source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    LEONARD PRZEKOPSKI, JR. v. ZONING BOARD OF APPEALS OF THE TOWN OF COLCHESTER
    (AC 29775)
    (AC 29867)
    Robinson, Alvord and Schaller, Js.

      Argued December 6, 2010
    officially released September 6, 2011

      Ronald F. Ochsner, for the appellant (plaintiff).

      Beth Bryan Critton, with whom was David F. Sherwood, for the appellees (defendants).
   Opinion

ROBINSON, J.

The plaintiff, Leonard Przekopski, Jr., appeals from the judgments of the trial court in connection with a cease and desist order pertaining to certain of his real property. On appeal, the plaintiff claims that the court improperly (1) granted a motion for contempt filed by the defendant zoning board of appeals of the town of Colchester for his alleged violation of a stipulated judgment, (2) found that he had violated a court order and (3) granted a motion for sanctions and attorney’s fees filed by the defendant. We agree with the plaintiff only as to his claim that the court improperly granted the motion for sanctions and attorney’s fees. Accordingly, we reverse in part and affirm in part the judgments of the trial court.

Our review of the record reveals the following relevant facts and procedural history. The plaintiff and his wife, Karen Przekopski, are the owners of a parcel of real property located at 36 Pine Road in Colchester (property). The property is used for a variety of industrial activities, including the excavation and processing of sand and gravel, soil manufacturing, recycling of earth materials and the bulk storage of manure.

On or about May 8, 2006, the zoning enforcement officer for the town of Colchester issued a cease and desist order to the plaintiff directing him to cease and desist “any and all excavation, recycling activities, and bulk storage of manure” on the property until a zoning permit for such activities had been obtained. The cease and desist order stated that these activities were being conducted in violation of the zoning regulations for the town of Colchester (zoning regulations). In response, on June 1, 2006, the plaintiff appealed the issuance of the cease and desist order to the defendant, claiming that he had a right, pursuant to both the zoning regulations and the laws of Connecticut, to conduct these activities on the property. A public hearing was held on the plaintiffs appeal, and the defendant voted to uphold the issuance of the cease and desist order on August 15, 2006.

The plaintiff appealed from that decision to the Superior Court, claiming that the defendant had improperly sustained the cease and desist order. In addition, on November 1, 2006, the plaintiff filed a motion pursuant to General Statutes § 8-8 (h) to stay enforcement of the cease and desist order. On February 20 and 21, 2007, the court conducted a hearing on the motion. On February 21, 2007, before the court could issue a ruling on the motion, the parties entered into a stipulated agreement regarding the property. Pursuant to the stipulation, no later than April 23, 2007, the plaintiff was required to file an application for a special exception from the zoning regulations for the excavation of sand and gravel, and an application for a variance from the zoning regulations for the processing and recycling of earth materials. In the interim, the plaintiff was permitted to continue, but not intensify, his current activities on the property.

On April 25, 2007, the defendant filed a motion for contempt, alleging, inter alia, that the plaintiff had failed to submit the applications by the April 23,2007 deadline. A hearing was held on May 7,2007, and the court granted the defendant’s contempt motion from the bench, concluding that it was uncontested that the plaintiff had not made the necessary filings. The court thereafter imposed a fine of $1000 per day beginning on May 7, 2007, and continuing until the applications were filed. It suspended the imposition of the fines, however, because it found that the delay in filing was due in part to causes beyond the plaintiffs control. The court then extended the filing deadline for the applications to June 23, 2007, and provided that the fines would be abated if the filings were completed by that date.

On June 22, 2007, the plaintiff and his wife submitted a special exception application (application) to the planning and zoning commission of the town of Colchester (commission). The application requested a special exception from the zoning regulations to conduct an excavation operation and to process and recycle earth materials. On August 21, 2007, while the application was pending before the commission, the plaintiff filed a motion for a stipulated judgment, requesting that the court render judgment in favor of the defendant and in accordance with the stipulation. On September 13, 2007, the court granted the motion. On November 28, 2007, the commission denied the application on the ground that it did not meet the standards for a special exception. Thereafter, the plaintiff continued excavation and recycling activities on the property.

