author: BEACH, J.

text:
    ESTATE OF CASIMIR MACHOWSKI ET AL. v. INLAND WETLANDS COMMISSION OF THE CITY OF ANSONIA ET AL.
    (AC 33710)
    Beach, Sheldon and Peters, Js.

      Argued April 11 —
    officially released September 4, 2012

      Dominick J. Thomas, Jr., for the appellant (named plaintiff).

      Marjorie Shansky, for the appellee (named defendant).
   Opinion

BEACH, J.

The plaintiff estate of Casimir Machowski appeals from the judgment of the trial court dismissing its appeal from the decision of the defendant inland wetlands commission of the city of Ansonia (commission), denying the plaintiff a permit to conduct regulated activities on a parcel of real estate. On appeal, the plaintiff claims that the trial court improperly applied the substantial evidence test in its review of the reasons given by the commission for denying the plaintiffs application. We agree and reverse the judgment of the trial court.

The trial court found the following facts. “The plaintiff ... is the owner of property known as 135 Hill Street, Ansonia [property]. The sixteen acre parcel is located in an A Residence zone, is undeveloped and contains 1.8 acres of wetlands and watercourses. Tug, LLC [Tug], acting as the authorized agent of the property owner, was a contract purchaser of [the property] when it submitted an application for permission to conduct a regulated activity to the [commission] on March 20, 2008. Although the initial plans contemplated twenty age restricted units contained within ten buildings, the revised plans requested eighteen units, housed in nine duplex buildings. The proposed use of the parcel is a permitted use in an A Residence zone. Development was projected on approximately 7.5 acres and all activity was limited to the upland review area. The proposal for development did not involve the disturbance of any existing wetland or watercourse.

“The property contains steep slopes, ranging from 460 feet above mean sea level, to 260 feet above mean sea level. During the course of construction, 30,000 cubic yards of fill would be required. Of this amount, 20,500 cubic yards of fill must be brought to the property by truck. The [commission] devoted three nights of public hearings to the proposal, June 4,2009, September 3,2009, and October 1,2009. The proposed development ignited vehement opposition from neighboring homeowners. Residents of Shortell Drive, Hunters Lane and Sharon Drive, whose properties are situated downstream from the proposed development, expressed concern over the effect increased development would have on an already severe flooding situation.

“During the course of the public hearings, the commission received expert testimony from Bryan Nest-eriak, an engineer engaged by the [plaintiff], and an outside reviewing engineer engaged by the commission, David Nafis, P.E. At its November 5, 2009 meeting, the commission voted. A motion was made to deny the application, based upon [the following] reasons and findings: ‘The development proposes 30,000 cubic yards of fill, 9500 cubic yards of cut equal to 20,500 cubic yards of new fill. There is a feasible and prudent alternative to placing the detention basin in fill on the extreme slope, comprised of earth embankment, and immediately upslope of a wetland area. The proposed location is inconsistent with [department of environmental protection (department)] 2002 Soil and Erosion and Sediment Guidelines Control and good engineering practice. The extensive amount of fill creates an extreme erosion hazard, immediately upstream of a wetlands area. The downstream swale, which appears to be a component of the storm water management plan to avoid adverse impact to receiving wetlands, including flooding, was not indicated within the scope of the application though its function as a downstream receptor makes it a “Regulated Activity.” ’

“Following discussion by the commission, which focused on the issue of the fill, and the divergent opinions provided by the experts concerning the proposed detention basin, the commission voted, 3-0, with one abstention, to deny the application.” The plaintiff and Tug appealed from the commission’s denial of their application to the Superior Court.

In its memorandum of decision, the court first determined that the plaintiff was aggrieved by the decision of the commission. The court determined that there was substantial evidence in the record to support the commission’s first reason for denying the application, namely, the location of the detention basin. The court noted that Tug did not propose to conduct any activity or perform any work within any wetland or watercourse on the property but, rather, it proposed to undertake substantial work in the upland review area, including constructing a detention basin that would be situated on a steep slope that is upslope of the wetland area. The court noted that, although no disturbance of a wetland or watercourse was contemplated, activity was proposed within the upland review or “buffer” area adjacent to the wetlands. The court agreed with the commission that the proposed activity would likely have a negative impact on the wetlands. Specifically, the court determined that the proposed detention pond would be built on a steep slope and that “any failure” of the basin would “clearly impact” the wetlands on the property and further exacerbate already severe downstream flooding conditions. The court also noted Nafis’ testimony in which he questioned the location of the detention basin on a steep slope adjacent to a wetland, opined that the use of excessive fill, particularly during construction, could create an erosion hazard, and mentioned the 2002 guidelines of the department, which guidelines caution against locating a detention basin on sloping topography. The court stated that the “plaintiff hypothesizes that the detention basin may not fail, and there will be no impact upon either the wetland areas, or the intermittent watercourse. This assertion, even if supported by expert testimony, is not sufficient to prevent a finding by the commission that an impact upon wetlands is likely.” The court dismissed the plaintiffs appeal. This appeal followed.

The plaintiff claims that the court improperly applied the substantial evidence test when it affirmed the commission’s determination that the proposed activity would adversely affect the wetlands or watercourses. Specifically, the plaintiff argues that the court failed to require that there be specific evidence in the record showing that the plaintiffs activities would adversely impact wetlands or watercourses. We agree.

“Whether the substantial evidence test was applied properly by the trial court in its review of the [commission’s] decision is a question of law over which our review is plenary. . . . [According to] the well established parameters of the substantial evidence test . . . [i]t is widely accepted that, [i]n reviewing an inland wetlands agency decision made pursuant to [its regulations], the reviewing court must sustain the agency’s determination if an examination of the record discloses evidence that supports any one of the reasons given. . . . The evidence, however, to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied injudicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence .... Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence. . . .

“The [Inland Wetlands and Watercourses Act (act)] is contained in . . . [General Statutes §§ 22a-28] through 22a-45, inclusive. Under the act the [commissioner of environmental protection] is charged with the responsibility of protecting inland wetlands and watercourses by . . . regulating activity which might have an adverse environmental impact on such natural resources. Under . . . §§ 22a-42 and 22a-42a, any municipality, acting through its legislative body, may authorize or create a board or commission to regulate activities affecting the wetlands and watercourses located within its territorial limits and any such board or commission is authorized to grant, deny or limit any permit for a regulated activity. ... In determining the impact of a proposed activity on inland wetlands and watercourses, an inland wetlands agency must consider the criteria established in the act and in applicable municipal regulations. Section 22a-41 (a) of the act sets forth specific criteria that must be considered in deciding whether an application for a wetlands and watercourses permit should be granted. Specifically, the statute requires the consideration of: (1) The environmental impact of the proposed regulated activity on wetlands or watercourses ... (3) The relationship between the short-term and long-term impacts of the proposed regulated activity on wetlands or watercourses and the maintenance and enhancement of long-term productivity of such wetlands or watercourses; (4) Irreversible and irretrievable loss of wetland or watercourse resources which would be caused by the proposed regulated activity . . . [and] (5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened by the proposed regulated activity . . . .” (Citations omitted; internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 70-72, 848 A.2d 395 (2004).

Sections 7.2 and 7.3 of the inland wetlands and watercourses regulations of the city of Ansonia require the commission, when evaluating the environmental impact of a proposed activity and the importance of a regulated area, to consider, inter alia, “[i]ncreased erosion problems resulting from changes in grades, ground cover, or drainage features. . . . The extent of additional silt-ation or leaching and its effect on water quality and aquatic life. . . . The function of the area as part of the natural drainage system for the watershed. ...”

“The sine qua non of review of inland wetlands applications is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse. ’ ’ River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. 74. “Determining what constitutes an adverse impact on a wetland is a technically complex issue. . . . Inland wetlands agencies commonly rely on expert testimony in making such a finding.” (Citation omitted.) Id., 78.

The plaintiff argues that there is no specific evidence in the record that the fill needed for the project or the location of the detention basin in the upland review area would, in fact, adversely impact the downslope wetland. The plaintiff contends that the court simply assumed that (1) the detention basin would likely fail and (2) that such failure would adversely affect the downslope wetlands, without any evidence in the record to support either assumption. The plaintiff contends that the commission’s expert referred only to a potential impact, but that there was no opinion that an adverse impact was likely should the detention basin fail, or, moreover, that a failure of the detention basin was reasonably likely to occur.

