highway. Id., 263. Conversely, in the present case, no party disputes that the road where the fatal accident occurred was a municipal road, maintained by the town, and that the construction project on the road was undertaken by the town.

Furthermore, our Supreme Court has “construed § 52-557n ... to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute [§ 13a-149] is the plaintiffs exclusive remedy. Wenc v. New London, 235 Conn. 408, 412-13, 667 A.2d 61 (1995); Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 592 A.2d 912 (1991); see also General Statutes § 52-557n (a) (1) (C) (‘no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149’).” (Emphasis added.) Ferreira v. Pringle, supra, 255 Conn. 341. Thus, because the allegations of the apportionment complaints fall within the purview of § 13a-149, that statute provides the exclusive remedy in this case. The trial court, therefore, properly determined that the defendants’ claims were claims for apportionment under the municipal highway defect statute and, accordingly, properly granted the apportionment defendants’ motion for summary judgment.

II

The defendants alternatively argue that, even if their apportionment action is properly construed as a claim under § 13a-149, the trial court nonetheless erred in granting summary judgment to the apportionment defendants because apportionment is not barred by § 13a-149. We disagree.

We have held that in order for a plaintiff to obtain relief under the highway defect statute, the municipality must be the sole cause of the injury. “To prove a breach of statutory duty under this state’s defective highway statutes, the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed . . . .” (Emphasis added; internal quotation marks omitted.) Bovat v. Waterbury, 258 Conn. 574, 583-84, 783 A.2d 1001 (2001). In the present case, the apportionment complaints, as we have already discussed, were properly considered as highway defect claims against the apportionment defendants. We next consider whether liability can be apportioned under § 13a-149.

More than one hundred years ago, in Bartram v. Sharon, 71 Conn. 686, 690, 43 A. 143 (1899), our Supreme Court first identified sole proximate cause as the standard for determining municipal liability for a town highway defect pursuant to a 1672 statute. “In Bartram, the court acknowledged that, under the statute [General Statutes § 2673, precursor to § 13a-149], a municipality should be held responsible for any injuries resulting from a defect in the highway of which the town knew or should have known, and that the town failed or neglected to repair despite having reasonable time to do so. . . . ‘[I]t is the statute only, which entitles the plaintiff to compensation for his injury when that injury is caused through or by means of a defect in the highway. If the negligence of himself or of a third person is also a proximate cause, he cannot say with truth that he was injured by the defect; [the plaintiff] can only say with truth that he was injured by his own or another’s carelessness and the defect, and the two combined give no cause of action under the statute.’ ” (Citation omitted; emphasis in original.) Smith v. New Haven, 258 Conn. 56, 61-62, 779 A.2d 104 (2001)

“Thus, from the inception of the sole proximate cause doctrine, we have embraced the notion that a municipality’s liability under the defective highway statute may be defeated by a showing of negligence on the part of either the plaintiff or some third party. See Sanzone v. Board of Police Commissioners, [supra, 219 Conn. 197] (‘[§] 13a-149 does not permit recovery unless the defect was the sole proximate cause of the injury, even if the concurring cause was a third party’s negligence’); Roth v. MacDonald, 124 Conn. 461, 463, 200 A. 725 (1938) (driver’s negligence was contributing factor to accident, relieving municipality of liability for passengers’ injuries); Messina v. New Haven, 119 Conn. 166, 168, 174 A. 188 (1934) (‘when an injury results from a defect combined with the culpable negligence of a third party it cannot be said to have been caused by the defect, and cannot be made the subject of recovery under the statute giving a right of action against a municipality for injuries resulting from such defect’).” Smith v. New Haven, supra, 258 Conn. 62.

