author: HARPER, J.

text:
    JONATHAN M. KELLER ET AL. v. ROZ-LYNN BECKENSTEIN ET AL.
    (AC 29332)
    Harper, Lavine and Robinson, Js.

      Argued January 12
    officially released October 13, 2009

      Richard P. Weinstein, with whom was Nathan A. Schatz, for the appellants (plaintiffs).

      Michael P. Berman, with whom was Suzanne LaPlante, for the appellees (named defendant et al.).
   Opinion

HARPER, J.

The plaintiffs, Jonathan M. Keller and a group of corporate entities, appeal from the judgment of the trial court, Stevens, J., rendered on the granting of the motions for summary judgment filed by the defendants, Roz-Lynn Beckenstein and a group of corporate entities, and appeal from the judgment of the trial court, Alander, J., rendered following the granting of the motion to strike filed by the defendants. On appeal, the plaintiffs claim that the court improperly granted (1) the motions for summary judgment because a genuine issue of material fact existed as to the first count as to whether the defendants were liable for a breach of contractual representations and warranties by commencing litigation against the plaintiffs, and (2) the motion to strike because the complaint sufficiently alleged a breach of the implied covenant of good faith and fair dealing and a violation under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. Fremont Group, LLC, entered into a real estate contract with the defendants on May 25, 2000, for the purchase of numerous pieces of property. Fremont Group, LLC, acquired the properties for a purchase price of $56.9 million and distributed the properties among the plaintiff corporate entities. Two years later, in October, 2002, the defendants commenced litigation against the plaintiffs in relation to the real estate contract. The action was dismissed. In October, 2003, the defendants recommenced litigation against the plaintiffs in relation to the real estate contract. See Beckenstein Enterprises-Prestige Park, LLC v. Keller, Superior Court, judicial district of Waterbury, Docket No. X06-CV-030183487-S (Beckenstein v. Keller action); Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn. App. 680, 974 A.2d 764, cert. denied, 293 Conn. 916, 979 A.2d 488 (2009). The defendants had alleged tortious interference with contractual relations, breach of the implied duty of good faith and fair dealing, civil conspiracy and a violation of CUTPA. In response to the litigation filed by the defendants, the plaintiffs commenced this action against the defendants. The plaintiffs’ second amended complaint consisted of five counts. In relevant part, the counts at issue on appeal are (1) count one, alleging breach of contract; (2) count two, alleging breach of the implied covenant of good faith and fair dealing that imposed an obligation on the defendants not to repudiate the real estate contract and terms of sale; and (3) count five, alleging a violation of CUTPA on the ground that the actions of the defendants violated public policy and were immoral, oppressive and unscrupulous.

On March 18, 2005, the defendants filed a motion to strike counts two and five on the ground that the allegations therein were not legally sufficient to state a claim on which relief could be granted. On March 24, 2005, the plaintiffs filed their objection to the defendants’ motion to strike, and, thereafter, a hearing was held on May 16, 2005. On June 8, 2005, Judge Alander issued a memorandum of decision granting the defendants’ motion to strike. On June 29,2005, the defendants filed a motion for judgment as to counts two and five, which was granted on July 19,2005. On July 26,2005, the defendants filed their answer denying the allegations of the remainder of the complaint and special defenses to the plaintiffs’ second amended complaint.

On August 3, 2007, the defendants filed motions for summary judgment. In relevant part, the defendants asserted that the plaintiffs’ pleadings, affidavits and other proof submitted demonstrated that there was no genuine issue as to any material fact in relation to count one’s breach of contract allegation. On August 23, 2007, the plaintiffs filed a revised third amended complaint with changes to the allegations of count one. Count one, as amended, alleged that the defendants “breached the representations and warranties relating to the contracts of sale for which the plaintiffs have sustained damage of litigation costs and reasonable attorney’s fees of defending these matters.” The next day, on August 24, 2007, the plaintiffs filed their opposition to the defendants’ motions for summary judgment. In response to the plaintiffs’ third amended complaint, the defendants maintained their original motions for summary judgment, and, on September 17, 2007, Judge Stevens issued an oral ruling granting the defendants’ motions. The court concluded that “the submissions by the parties indicate an undisputed fact. That fact is that there were no misrepresentations made in the sales contract.”

On September 24, 2007, the plaintiffs filed a motion for reargument and reconsideration. The plaintiffs asserted that the issue of the viability of their breach of contract claim did not turn on whether there was a misrepresentation at the time the real estate transaction closed. They argued that because the defendants made certain representations and warranties that the real estate contract was valid and binding, the defendants breached the contract when they filed litigation, the Beckenstein v. Keller action, challenging the contract. On November 2, 2007, the court issued a ruling granting the plaintiffs’ motion for reargument and reconsideration. The court, thereafter, adopted and affirmed its September 17, 2007 oral ruling in a memorandum of decision that stated, inter alia, that “there is no dispute that the plaintiffs do not claim (and cannot prove) that any representation of the sales agreement was false or that any warranty of the agreement was breached. On the basis of this undisputed fact, the court granted the defendants’ motions for summary judgment on the first count of the complaint alleging breach of contract.” This appeal followed. Any additional facts will be set forth as necessary.

I

First, the plaintiffs claim that the court improperly granted the defendants’ motions for summary judgment. Specifically, the plaintiffs claim that a genuine issue of material fact exists with regard to count one as to whether the defendants are liable for a breach of contractual representation and warranties on the basis of having brought the Beckenstein v. Keller action. We are unpersuaded.

“We apply a well settled standard of review to the plaintiffs claim that the court improperly rendered summary judgment. 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.” (Internal quotation marks omitted.) Boyne v. Glastonbury, 110 Conn. App. 591, 595-96, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008).

“[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . It is not enough . . . 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 [an issue of] material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” Id., 596. “The facts at issue [in the context of summary judgment] are those alleged in the pleadings. . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise.” (Citation omitted; internal quotation marks omitted.) Arnone v. Connecticut Light & Power Co., 90 Conn. App. 188, 193-94, 878 A.2d 347 (2005). “A material fact is a fact which will make a difference in the result of the case. . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Citations omitted; internal quotation marks omitted.) Curley v. Kaiser, 112 Conn. App. 213, 220, 962 A.2d 167 (2009). “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 the defendant’s motion for summary judgment is plenary.” Id.