The plaintiff analogizes the present case to River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. 67. In River Bend Associates, Inc., the defendant, the inland and wetlands commission of the town of Simsbury, had denied the plaintiffs’ revised application for a permit to undertake certain regulated activities in conjunction with plans to construct a residential development on a parcel of real estate that contained wetlands and watercourses. Id., 60. The defendant reasoned that the proposed development would adversely affect the on-site wetlands and wildlife. Id., 62-63. The trial court dismissed the plaintiffs’ appeal, holding that there was substantial evidence to support the denial of the plaintiffs’ revised application. Id., 65. On appeal to our Supreme Court, the plaintiffs claimed that the trial court improperly applied the substantial evidence test by failing to require that there be specific evidence in the record showing that the plaintiffs’ activities would in fact adversely impact the wetlands or watercourses and by failing to require that the decision to deny the application be supported by more than a possibility of adverse impact. Id., 69-70. Our Supreme Court agreed. Id., 70. One of the reasons that the defendant denied the plaintiffs’ application was the possibility that the release of treated storm water into the upland review areas from the storm water management basins might have an adverse impact on the site’s wetlands and watercourses. Id., 80. The property had previously been used to grow tobacco and the soil contained pesticides associated with that activity. Id., 62, 75. Storm water detention basins were incorporated into the project, and the plaintiffs’ expert testified that 36 percent of nitrogen, copper and zinc in the storm water would not be removed by the storm water control devices and would flow into the wetlands and watercourses. Id., 80. Our Supreme Court concluded that the substantial evidence test had not been satisfied because there was no evidence that the elements that remained in the storm water would adversely affect a wetland or watercourse. Id., 81.

The present case is analogous to River Bend Associates, Inc., in that there was no evidence before the commission that the activity proposed by the plaintiff would have an adverse affect on the wetlands. Our careful review of the record reveals that there was no evidence supporting a likelihood that the detention basin would fail because of its location or otherwise. There also was no evidence specifically indicating what effect, if any, a failure of the detention basin would have on the downslope wetlands.

Evidence submitted by the commission’s experts referred only to potential damage to wetlands and mentioned the possibility that the detention basins would fail. For instance, at the September 3, 2009 public hearing, Martin Brogie, the commission’s soil scientist, testified that “the site should remain static after construction, unless there’s some kind of a slope failure . . . .” (Emphasis added.) Additionally, Nafis stated, in a September 30, 2009 report submitted by Nafis & Young, a firm engaged by the commission, that “[o]ur biggest concern is the location and stability of the detention pond, which does not meet the 2002 [department Guidelines for Soil Erosion and Sediment Control]. The potential for damage to wetlands and adjacent properties will be significant in the event of a failure. ” Evidence regarding potential impacts to wetlands in the event of a failure of the detention basin does not in itself amount to substantial evidence. See AvalonBay Communities, Inc. v. Inland Wetlands & Watercourses Agency, 130 Conn. App. 69, 78-84, 23 A.3d 37 (record lacked substantial evidence to support denial of permit application where reasons for denial based on speculation regarding potential impacts to wetlands), cert. denied, 303 Conn. 908, 32 A.3d 962 (2011).

The Nafis & Young report concluded that the location of the detention basin was not consistent with the department’s 2002 Guidelines for Soil Erosion and Sediment Control because it was to be located on a less gentle slope than recommended. The guidelines do not themselves have the force of law, and although they may contain a set of beneficial recommendations, non-adherence does not in itself imply a likelihood of adverse impact on wetlands. The requirements of River Bend Associates, Inc., still must be met to justify a denial in these circumstances.

The commission noted that residents of Shortell Drive who lived downstream from the property had testified at the public hearings as to their experiences in the past with flooding. The residents’ experiences relate only to the conditions of the wetland area and do not address what specific impact the proposed regulated activity would have on the wetlands.

In sum, the evidence presented by the commission regarding both the prospect of a failure and the potential impact such a failure would have on the wetlands is speculative in nature. Therefore, we conclude that the court improperly applied the substantial evidence test.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment directing the commission to grant the plaintiffs application.

In this opinion the other judges concurred.

       Tug, LLC, a contract purchaser of 135 Hill Street, Ansonia, was also a plaintiff in this matter. The trial court found that Tug, LLC, was not aggrieved by the decision of the inland wetlands commission of the city of Ansonia, and Tug, LLC, is not a party to this appeal. For sake of clarity, we refer to the estate of Casimir Machowski as the plaintiff.
      The “estate of Casimir Machowski” is not, standing alone, an entity that can sue or be sued. See Isaac v. Mount Sinai Hospital, 3 Conn. App. 598, 600, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985). We requested and received supplemental briefs on the issue of whether we had subject matter jurisdiction to proceed. A close review of the court file reveals that the citation accompanying the complaint states that the commission was to answer to the estate “c/o Reverend Francis Zlotkowski, Executor . . . .” The file is replete with references to the two executors. The initial application to the commission, for example, named as property owner the estate in care of both executors. An executor specifically authorized Tug, LLC, to act on behalf of the estate in zoning matters. The status of the property was affirmed by both executors. The trial court carefully found that the “plaintiff, estate of Casimir Machowski, acting through its coexecutors, Reverend Francis Zlotkowsld and Ann Zech,” was an aggrieved party.
      Although bringing the action in the name of the estate raised a substantial question, in the circumstances of this case, we conclude that the executors were the real parties in interest, were named in operative documents, and were effectively treated as parties by the other parties and the court. In these circumstances, dismissal would result in substantial injustice. See Federal Deposit Ins. Corp. v. Retirement Management Group, Inc., 31 Conn. App. 80, 84-85, 623 A.2d 517, cert. denied, 226 Conn. 908, 625 A.2d 1378 (1993). In light of this conclusion, no action is necessary as to the plaintiffs motion to substitute.

       The commissioner of the department of environmental protection was also named as a defendant. Only the commission is involved in this appeal.

       The court determined that the commission’s second reason for denial, that pertaining to the swale, was not supported by substantial evidence. That determination has not been challenged.

       As a preliminary matter, we note that the court concluded that the plaintiff, acting through its coexecutors, Francis Zlotkowski and Ann Zech, was aggrieved by the commission’s decision. See General Statutes § 22a-43 (a) (aggrievement conferred on “any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner ... or any person owning or occupying land which abuts any portion of land within, or is within a radius of ninety feet of, the wetland or watercourse involved in any regulation, order, decision or action”); see also General Statutes § 45a-234 (25) (m) (estate executors given power “to deal with any such property and every part thereof in all other ways and for such other purposes or considerations as would be lawful for any person owning the same”). Aggrievement has not been challenged on appeal.

       There similarly was no evidence specifically suggesting that excessive amounts of fill would probably erode into wetlands.

       The plaintiff had submitted to the commission more than one plan regarding the subject property. We address only the evidence presented as in connection with the plaintiffs revised application for permission to conduct regulated activity in connection with its plan, the denial of which application is the subject of this appeal.

       “Although [the 2002 Connecticut Guidelines for Soil Erosion and Sediment Control are] intended to be authoritative statements of the best possible implementations of the applicable laws, the guidelines state that they do not themselves have the force of law, as the use of the [g]uidelines does not relieve the user of the responsibility of complying with laws and regulations that cite the [g]uidelines.” (Internal quotation marks omitted.) Finley v. Inland Wetlands Commission, 289 Conn. 12, 45 n.3, 959 A.2d 569 (2008) (Norcott, J., concurring). Nafis indicated a consistent position in his comment at the October 1, 2009 hearing before the commission that “[w]ell, [the detention pond] could work, I just don’t — I would feel much more comfortable if that — going back to the guidelines, [the] guidelines say try to keep away from steep slopes, escarpments and slopes. Keep it off that if you can and in this plan they can’t.” Nafis did not testify that any statutes or regulation would be violated by construction of the project.


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    MILFORD PAINTBALL, LLC, ET AL. v. WAMPUS MILFORD ASSOCIATES, LLC
    (AC 33312)
    Gruendel, Lavine and Bear, Js.

      Argued February 9 —
    officially released September 4, 2012

      Richard F. Connors, for the appellant (defendant).

      Stephen J. Conover, with whom was Susan Briggs, for the appellee (named plaintiff).
   Opinion

BEAR, J.

The defendant, Wampus Milford Associates, LLC, appeals from the judgment of the trial court, rendered after a trial to the court, in this commercial lease action. The defendant claims that the court erred in (1) finding that, by the defendant’s conduct, it impliedly waived notice requirements under the lease, (2) awarding damages to the plaintiff Milford Paintball, LLC, by virtue of its improper construction of the terms of the parties’ lease agreement, (3) concluding that the plaintiff was entitled to recover damages because its conduct violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and (4) concluding that the defendant’s counterclaim had no merit because the plaintiff did not breach the terms of the lease. Because we decide that the court erroneously determined that the defendant impliedly waived its special defenses to the complaint and that this error also undermined the court’s disposition of the remaining claims of the parties, we reverse the judgment of the trial court and remand the case, in part, for a new trial.