On February 27, 2008, the defendant filed a second motion for contempt. The defendant claimed that the stipulation required the plaintiff “to cease any and all unapproved activities [on the property] effective the date of denial of . . . [the] application(s).” The defendant argued that the plaintiff was in violation of the stipulation because of “his failure to cease all unpermitted activities on the . . . property, in accordance with the [stipulation and the [judgment of [the] [c]ourt.” The defendant requested that the court hold the plaintiff in civil contempt and that it further order the plaintiff “to cease immediately all unpermitted excavation, earth materials recycling and processing and other unpermitted activities on the . . . property . . . .”

The court held a hearing on the second contempt motion. After hearing arguments from counsel, the court, ruling from the bench, found “the plaintiff to be in contempt of the agreement, [and] the court’s . . . prior order, for the plaintiffs failure to cease all unpermitted activities on the . . . property ... in accordance with the stipulate[ed] judgment of this court.” Thereafter, by order dated February 27, 2008, the court ordered “the plaintiff, or anyone working on the plaintiffs behalf, [to] cease all nonpermitted excavation [of] earth materials], recycling and processing and any other nonpermitted activities on the . . . property.” The order provided that “[i]f the plaintiff [did] not cease such operations [by March 17, 2008], a fine of $1000 per day [would] be ordered . . . .” By order dated March 19, 2008, the court extended the date by which the plaintiff had to cease the operations proscribed by the February 27, 2008 order to March 26, 2008. It provided that a fine of $1000 per day would be “retroactive beginning March 19, 2008,” if such operations did not cease.

On April 8, 2008, the defendant filed a motion for judgment, requesting, inter alia, that the court render judgment in favor of the defendant on the basis of the plaintiffs continuing violations of the court’s orders. The court conducted a hearing on the defendant’s motion on April 16, 2008. At the hearing, the plaintiff testified that he owned Przekopski Sand, Gravel and Trucking (business) with his wife, that the business conducted sand and gravel excavation operations on the property and that he shared any profits generated by the business with his wife. The plaintiff admitted that he had conducted sand and gravel excavation operations on the property prior to March 26, 2008, but claimed that he had not conducted any such operations on the property or used any of the business’ equipment for such purposes since that date. According to the plaintiff, his wife had been handling the daily operations of the business since March 26, 2008, because he had voluntarily relinquished complete control of the business to her following the court’s March 19, 2008 order.

On April 16, 2008, the court issued an order providing that “judgment shall enter in the amount of $28,000, which represents [twenty-eight] days of violation of the court’s order.” It further provided that “[t]he fine for violation of the court’s order will remain at $1000 per day.” This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

First, the plaintiff claims that the court improperly granted the defendant’s second motion for contempt. Specifically, he contends that he could not be found in contempt of the stipulation because (1) his activities constitute preexisting, nonconforming uses of the property protected by the laws of Connecticut, (2) his activities constitute uses permitted as of right under the zoning regulations and (3) it did not require him to terminate his then current activities on the property if the commission denied his application. For the reasons set forth herein, we conclude that the trial court properly granted the defendant’s second motion for contempt.

A

The plaintiff first claims that he could not be found in contempt of the stipulation because his activities constitute preexisting, nonconforming uses of the property protected by the laws of Connecticut. We conclude that the plaintiff waived his right to claim that his activities constitute preexisting, nonconforming uses by entering into the stipulation, which the court entered as a stipulated judgment.

“A stipulated judgment has been defined by our Supreme Court as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction.” Bank of Boston Connecticut v. DeGroff, 31 Conn. App. 253, 255, 624 A.2d 904 (1993). Although a stipulated judgment is in the nature of a contract and does “not arise from a judicial determination of the rights of the parties or the merits of the case”; 46 Am. Jur. 2d 531, Judgments § 186 (2006); see Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 558, 468 A.2d (1983); “such a judgment is as conclusive as if it had been rendered upon controverted facts.” (Internal quotation marks omitted.) Lee v. Tufveson, 6 Conn. App. 301, 303, 505 A.2d 18, cert. denied, 199 Conn. 806, 508 A.2d 31 (1986). “The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement.” Bank of Boston Connecticut v. DeGroff, supra, 255.