We now set forth the legal principles relevant to the issue before us. “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.” (Internal quotation marks omitted.) American Express Centurion Bank v. Head, 115 Conn. App. 10, 15-16, 971 A.2d 90 (2009).

The plaintiffs alleged that the defendants entered into a real estate contract for the sale of several properties to Fremont Group, LLC, for an agreed purchase price of $56.9 million. They alleged that the plaintiffs took title to the properties and, under the contract, received representations, warranties and assurances from the defendants. They alleged that they have been in possession of the properties since the real estate closings. They alleged that the defendants sued the plaintiffs, challenging the negotiated terms of the real estate contract. The plaintiffs alleged that but for the defendants’ representations and warranties, the plaintiffs would have never purchased the properties. Specific to count one, via their third amended complaint, they alleged that the defendants “breached the representations and warranties relating to the contract of sale for which the plaintiffs have sustained damages of litigation costs and reasonable attorney’s fees of defending these matters.”

At the hearing on the motions for summary judgment, the defendants asserted that the plaintiffs’ alleged claim for breach of contract rested solely on the defendants having commenced the Beckenstein v. Keller action against the plaintiffs. The defendants asserted that the plaintiffs did not allege in their third amended complaint that the defendants lacked authority to negotiate the real estate contract, nor did they allege that the defendants’ action was instituted in bad faith, without probable cause or without merit. In turn, the plaintiffs argued that the defendants negotiated the real estate contract, and, as a result, the defendants were aware of the contract’s terms. The plaintiffs argued that by the terms of the contract, the defendants represented that the contract was valid and binding. The plaintiffs argued that the Beckenstein v. Keller action defeated the purpose of having a representation that the contract was valid and binding because the defendants were engaging in litigation that disputed the validity and binding effect of the contract. They argued that as a result the bringing of the Beckenstein v. Keller action constituted a breach of contract.

By way of an oral ruling after the hearing on the defendants’ motions for summary judgment, the court noted that the submissions by the parties indicated an undisputed fact, which was that there were no misrepresentations made in the real estate contract. The court concluded that the plaintiffs neither alleged nor provided proof that any of the representations or warranties under the contract were erroneous, wrong or false. The court stated that the focal point of the plaintiffs’ complaint was not based on what was asserted in the real estate contract but was based on what was asserted in an action filed against the plaintiffs after the contract was consummated. It noted that neither party indicated that a party was moving to rescind the contract, nor had either party argued that there were deficiencies in what was asserted in the contract that necessitated the contract to be voided or that the properties had to be returned to the defendants. The court concluded that the Beckenstein v. Keller action did not represent a breach of contract because no provision in the contract, either expressed or implied, was breached, as a matter of law, by the action. It noted that the plaintiffs’ allegations may be the basis for some cause of action but that the allegations could not form the basis of a breach of contract claim because the plaintiffs were not contesting the representations made under the contract.

The plaintiffs then filed a motion for reargument and reconsideration, which the court granted. On November 2, 2007, in its memorandum of decision ruling on the plaintiffs’ motion, the court adopted and affirmed its oral ruling. In its memorandum of decision, the court noted that there was “no dispute that the plaintiffs [did] not claim (and cannot prove) that any representation of the sales agreement was false or that any warranty of the agreement was breached.” The court noted that “[t]he plaintiffs claim[ed] that there were falsities asserted by the defendants in the Beckenstein v. Keller [action] and that these false statements supported] their breach of contract claim.” The court stated that the plaintiffs’ motion focused on an issue that was not alleged in the complaint, which alleged breached representations of the contract and not false representations in the Beckenstein v. Keller action. The court stated that a “breach of contract means doing something proscribed by a contract or not doing something required by a contract.” The court stated that a “mere assertion of a position or a claim inconsistent with a contractual representation is not a breach of the contract when the assertion itself is not actually precluded by any provision of the contract.” The court concluded that “a breach of contract action cannot be maintained when the plaintiffs cannot identify any contract provision breached by the defendants’ conduct.” It concluded that there was “nothing in the agreement precluding the defendants from bringing an action . . . .” On appeal, the plaintiffs argue that the defendants’ bringing of the Beckenstein v. Keller action gave rise to a breach of contract claim. The plaintiffs assert that because the defendants were fully aware of the terms of the contract, the defendants breached the contract by later claiming improprieties therein and by bringing the Beck-enstein v. Keller action.

Upon our review of the record, we conclude that the court properly granted the defendants’ motions for summary judgment. As previously noted, to survive a motion for summary judgment, the facts as alleged in the pleadings must be material to the outcome of the case. The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages. See American Express Centurion Bank v. Head, supra, 115 Conn. App. 15-16. The facts alleged in the plaintiffs’ complaint failed to satisfy the threshold test to maintain a breach of contract cause of action. The plaintiffs’ breach of contract claim undisputedly rests on an allegation that the defendants brought a lawsuit against the plaintiffs, which contradicted representations that the defendants made in the contract. Nonetheless, the plaintiffs do not allege that the defendants were prohibited by contract from making assertions contrary to what was provided for within the contract, nor do they allege that the defendants were prohibited by contract from bringing any litigation in relation to the contract. We agree with the court that absent a provision in the contract prohibiting the defendants from bringing litigation or from challenging the contract, making an assertion contrary to the contract does not support a cause of action for breach of contract. The plaintiffs, as a matter of law, did not present any genuine issues of material fact.

On the basis of the foregoing analysis, we conclude that the court properly granted the motions for summary judgment.

II

Next, the plaintiffs claim that the court improperly granted the defendants’ motion to strike. Specifically, the plaintiffs claim that (1) count two sufficiently alleged a breach of the implied covenant of good faith and fair dealing because the defendants brought baseless litigation in relation to the contract, and (2) count five sufficiently alleged a violation of CUTPA because the defendants commenced a specious action against the plaintiffs. We will address each claim in turn.