The following facts, as found by the court in its post-trial memorandum of decision, are relevant to our resolution of the defendant’s claims. “On February 10, 2004, the plaintiff and the defendant entered into a lease agreement (lease) for a portion of a building owned by the defendant at 80 Wampus Lane, Milford, Connecticut (premises). On February 13, 2004, Kathleen Rorick, a member of the plaintiff and on its behalf, provided the defendant with a security deposit in the amount of $32,083.52. The premises were to be used by the plaintiff as an indoor paintball field. The execution of the lease followed extensive negotiations between the parties regarding the terms of the lease. Under the lease, each party had certain obligations to be performed before the plaintiff could take occupancy. The plaintiff was to apply for and obtain zoning approval. In addition, § 3.06 of the lease provided that the defendant would undertake extensive renovations to the premises, referred to as ‘landlord’s work.’ Such work was to be completed within ninety days of the plaintiffs receipt of zoning approval. In the event that the landlord’s work was not completed, the plaintiff was to provide the defendant with written notice of nonperformance and, upon receipt of such notice, the defendant was required to perform the work, or to commence performance and complete the landlord’s work within a reasonable amount of time. On April 23, 2004, the plaintiff sent the defendant a letter notifying the defendant that it had received zoning approval. The defendant never commenced performance of the landlord’s work. In the five months between May and October, 2004, the plaintiff and the defendant had conversations regarding performance of the landlord’s work. The plaintiff did not send the defendant written notice of nonperformance. During these conversations the defendant indicated that commencement of the landlord’s work would be forthcoming. According to the provisions provided for in the lease, the landlord’s work should have been completed by July 23, 2004. In December, 2004, the plaintiff informed the defendant that it would not fulfill the terms of the lease because the defendant failed to perform the landlord’s work. Despite requests, the defendant did not return the security deposit to the plaintiff. Thereafter, the defendant leased the space to a third party at a substantially lower rate than that provided for in the lease with the plaintiff.”

On February 16, 2005, the plaintiff filed a four count complaint, alleging the defendant’s breach of the lease, fraud, restitution and violation of CUTPA. On May 31, 2005, the defendant filed a counterclaim, alleging the plaintiff’s breach of the lease. On July 28, 2005, the defendant filed an answer and special defenses, alleging that the plaintiff had failed to provide written notice of its default pursuant to the terms of the lease and that the plaintiff had anticipatorily breached the lease.

The matter proceeded to a trial before the court, and, on December 15, 2010, the court issued a posttrial memorandum of decision. The court found for the plaintiff on its breach of lease claim, determining that the defendant impliedly had waived its right to written notice prior to default, as provided by § 14.07 of the lease. In particular, the court found that “based upon the evidence before it, the defendant waived its contractual right to written notice of nonperformance of the landlord’s work. Such waiver can be implied from the defendant’s conduct; specifically, its phone conversations with Kathleen Rorick. In those conversations, representatives of the defendant affirmed their intention to complete the landlord’s work, even after the ninety day deadline imposed by the contract had passed, thereby inducing the plaintiff to believe that performance was forthcoming. The evidence further demonstrates that the plaintiff relied on such representations and therefore, it refrained from providing written notice of nonperformance. In addition, the number of phone calls made by Kathleen Rorick to the [defendant] indicates that the plaintiff exercised due diligence in attempting to glean whether the defendant intended to undertake the necessary renovations to the property.”

The court also found for the plaintiff on its CUTPA claim. Specifically, the court found that “[t]he defendant’s conduct cannot be characterized as a mere breach of the lease agreement. Rather, the evidence demonstrates that the defendant engaged in wilful conduct that appears to have been calculated to mislead the plaintiff to believe the landlord’s work would be completed. In addition, the defendant falsely represented to the plaintiff that it would return its security deposit and reimburse the plaintiff for expenses incurred in anticipation of taking occupancy of the premises. Despite demands by the plaintiff, it never received these payments. Such conduct constitutes unfair, unethical and unscrupulous conduct and resulted in the plaintiff suffering a significant monetary loss.”

The court reserved decision on the issue of damages, ordering the parties to file supplemental briefs. On March 17, 2011, after the presentation of additional evidence and argument on the issue of damages, the court filed a second posttrial memorandum of decision. The court awarded the plaintiff compensatory damages in the amount of $34,987.52, plus prejudgment interest of $21,867.16, for a total compensatory award of $56,854.68. In addition, the court determined that the plaintiff was entitled to taxable costs and, pursuant to the terms of the lease and CUTPA, $73,217 in reasonable attorney’s fees. This appeal followed.

On appeal, the defendant raises three claims that relate to the alleged breach of the lease agreement. Specifically, the defendant claims that the court improperly (1) found that the defendant was equitably estopped from asserting its entitlement to written notice of default under the lease, (2) construed the terms of the lease when it found that the defendant’s failure to complete landlord’s work was a breach of the lease entitling the plaintiff to damages and (3) found for the plaintiff on the defendant’s counterclaim. In addition, the defendant claims that the court improperly found that it had violated CUTPA and improperly awarded the plaintiff attorney’s fees pursuant thereto.

The defendant first claims that the court erroneously found that the defendant was equitably estopped, on the basis of telephone conversations its representatives had with Rorick, from asserting its entitlement to written notice of default under the lease. The defendant argues that “there is no credible testimony that statements were made on behalf of the defendant from which one could conclude that it waived the requirement in [§] 14.07 of the [l]ease that the plaintiff give written notice of non-performance of [l]andlord’s obligations

The court found that the defendant, by its conduct, “impliedly waived its contractual right to written notice of nonperformance . . . .” (Emphasis added.) Although using the term waiver, it is apparent from the court’s analysis that it was applying the doctrine of equitable estoppel to the defendant’s conduct. See S.H.V.C., Inc. v. Roy, 188 Conn. 503, 510, 450 A.2d 351 (1982) (waiver and estoppel so similar as to be “nearly indistinguishable”).

Thus, we begin by setting forth the standard of review applicable to claims of equitable estoppel. “The party claiming estoppel . . . has the burden of proof. . . . Whether that burden has been met is a question of fact that will not be overturned unless it is clearly erroneous. ... A court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . The legal conclusions of the trial court will stand, however, only if they are legally and logically correct and are consistent with the facts of the case. . . . Accordingly, we will reverse the trial court’s legal conclusions regarding estoppel only if they involve an erroneous application of the law. . . .

“Strong public policies have long formed the basis of the doctrine of equitable estoppel. The office of an equitable estoppel is to show what equity and good conscience require, under the particular circumstances of the case, irrespective of what might otherwise be the legal rights of the parties. ... No one is ever estopped from asserting what would otherwise be his right, unless to allow its assertion would enable him to do a wrong. . . .

“There are two essential elements to an estoppel: the party [against whom it is asserted] must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the absence of prejudice, estoppel does not exist.” (Citation omitted; internal quotation marks omitted.) Fischer v. Zollino, 303 Conn. 661, 667-68, 35 A.3d 270 (2012).

In determining that the defendant was estopped from asserting its entitlement to written notice of default under § 14.07 of the lease, the court expressly relied on conversations between the defendant and Rorick. Specifically, the court found that waiver could be implied from the defendant’s telephone conversations with Rorick. Based on our review of the record, however, we do not agree with the trial court’s legal conclusion that Rorick’s conversations with representatives of the defendant provided a sufficient evidentiary basis to support the application of equitable estoppel as a bar to the defendant’s special defense asserting an entitlement to written notice of default under the terms of the lease, and we determine that the court’s finding was clearly erroneous.

The record supports the court’s conclusion that Ror-ick and representatives of the defendant engaged in telephone conversations prior to the expiration of the ninety day period wherein the defendant indicated that performance of landlord’s work was forthcoming. The defendant’s statements, however, made prior to the expiration of the ninety day period merely reiterated the defendant’s obligations pursuant to the lease. Moreover, our review of the record does not support the court’s finding that the defendant indicated to Rorick subsequent to the expiration of the ninety day period that it would timely perform the landlord’s work, and we determine that such finding is clearly erroneous. Accordingly, we cannot conclude that the defendant’s oral representations that it would perform the work, which were made prior to the expiration of the ninety day period, were sufficient to trigger application of equitable estoppel to the requirement of written notice of default provided in the lease.

Even if we were to assume that the evidence presented was sufficient to infer that the defendant made affirmative representations to Rorick regarding performance after the expiration of the ninety day period, we, nonetheless, would conclude that application of equitable estoppel would be unwarranted in light of the plaintiffs admission that it intentionally decided not to provide the defendant with the written notice required pursuant to § 14.07 of the lease. “For estoppel to exist, there must be misleading conduct resulting in prejudice to the other party.” Palumbo v. Papadopoulos, 36 Conn. App. 799, 802, 653 A.2d 834 (1995). In this case, for estoppel to apply, the plaintiff would have to demonstrate that the defendant’s actions were misleading, causing the plaintiff to believe that it did not have to adhere to the notice provision of the lease. The record, however, does not support a finding that the defendant’s representations misled the plaintiff into believing that it was not required to provide written notice. Our review of the record has uncovered no statement that would allow us to infer that the defendant impliedly had waived the written notice provision of the lease and the plaintiff cites to no portion of the record supporting such inference.