In Bradley v. Randall, 45 Conn. App. 924, 696 A.2d 1323, cert. denied, 243 Conn. 923, 701 A.2d 339 (1997), in a per curiam opinion, we affirmed a trial court’s decision, which held that a municipality cannot be an apportionment defendant based on allegations of injuries caused by a defective highway. The trial court in that case had reasoned that in order for apportionment of liability to apply, the apportionment plaintiffs would need to be found partly responsible for the plaintiffs injuries, and thus, the highway defect could not be the sole proximate cause of the accident. Bradley v. Randall, Superior Court, judicial district of Windham, Docket No. CV 95-0052173 (April 8, 1996) (18 Conn. L. Rptr. 636), aff'd, 45 Conn. App. 924, 696 A.2d 1323, cert. denied, 243 Conn. 923, 701 A.2d 339 (1997). Similarly, in the present case, the trial court determined that because the sole proximate cause doctrine precludes municipal liability where the plaintiff or a third party is contribu-torily negligent in causing an injury, apportionment of liability is not possible under the statute. Specifically, the court explained that “[ujnless [the driver, George Lucas] McLean’s negligence is deemed to have proximately caused [the plaintiffs’] damages, there will be no basis for apportionment. But if [the driver] is found liable, such a finding would completely defeat any claim against the [apportionment defendants] under § 13a-149. . . . Consequently, there would be no basis to apportion anything against these parties. . . . For this reason, an apportionment complaint cannot be filed here.” (Citations omitted; internal quotation marks omitted.)

We agree with the trial court’s conclusion in this case. An action against the apportionment defendants cannot be sustained unless they were the sole proximate cause of the plaintiffs’ injuries. If the allegations in the underlying cause of action are eventually proven, namely, that the third party driver of the vehicle, George Lucas McLean, negligently caused the death of Tyler Priore, then the apportionment defendants—the town and its various employees—cannot logically be the sole proximate cause of the plaintiffs’ injuries. Conversely, if the defendants are not proven liable for any damages in the underlying action, then there will be no reason for apportionment. We conclude, therefore, that the court properly granted the apportionment defendants’ motion for summary judgment as to both apportionment complaints.

The judgment is affirmed.

In this opinion the other judges concurred.

       The two apportionment complaints were filed against the town of Wall-ingford and John P. Thompson, Robert V. Baltramaitis, Henry McCully, Edward Niland, Douglas Dortenzio, and Sal Sandillo, employees of the town. The summary judgment motion was filed on behalf of the town of Wallingford and each named employee except Sandillo. Sandillo, therefore, is not a party to this appeal.

       General Statutes § 13a-149 provides: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       The automobile was owned by George A. McLean, George Lucas McLean’s father.

       The defendants cite General Statutes §§ 52-572h and 52-102b in all of the eight counts of their apportionment complaints as the basis for the apportionment of liability. General Statutes § 52-102b (a) provides in relevant part: “A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said action for a proportionate share of the plaintiffs damages in which case the demand for relief shall seek an apportionment of liability. ...”
      General Statutes § 52-572h (c) provides in relevant part: “In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1,1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party’s proportionate share of the recoverable economic damages and the recoverable noneconomic damages . . . .”

       We agree with the trial court that the fact that two separate apportionment complaints were filed on May 21, 2010 and May 25, 2010, does not affect our decision. One apportionment complaint was filed by the coadmin-istrators of the estate of George Lucas McLean and the other by George A. McLean, individually. The trial court stated in its memorandum of decision that “[t]here are two apportionment complaints because George [Lucas] McLean’s parents qua parents and his parents qua coadministrators of his estate are separately represented, but the various [defendants] have adopted each other’s arguments, so none of these complexities matter here.” (Emphasis in original.)

       General Statutes § 52-557n provides in relevant part: “(a) (1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section lSa-149. . . .” (Emphasis added.)

       The defendants, Rose Longo-McLean and George A. McLean, as coadmin-istrators of the estate of George L. McLean, had sought to defer their appeal by filing a July 25, 2011 notice of intent to appeal. The trial court sustained the apportionment defendants’ objection. Rose Longo-McLean and George A. McLean, as coadministrators of the estate of George L. McLean, thereafter appealed timely.
      The defendant, George A. McLean, individually, also had filed an August 12, 2011 notice of intent to appeal. The trial court sustained the apportionment defendants’ objection on the basis that the August 12, 2011 notice was not filed timely. George A. McLean, individually, thereafter filed a motion to file a late appeal, which this court granted.

       The present appeal does not involve a determination of whether the complaint in the underlying action against the coadministrators of the estate of George Lucas McLean and George A. McLean, individually, will eventually lead to a judgment of damages against those defendants for the death of Tyler Priore, but, rather, this appeal involves a determination of whether, if such a judgment is rendered, the town and its employees may be liable for a proportionate share of those damages, payable to those defendants pursuant to § 52-572h.