As a consequence, when parties enter into a stipulated judgment, a presumption arises that they “intended to settle all aspects of the controversy, including all issues raised by the papers comprising the record.” Tureck v. George, 44 Conn. App. 154, 161, 687 A.2d 1309, cert. denied, 240 Conn. 914, 691 A.2d 1080 (1997); see also Gagne v. Norton, 189 Conn. 29, 34, 453 A.2d 1162 (1983). Stated differently, in the absence of language evidencing an intent to preserve specific issues or claims for further litigation, it is presumed that the parties intended for the stipulated judgment to resolve all contested issues and claims raised in the record. See 46 Am. Jur. 2d 527-28, supra, § 183.

The rationale for such a presumption emanates from the understanding that parties generally enter into a stipulated judgment only “after careful negotiation has produced agreement on their precise terms.” (Internal quotation marks omitted.) Albert Mendel & Son, Inc. v. Krogh, 4 Conn. App. 117, 122, 492 A.2d 536 (1985). Thus, as a result of choosing the terms by which to resolve the controversy, “[t]he parties [thereby] waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation.” (Emphasis added; internal quotation marks omitted.) Id.; see also 46 Am. Jur. 2d 527, supra, § 183. “Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation.” (Emphasis added; internal quotation marks omitted.) Albert Mendel & Son, Inc. v. Krogh, supra, 122; see also 46 Am. Jur. 2d 527, supra, § 183.

In the present case, one of the contested issues concerned whether the plaintiffs activities on the property were preexisting, nonconforming uses protected by the laws of Connecticut. Rather than further pursuing his claim that the activities qualified as such uses, the plaintiff entered into the stipulation and elected to have the corut render judgment in the underlying action pursuant to the stipulation. After reviewing the stipulation and the stipulated judgment, we conclude that neither one contains any language evidencing that the parties intended to preserve the issue as to whether the activities qualified as preexisting, nonconforming uses. Consequently, by not including such language, we must presume that the parties intended to settle this aspect of their controversy and, furthermore, that the plaintiff waived his right to further pursue any claim that his activities were preexisting, nonconforming uses of the property. For these reasons, we decline to consider this claim.

B

The plaintiff next claims that he could not be found in contempt of the stipulation because his activities constitute uses permitted as of right under the zoning regulations. Again, we conclude that the plaintiff waived his right to claim that his activities constitute uses permitted as of right under the zoning regulations by entering into the stipulation, which the court entered as a stipulated judgment.

In the present case, another contested issue concerned whether the plaintiffs activities on the property were uses permitted as of right under the zoning regulations. Rather than further pursuing his claim that the activities were such uses, the plaintiff entered into the stipulation and elected to have the court render judgment in the underlying action pursuant to the stipulation. We have reviewed the language of the stipulation and the stipulated judgment and conclude that neither one contains any language that evidences that the parties intended to preserve the issue as to whether the activities conducted on the property were uses permitted as of right under the zoning regulations. Therefore, we must presume that the parties intended to settle this aspect of their controversy and, furthermore, that the plaintiff waived his right to further claim that the activities qualified as uses permitted as of right under the zoning regulations. For these reasons, we also decline to consider this claim.

C

The plaintiff finally claims that he could not be found in contempt of the stipulation because it did not require him to terminate his then current activities on the property if the commission denied his application. Because the plaintiff did not raise this claim in opposition to the defendant’s second motion for contempt before the trial court, we decline to consider it on appeal.

“It is well established that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. . . . The requirement that [a] claim be raised distinctly means that it must be so stated as to bring to the attention of the court the precise matter on which its decision is being asked. . . . The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial— after it is too late for the trial court ... to address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Remillard v. Remillard, 297 Conn. 345, 351-52, 999 A.2d 713 (2010).