Estoppel is an equitable doctrine and, as such, a court should consider the conduct of all interested parties. See Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 566, 316 A.2d 394 (1972) (“[a] party, to be entitled to the benefit of [estoppel] is himself bound to the exercise of good faith” [internal quotation marks omitted]). The record provides evidence that the plaintiff not only was aware that the defendant had failed to perform landlord’s work, but that the plaintiff made a conscious business decision not to provide written notice of default to the defendant, despite knowing that the lease required it. Specifically, the following examination by the defendant’s counsel of Rorick took place before the court:

“Q. Why is it that you did not send a, a notice of default under paragraph 14.07 of the lease after July 23, 2004?

“A. If we, we, let’s see, we discussed this. And first of all, I did not believe that the lease had really commenced because the landlord’s work was never completed. So it was my view that the lease never commenced. Over and above the fact that if we sent a notice of default and they cured it, and we opened at a time, much later time beyond September, the business would have failed.

“From a practical perspective, if we sent your client a notice of default and he cured it, and he took his time like he was aware of with [another tenant], what was dragging out over there for months and months and months and we weren’t getting anywhere for months and months and months. And then we sent them a notice of default. And then they didn’t, and then they cured it, and we opened long after September, we would have had a problem. The business would definitely have failed.”

On the basis of the foregoing, we determine that the court erred in finding that the defendant was estopped from asserting its special defense of an entitlement to written notice under the lease. The parties do not dispute that the defendant never received notice of its default and, moreover, it is apparent that § 14.07 affords the defendant an opportunity to cure upon receipt of such notice. Having determined that the court improperly found that the defendant was estopped from asserting its special defenses, we further determine that, in light of the undisputed fact that the plaintiff failed to provide notice of default to the defendant, the court’s judgment in favor of the plaintiff on its breach of contract claim must be reversed.

Although the defendant raises other claims of error, we decline to reach those issues. Where a substantive error permeates the court’s findings and underlies its judgment, reversal of the judgment and further proceedings may be required. See, e.g., Milford Paintball, LLC v. Wampus Milford Associates, LLC, 117 Conn. App. 86, 92, 978 A.2d 118 (2009) (remanding for new trial and declining to reach further claims on appeal where court’s findings and judgment were based on substantive error). Our review of the court’s December 15, 2010 memorandum of decision convinces us that its resolution of the present matter was predicated on its erroneous finding that the defendant was estopped from asserting its special defenses. For example, it is apparent that the court did not consider the merits of the defendant’s counterclaim, having determined that it “must fail” as a consequence of its finding regarding estoppel. Furthermore, it is apparent that the court did not consider the merits of the plaintiffs fraud and restitution claims, having determined that they were “pleaded as alternative theories of recovery” to the plaintiffs breach of contract claim. See Woronecki v. Trappe, 228 Conn. 574, 580, 637 A.2d 783 (1994) (where trial court’s memorandum of decision makes it clear that it did not consider merits of claim, remand required to determine claim).

The judgment is reversed and the case is remanded to the trial court with direction to render judgment in favor of the defendant on the second count of the plaintiffs complaint sounding in breach of contract, and for a new trial on the defendant’s counterclaim and on the first, third and fourth counts of the plaintiffs complaint.

In this opinion the other judges concurred.

       Kathleen Rorick was a party plaintiff in this action. On February 11, 2010, the defendant filed a motion to dismiss with respect to Rorick. On March 8, 2010, the court granted the motion to dismiss. We therefore refer in this opinion to MUford Paintball, LLC, as the plaintiff.

       Although not raised by either party, we also note that the plaintiff failed to file a responsive pleading to the defendant’s special defenses. See Practice Book § 10-56, which provides: “The plaintiffs reply pleading to each of the defendant’s special defenses may admit some and deny others of the allegations of that defense, or by a general denial of that defense put the defendant upon proof of all the material facts alleged therein.” At this juncture, however, we need not determine the effect of such a failure on the issues in this appeal.

       Section 14.07 of the lease provides: “Landlord Default. If Landlord fails to perform its obligations in the maimer prescribed under this Lease, Tenant shall give Landlord -written notice of such non-performance, and Landlord shall have thirty (30) days following its receipt of such notice to either (a) perform its obligations under this Lease, or (b) commence performance of such obligations, if such obligations are not reasonably capable of completion within such thirty (30) day period and to thereafter diligently pursue the same to completion in good faith and in a commercially reasonable manner. In the event Landlord fails to perform such obligations (or commence performance and thereafter diligently pursue, as applicable) within such thirty (30) day period, then Tenant shall be entitled to take reasonable actions on its own behalf to perform such Landlord obligations, and Tenant shall be entitled to reimbursement of all its actual and direct costs and expenses reasonably incurred in connection therewith, including its reasonable attorneys fees and expenses. In the event Landlord fails to pay Tenant for such costs within thirty (30) days of receipt of notice requesting reimbursement therefor, Tenant shall be entitled to set off such costs against its Rent payment obligations owing to Landlord.”

       We note that neither equitable estoppel nor implied waiver expressly was pleaded in the plaintiffs complaint, nor raised as a special defense to the defendant’s counterclaim. Rather, the plaintiff argued before the trial court that the defendant had modified the terms of the contract through its conduct. The court, in its memorandum of decision, stated: “The plaintiff does not dispute that it did not provide the defendant with written notice of its nonperformance of the landlord’s work, but argues that the defendant’s conduct modified the lease, such that the plaintiff was relieved of its obligation to provide the defendant with written notice of nonperformance. The defendant has interpreted the plaintiffs argument as based upon a theory of waiver, and contends that the evidence does not support a finding by this court that it intentionally waived its right to written notice, as provided by § 14.07.” (Emphasis added.)

       Contrary to the court’s determination, Rorick acknowledged that the plaintiff made a tactical business decision to refrain from providing written notice of default to the defendant.

       When questioned with regard to communications and conversations with the defendant regarding the landlord’s work and the lease after the expiration of the ninety day period, Rorick testified: “I, for a short period of time after the deadline, I was still trying to see if I could get these people moving and to get the work done. And then from then on I basically let my sons take care of it.”

       Korick’s son, Matthew Rorick, also testified regarding the reason the plaintiff did not give written notice of default to the defendant: “We had a discussion about it, a family meeting, and our time line was so short that we figured they can’t even get the work done in thirty days.”

       Although not raised by the parties in their appellate briefs, our review of the lease revealed the presence of a nonwaiver clause. Specifically, we noted § 17.07 of the lease, which provides: “All waivers shall be in writing and signed by the waiving party. Either party’s failure to enforce any provision of this Lease or Landlord’s acceptance of Rent shall not be a waiver and shall not prevent either party from enforcing that provision or any other provision of this Lease in the future. . . ." On May 2, 2012, we ordered supplemental briefing on the following issue: “What effect, if any, do paragraph 17.07 of the lease between Wampus Milford Associates, LLC and Milford Paintball, LLC, dated February 10,2004, and the Supreme Court’s decisions in S.H. V. C., [Inc.] v. Roy, [supra, 188 Conn. 503] and Christensen v. Cutaia, 211 Conn. 613, 560 A.2d 456 (1989), have on our resolution of the present appeal?”
      “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) Ahmadi v. Ahmadi, 294 Conn. 384, 390, 985 A.2d 319 (2009). Nonwaiver clauses in commercial agreements are enforceable, barring the application of waiver and estoppel defenses unless a party establishes the existence of unequal bargaining positions or “sharp dealing.” See Christensen v. Cutaia, supra, 211 Conn. 619-20; S.H.V.C., Inc. v. Roy, supra, 188 Conn. 507; see also Webster Bank v. Oakley, 265 Conn. 539, 549-51, 830 A.2d 139 (2003), cert. denied, 541 U.S. 903, 124 S. Ct. 1603, 158 L. Ed. 2d 244 (2004). The court’s memorandum of decision does not address the lease’s nonwaiver clause, and the court made no finding of unequal bargaining positions or sharp dealing or that the defendant relinquished its right to enforce the nonwaiver clause by waiving it in a signed writing. Therefore, under the facts presented in the record, we cannot determine that implied waiver or equitable estoppel would provide the plaintiff a means to avoid the nonwaiver provision of the lease.

       In addition, we note that the court’s resolution of the plaintiffs CUTPA claim is predicated on its conclusion that the defendant was in breach of the lease agreement. Specifically, in noting the legal standard it was applying, the court stated: “A breach of contract does not constitute ‘a violation of CUTPA unless there are additional facts from which one can infer that the defendant’s conduct was also characterized by actions that were unethical, unscrupulous, wilful, or reckless.’ ” The court then determined that the defendant’s conduct, including the telephone calls that the court found occurred after the ninety day period for the work to begin, a finding we have determined to be clearly erroneous, amounted to more than a “mere breach of the lease agreement.” Furthermore, it is not clear that the court considered the CUTPA claim in light of the defendant's special defenses, including the special defense regarding the plaintiffs failure to provide written notice, which the court determined the defendant was estopped from asserting and which, as pleaded, applied to all counts of the plaintiffs complaint.


author: DiPENTIMA, C. J.

text:
    STATE OF CONNECTICUT v. RICHARD A. KOSLIK
    (AC 29966)
    DiPentima, C. J., and Lavine and Robinson, Js.
    Argued May IB —
    officially released September 4, 2012

      Alan Jay Black, with whom, on the brief, was Richard A. Koslik, pro se, for the appellant (defendant).