       The defendants also argue that their apportionment complaints are not properly construed pursuant to § 13a-149 because they sought only an apportionment of liability, rather than damages, and the plain language of § 13a-149 governs only actions for damages. We are not persuaded. We are aware of no case law that would make § 13a-149 inapplicable to a highway defect claim solely because the relief requested was for an apportionment of liability, rather than monetary damages, and the defendants have cited none.

       The seventh and eighth counts in both apportionment complaints describe the town as an apportionment defendant and also allege that pursuant to General Statutes § 7-465, the town is required to indemnify the named employees for their negligent conduct. General Statutes § 7-465 (a) provides in relevant part that “[a]ny town . . . shall pay on behalf of any employee ... all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded . . . for physical damages to person or property . . . .” Even if the town had not been named as an apportionment defendant, however, our Supreme Court has held that the highway defect statute precludes actions against municipal officers as “a means of circumventing § 13a-149.” Ferreira v. Pringle, supra, 255 Conn. 354.

       Because § 13a-149 is the defendants’ exclusive remedy, the possibility of apportionment in a negligence action is not relevant to this appeal, and we consider only whether an apportionment complaint may coexist with a highway defect action.


author: KELLER, J.

text:
    PEOPLE’S UNITED BANK v. KEITH D. BOK ET AL.
    (AC 33983)
    Graendel, Alvord and Keller, Js.

      Submitted on briefs March 22
    officially released June 11, 2013

      Roy W. Moss filed a brief for the appellants (named defendant et al.).

      Steven G. Berg filed a brief for the appellee (plaintiff).
   Opinion

KELLER, J.

The defendants, Keith D. Bok and Randee Ganser-Bok, appeal from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, People’s United Bank. The defendants claim that the court improperly rendered the judgment of strict foreclosure based upon a default for failure to plead that was erroneously entered against them after they had filed a responsive pleading. We agree and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff initiated the action underlying this appeal, and, on February 9, 2011, filed a complaint in which it sought to foreclose a mortgage on a property located at 150 Arbor Drive in Fairfield (property). According to the complaint, the defendants borrowed $400,000 from the plaintiff, which they secured with a mortgage on the property. The complaint alleged that the defendants had defaulted on their monthly payment obligation under the mortgage. The defendants appeared through counsel on March 7, 2011. The plaintiff filed a demand for disclosure of defense on March 10, 2011, and a motion for default for failure to disclose a defense on May 5, 2011. On May 23, 2011, the defendants filed a disclosure of defense, which included the defendants’ claims that (1) the plaintiff is not the holder of the alleged note, (2) the alleged mortgage debt was erroneous, (3) the defendants contested the amount of debt claimed by the plaintiff, (4) the plaintiff did not give sufficient notice of its acceleration in accordance with the terms of the mortgage and (5) the plaintiff did not have the right to accelerate the alleged indebtedness. The court denied the plaintiffs motion the following day. On June 29, 2011, the plaintiff filed a motion for default for failure to plead. The defendants filed a request to revise the plaintiffs complaint on July 8, 2011. The plaintiff filed a revised complaint on July 12, 2011.

On July 14, 2011, the clerk of the court granted the plaintiffs motion for default for failure to plead and stated in the order that “[n]o responsive pleadings [had] been filed on behalf of [the] defendants.” On September 21, 2011, the plaintiff filed a motion for judgment of strict foreclosure. A hearing on the motion for judgment was held on October 11, 2011. On the same day, the defendants filed an answer to the revised complaint and an objection to the plaintiffs motion for judgment. In their objection, the defendants claimed that the default for failure to plead entered against them was erroneous and should be vacated because, prior to the entry of default, they had filed a responsive pleading— the request to revise—on July 8, 2011, in response to which the plaintiff had filed a revised complaint on July 12, 2011. The defendants did not appear at the hearing. During the hearing, the court acknowledged that the defendants had argued in their objection that the clerk had entered the default in error. After a brief argument from the plaintiffs counsel in which he stated that the defendants had not made any prior effort to set aside the default, the court stated: “If there’s grounds for a motion to open, we’ll take that up at an appropriate time.” Shortly thereafter on the same day, the court granted the plaintiffs motion for judgment of strict foreclosure. On November 1, 2011, the court marked off the defendants’ objection to the plaintiffs motion for judgment and stated the following in its order: “Moot. See order on [plaintiffs motion for judgment].” The present appeal followed.