In the present case, a review of the record reveals that the defendant filed the second motion for contempt on February 27, 2008, which was after the plaintiffs application had been denied by the commission and the plaintiff nevertheless continued his then current activities on the property. At the hearing on the motion, the plaintiff filed his response with the court. In his brief and during his argument before the trial court, the plaintiff claimed that he was not in violation of the stipulation for two reasons: “First, the [p]laintiff has in the past claimed and continues to claim that he possess a preexisting, nonconforming use to conduct earth materials recycling on the property. Second, he also makes the claim that the [zoning] [regulations provide him a ‘by right’ use of the property which the [t]own of Colchester, by way of [the defendant], is attempting, without compensation, to extinguish.” The claim now being made by the plaintiff, i.e., that the language of the stipulation did not require him to terminate his then current activities on the property if his application was denied by the commission, was not distinctly raised before the trial court at the time of the contempt proceeding. Accordingly, because the plaintiff did not raise this claim before the trial court, we decline to consider it.

For the foregoing reasons, we conclude that the trial court did not improperly grant the defendant’s second motion for contempt.

II

Second, the plaintiff claims that the court improperly determined that he had violated the March 19, 2008 order directing him to cease nonpermitted activities on the property. Specifically, he argues that the court improperly determined that he was in violation of the order because (1) he was unable to comply with it and (2) the relative economic advantages or disadvantages of a landowner cannot support a finding that a court order has been violated. We are not persuaded.

As an initial matter, in order to determine the standard of review applicable to the plaintiffs claims, we must construe the court’s order of April 16, 2008. The order provided: “Judgment shall enter in the amount of $28,000, which represents [twenty-eight] days of violation of the court’s order.” Pursuant to our plenary review over the construction of a trial court’s orders and judgments; see Stechel v. Foster, 125 Conn. App. 441, 447-48, 8 A.3d 545 (2010), cert. denied, 300 Conn. 904, 12 A.3d 572 (2011); we construe the order as a finding of wilful noncompliance with the court’s March 19, 2008 order. Cf. McGuire v. McGuire, 102 Conn. App. 79, 88, 924 A.2d 886 (2007). Because the April 16, 2008 order was, in effect, a judgment of civil contempt; see In re Daniel C., 63 Conn. App. 339, 369, 776 A.2d 487 (2001) (“[c]ivil contempt involves the wilful failure to comply with an applicable court order”); we review the order under the principles of law applicable to civil judgments of contempt.

“[O]ur analysis of a judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. . . . This is a legal inquiry subject to de novo review. . . . Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.” (Citations omitted.) In re Leah S., 284 Conn. 685, 693-94, 935 A.2d 1021 (2007). In the present case, because the plaintiff does not contend that the March 19, 2008 order was not sufficiently clear and unambiguous to support a judgment of contempt, we need to address only whether the trial court abused its discretion in rendering the judgment of contempt.

A

We fust consider the plaintiffs argument that the court improperly determined that he was in violation of the March 19, 2008 order because he was unable to comply with the order. At the outset, we note that the plaintiff does not contest that nonpermitted activities were being performed on the property after March 26, 2008, in violation of the order. He contends instead that the court improperly concluded that he violated the order. We disagree.

“Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense. . . . Nonetheless, [njoncompliance alone will not support a judgment of contempt. ... [A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such a violation was wilful. ... A judgment of civil contempt is improper if the contemnor, through no fault of his own, was unable to obey the court’s order.” (Citations omitted; emphasis added; internal quotation marks omitted.) Kennedy v. Kennedy, 114 Conn. App. 143, 148, 968 A.2d 1002, cert. denied, 292 Conn. 918, 973 A.2d 1275 (2009).