At the outset, we note that “[t]he purpose of a motion to strike is to challenge the legal sufficiency of the allegations of a complaint for failure to state a claim on which relief can be granted. Practice Book § 10-39. The motion admits all facts that are well pleaded . . . but does not admit legal conclusions or the truth or accuracy of opinions. ... On a motion to strike, the trial court’s inquiry is to ascertain whether the allegations in each count, if proven, would state a claim on which relief could be granted. Practice Book § 10-39 (a). A motion to strike is properly granted if the complaint alleges mere conclusions of law that are not supported by the facts alleged.” (Citations omitted.) Bennett v. Connecticut Hospice, Inc., 56 Conn. App. 134, 136-37, 741 A.2d 349 (1999), cert. denied, 252 Conn. 938, 747 A.2d 2 (2000).

“In an appeal from a judgment granting a motion to strike, we operate in accordance with well established rules. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on the [defendant’s motion] is plenary. . . . [W]e 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.” (Internal quotation marks omitted.) Id., 137.

A

The plaintiffs claim that the court improperly concluded that count two failed to state a legally sufficient cause of action. Specifically, the plaintiffs claim that it was improper for the court to conclude that count two failed to allege that the defendants acted in bad faith and failed to allege facts to establish that the defendants repudiated the real estate contract. We disagree.

“The relevant legal principles are well established. [I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship. ... In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party’s discretionary application or interpretation of a contract term. ... To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiffs right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith.” (Internal quotation marks omitted.) Landry v. Spitz, 102 Conn. App. 34, 42, 925 A.2d 334 (2007).

“Bad faith has been defined in our jurisprudence in various ways. Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. . . . Bad faith means more than mere negligence; it involves a dishonest purpose. . . . [B]ad faith may be overt or may consist of inaction, and it may include evasion of the spirit of the bargain . . . .” (Citations omitted; internal quotation marks omitted.) Id., 42-43.

In count two, the plaintiffs alleged that “[t]he defendant entities breached the implied covenant of good faith and fair dealing which would impose the obligation not to repudiate the contract[s] and terms of sales referenced aforesaid, which breach has caused the plaintiffs special loss and damage.” In its memorandum of decision, the court noted that “the plaintiffs claim[ed] that the defendants, by filing [the Beckenstein v. Keller action], have breached an implied covenant of good faith and fair dealing ‘which would impose the obligation not to repudiate’ the sales contract. Specifically, the plaintiffs contended] that by filing a lawsuit related to the sales contracts, the defendants have in effect repudiated those sales contracts and thereby violated the [original contract’s] implied covenant of good faith and fair dealing.” The court concluded that the plaintiffs failed to allege that the defendants acted in bad faith under the contract. It further concluded that “the plaintiffs [had] merely alleged that the defendants have brought [the Beckenstein v. Keller action] seeking damages against the plaintiffs in which the defendants allege [d] that they were not informed of certain facts related to the sale of property. The plaintiffs allege [d] no fraud, misrepresentation or improper motive on the part of the defendants.” The court also concluded that count two failed because the plaintiffs failed to allege that the defendants repudiated the contract, notwithstanding their allegation that the contract had been performed.

Our plenary review of the plaintiffs’ claim, the record and briefs, in the light most favorable to the plaintiffs, reveals that the court properly struck count two for failure to state a legally sufficient cause of action. The court was correct in concluding that count two failed to allege any fact to establish that the defendants, in commencing the Beckenstein v. Keller action, acted in bad faith. The plaintiffs merely made conclusory statements of law without any factual allegations to support such conclusions. See Fidelity Bank v. Krenisky, 72 Conn. App. 700, 718-19, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). Mere conclusions of law, without factual support, are not enough to survive a motion to strike. Accordingly, the court acted properly in striking the plaintiffs’ count two.

B

Last, the plaintiffs claim that the court improperly concluded that count five failed to state a legally sufficient cause of action. Specifically, the plaintiffs claim that it was improper for the court to conclude that count five failed to allege a CUTPA violation on the ground that bringing the Beckenstein v. Keller action was hardly unfair, unethical or unscrupulous. We disagree.

“It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen]. . . .

“All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy. . . . Furthermore, a party need not prove an intent to deceive to prevail under CUTPA.” (Internal quotation marks omitted.) H & L Chevrolet, Inc. v. Berkley Ins. Co., 110 Conn. App. 428, 441-42, 955 A.2d 565 (2008).

Specific to count five, the plaintiffs alleged that “[t]he defendant entities were in the business of buying and selling real estate . . . for many years and the defendants acted in regard to the acts complained of herein by and through the individual defendants [Roz-Lynn Beckenstein and Arthur Beckenstein].” They further alleged that “[t]he actions of the defendants violated public policy, were immoral, oppressive and unscrupulous, and caused substantial injury to consumers, competitors and other businessmen, thereby violating [CUTPA], as made and provided.”

At the hearing on the motion to strike, the plaintiffs stated that they were claiming a violation of CUTPA because the defendants attempted to repudiate the contract by bringing litigation in relation to the contract’s terms. They alleged that the defendants engaged in an unfair trade practice when they claimed in Beckenstein v. Keller that the Beckensteins were not authorized to negotiate the real estate contract. The plaintiffs also asserted that the defendants’ allegations in the Beck-enstein v. Keller action constituted a “bait and switch,” because they first said that the Beckensteins were authorized and now they are saying they were not. To the contrary, the court noted: “It’s one thing to say the parties are duly authorized when they are really not, and it’s another thing to say the deal they cut wasn’t fair to us and illegal.” In addition, the plaintiffs conceded before the court that there was “no claim of false representations to [them] ... in connection with the contract.”