The defendants claim that it was error for the court to grant the plaintiffs motion for judgment of strict foreclosure because the judgment was predicated on an erroneously entered default. Specifically, they claim that the clerk of the court improperly entered a default for failure to plead against them after they had filed a request to revise the plaintiffs complaint. The plaintiff claims that the court properly rendered its judgment of strict foreclosure because the defendants failed to take sufficient measures to have the default set aside when they raised their arguments against the default in an objection to the plaintiffs motion for judgment, rather than in a motion to set aside the default brought pursuant to Practice Book § 17-42. We agree with the defendants.

“The standard of review of a judgment of foreclosure by sale or by strict foreclosure is whether the trial court abused its discretion. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) Webster Trust v. Mardie Lane Homes, LLC, 93 Conn. App. 401, 405-406, 891 A.2d 5 (2006).

“General Statutes § 52-119 provides that [p]arties failing to plead according to the rules and orders of the court may be . . . defaulted .... Section 10-18 of our rules of practice essentially mirrors that language. We read the plain and unambiguous language of both § 52-119 and Practice Book § 10-18 as empowering the court with the discretionary authority to impose a default as a penalty whenever a defendant has failed to comply with our rules regarding pleadings, including the timely advancement of such pleadings. Such authority is in accord with the court’s broad, general authority to act to maintain the orderly procedure of the court docket, and to prevent any interference with the fair administration of justice.” (Internal quotation marks omitted.) Deutsche Bank National Trust Co. v. Bertrand, 140 Conn. App. 646, 656, 59 A.3d 864 (2013).

“[T]here is [however] support for the proposition that a court commits plain error if, prior to rendering a judgment upon default, the court fails to accept for filing a defaulted party’s pleading solely on the ground that the pleading is untimely.” Id., 662. General Statutes § 52-121 (a) provides in relevant part: “Any pleading in any civil action may be filed after the expiration of the time fixed by statute or by any rule of the court until the court has heard any motion for judgment by default . . . for failure to plead which has been filed in writing with the clerk of the court in which the action is pending.” Moreover, “[o]ur Supreme Corut has expressed a policy to bring about a trial on the merits of a dispute whenever possible to secure for the litigant his day in court.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. St. John, 80 Conn. App. 767, 775, 837 A.2d 841 (2004).

Practice Book § 17-32 (a) provides: “Where a defendant is in default for failure to plead pursuant to [Practice Book §] 10-8, the plaintiff may file a written motion for default which shall be acted on by the clerk not less than seven days from the filing of the motion, without placement on the short calendar.” Practice Book § 17-32 (b) provides in relevant part: “If a claim for a hearing in damages or a motion for judgment has been filed the default may be set aside only by the judicial authority.” Practice Book § 10-6 provides that a defendant’s request to revise the plaintiffs complaint is one of eight permissible responsive pleadings in a civil action, subsequent to the plaintiffs complaint and any motion to dismiss the complaint brought by the defendant.

“Since the effect of a default is to preclude the defendant from making any further defense in the case so far as liability is concerned, the judicial authority, at or after the time it renders the default, notwithstanding Section 17-32 (b), may also render judgment in foreclosure cases . . . provided the plaintiff has also made a motion for judgment and provided further that any necessary affidavits of debt or accounts or statements verified by oath, in proper form, are submitted to the judicial authority.” Practice Book § 17-33 (b). “[A] default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant.” (Emphasis in original; internal quotation marks omitted.) Connecticut Light & Power Co. v. St. John, supra, 80 Conn. App. 775.

In Connecticut Light & Power Co. v. St. John, supra, 80 Conn. App. 775-76, this court concluded that a trial court was required to set aside a default judgment as a matter of law when the default had been rendered improperly. After the defendants in that case had filed answers and counterclaims to the plaintiffs complaint, the plaintiff filed a request to revise the defendants’ counterclaim. Id., 769-70. The plaintiff subsequently moved for default for failure to plead when the defendants did not respond to the request to revise the counterclaim. Id., 770. The court clerk granted the motion, defaulting the defendants on both the complaint and their counterclaims. Id., 770, 773. The defendants also failed to appear at the hearing in damages at which the court rendered judgment for the plaintiff. Id., 770. The defendants filed a motion to open the default, which the court denied. Id. In reversing the trial court’s denial of the defendants’ motion to open the default judgment on the plaintiffs complaint, this court concluded that the court clerk’s entry of default was improper with respect to the plaintiffs complaint because “the court had no authority to default the defendants for failure to plead on a complaint that they had properly answered.” (Emphasis added.) Id., 775, 777; see also Deutsche Bank National Trust Co. v. Gabriele, 141 Conn. App. 547, 548, 550-51, 61 A.3d 603 (2013) (reversing judgment of strict foreclosure after concluding that court abused its discretion by improperly granting motion for default for failure to plead against defendants because defendants were not in default when motion was filed).