      Joseph Rubin, associate attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Richard A. Koslik, appeals from the judgment of conviction, rendered after a jury trial, of two counts of offering to make home improvements without having a current certificate of registration and one count of making home improvements without having a current certificate of registration in violation of General Statutes § 20-427 (b) (5). On appeal, the defendant claims that the court erred in its various instructions to the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In March, 2006, Nanci Harvey attended a home show in Enfield for the purpose of meeting home improvement contractors. At the home show, Harvey met the defendant and discussed with him various improvements to her kitchen that she wanted to make. The defendant gave Harvey a business card with the names “Custom Fabrication,” “JT Home Improvement,” two separate addresses, one phone number and the designation “CT REG # 608021.” Subsequently, the defendant telephoned Harvey to schedule an appointment to view her kitchen. Harvey told the defendant that she wanted to install granite countertops, tile flooring in the kitchen and a tile back splash, and that she wanted no cabinets. The defendant informed Harvey that the work would cost approximately $11,000. The defendant later presented Harvey with two contracts. The first contract, entitled “Retail Sales Contract” under the name “Custom Fabrication,” was for materials, totaling $8925. The second contract, entitled “Installation Contract,” under the name “J. T. Home Improvement,” was for installation costs, totaling $2000. Both contracts included the addresses and phone number that were listed on the business card that the defendant had given to Harvey. The defendant had signed the retail sales contract in his own name, but the installation contract bore the signature “Joe E. Thomas.”

In July and August, 2006, the defendant removed countertops, installed the kitchen sink and faucet, installed a garden window and installed flooring for Harvey. Harvey believed that the defendant was her contractor. At some point, Harvey became dissatisfied with the work that was done, and she filed a claim for damages with the department of consumer protection (department). According to James Turner, a supervisor for the food and standards division of the department, the defendant had not held a home improvement contractor’s registration or home improvement salesperson’s registration at any time from January 1, 2000, to the time of trial. In 2007, the defendant was arrested. He subsequently was brought to trial in 2008, and the jury returned a guilty verdict as to two counts of offering to make home improvements without having a current certificate of registration and one count of making home improvements without having a current certificate of registration in violation of § 20-427 (b) (5). This appeal followed.

On appeal, the defendant claims that the court erred in various instructions to the jury. Specifically, the defendant argues that the court (1) failed to instruct the jury that, because he was a subcontractor or working under a contractor, he was entitled to a “subcontractor defense” and (2) erred in charging that “installing a kitchen sink and garden window was making home improvements.” We disagree.

We first set forth the applicable standard of review. “When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Turner, 67 Conn. App. 519, 522, 787 A.2d 625 (2002).

The defendant’s claims raise issues of statutory construction over which our review is plenary. “[0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning . . . [General Statutes] § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) State v. Orr, 291 Conn. 642, 651, 969 A.2d 750 (2009).

We begin with the language of the relevant statute. Section 20-427 (b) (5) provides that no person shall “offer to make or make any home improvement without having a current certificate of registration under this chapter . . . .” The defendant argues that the court should have instructed the jury that if he did not make an offer to make home improvements as a contractor, he should be found not guilty. The plain language of § 20-427, however, provides that no person shall offer to make home improvements without having a current certificate of registration. “[I]t is axiomatic that those who promulgate statutes ... do not intend to promulgate statutes . . . that lead to absurd consequences or bizarre results. . . . Consequently, [i]n construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended . . . .” (Citation omitted; internal quotation marks omitted.) State v. Courchesne, 296 Conn. 622, 710, 998 A.2d 1 (2010). In light of the plain language of the statute, therefore, we reject the defendant’s argument that the court should have instructed the jury that he must have offered to make or make home improvements “as a contractor” in order to be found guilty.

The defendant argues that Meadows v. Higgins, 249 Conn. 155, 733 A.2d 172 (1999), exempts him from liability as a subcontractor. Even were we to assume that the defendant was acting as a subcontractor, Meadows is inapposite. Meadows involved a civil appeal from a judgment ordering the strict foreclosure of a mechanic’s hen. Id., 157. Moreover, in Meadows our Supreme Court construed General Statutes § 20-429 (a), a provision of the Home Improvement Act (act), which provides in part that “[n]o home improvement contract shah be valid or enforceable against an owner unless it . . . (8) is entered into by a registered salesman or registered contractor . . . .” The court concluded that liability under § 20-429 (a) did not extend to subcontractors. Meadows v. Higgins, supra, 166. Our Supreme Court agreed with this court’s reasoning that because “salesmen” were included in the registration requirement of General Statutes § 20-420, it was “reasonable to assume that if the legislature had intended to include subcontractors within the registration requirement of the [act], it would have hsted them as affected parties in § 20-420.” (Internal quotation marks omitted.) Id., 165. Sections 20-420 and 20-429 (a) are not at issue in this case. Here, § 20-427 (b) (5) exphcitly states no person shah offer to make or make home improvements without having a certificate of registration, and there is no language in this provision limiting its applicability to contractors.

Finally, the defendant argues that the court erred in charging that installing a kitchen sink and garden window was making home improvements. The defendant, citing Meadows, claims that § 20-427 does not apply “to an unregistered person who performs installation work.” The court, in rejecting this claim at trial, stated that making home improvements does mean the “performance of work.” Moreover, the plain meaning of “make any home improvement” under § 20-427 (b) (5) supports the court’s conclusion.

The court instructed the jury that, under General Statutes § 20-419 (4), “home improvement” includes, but is not limited to, “repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation or sandblasting of or addition to any land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place, or residential property or the construction, replacement, installation or improvement of driveways, swimming pools, porches, garages, roofs, siding, [insulation], solar energy systems, flooring, patios, landscaping, fences, doors and windows, and waterproofing in connection with such land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place, or residential property in which the total cash price for all work agreed upon between the contractor and owner exceeds $200.” (Emphasis added.) The court’s instructions were correct in law, adapted to the issues and sufficient for the guidance of the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 20-427 (b) (5) provides that no person shall “offer to make or make any home improvement without having a current certificate of registration under this chapter . . .

       The defendant also claims that § 20-427 (b) (5) is unconstitutionally vague as applied to him. We do not address this claim because the defendant did not assert this claim before the trial court, and the defendant only requested review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), in his reply brief. See State v. Pacelli, 132 Conn. App. 408, 411-13, 31 A.3d 891 (2011).

       In reaching this conclusion, we recognize that the defendant’s brief was written by the defendant as a self-represented party, and not by attorney Alan Jay Black, who signed the defendant’s reply brief and represented the defendant at oral argument before this court.

       The record indicates that Joe Thomas is an owner, with his wife, Deborah Haugabook, of J. T. Home Improvement.

       The respondent contractor in the action before the department was Deborah Haugabook doing business as J. T. Home Improvement, the contractor whose registration number appeared on all of the documents given to Harvey.

       The defendant also claims that the court (1) failed to charge the jury that if Harvey had agreed to the work that was offered with J. T. Home Improvement as the contractor, he must be found not guilty, (2) failed to charge the jury that if the defendant did not agree to work with Harvey as a contractor, he must be found not guilty, (3) erred in instructing the jury that an unregistered salesman can violate § 20-427 (b) (5), and (4) erred in charging the jury that it is not a defense that the defendant may have used the registration of a different individual or was acting on behalf of a registered contractor or salesman. We do not address these arguments because our analysis rejecting the defendant’s claim that he is entitled to a “subcontractor defense” disposes of these claims.

       The defendant also claims that the court (1) erred in failing to instruct the jury that “if what he offered is not a home improvement, if it is not an agreement for work between the contractor and owner, then he must be found not guilty,” (2) failed to instruct the jury that his alleged conduct is not a § 20-427 (b) (5) violation and (3) failed to instruct the jury that retail sales contracts are exempt from liability.
      We do not address these claims because they are inadequately briefed. “It is well settled that [w]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs.” (Emphasis added; internal quotation marks omitted.) Nowacki v. Nowacki, 129 Conn. App. 157, 163-64, 20 A.3d 702 (2011). The defendant’s brief makes conclusory assertions without analysis in support of these claims.

       The defendant argues that the court failed to charge the jury that the state must prove that the defendant was “required to be registered” on the dates alleged and if not, he must be found not guilty. While it is not altogether clear, the defendant appears to claim that the state was required to put forth evidence explaining why the defendant was required to be registered on the dates when he allegedly offered to make or made home improvements for Harvey. This argument merits no discussion and, accordingly, we reject it.