In its memorandum of decision, the court noted that “the plaintiffs claim [ed] that the defendants, by filing their prior lawsuit, violated [CUTPA]. The plaintiffs maintain[ed] that the defendants engaged in an unfair trade practice by giving assurances to the plaintiffs to induce them to purchase the subject properties and then subsequently challenging the validity of the sale transactions by attacking in a subsequent lawsuit the assurances provided.” (Citation omitted.) The court concluded that the allegations of the fifth count did not constitute an unfair trade practice in violation of CUTPA. The court referenced the criteria for a CUTPA violation, and noted that the plaintiffs relied on the second criteria and failed to reveal how the defendants’ acts were an immoral, unethical, oppressive or unscrupulous practice. It further concluded that the plaintiffs’ allegations failed to support a characterization that a “bait and switch” occurred “in that the defendants first gave representations, warranties and assurances that they later reneged on.” The court noted that the only specific representation or assurance alleged in the complaint was a representation that the defendants had the authority to consummate the real estate transaction and execute the related documents. The court concluded that “[n] either the plaintiffs nor the defendants assert that the defendants in fact lacked such authority.” The court further concluded that the real estate transactions were consummated, and, in reference to the Beckenstein v. Keller action, “[t]he fact that the defendants subsequently sued the plaintiffs, alleging a secret relationship with the defendants’ in-house counsel with respect to the [real estate contract], which wrongfully interfered with the defendants’ rights is hardly unfair, unethical or unscrupulous. To find otherwise would turn every lawsuit challenging a consummated transaction into a violation of CUTPA.”

On appeal, the plaintiffs argue that the court ignored the essential allegations of their complaint that distinguished the defendants’ action from every other action. The plaintiffs assert that the defendants brought a specious lawsuit, the Beckenstein v. Keller action, to challenge the validity and propriety of a transaction that they had consummated. The plaintiffs then cite Gebbie v. Cadle Co., 49 Conn. App. 265, 278-79, 714 A.2d 678 (1998), for the proposition that a “subsequent repudiation of an agreement that one has already acknowledged and ratified as to its existence and due execution is conduct that is actionable under CUTPA.” They assert that the defendants “brought litigation to challenge various aspects of a consummated transaction which they had previously ratified, after having given the plaintiffs assurances in regard to the validity of those very contractual obligations.”

Our plenary review of the claim, record and briefs, in the light most favorable to the plaintiffs, leads us to the same conclusion as the court. The allegations of the fifth count failed to state an actionable unfair trade practice claim that violates CUTPA. First, we set out to distinguish Gebbie from the present case. In Gebbie, the defendant refused to honor and effectuate an agreement after a clear acknowledgment by the defendant of its obligations under the agreement. Gebbie v. Cadle Co., supra, 49 Conn. App. 279. The defendant in Gebbie openly acknowledged the existence of the agreement but refused to honor it, which resulted in the plaintiffs seeking redress in an action before the court to have the agreement enforced. Id. The circumstances present in Gebbie do not exist in the present case. Here, both parties honored the contract, and the plaintiffs have not alleged facts to show that the defendants stopped honoring the terms of the contract. Second, as previously noted, the court concluded that “ [t]he fact that the defendants subsequently sued the plaintiffs, alleging a secret relationship with the defendants’ in-house counsel with respect to the [real estate contract], which wrongfully interfered with the defendants’ rights is hardly unfair, unethical or unscrupulous.” We agree with the court’s conclusion. Accordingly, we conclude that the court properly struck the plaintiffs’ count five.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to Keller, the plaintiffs include Fremont Group, LLC; Fremont 155, LLC; Fremont 131, LLC; Fremont 183, LLC; Freemont Riverview, LLC; Freemont Prestige Park, LLC; and 654 Tolland Street, LLC. We refer to them collectively as the plaintiffs except as otherwise noted.

       In addition to Roz-Lynn Beckenstein, the plaintiffs commenced this action against Arthur Beckenstein; Beckenstein Enteiprise-Prestige Park, LLC; 155 Realty; Riverview Square, LLC; Riverview II, LLC; and Tolland Enterprises. We refer to them collectively as the defendants. On February 19, 2008, this court granted the motions to dismiss filed by Roz-Lynn Beckenstein and Arthur Beckenstein and dismissed the appeal as it relates to the Beckensteins, and they are no longer involved in this appeal. As a result, counts three and four of the complaint, which were directed solely at the Beckensteins, are no longer issues on appeal.

       See Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 115 Conn. App. 684, in which the relevant facts were that Beckenstein Enterprises-Prestige Park, LLC, “instituted the . . . action, alleging that in tire months preceding [Robert Beckenstein’s] death and in the time thereafter, [Jonathan M. Keller], acting alone and in concert with [Dennis Smith, in-house counsel], used the opportunities presented by the sale of the Beckenstein properties to enrich himself and the entities he controlled.”

       The court concluded that counts three and four, respectively alleging negligent misrepresentation and intentional misrepresentation, were barred by the statute of limitation, and, thereafter, granted the defendants’ motions for summary judgment on those two counts. See footnote 2.

       In ruling on the motions for summary judgment, Judge Stevens determined that Keller and Fremont 183, LLC, lacked standing to assert any claims under the first count of the complaint for breach of contract. Therefore, for purposes of part I of this opinion only, our reference to the plaintiffs excludes Keller and Fremont 183, LLC.
      In addition, during the hearing on the motions for summary judgment, the court declined to consider whether the plaintiffs, with the exception of Fremont Group, LLC, Fremont 183, LLC, and Keller, had standing to bring a breach of contract claim because the group of corporate entities was not a party to the contract. The court did not consider the issue because it was an issue of fact, and, for purposes of summary judgment, the court does not engage in fact-finding. Whether the group of corporate entities had standing is not an issue raised on appeal.

       See Beckenstein Enterprises-Prestige Park, LLC v. Keller, supra, 115 Conn. App. 683-84.

       “A claim under CUTPA must be pleaded with particularity to allow evaluation of the legal theory upon which the claim is based.” S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tittinghast, Lahan & King, P.C., 32 Conn. App. 786, 797, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993).


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    CHRISTINE CIMINO v. ZONING BOARD OF APPEALS OF THE TOWN OF WOODBRIDGE
    (AC 29251)
    Gruendel, Robinson and Lavery, Js.

      Argued February 19
    officially released October 13, 2009

      Timothy J. Lee, with whom, on the brief, was Leonard A. Fasano, for the appellant (plaintiff).