Turning to the facts of the present case, we first address the form in which the defendants’ claim was presented to the court. As the plaintiff correctly notes, under our rules of practice, a motion to set aside a default pursuant to Practice Book § 17-42 is the appropriate procedural vehicle for challenging an improper default when no judgment has been rendered. The defendants’ claim was presented in a filing labeled as an “objection to motion for judgment.” Despite its label, however, the “objection” clearly raised the issue of the erroneous default and requested that it be vacated. Although the defendants did not file their claim in a properly labeled motion to set aside the default pursuant to § 17-42, we look to the substance of the claim rather than the form in which it was raised. See Whalen v. Ives, 37 Conn. App. 7, 15-16, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995).

In their “objection,” the defendants argued that the motion for judgment was objectionable because it was predicated on a default that had been erroneously entered against them by the clerk of the court. They argued that it was error for the clerk to have defaulted them for failure to plead on July 14, 2011, because they had filed a responsive pleading in the form of a request to revise on July 8, 2011. They further requested in the “objection” that the default be vacated in light of this error. The defendants’ inclusion of their claim regarding the default in their objection to the motion for judgment was sufficient to apprise the court of the clerk’s error as evinced by the court’s specific acknowledgment of the defendants’ claim of error during the hearing on the plaintiffs motion. Accordingly, for purposes of our review, we consider the substance of the defendants’ argument regarding the default raised in their “objection” to be functionally equivalent to a motion to set aside the default. To conclude otherwise would exalt form over substance. See id.

We now consider the merits of the defendants’ claim. Because a default admits the material facts that constitute a cause of action, the entry of default conclusively determines the liability of a defendant, but only when the entry of default has been appropriately made. Connecticut Light & Power Co. v. St. John, supra, 80 Conn. App. 775. Here, the defendants were in default when the plaintiff filed its motion for default on June 29,2011, because they had failed to advance the pleadings in accordance with the proper time line set forth in Practice Book § 10-8. The clerk’s subsequent entry of default, however, was not appropriately made when the defendants had since filed a responsive pleading on July 8, 2011. Much like the circumstances in Connecticut Light & Power Co. v. St. John, supra, 80 Conn. App. 775-76, in the present case, the clerk’s entry of default was improper because the court had no authority to default the defendants for failure to plead on July 14, 2011, when the record clearly reflected that they already had filed a responsive pleading in the form of a request to revise six days earlier. “The effect of the court’s action was to preclude the defendants from making any further defense as to liability in the case, which, pursuant to our rules of practice, they clearly had a right to do.” Id., 775. The clerk’s entry of default for failure to plead after the defendants had filed a responsive pleading was wrong as a matter of law and constituted good cause to set aside the default under Practice Book § 17-42; it was error for the court not to do so. Had the court properly set aside the default, it could not reasonably have granted the plaintiffs motion for judgment of strict foreclosure because the defendants’ liability had yet to be determined conclusively. Accordingly, we conclude that the trial court abused its discretion in granting the plaintiffs motion for judgment of strict foreclosure because the motion was predicated on an erroneous entry of default against the defendants.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       The plaintiff also named JP Morgan Chase Bank, N.A., as a defendant and alleged that it claimed an interest in the property by virtue of a mortgage that was subsequent and subordinate to the plaintiffs mortgage. JP Morgan Chase Bank, N.A., was defaulted for failure to appear on May 20, 2011, and is not a party to this appeal. Accordingly, all references to the defendants in this opinion are to Keith D. Bok and Randee Ganser-Bok.

       The defendants initially conveyed the property by way of the mortgage deed dated December 23,2004, to Mortgage Electronic Registration Systems, Inc., as nominee for the plaintiff. The mortgage subsequently was assigned to the plaintiff.

       The motion also included specific references to the docket entry of the request to revise.