As stated previously, we review a trial court’s finding of contempt under an abuse of discretion standard. See In re Leah S., supra, 284 Conn. 693-94; see also Gravius v. Klein, 123 Conn. App. 743, 748, 3 A.3d 950 (2010) (“our standard is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [party] were in contempt of a court order” [internal quotation marks omitted]). In determining whether a trial court abused its discretion, “the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . The trial court’s discretion imports something more than leeway in decision making and should be exercised in conformity with the spirit of the law and

should not impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) Edmond v. Foisey, 111 Conn. App. 760, 774-75, 961 A.2d 441 (2008).

In the present case, the plaintiff argues that because his wife allegedly controls the business’ operations, the court could not determine that he violated the court order. We disagree. First, the trial court never made a factual finding regarding this allegation. Even if we were to assume, without deciding, however, that the evidence established that the plaintiffs wife controlled the business’ operations, we could not conclude that these actions demonstrate that the plaintiff was unable to comply with the court order through no fault of his own.

During his testimony, the plaintiff admitted that until March 26, 2008, he retained control over the business’ operations. Therefore, the plaintiff presumptively had the authority to direct the business to cease excavation and recycling activities on the property. Instead of undertaking efforts to cease operations, the plaintiff voluntarily decided to relinquish control of such operations to his wife after the court issued the March 19, 2008 order. By voluntarily relinquishing control of these operations, the plaintiff knowingly undertook intentional efforts to ensure the business continued to perform nonpermitted activities on the property after March 26, 2008. Consequently, any inability on the part of the plaintiff to cease such activities on the property is not a result of activities beyond his control. Rather, they are the direct result of the plaintiffs efforts to creatively thwart the court’s order. As a result, on the basis of the evidence presented, we cannot conclude that the plaintiff was unable to comply with the court’s order through no fault of his own. See Kennedy v. Kennedy, supra, 114 Conn. App. 148.

Furthermore, the court reasonably could have concluded that the plaintiff engaged in nonpermitted activities on the property after March 26, 2008. The plaintiff admitted during his testimony that he owned the business that performed excavation and recycling activities on the property, that he had performed these activities on behalf of the business for many years prior to March 26, 2008, and that he shared in any profits generated by the business’ operations. Although he claimed that he no longer performed such activities after March 26, 2008, the court was not required to accept this testimony as true. See, e.g., Blum v. Blum, 109 Conn. App. 316, 329, 951 A.2d 587, (“the trial court is the sole arbiter of witness credibility, [and] it has discretion to reject even uncontested evidence” [internal quotation marks omitted]), cert. denied, 289 Conn. 929, 958 A.2d 157 (2008). As it was uncontested that activities were being performed on the property in violation of the March 19, 2008 order, on the basis of the evidence presented, the court reasonably could have concluded that the plaintiff performed nonpermitted activities on his property after March 26, 2008.

B

We next consider the plaintiffs argument that the court improperly determined that he was in violation of the March 19, 2008 order because the relative economic advantages or disadvantages of a landowner cannot support a finding that a court order has been violated. According to the plaintiff, “this type of alleged economic injury does not fall ‘within the zone of interest sought to be protected by the statutory provision whose violation forms the legal basis for the complaint.’ ”

Even if we were to assume, without deciding, that it is improper for a trial court to consider the relative economic advantages or disadvantages of surrounding landowners in determining whether a court order has been violated, the plaintiff has failed to establish that the court in the present case undertook such a consideration. The plaintiff has cited to nothing in the record to support his claim, and after carefully reviewing the record, we are unable to find any indication that the court considered the relative economic situations of surrounding landowners in rendering its decision. As we have recognized: “The correctness of a judgment of a court of general jurisdiction is presumed in the absence of evidence to the contrary. We do not presume error. The burden is on the appellant to prove harmful error.” (Internal quotation marks omitted.) R. Zemper & Associates v. Scozzafava, 28 Conn. App. 557, 563, 611 A.2d 449 (1992). Therefore, without any indication in the record that the trial court undertook such a consideration, it would be mere speculation for us to assume that the court undertook an improper consideration, if in fact such a consideration is improper, in making its determination. Id.

Accordingly, after carefully considering the plaintiffs arguments, we conclude that the trial court did not abuse its discretion in concluding that the plaintiff violated the March 19, 2008 order.