      Jennifer N. Coppola, for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiff, Christine Cimino, appeals from the judgment of the trial court denying her appeal from the decision by the defendant, the zoning board of appeals of the town of Woodbridge (board), which denied her request for variances. On appeal, the plaintiff claims that the court improperly found that (1) the parcel at issue was not a preexisting, nonconforming use, (2) the variances were denied properly because there was no hardship, (3) the property is not worthless without the variances and (4) the variances were not consistent with the town’s master plan of development. We affirm the judgment of the trial court.

The plaintiff owns an undeveloped piece of land at 21 Ansonia Road in Woodbridge. The parcel consists of 5.06 acres in a residence A zoning district. The town’s zoning regulations (regulations) specify that in a residence A zoning district there may be development of a single-family residence on lots with a minimum of 65,000 square feet. The subject property contains approximately three acres of wetlands.

In July, 2005, the board conducted a hearing on the plaintiffs application for a variance from the requirement in footnote 6 of § 3.13 of the regulations that “[a]ll new lots proposed in a [residence A [district created after the effective date of this amendment, whether or not in a subdivision shall be of such shape that a square with 150 feet on each side will fit on the lot within the set back boundaries.” The application also sought a variance to allow 1.02 acres of a contiguous nonwetland area other than the two acres of contiguous nonwetland required by the zoning ordinance. There was evidence in the record, which the court found was not contested, that the pertinent history of the property is as follows:

“The property was part of a larger tract of land for which subdivision approval was sought in 1977. In April, 1977, the then owner ... of the property and that tract submitted a proposal for approval of seven lots, with the subject property depicted as two lots. That proposal was withdrawn by the applicant. . . .

“The owner then filed another application for subdivision of the larger tract of land, with a map dated September 19, 1977, showing part of the property designated as Lot 5 and the remainder as ‘Open Space To Be Dedicated to the Town of Woodbridge’. The owner withdrew the second application on October 3, 1977; shortly before that withdrawal, the inland wetland agency, which had reviewed the September 19,1977 map, determined that the applicant’s proposals for the property ‘continued to create a potential for significant impact’ on an adjacent watercourse and declined to modify denial of an inland wetland permit. . . .

“Subsequently, the owner of the larger tract submitted an application for approval of four lots, with the subject property no longer designated as Lot 5, but rather shown as ‘Remaining Land of Aaron Cohen, Trustee . . . .’ The minutes of the November 7, 1977 meeting of the town plan and zoning commission reflect that the owner’s engineer stated at the hearing on the application that the owner would file a separate application for approval of the property shown on the previous map as Lot 5 and represented that the board of selectmen had voted to accept the area shown on the earlier map as ‘Open Space’ at its meeting [on] October 12, 1977. The engineer represented that the owner would file a second application for the tract consisting of the property and land designated as [o]pen [s]pace after obtaining a decision from the inland wetlands agency. At that meeting on November 7,1977, the town plan and zoning commission voted to approve the application for four lots. The subject property was not one of the approved lots. . . .

“On November 19, 1977, the owner’s agent filed an application for approval of ‘Section Two’, which included the subject property and which reflected that a report from the inland wetlands agency was pending. The application was scheduled to be heard on December 5, 1977. A legal notice regarding the hearing bears a hand-written notation that the then owner’s engineer withdrew that application on November 22, 1977. At its meeting on December 13, 1977, the inland wetlands agency voted unanimously to deny a permit for the property. . . .

“On December 21, 1979, the inland wetlands agency voted to deny another application by the owner’s agent for a permit for the property, which had been designated on the previous map as Lot 5.” (Internal quotation marks omitted.)

No further applications have been made on the property known as the “Remaining Land of Aaron Cohen, Trustee,” since December 21,1979, until the application that is at issue in this appeal was filed on June 27, 2005. The description of the property in the warranty deed when it was purchased by the plaintiff and her husband and the description when the plaintiffs husband conveyed it to her in a quitclaim deed was “Remaining Land of Aaron Cohen, Trustee . . . .” It was not shown as lot 5 because there was no lot 5 that had been approved by the town’s planning and zoning commission. The approved site plan map shows four approved lots on Ansonia Road and a parcel identified as the “Remaining Land of Aaron Cohen, Trustee,” bordering on Johnson Road and Ansonia Road.

The plaintiff and her husband bought the property by warranty deed from Alphonso Del Santo and Carol Del Santo, who were the owners of lot 4, on May 27, 1983. The plaintiffs husband conveyed the property to her through a quitclaim deed on May 3, 1996.

In 2001, the planning and zoning commission amended its zoning regulations. The changes included amending footnote 6 of § 3.13, which required a minimum square footage of 150 feet by 150 feet within the setback boundaries. Footnote 7 of § 3.13 was also amended and now requires at least two acres of noncontiguous wetlands. See footnote 1 of this opinion.

The hearing by the board on the plaintiffs application seeking a variance of the square footage regulation and the two acre contiguous nonwetland regulation was held on July 11, 2005. On November 14, 2005, the board, in denying the variances made the following decision by unanimous vote: “[t]he [b]oard acted to deny the variances as requested based on the [bjoard’s finding that the hearing record does not establish that the subject property was a buildable zoning lot when the property was originally subdivided, and no hardship was established through the hearing proceeding that changes that fact. The land was originally purchased as remaining land of an approved four-lot subdivision. Changes to the . . . [Regulations made subsequent to [the] applicant’s purchase of the property have not established a hardship. The land is what it was when it was first purchased—‘remaining land’, whose value is the same as when the applicant purchased the property in that state.”

The board sent notice to the plaintiff in a letter dated November 28, 2005. The plaintiff appealed from the decision to the Superior Court on February 23, 2006. After the parties briefed their claims, a hearing on the merits was held on March 19, 2007. The court, in a memorandum of decision, denied the plaintiffs appeal, finding that the parcel was not a preexisting, nonconforming lot and that the plaintiff had not met her burden to show hardship and compliance with the town’s comprehensive plan to control and to regulate property use. The plaintiff filed the present appeal after this court granted her petition for certification to appeal.