       The defendant also argues that the court improperly instructed the jury that there is no requirement that the defendant make an offer in writing to be liable under § 20-427. Although the defendant’s analysis of this issue is brief, we note that the plain language of § 20-427 (b) (5) does not require a written offer to make home improvements. The defendant cites § 20429 in support of his argument, but that provision concerns only the enforceability of home improvement contracts between owners and contractors. Here, “[t]he existence of a home improvement contract was not an essential element of . . . the crimes with which the defendant stood charged.” See State v. Koslik, 80 Conn. App. 746, 763, 837 A.2d 813, cert. denied, 268 Conn. 908, 846 A.2d 413 (2004).


text:
    FREDERICK CORNELIUS v. LYDIA ROSARIO ET AL.
    (AC 33178)
    Gruendel, Beach and Flynn, Js.

      Argued April 16
    officially released September 11, 2012

      James Colin Mulholland, for the appellant (plaintiff).

      Joseph A. Marotti, for the appellees (named defendant et al.).
   Opinion

BEACH, J.

The plaintiff, Frederick Cornelius, appeals from the trial court’s granting of a motion for summary judgment in favor of the defendants, the city of Hartford (city) and Lydia Rosario, the city’s then tax collector, and denial of his motion for summary judgment. The plaintiff claims that the court erred in (1) determining that he lacked standing to challenge the adequacy of notice to a predecessor in title of the real property at issue, (2) determining that the defendants satisfied the notice requirement of General Statutes § 12-157 (a), (3) concluding that the steps taken by the defendants to notify the plaintiffs predecessor in interest of the tax sale of that property, when the plaintiff failed to record his interest in the property, satisfied due process, (4) concluding that the defendants were not obligated to provide him with notice of the tax sale because his interest in the property was not reasonably ascertainable and (5) denying his request to testify at the hearing on the motions for summary judgment and then failing to continue the matter to allow him to submit affidavits. We agree with the plaintiff that he has standing to challenge the adequacy of notice to his predecessor in title. We disagree with his remaining claims and, therefore, affirm the judgment of the trial court.

The plaintiff initiated an action in 2008, in which he sought to quiet title and to nullify a tax sale of a parcel of real estate located at 78 Beacon Street in Hartford (property). The plaintiff claimed that the property was illegally seized and sold without providing him with notice of the tax sale as required by § 12-157. The defendants filed a motion for summary judgment in which they argued that the plaintiff undeniably failed to record his warranty deed’ and, thus, the tax sale of the property was conducted consistently with the requirements of § 12-157 (a), which required that notice be provided only to those with recorded interests in the property. The plaintiff, on the other hand, filed a motion for summary judgment as to the city on the ground that it had not provided notice to Mercury Mortgage Company, Inc. (Mercury), the plaintiffs predecessor in title, in accordance with § 12-157 (a).

The following facts are undisputed. On November 22, 2004, the plaintiff, a sophisticated real estate investor, purchased the property from Mercury, as an investment property. Neither the plaintiff nor his attorney recorded the warranty deed reflecting the sale in Hartford’s land records. The real estate taxes were not paid on the property from January 1, 2004 through July 1, 2007. The defendants filed tax hens against the property on June 11, 2004, May 2, 2005, June 16, 2006, and May 25, 2007. On July 12, 2007, the defendants executed a tax levy on the property for unpaid taxes in the amount of $18,698.94, and sold the property to the highest bidders at the tax sale. Prior to executing the tax sale, the defendants attempted to provide notice to all record owners/taxpayers, lienholders, mortgagees and encum-brancers of the property after performing a search of the Hartford land records, city assessor’s records and the tax division records to determine who was entitled to receive notice. The search of the records revealed that the owner of record was Mercury and that the law firm Hunt, Leibert, Chester & Jacobson, P.C. (Hunt Leibert), the Metropolitan District Commission (Metropolitan) and the city held hens on the property. There was no record of the plaintiffs interest in the property on Hartford’s land records or in the assessor’s records. Additionally, there was no record of the plaintiff ever having paid taxes on the property.

The defendants provided notice of the tax sale via certified mail to Mercury, Hunt Leibert and Metropolitan. Hunt Leibert and Metropolitan received notice of the tax sale. The notice to Mercury was returned as undeliverable. Attached to the defendants’ motion for summary judgment was a copy of the undelivered letter, the authenticity of which was not contested. The letter was stamped: “RETURN TO SENDER NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD.” The defendants attempted to find another address for Mercury and to locate an agent of Mercury. Ultimately, the defendants sent notice to Mercury’s attorney, Hunt Leibert. The defendants did not provide notice to the plaintiff because his interest in the property did not appear of record. The court granted the defendants’ motion for summary judgment and denied the plaintiffs motion for summary judgment. This appeal followed.

We first set forth the applicable standard of review. “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 party’s] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311, 318, 984 A.2d 676 (2009).

I

The plaintiff first claims that the court erred in holding that he lacked standing to challenge the adequacy of notice to Mercury. We agree.

The ground presented by the plaintiff in his motion for summary judgment was that the defendants had not provided notice to Mercury in accordance with § 12-157 (a). In denying the plaintiffs motion for summary judgment, the court determined that the plaintiff lacked standing to assert Mercury’s rights.

The plaintiff argues that in ruling that he lacked standing to challenge the adequacy of Mercury’s notice, the court overlooked General Statutes § 12-159. He argues that § 12-159 authorizes a person whose predecessor in title was entitled to notice of the tax sale under § 12-157 to contest the validity of the notice given to his or her predecessor in title.

“It is axiomatic that aggrievement is a basic requirement of standing, just as standing is a fundamental requirement of jurisdiction. If a party is found to lack [aggrievement], the court is without subject matter jurisdiction to determine the cause. . . . There are two general types of aggrievement, namely, classical and statutory; either type will establish standing, and each has its own unique features. Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.” (Citations omitted; internal quotation marks omitted.) Soracco v. Williams Scotsman, Inc., 292 Conn. 86, 91-92, 971 A.2d 1 (2009). “[T]o determine whether a party has standing to make a claim under a statute, a court must determine the interests and the parties that the statute was designed to protect. . . . Essentially the standing question in such cases is whether the . . . statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff’s position a right to judicial relief. . . . The plaintiff must be within the zone of interests protected by the statute. ... It has been [noted] that the zone of interests test bears a family resemblance to the scope of the risk doctrine in the law of torts. ... In tort law, it is not enough that the defendant’s violation of the law caused injury to a plaintiff. The defendant must also owe that plaintiff a duty. Similarly, with respect to the law of [statutory] standing, it is not enough that a party is injured by an act or omission of another party. The defendant must also have violated some duty owed to the plaintiff.” (Internal quotation marks omitted.) Albuquerque v. State Employees Retirement Commission, 124 Conn. App. 866, 873-74, 10 A.3d 38 (2010), cert. denied, 299 Conn. 924, 11 A.3d 160 (2011).

We must determine whether the plaintiff was within the class of persons whom § 12-159 was designed to protect. This raises a question of statutory construction, which is a “[question] of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, [we first consider] the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Citation omitted; internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 847, 937 A.2d 39 (2008).

Section 12-159 provides in relevant part: “Any deed, or the certified copy of the record of any deed, purporting to be executed by a tax collector and similar, or in substance similar, to the above, shall be prima facie evidence of a valid title in the grantee to the premises therein purported to be conveyed .... No act done or omitted relative to the assessment or collection of a tax, including everything connected therewith . . . including the . . . sale of property therefor, shall in any way affect or impair . . . the validity of such sale, unless the person contesting the validity of such sale shows that the collector neglected to provide notice pursuant to section 12-157, to such person or to the predecessors of such person in title, and who had a right to notice of such sale . . . .”

Section 12-159 plainly and unambiguously provides that a person may contest the validity of a tax sale by showing that notice was not properly provided to the plaintiffs predecessor in title in accordance with § 12-157 (a). The statute contemplates situations in which a property owner’s predecessor in title has a right to notice of a tax sale and was given inadequate notice of the tax sale. It permits plaintiffs to contest the validity of notice given to a predecessor in title under those circumstances. The statute protects property owners from having a tax sale presumed valid without having proper notice of the tax sale given to, inter alia, the property owner’s predecessor in title in cases in which the predecessor in title has a right to notice of the tax sale. In the present case, the plaintiff is within the zone of interests meant to be protected by the statute and, thus, has statutory standing to contest the adequacy of Mercury’s notice.

II

The plaintiff next claims that the court erred in determining that the defendants satisfied the notice requirement of § 12-157 (a) as to Mercury. We disagree.

The court concluded that the defendants presented the following unrefuted evidence that they had complied with the requirements of § 12-157 (a). The defendants, via certified mail, mailed to Mercury notice of the tax sale on May 10, 2007, which date was not more than twelve weeks and not less than nine weeks before the tax sale as required by § 12-157 (a). The notice was returned as undeliverable. The defendants performed two Accuiint searches to confirm that Mercury’s mailing address was accurate. The defendants also attempted to locate Mercury’s agent of service through the California secretary of state website and discovered that the agent of service had resigned and a new agent had not been appointed. Additionally, the defendants posted a notice at city hall and published notice in the Hartford Courant. The court concluded that “[subsequent notices to Mercury were clearly not required because they would have been futile. Instead, the defendants sent all other notices required by § 12-157 (a) to Hunt Leibert, Mercury’s counsel, complying with the requirements of § 12-157 (a).”