III

Finally, the plaintiff claims that the court improperly granted the defendant’s motion for sanctions and attorney’s fees. Specifically, the plaintiff argues that it was improper for the court to grant the motion because he was not provided with a meaningful opportunity to respond to the allegations set forth therein. We agree.

The following additional facts are relevant to the plaintiff’s claim. On February 27,2008, the plaintiff filed an action seeking a writ of mandamus to compel the commission to grant the application that he and his wife had filed with it on June 22, 2007. On March 19, 2008, the trial court declined to issue a writ of mandamus on the ground that it sought to compel the performance of a duty that was within the discretion of the commission.

On April 16, 2008, the defendant filed a motion for sanctions and attorney’s fees, alleging that counsel for the plaintiff, Ronald F. Ochsner, had engaged in numerous violations of the Rules of Professional Conduct during his representation of the plaintiff, including advancing a frivolous mandamus action. The court previously had scheduled a hearing for April 16, 2008, to consider the motion for judgment filed by the defendant on April 8, 2008. During the hearing on the motion for judgment, the court also considered the motion for sanctions and attorney’s fees.

The court summarily denied the motion for sanctions and attorney’s fees in all respects, except with regard to the allegation relating to the allegedly frivolous mandamus action, which the court considered further. Ochsner informed the court that he had received a copy of the motion at the close of business on April 15, 2008, but that he did not have time to prepare a response to the allegation. He requested that the court provide him with an opportunity to respond to the allegation before the court issued a ruling. The court then permitted Ochsner to make an oral response to the allegation relating to the allegedly frivolous mandamus action but denied his request to have additional time to respond to the allegation in writing. Ruling from the bench, the court granted in part the defendant’s motion for sanctions and attorney’s fees, finding that the mandamus action “was absolutely frivolous.” The court further stated that “the mandamus action was not right. It took the [c]ourt’s time, it took defense time. It’s fair to grant attorney’s fees for that . . . .” On August 30, 2009, the court assessed $5116 in attorney’s fees against the plaintiff and $500 in sanctions against Ochsner.

We begin by identifying the legal principles and the standard of review that guide our resolution of the plaintiffs claim. “We have long recognized that, apart from a specific rule of practice authorizing a sanction, the trial court has the inherent power to provide for the imposition of reasonable sanctions, to compel the observance of its rules. . . . Our trial courts have the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct, even in the absence of a specific rule or order of the court that is claimed to have been violated.” (Internal quotation marks omitted.) Stein v. Horton, 99 Conn. App. 477, 489, 914 A.2d 606 (2007).

Although the court has such inherent powers, the sanctioned party has certain procedural rights. “As a procedural matter, before imposing any . . . sanctions, the court must afford the sanctioned party or attorney a proper hearing on the .. . motion for sanctions. There must be fair notice and an opportunity for a hearing on the record. . . . This limitation . . . is particularly appropriate with respect to a claim of bad faith or frivolous pleading by an attorney, which implicates his professional reputation.” (Emphasis added; internal quotation marks omitted.) Id. “Like other sanctions, attorney’s fees certainly shall not be assessed lightly or without fair notice and an opportunity for a hearing on the record.” (Internal quotation marks omitted.) Fattibene v. Kealey, 18 Conn. App. 344, 353, 558 A.2d 677 (1989).

“Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion.” (Internal quotation marks omitted.) Stein v. Horton, supra, 99 Conn. App. 488. Therefore, we review the trial court’s granting of a motion for sanctions and attorney’s fees for an abuse of discretion. Id., 489; see Berzins v. Berzins, 122 Conn. App. 674, 681-83, 998 A.2d 1265 (applying abuse of discretion standard to review of trial court’s granting of motion for sanctions and attorney’s fees), cert. granted, 299 Conn. 904, 10 A.3d 521 (2010). “Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Berzins v. Berzins, supra, 683.