       The plaintiff does not dispute the defendants’ claim that the clerk of court erred by entering a default for failure to plead against them and expressly acknowledges in its brief before this court that the clerk erred by entering the default.
      The defendants also claim that their filing of an answer to the plaintiffs revised complaint prior to the hearing on the plaintiffs motion for judgment of strict foreclosure cured any harm from their delay in pleading. Because we conclude that the defendants’ request to revise cured the defect complained of in the plaintiffs motion for default for failure to plead, we need not address the effect of the defendants’ answer to the revised complaint.

       Practice Book § 17-42 provides in relevant part: “A motion to set aside a default where no judgment has been rendered may be granted by the judicial authority for good cause shown upon such terms as it may impose. . . .”
      The plaintiff also argues that because the defendants failed to appear at the hearing on its motion for judgment, the defendants waived their right to challenge the default and judgment of strict foreclosure on appeal. While the defendants may have waived their right to argue their objection before the court by failing to appear at the hearing; see Practice Book § 11-18 (d); to the extent that the plaintiff claims that the defendants abandoned the merits of their claim for purposes of appeal, we reject the plaintiffs argument. The defendants clearly raised the invalidity of the default against them in the objection, and the court explicitly acknowledged the claim of error during the hearing on the plaintiffs motion for judgment and subsequently ruled on the objection, concluding that it was moot in light of its judgment. Moreover, the court hadbefore it everything it required to evaluate the defendants’ claim and no claim has been made that the court was unable to decide the issue in the absence of argument from the defendants. Accordingly, we conclude that the defendants sufficiently have preserved their claim for our review.

       Practice Book § 10-35 provides in relevant part: “Whenever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party’s pleading . . . the party desiring any such amendment in an adverse party’s pleading may file a timely request to revise that pleading.”

       This court specifically rejected the plaintiffs argument that the defendants’ motion was procedurally defective because it did not set forth any reasons as to why they failed to appear at the hearing in damages and stated that because the court defaulted the defendants for failing to revise their counterclaims, “their failure to appear at the hearing in damages was irrelevant to the issue of whether to open the default judgment.” Connecticut Light & Power Co. v. St. John, supra, 80 Conn. App. 776 n.10. Further, the court noted that the defendants clearly had raised the issue of the invalidity of the default judgment with respect to the plaintiffs complaint in their motion to open. Id. In the present case, we note that, although the defendants’ failure to appear at the hearing on the motion for judgment evinced a less than zealous effort to raise their claim before the trial court, their failure to appear similarly was irrelevant to the substantive issue of whether the default for failure to plead should have been set aside.

       The defendants’ objection states that the clerk entered the default for failure to plead on July 12. This appears to be a typographical error and does not change the substance of the defendants’ claim.

       Practice Book § 10-8 provides in relevant part: “Commencing on the return day of the writ, summons and complaint in civil actions, pleadings, including motions and requests addressed to the pleadings, shall first advance within thirty days from the return day, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the judicial authority thereon if one is required, except that ... in actions to foreclose a mortgage on real estate the initial time period shall be fifteen days. . . .”

       We note that, on the basis of our review of the record, it appears as though the clerk entirely overlooked the pleading as evinced by the order granting the plaintiffs motion for default, which stated that “[n]o responsive pleadings [had] been filed on behalf of [the] defendants.”

       We note that, unlike the defendants in Connecticut Light & Power Co. v. St. John, supra, 80 Conn. App. 770, the defendants in the present case did not file a motion to open the judgment after the court rendered its judgment of strict foreclosure based upon the default. The plaintiff suggests that this distinction is fatal to the defendants’ appeal and that they should not be permitted to seek the reversal of the court’s judgment even if the judgment was based upon a default that was entered in error. We find no merit in this argument as the defendants properly have appealed from the court’s final judgment of strict foreclosure and adequately preserved their claim of error by effectively moving the court to set aside the default in their objection before the court rendered its judgment. The defendants also were entitled to move the court to open the judgment within four months after notice of the judgment had been sent; see Practice Book § 17-43; and it would have been better practice for them to have done so. We are unaware, however, of any authority that would have required the defendants to first move the court to open its judgment and obtain a denial of such motion before they were entitled properly to appeal from the original judgment of strict foreclosure. As we explained in footnote 5 of this opinion, the defendants adequately preserved their claim for our review by raising the issue of the invalidity of the default in their objection.