Section 12-157 (a) describes the method for selling a parcel of real estate for taxes and provides in relevant part that “[w]hen a collector levies one or more tax warrants on real estate, he shall prepare notices thereof . . . . [0]ne shall be sent by certified mail, return receipt requested, to the taxpayer and each mortgage [e], lienholder and other record encumbrancer of record whose interest will be affected by the sale. . . . Such . . . mailing shall be done not more than twelve and not less than nine weeks before the time of sale and shall constitute a legal levy of such warrant or warrants upon the real estate referred to in the notice. ... He shall also send by certified mail, return receipt requested, to the delinquent taxpayer and to each mortgagee, lienholder and other record encumbrancer whose interest in such property will be affected by such sale, a similar notice which shall not be required to list information pertaining to properties in which the person to whom the notice is directed has no interest. The notice shall be sent at least twice . . . .” “The power to sell land for delinquent taxes is strictly construed; the tax collector must substantially, if not strictly, comply with all statutory provisions.” (Internal quotation marks omitted.) Associates Financial Services of America, Inc. v. Sorensen, 46 Conn. App. 721, 726-27, 700 A.2d 107 (1997), appeal dismissed, 245 Conn. 168, 710 A.2d 769 (1998).

“[T]he application of a statute to a particular set of facts is a question of law to which we apply a plenary standard of review . . . .” (Citation omitted; internal quotation marks omitted.) Maturo v. Maturo, 296 Conn. 80, 88, 995 A.2d 1 (2010).

The plaintiff argues that the defendants were required under § 12-157 (a) to mail additional notices to Mercury and that the court erred in excusing the defendants from strictly complying with the notice requirements of § 12-157 (a) on the basis of futility. The plaintiff contends that regardless of whether additional mailings would have been futile, they were obligated to make such mailings in order to comply with the notice requirements of § 12-157 (a). The plaintiff further contends that additional mailings may not have been futile and may have reached Mercury.

We do not agree with the plaintiffs argument that the defendants were required to send the remaining two notices to an unworkable address in order to satisfy § 12-157 (a). Section 12-157 (a) provides that notice of the tax sale be given via certified mail three times to the taxpayer; under the circumstances of this case, a title search would indicate Mercury as the record owner. Contrary to the plaintiffs assertion, it is unlikely that additional notices sent to an unworkable address would have reached Mercury. Rather than send the additional notices to an unworkable address, the defendants took additional steps to provide Mercury wdth notice. When the defendants were unable to find another address for Mercury and were unable to locate an agent of Mercury, the defendants sent the remaining notices to Mercury’s attorney. Section 12-157 (a) does not specify that notice be sent to the property subject to the tax sale; rather, it states the persons or entities to which notice must be sent. The defendants, after taking additional steps to locate Mercury and/or Mercury’s agent to no avail, sent notice to Mercury through its former attorney of record. Such steps satisfied the requirements of § 12-157 (a).

Ill

The plaintiff next claims that the court erred in concluding that the defendants took additional reasonable steps as required by due process to notify Mercury of the sale. We disagree.

The plaintiff argues that the additional steps taken by the defendants to contact Mercury, namely, performing Accurint searches to confirm the accuracy of Mercury’s mailing address and attempting to locate Mercury’s agent of service through the California secretary of state website, did not satisfy due process. He contends that the defendants should have taken one or more of the following steps to locate Mercury in order to satisfy due process: sent the subsequent mailings to Mercury’s unworkable California address, mailed notice to Mercury’s Oklahoma address as stated on the California secretary of state website, searched the Connecticut secretary of the state’s website for a then current address for Mercury, posting notice of sale on the property, mailing notice to the property address addressed to “occupant,” and/or verify the occupancy of the property.

In Jones v. Flowers, 547 U.S. 220, 226-27, 126 S. Ct. 1708, 164 L. Ed. 2d 415 (2006), the Supreme Court stated that “[d]ue process does not require that a property owner receive actual notice before the government may take his property. . . . Rather, we have stated that due process requires the government to provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. . . . [T]his Court has deemed notice constitutionally sufficient if it was reasonably calculated to reach the intended recipient when sent. . . . But we have never addressed whether due process entails further responsibility when the government becomes aware prior to the taking that its attempt at notice has failed.” (Citations omitted; internal quotation marks omitted.) The court determined that when the government becomes aware prior to the taking that notice has failed, “the [s]tate must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so.” Id., 225. The court determined that, under the facts in Jones, there were reasonable steps available to the respondent, and, thus, the effort to provide notice was not sufficient to satisfy due process. Id., 235. The court stated that “[w]hat steps are reasonable in response to new information depends upon what the new information reveals.” Id., 234. The fact that the letter at issue in Jones was marked “ ‘unclaimed’ ” could have meant that the petitioner was not home when the letter arrived, that the petitioner did not retrieve the letter from the post office, or that he no longer resided at the subject property. Id. The court suggested that one possible reasonable step would be to send the letter so that no signature was required. Id.

In the present case, the letter was not returned marked “unclaimed,” but rather “undeliverable.” Further, the marking indicated that the post office was unable to forward the notice. Under those circumstances, additional mailings to the same unworkable address most likely would have been futile. The defendants took additional steps, however. They searched to discover whether Mercury’s mailing address was accurate and, upon discovering that the unworkable address was, nonetheless, the apparently correct mailing address, attempted to locate Mercury’s agent of service. Upon discovering that Mercury’s agent of service had resigned and no new agent had been appointed, the defendants sent all other notices to persons who had been Mercury’s attorneys. These additional steps satisfied the due process considerations mandated by Jones v. Flowers, supra, 547 U.S. 220.

The further additional steps suggested by the plaintiff were not required by due process. As the trial court found, the plaintiff presented “no evidence . . . either in his motion for summary judgment or in opposition to the defendants’ motion for summary judgment” to support the argument that the defendants should have taken additional steps to discover his unrecorded interest. Additionally, Mercury, as a mortgage company that purchased the property as an investment property, was presumably not inexperienced, or trying to avoid notice. See Mennonite Board of Missions v. Adams, 462 U.S. 791, 799, 103 S. Ct. 2706, 77 L. Ed. 2d 180 (1983) (“[i]t is true that particularly extensive efforts to provide notice may often be required when the [s]tate is aware of a party’s inexperience or incompetence”).

Furthermore, we have determined in part II of this opinion that the defendants complied substantially with the requirements of § 12-157 (a). The defendants substantially complied with the actual notice provisions, and complied with the constructive notice provisions of § 12-157 (a) by posting a notice at city hall and publishing notice in the Hartford Courant. In Associates Financial Services of America, Inc. v. Sorensen, supra, 46 Conn. App. 728, we determined that the notice requirements of § 12-167 (a) satisfy the due process clause of the fourteenth amendment. In Associates Financial Services of America, Inc., we noted that “[i]n Mennonite Board of Missions v. Adams, [supra, 462 U.S. 795], the United States Supreme Court held that prior to an action which will affect an interest in life, liberty, or property protected by the Due Process Clause of the Fourteenth Amendment, a State must provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” (Internal quotation marks omitted.) Associates Financial Services of America, Inc. v. Sorensen, supra, 725. We concluded in Associates Financial Services of America, Inc., that the notice requirements of § 12-157 (a) are “reasonably calculated to apprise all interested parties of the tax sale” in accordance with the due process requirements set forth in Mennonite Board of Missions. Id., 726. We conclude that the court did not err in concluding that the additional steps taken by the defendants to provide Mercury with notice satisfied due process.

IV

The plaintiff next claims that the court erred in concluding that his own interest in the property was not reasonably ascertainable and thus obviated any obligation of the defendants to have provided him with notice of the tax sale. We disagree.

The plaintiff argued before the trial court that due process required the defendants to do more to ascertain his unrecorded interest in the property than to satisfy the requirements of § 12-157 (a). The court disagreed and concluded that the plaintiffs interest was not reasonably ascertainable and, thus, he was not entitled to mail notice under § 12-157 (a). Because of his own failure to record his deed, he was not an owner of record and, of course, did not pay taxes. The court noted that the plaintiff received constructive notice of the tax sale via publication in the Hartford Courant and a posting at city hall.

The plaintiff argues that his interest in the property was reasonably ascertainable under Mennonite Board of Missions v. Adams, supra, 462 U.S. 791, and, accordingly, the defendants were constitutionally bound to mail him notice of the tax sale. He contends that his interest was reasonably ascertainable given his longstanding continuous occupation of the property and knowledge of his name and address by other city agencies and employees who had interacted with the plaintiff while he occupied the property.

The United States Supreme Court has stated that “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pen-dency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950). In Mennonite Board of Missions v. Adams, supra, 462 U.S. 800, the Supreme Court held that “[n]otice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.” (Emphasis added.)