In the present case, we conclude that the trial court’s failure to provide the plaintiff with additional time to respond to the defendant’s motion for sanctions and attorney’s fees violated his procedural rights. As the record reveals, Ochsner received a copy of the motion less than twenty-four hours before the court considered it. At the time Ochsner received the motion, he was preparing for a previously scheduled hearing before the court to address two unrelated motions filed by the defendant eight days earlier. Ochsner explained to the court that he did not have adequate time to prepare a response to the motion for sanctions and attorney’s fees and requested more time to respond in writing to the allegation concerning the allegedly frivolous mandamus action. Although the court provided the plaintiff with an opportunity to discuss briefly his response on the record before the court, on the facts in the present case, we cannot conclude that this meets the requirements for a proper hearing. Therefore, because the plaintiff was not provided with a meaningful opportunity to respond to the motion for sanctions and attorney’s fees, we conclude that the trial court abused its discretion in granting the motion. See Fattibene v. Kealey, supra, 18 Conn. App. 353 (reversing sanctions of attorney’s fees where court failed to provide party with proper hearing on motion for sanctions). Accordingly, we reverse the judgment of the trial court with respect to its granting of the defendant’s motion for sanctions and attorney’s fees.

The judgment granting the motion for sanctions and attorney’s fees is reversed, and the case is remanded with direction to vacate that finding and the fines related thereto. The judgments are affirmed in all other respects.

In this opinion the other judges concurred.

       According to the record, on December 4, 2006, Colchester Concerned Citizens, Inc. (Concerned Citizens), filed a notice of intervention with the court, pursuant to General Statutes § 22a-19. Concerned Citizens thereafter intervened in the action as a defendant. We refer in this opinion to the zoning board of appeals of the town of Colchester as the defendant.

       Recycling of earth materials includes such activities as the disposal of concrete, asphalt and tree stumps.

       The plaintiff and his wife also own a second parcel of real property located at 257 Westchester Road in Colchester, which is contiguous to the property at issue in the present appeal. The property on Westchester Road is used for the same industrial activities, and that property is the subject of our decision in Przekopski v. Zoning Board of Appeals, 131 Conn. App. 200, 26 A.3d 671 (2011).

       General Statutes § 8-8 (h) provides in relevant part: “The appeal [from any decision of the zoning board of appeals] . . . shall not stay proceedings on the decision appealed from. However, the court to which the appeal is returnable may grant a restraining order, on application, and after notice to the board and cause shown.”

       The plaintiff and his -wife appealed the commission’s decision to the Superior Court. The court, Purtill, J., upheld the decision in a memorandum of decision issued on October 1, 2010.

       According to the record, the court delayed imposition of the fine to allow the plaintiff time to brief his motion for a writ of mandamus, which had been filed on February 27, 2008, and scheduled for a hearing on March 17, 2008. Although this court has not been provided with a copy of the motion, a review of the transcripts discloses that a writ of mandamus was sought to compel the commission to grant the application that the plaintiff and his wife had filed on June 22, 2007.

       The plaintiff also alleges that the constitutional rights of his wife have been violated by the actions of the defendant and the trial court. We decline to consider any arguments made on behalf of the plaintiff’s wife because “[u]nder long-established principles, a party is precluded from asserting the constitutional rights of another.” Bell v. Planning & Zoning Commission, 174 Conn. 493, 499, 391 A.2d 154 (1978). Therefore, the plaintiff lacks standing to seek redress for any constitutional infringements that may have been suffered by his wife. See id.
      In addition, the plaintiff contends that the court improperly determined that he was in violation of the order because (1) his activities constituted preexisting, nonconforming uses of the property protected by the laws of Connecticut, and (2) his activities constituted uses permitted as of right under the zoning regulations. Because we already have concluded that the plaintiff waived his right to claim that his activities were either preexisting, nonconforming uses or uses permitted as of right; see part IA and B of this opinion; we decline to consider these claims.

       The plaintiffs argument appears to be based on the following statement contained in the memorandum of law filed by the defendant in support of a motion that it filed on April 8, 2008: “In addition, a gravel excavator who took steps to come into compliance with the zoning regulations has complained to the [t]own [of Colchester] about the lack of uniform enforcement. Because [the plaintiff] is operating without any controls whatsoever, he has a competitive advantage over other operators who incur the costs of implementing dust and erosion controls and other measures required by the zoning regulations.”