I

The plaintiff first claims that the court erred in not finding that her property is a preexisting, nonconforming lot. The plaintiff argues that because the property in question met the bulk requirement for a lot in 1977, it should be considered a fifth lot and that the wetland problem should not be taken into consideration because wetlands were not part of the planning and zoning commission’s jurisdiction. The board argues that this claim was not fully developed before the board or the court and therefore is not properly before this court for review. We agree with the board but further conclude that even if this issue had been fully raised before the board, it would not have been raised properly without the plaintiffs first having been denied a certificate of zoning compliance from the town zoning enforcement officer.

To discuss properly the first issue that is raised by the plaintiff, we must first state what this appeal is not about. The issue before the board in the variance application and at the public hearing was not a claim of a preexisting, nonconforming lot and the application of General Statutes § 8-6 (a).

The power of the board is set forth in § 8-6 (a) and General Statutes § 8-7, and is also set forth in § 10.11 of the regulations, which states in part: “10.11 The Zoning Board of Appeals shall have the following powers and duties:

“10.111 To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the Enforcement Officer in connection with the enforcement of these Regulations.

“10.112 To hear and decide all matter including special exceptions upon which it is required to pass by the specific terms of these Regulations or any amendments thereof.

“10.113 To determine and vary the application of these Regulations in harmony with their general purposes and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of these Regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured.”

The definitions of subdivision and resubdivision as presented in General Statutes § 8-18 are instructive: “ ‘[Subdivision’ means the division of a tract or parcel of land into three or more parts or lots made subsequent to the adoption of subdivision regulations by the commission, for the purpose, whether immediate or future, of sale or building development expressly excluding development for municipal, conservation or agricultural purposes, and includes resubdivision; ‘resubdivision’ means a change in a map of an approved or recorded subdivision or resubdivision if such change (a) affects any street layout shown on such map, (b) affects any area reserved thereon for public use or (c) diminishes the size of any lot shown thereon and creates an additional building lot, if any of the lots shown thereon have been conveyed after the approval or recording of such map . . . .”

“A vacant lot which existed prior to the enactment of the zoning regulations or which becomes nonconforming due to a change in the zoning regulations, is not protected as a nonconforming lot from the existing zoning regulations unless it is a subdivision lot exempted from the change under § 8-26a of the General Statutes or by a provision in the zoning regulations (usually under nonconforming uses) of the municipality protecting such lots from changes in the regulations.” R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 53:3, p. 240.

The record reveals that the parcel was never approved as a lot. The record is silent, however, as to why this parcel is not part of one of the approved lots, why, if the intention was to create a fifth lot, resubdivision would not be the appropriate methodology and, finally, the effect of the conveyance of the lot to the plaintiff by the owner of lot 4. These considerations were not presented as part of the variance application. The only issue before the board was the application for variances under § 3.13 of the regulations. There is nothing in the record to show that there was an application to the zoning enforcement officer for a certificate of zoning compliance claiming that the parcel at issue was a preexisting, nonconforming lot. Pursuant to the state statutes and local regulations, it would take a denial of such an application and an appeal therefrom to confer jurisdiction on the board to adjudicate this issue. We find that the issue of preexisting, nonconforming use is not properly before this court.

II

What is before this court is an application seeking hardship variances from the 150 by 150 square foot regulation and the two acre, noncontiguous wetland regulation. The plaintiff claims that the court improperly upheld the board’s denial of her variances. We conclude that the reasoning of the board was valid to deny the variances. We further conclude that it was clear that the parcel was never approved as a building lot and that the granting of a variance cannot make it an approved lot.

The history of the property shows that the planning and zoning commission approved four lots and left the parcel at issue out as “Remaining Land of Aaron Cohen, Trustee . . . .” A prior application for a five lot subdivision was not approved. The town’s inland wetlands agency approved the four lots and disapproved on three occasions the use of this parcel.

“It is elemental that a variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations.” Carlson v. Zoning Board of Appeals, 158 Conn. 86, 90, 255 A.2d 841 (1969). “This is an exceptional power which should be sparingly exercised and can be validly used only where a situation falls fully within the specified conditions.” Devaney v. Board of Zoning Appeals, 132 Conn. 537, 540, 45 A.2d 828 (1946); see Reid v. Zoning Board of Appeals, 235 Conn. 850, 857, 670 A.2d 1271 (1996). Our Supreme Court has held that “the authority of a zoning board of appeals to grant a variance under . . . [§ 8-6 (a) (3)] requires the fulfillment of two conditions: (1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.” (Internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368, 537 A.2d 1030 (1988).

Our Supreme Court has held that, “where the claimed hardship arises from the applicant’s voluntary act, a zoning board lacks power to grant a variance.” Abel v. Zoning Board of Appeals, 172 Conn. 286, 289, 374 A.2d 227 (1977). This is the basis of the purchase with knowledge rule. See R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 9:4, p. 256. “[T]he purchase with knowledge rule would bar the buyer of an illegal lot from obtaining a variance where he purchased the property with knowledge of the problem.” (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 93 Conn. App. 1, 20, 887 A.2d 442 (2006) (McLachlan, J., dissenting), rev’d on other grounds, 281 Conn. 553, 916 A.2d 5, aff'd after remand, 102 Conn. App. 863, 927 A.2d 958 (2007).

A parcel that was not approved as a buildable lot has never been held to be one of the specified conditions that a variance may be validly used to resolve. Further, it is not the application of the zoning regulations specifically that is creating the problem for the plaintiff but, rather, the fact that her parcel was never considered anything but “Remaining Land of Aaron Cohen, Trustee . . . .” The record is clear through the deeds for the property, and the approved subdivision map filed in the town’s land records, that it was “remaining land” and not designated as a lot in the subdivision. The difficulty or hardship that now plagues the plaintiff was created by her and her husband in the initial purchase from the Del Santos. The court properly upheld the decision of the board.

III

The plaintiff further claims that the property is worthless without a variance. The board argues that there was no evidence presented to support this claim. We agree with the board.

There was no evidence presented to the board that the property would be rendered valueless without a variance granted for the plaintiff to build on the property. Then, the plaintiff filed a motion to supplement the record with an appraisal report after she had filed her brief to the trial court. The board filed an objection to the motion. At the hearing on the merits of this case, counsel for the plaintiff orally withdrew his motion. Because we do not have a record for this claim, and the plaintiff withdrew it from the court’s consideration, we will not address this claim.