Cases in sister jurisdictions have held that unrecorded interests are not reasonably ascertainable. See Johnson v. Michigan Dept. of Treasury, United States Court of Appeals, Docket No. 99-1730, 2000 U.S. App. LEXIS 9660 (6th Cir. May 4, 2000) (no denial of due process where homeowner not notified of tax foreclosure on home because he did not record deed in his name); Sterling v. Block, 963 F.2d 198, 200 n.2 (5th Cir. 1992) (unrecorded interests not reasonably ascertainable); Bender v. Rochester, 765 F.2d 7 (2d Cir. 1985) (after balancing burden on city to identify interests with claimant’s ability to protect interests, court determined interests of heirs of deceased property owner not reasonably ascertainable where no death certificate or any other notification on land records that owner was deceased); Sallie v. Tax Sale Investors, Inc., 998 F. Supp. 612 (D. Md. 1998) (leasehold interest in property not reasonably ascertainable where leasehold interest not recorded on land records).

The plaintiffs unrecorded interest in the property was, then, not reasonably ascertainable. The plaintiff, a sophisticated real estate investor, should have known and had the ability to record his interest. The additional steps proposed by the plaintiff for the defendants to take in order to ascertain the plaintiffs interest in the property exceed the scope of § 12-157 (a). Section 12-157 (a) requires mail notice to be sent to “the taxpayer and each mortgage [e], lienholder and other record encumbrancer of record whose interest will be affected by the sale . . . .” The statute does not require that persons or entities with unrecorded interests be notified, nor does it require a city to search its departments for unrecorded interests. Section 12-157 (a) requires notice only to persons with a recorded interest in the property, and that limitation is consistent with due process. See General Statutes § 12-157 (a). Furthermore, the plaintiff was not entirely without notice because the defendants complied with the constructive notice provisions of § 12-157 (a) and posted a notice at city hall and published notice in the Hartford Courant.

V

The plaintiff last claims that the “court erred in denying [him] the opportunity to testify in defense of the defendants’ motion for summary judgment or by not continuing the matter to allow the plaintiff, then acting pro se, to submit affidavits in the matter in lieu of his proffered in-person testimony.” We disagree.

At the hearing on the parties’ motions for summary judgment, the then self-represented plaintiff informed the court that he disagreed with the content of the defendants’ affidavits and that affidavits are not sufficient for evidence on a motion for summary judgment. The court replied that, according to the rules of practice, affidavits are proper on summary judgment and that if the plaintiff wanted to dispute the content of the defendants’ affidavits, he was required to file his own affidavit. The plaintiff stated that he wanted to testify in lieu of an affidavit. The court informed the plaintiff that testimony is not appropriate at hearings on motions for summary judgment.

In his brief to this court, the plaintiff notes that he was unable to find a Connecticut case addressing whether testimony is allowable on a motion for summary judgment. He argues, however, that Practice Book § 11-18 (a) (2) and (b) “suggest that testimony is allowed on any motion filed with the court.” Section 11-18 sets forth the proper procedure for, inter alia, requesting oral argument or testimony with respect to various motions in civil matters. This section does not state or indicate that oral testimony is permitted or required on a motion for summary judgment; rather, it provides the procedure for requesting oral argument or testimony on motions on which either or both is appropriate.

Practice Book § 17-45, which directly addresses motions for summary judgment, provides in relevant part: “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. . . . Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. ...” This section indicates that only documentary evidence is appropriate to support a motion for summary judgment. It states that the motion shall be supported by “documents” and provides a nonexhaustive list of documentary evidence. The catchall phrase, “and the like,” indicates that the additional permissible evidence must be similar to affidavits, certified transcripts of testimony under oath, disclosures, and/or written admissions — all of which are documentary evidence.

Additionally, our well settled standard of review of trial court rulings on motions for summary judgment references only documentary evidence in support of motions for summary judgment. See, e.g., Martel v. Metropolitan District Commission, 275 Conn. 38, 46-47, 881 A.2d 194 (2005) (“[w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue” [internal quotation marks omitted]); Little v. Yale University, 92 Conn. App. 232, 235, 884 A.2d 427 (2005) (“[i]f the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment” [internal quotation marks omitted]), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006); Mozeleski v. Thomas, 76 Conn. App. 287, 290, 818 A.2d 893 (“[w]hen a party files a motion for summary judgment and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant’s] affidavits and other proof’ [internal quotation marks omitted]), cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003); Pion v. Southern New England Telephone Co., 44 Conn. App. 657, 663, 691 A.2d 1107 (1997) (“[t]o oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and documents” [internal quotation marks omitted]). We conclude that the court did not err in not permitting the plaintiff to testify in support of his motion for summary judgment.

The plaintiff also argues that the court erred in failing to continue the matter to allow him to submit affidavits. The plaintiff did not ask for a continuance during oral argument on the motion for summary judgment. “Our Supreme Court expressly has declined to impose on the trial courts the duty to order a continuance sua sponte. See State v. Barrett, 205 Conn. 437, 455, 534 A.2d 219 (1987).” Pasiakos v. BJ’s Wholesale Club, Inc., 93 Conn. App. 641, 645, 889 A.2d 916, cert. denied, 277 Conn. 929, 896 A.2d 101 (2006). Accordingly, the court did not abuse its discretion in failing to sua sponte order a continuance.

The judgment is affirmed.

In this opinion the other judges concurred.

       Albertina Ward and Patricia Franklin, the purchasers of the property at the tax sale, Edward Baum and J&E Investment were also named as defendants. The action was withdrawn as to Baum. The court granted a motion to strike the action as to Ward, Franklin and J&E Investment. Only the city of Hartford and Rosario are involved in this appeal; for simplicity we will refer to the city of Hartford and Rosario as the defendants.

       “[I]f parties file cross motions for summary judgment and the court grants one and denies the other, this court has jurisdiction to consider both rulings on appeal.” Hannaford v. Mann, 134 Conn. App. 265, 267 n.2, 38 A.3d 1239, cert. denied, 304 Conn. 929, 42 A.3d 391 (2012).

       The trial court noted: “Accuiint is a search tool that provides investigative tools to government entities, enabling them to locate people, detect fraud, uncover assets and verily identity.”

       The plaintiff also argues that, in any event, the court’s finding of futility is a factual finding that is inappropriate for summary judgment. The facts supporting the court’s determination of futility were undisputed. The court’s determination of whether the undisputed facts satisfied § 12-157 (a) was a question of law. See Maturo v. Maturo, supra, 296 Conn. 88 (application of statute to particular set of facts is question of law).

       It should be noted that the certified letter was returned as “undeliverable” and that there was no forwarding address. This presents a different situation from one in which, for example, a certified letter is simply ignored by the addressee. Cf. Jones v. Flowers, 547 U.S. 220, 126 S. Ct. 1708, 164 L. Ed. 2d 415 (2006). Additionally, no evidence was presented to the court to show that further mailings may have provided actual notice to Mercury. Where substantial compliance has been achieved, the lack of discemable prejudice is relevant. See First Constitution Bank v. Harbor Village Ltd. Partnership, 230 Conn. 807, 821-22, 646 A.2d 812 (1994) (mechanic’s lien valid against subsequent encumbrancer despite failure strictly to comply with notice requirement of General Statutes § 49-34 where mistake was made in good faith and no prejudice resulted); Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 418, 538 A.2d 219 (1988) (strict compliance with contract notice terms may be excused to avoid forfeiture, as long as there is no prejudice to insurer); Mortgage Electronic Registration Systems, Inc. v. Goduto, 110 Conn. App. 367, 376, 955 A.2d 544 (“[(literal enforcement of notice provisions when there is no prejudice is no more appropriate than literal enforcement of liquidated damages clauses when there are no damages” [internal quotation marks omitted]), cert. denied, 289 Conn. 956, 961 A.2d 420 (2008); Twenty-Four Merrill Street Condominium Assn., Inc. v. Murray, 96 Conn. App. 616, 620-25, 902 A.2d 24 (2006) (statutory lien not invalid where notice sent late under notice requirements of bylaws where delay in notice did not prejudice defendant); but see, e.g., Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 394-96, 618 A.2d 1340 (1993) (no merit to claim that any delay in notice to custodian of second injury fund under General Statutes § 31-349 should be excused because delay did not cause prejudice to fund).

       To the extent that the plaintiff suggests that the city should have taken additional steps to notify him of the tax sale, as opposed to notice to Mercury, that argument is addressed in part IV of this opinion.

       Practice Book § 11-18 (a) provides in relevant part: “Oral argument is at the discretion of the judicial authority except as to motions to dismiss, motions to strike, motions for summary judgment, motions for judgment of foreclosure, and motions for judgment on the report of an attorney trial referee and/or hearing on any objections thereto. For those motions, oral argument shall be a matter of right provided . . .
      “(2) a nonmoving party files and serves on all other parties ... a written notice stating the party’s intention to argue the motion or present testimony. . . .”

       Practice Book § 11-18 (b) provides: “As to any motion for which oral argument is of right and as to any other motion for which the judicial authority grants or, in its own discretion, requires argument or testimony, the date for argument or testimony shall be set by the judge to whom the motion is assigned.”