IV

The plaintiffs final claim is that the variances are consistent with the comprehensive plan. Because our analysis of the hardship requirement for a variance in part II of this opinion was dispositive of the plaintiffs claim that her variance application was denied improperly, we decline to address this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 3.13 of the regulations contains a nine column table, entitled “Table of General Bulk Regulations.” The footnotes to this table referred to herein were inserted in column three, which is entitled “Minimum Lot Size.”

       The amendment provides: “All new lots proposed in a Residence A District that are: (1) created after the effective date of this amendment, and (2) located fifty percent (50%) or more within a drinking water supply watershed mapped or designated by the South Central Connecticut Regional Water Authority or Birmingham Utilities, Inc., shall contain a minimum of two acres of Buildable Lot Area. Buildable Lot Area is defined as that contiguous portion of a lot exclusive of and undivided by any areas of wetland soils and watercourse as defined in Section 22a-38 of the Connecticut General Statutes. All new lots must comply with this requirement whether or not they are part of a subdivision.”

       General Statutes § 8-6 (a) provides: “The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter; (2) to hear and decide all matters including special exceptions and special exemptions under section 8-2g upon which it is required to pass by the specific terms of the zoning bylaw, ordinance or regulation; and (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. No such board shall be required to hear any application for the same variance or substantially the same variance for a period of six months after a decision by the board or by a court on an earlier such application.”

       General Statutes § 8-7 provides in relevant part: “The concurring vote of four members of the zoning board of appeals shall be necessary to reverse any order, requirement or decision of the official charged with the enforcement of the zoning regulations or to decide in favor of the applicant any matter upon which it is required to pass under any bylaw, ordinance, rule or regulation or to vary the application of the zoning bylaw, ordinance, rule or regulation. An appeal may be taken to the zoning board of appeals by any person aggrieved or by any officer, department, board or bureau of any municipality aggrieved and shallbe taken within such time as isprescribedby a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days, by filing with the zoning commission or the officer from whom the appeal has been taken and with said board a notice of appeal specifying the grounds thereof. . . . The board shall hold a public hearing on such appeal in accordance with the provisions of section 8-7d. Such board may reverse or affirm wholly or partly or may modify any order, requirement or decision appealed from and shall make such order, requirement or decision as in its opinion should be made in the premises and shall have all the powers of the officer from whom the appeal has been taken but only in accordance with the provisions of this section. Whenever a zoning board of appeals grants or denies any special exception or variance in the zoning regulations applicable to any properly or sustains or reverses wholly or partly any order, requirement or decision appealed from, it shall state upon its records the reason for its decision and the zoning bylaw, ordinance or regulation which is varied in its application or to which an exception is granted and, when a variance is granted, describe specifically the exceptional difficulty or unusual hardship on which its decision is based. Notice of the decision of the board shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to any person who appeals to the board, by its secretary or clerk, under his signature in any written, printed, typewritten or stamped form, within fifteen days after such decision has been rendered. . . .”


text:
    IN RE JASON S.

    (AC 29565)
    Bishop, Harper and Beach, Js.
    Argued May 21
    officially released October 13, 2009

      Annacarina Jacob, senior assistant public defender, for the appellant (respondent).

      Eileen F. McCarthy, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and John D. Capozzi II, juvenile prosecutor, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

HARPER, J.

The respondent, a minor child, appeals from the judgment of the trial court adjudicating him a delinquent for having committed the crimes of sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a-73a (a) (1) (A) and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the respondent claims that the court improperly found that he had acted with the mental state necessary for the commission of sexual assault in the fourth degree. We affirm the judgment of the trial court.

The court found the following relevant facts. On the evening of October 2, 2006, the respondent, then fourteen years and three months old, and E, then six years old, were visiting H at her home. The respondent told H that he and E were going to play in her bedroom. Subsequently, the respondent told E to ask H for permission to close the door. At the time, E was wearing a T-shirt and boxer shorts. After E returned to the bedroom, he shut the door. The respondent then pulled E’s boxer shorts down and touched his penis with his hands and mouth. The respondent also asked E to “lick his throat.” H opened the bedroom door, surprising the boys. H saw E on the floor, with his legs spread apart and his boxers down near his ankles. The respondent was lying on the floor with his head between E’s legs. H reacted strongly and, within minutes, chaos erupted. She asked the respondent and E what they were doing. The respondent maintained that they were practicing karate. H ordered the respondent and E to go to the living room. Subsequently, A arrived at H’s home, and she and H confronted the respondent. A and H both testified that the respondent admitted that he had touched E’s genitals and said that “[t]he devil got into me.”

On November 29, 2006, a petition was filed in the Superior Court for Juvenile Matters alleging that the respondent was a delinquent for having committed sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), sexual assault in the fourth degree in violation of § 53a-73a (a) (1) (A) and risk of injury to a child in violation of § 53-21 (a) (2). The court acquitted the respondent of sexual assault in the first degree, concluding that it could not find beyond a reasonable doubt that the penetration element of that offense had been established. The court then noted that “[sjexual assault in the fourth degree requires that [the respondent] intentionally subjected [E] to sexual contact” as it is defined under § 53a-73a (a) (1) (A) and that “[E] is obviously under fifteen years of age.” Crediting the testimony of E, H and A, the court found that the petitioner had proven beyond a reasonable doubt that the respondent had committed sexual assault in the fourth degree.

The court further found that “[the respondent] is also charged with risk of injury to a [child] under § 53-21 (a) (2). And that is contact with the intimate part of a person under the age of . . . sixteen. And again, for the reasons set forth . . . crediting the testimony of [E], [A] and [H], the court finds that the [petitioner] has proven its case of risk of injury to a [child].”

On September 14,2007, the respondent filed a motion for a new trial, claiming, inter alia, that there was insufficient evidence presented to support a finding that he had committed either crime at issue. On September 27, 2007, the court denied that motion. On January 25,2008, the respondent was committed to the custody of the commissioner of children and families for four years, execution suspended, and placed on probation until his eighteenth birthday. This appeal followed. Additional facts will be set forth as necessary.

The respondent claims that there was insufficient evidence to convict him of sexual assault in the fourth degree because the petitioner failed to prove that his contact with E’s intimate parts was for the purpose of the respondent’s sexual gratification. We do not agree.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the [finder of fact] to conclude that a basic fact or an inferred fact is true, the [finder of fact] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence that it deems to be reasonable and logical. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s finding] of guilty.” (Internal quotation marks omitted.) State v. Montoya, 110 Conn. App. 97, 101-103, 954 A.2d 193, cert. denied, 289 Conn. 941, 959 A.2d 1008 (2008).

With this standard in mind, we turn now to the elements of sexual assault in the fourth degree. General Statutes (Rev. to 2005) § 53a-73a (a) provides in relevant part that “[a] person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . . .” General Statutes § 53a-65 (3) defines “[s]exual contact” to include “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person. ...” General Statutes § 53a-65 (8) defines “[i]ntimate parts” to include “the genital area . . . .”

Additionally, “ [i]t is well established that the question of intent is purely a question of fact. . . . Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Intent may be gleaned from circumstantial evidence such as . . . the events leading up to and immediately following the incident. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct.” (Internal quotation marks omitted.) State v. Saez, 115 Conn. App. 295, 302-303, 972 A.2d 277, cert. denied, 293 Conn. 909, 978 A.2d 1113 (2009). Thus, to sustain a conviction in this case, the petitioner was required to present sufficient evidence to prove beyond a reasonable doubt that the respondent had contact with E’s genital area for the purpose of sexual gratification or for the purpose of degrading or humiliating him. This court has held that a fact finder may infer from evidence of a respondent’s contact with the intimate parts of a victim that the respondent acted for the purpose of sexual gratification. See, e.g., State v. Montoya, supra, 110 Conn. App. 103 (holding that defendant’s contact with victim’s genitals was evidence of intent to commit sexually gratifying act).

Here, the respondent, who was E’s uncle and eight years his senior, sought to play in H’s bedroom alone with E, with the door closed. Thereafter, he touched E’s genitals with his hands and mouth and asked E to “lick his throat.” H discovered the respondent and E in what can only be described as a blatantly sexual act. After the respondent was discovered, he initially lied about his conduct, claiming that he and E were practicing karate. When the respondent subsequently admitted that he had touched E’s genitals, he claimed that “[t]he devil got into [him].” The secretive and sexual nature of the respondent’s actions, the private location of the incident, the respondent’s request that E lick his throat and the respondent’s initial denial of the conduct, which reflected an attempt to evade being caught in any wrongdoing, are all factors that support an inference that he acted for the purpose of sexual gratification. Moreover, no evidence was offered to show that the respondent, aged fourteen at the time of the incident, was either physically or emotionally incapable of acting for the puipose of sexual gratification. Having reviewed all of these facts in the light most favorable to sustaining the court’s finding, we conclude that the evidence supported the finding that the respondent acted for the purpose of sexual gratification.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 2005) § 53a-73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . . .”

       General Statutes § 53-21 (a) provides: “Any person who ... (2) has contact with the intimate parts ... of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of ... a class B felony . . . .”

       The respondent does not claim that the court improperly found that he had committed the crime of risk of injury to a child.

       The respondent is E’s uncle. H is the respondent’s grandmother and E’s great-grandmother.

       A is the respondent’s sister and E’s mother.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . .

       As a special condition of probation, the court prohibited the respondent from having any unsupervised contact with any children more than two years younger than himself and prohibited him from having any contact with E.

       The respondent urges us to follow the rulings of courts from other jurisdictions that have held that fact finders should not, without additional circumstantial evidence, infer that minor defendants who engaged in conduct of a sexual nature acted for the purpose of sexual gratification. See In re D.H., 381 Ill. App. 3d 737, 886 N.E.2d 1209, leave to appeal denied, 229 Ill. 2d 622, 897 N.E.2d 252 (2008), in which an Illinois appeals court reasoned that the “[ijntent to arouse or satisfy sexual desires may be established by circumstantial evidence, which the trier of fact may consider in inferring defendant’s intent from his conduct. . . . [T]he issue of intent of sexual gratification in minors must be determined on a case-by-case basis. There can be no bright-line test . . . When the accused is an adult, a fact finder can infer that an accused intended sexual gratification. . . . However, it is not justified to impute the same intent into a child’s action that one could reasonably impute into the actions of an adult.” (Citations omitted; internal quotation marks omitted.) Id., 741; see also In re Randy S., 76 Cal. App. 4th 400, 405, 90 Cal. Rptr. 2d 423 (1999) (“[t]he trier of fact must find a union of act and sexual intent . . . and such intent must be inferred from all the circumstances beyond a reasonable doubt” [internal quotation marks omitted]), review denied, 2000 Cal. LEXIS S084647 (Cal. February 23, 2000); In re Matthew K., 355 Ill. App. 3d 652, 655, 823 N.E.2d 252 (court could not infer that twelve year old engaging in sexual conduct intended sexual gratification; rather, whether child acted with intent to sexually gratify himself had to be decided on all of evidence, including offender’s age and maturity), leave to appeal denied, 215 Ill. 2d 597, 833 N.E.2d 3 (2005); In re Kyle O., 14 Neb. App. 61, 72, 703 N.W.2d 909 (2005) (court considered circumstantial evidence to glean minor defendant’s intent); In re T.S., 133 N.C. App. 272, 276, 515 S.E.2d 230 (“[W]e do not believe that intent to arouse or gratify sexual desires may be inferred in children under the same standard used to infer sexual purpose to adults. ... [A] lewd act by adult standards may be innocent between children, and unless there is a showing of the child’s sexual intent in committing such as act, it is not a crime”), review denied, 351 N.C. 105, 540 N.E.2d 751 (1999).
      Our analysis and resolution of the issue before us is consistent with these decisions because, here, we have relied on ample circumstantial evidence offered by the petitioner to support a finding that the respondent acted for the purpose of sexual gratification. Our analysis of the respondent’s intent is not based solely on the evidence that he had touched E’s genitals.