       We note that in support of his argument, the plaintiff quotes from the decision of our Supreme Court in Med-Trans of Connecticut, Inc. v. Dept. of Public Health & Addiction Services, 242 Conn. 152, 158, 699 A.2d 142 (1997). That case, however, did not address the argument raised by the plaintiff. It instead dealt with the issue of whether a party lacked standing to challenge a decision of the department of public health and addiction services. Id., 153-54.

       In his brief to this court, the plaintiff specifically argues that the trial court committed plain error in granting the defendant’s motion for sanctions and attorney’s fees. The plain error doctrine, however, is a rule of reversibility and not a rule of reviewability, and it is reserved for claims that were “either not properly preserved or never raised at all in the trial court.” (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 522, 923 A.2d 638 (2007). After carefully reviewing the record, we conclude that the plaintiff sufficiently raised his claim before the trial court. Consequently, we need not engage in plain error analysis. See Narayan v. Narayan, 122 Conn. App. 206, 211 n.10, 3 A.3d 75, cert. granted on other grounds, 298 Conn. 914, 4 A.3d 833 (2010).


text:
    LEONARD PRZEKOPSKI, JR. v. ZONING BOARD OF APPEALS OF THE TOWN OF COLCHESTER
    (AC 29776)
    (AC 29866)
    Robinson, Alvord and Schaller, Js.
    Argued December 6, 2010
    officially released September 6, 2011

      Ronald F. Ochsner, for the appellant (plaintiff).

      Beth Bryan Critton, with whom was, David F. Sherwood, for the appellees (defendants).
   Opinion

ROBINSON, J.

The plaintiff, Leonard Przekopski, Jr., appeals from the judgment of the trial court granting a motion for contempt filed by the defendant zoning board of appeals of the town of Colchester, for his alleged violation of a stipulated judgment. The plaintiff also appeals from the judgment of the court tendered after the defendant’s motion for judgment in which the court concluded that he violated a court order. On appeal, the plaintiff claims that the court improperly (1) granted the motion for contempt and (2) found that he had violated a court order. We affirm the judgments of the trial court.

The record reveals the following relevant facts and procedural history. The plaintiff and his wife, Karen Przekopski, are the owners of a parcel of real property located at 257 Westchester Road in Colchester (property). On or about May 4, 2006, the Colchester zoning enforcement officer issued a cease and desist order to the plaintiff directing him to cease and desist “any and all excavation, recycling activities, and bulk storage of manure” on the property until a zoning permit for such activities had been obtained. In response, on June 1, 2006, the plaintiff appealed the issuance of the cease and desist order to the defendant, which voted to uphold the order on August 15, 2006.

The plaintiff appealed from that decision to the Superior Court, claiming that the defendant had improperly sustained the cease and desist order. On March 7, 2007, the parties entered into a stipulation regarding the property (stipulation). Pursuant to the stipulation, they agreed that judgment would be rendered in favor of the defendant on the plaintiffs appeal. The stipulation further provided that the plaintiff was required to file an application for a special exception from the zoning regulations for the excavation of sand and gravel, and an application for a variance from the zoning regulations for the processing and recycling of earth materials. According to the stipulation, the plaintiff was permitted to continue, but not to intensify, his current activities on the property “until the earlier of August 21, 2007, or April 23, 2007, if the applications provided for . . . [in the stipulation were] not submitted.”

The plaintiff and his wife submitted a special exception application (application) to the planning and zoning commission of the town of Colchester (commission). On November 28, 2007, the commission denied the application on the ground that it did not meet the standards for a special exception. Thereafter, the plaintiff continued to conduct excavation and recycling activities on the property.

On February 25, 2008, the defendant filed a motion for contempt. The court held a hearing on the motion, and, after hearing arguments from counsel, it found “the plaintiff to be in contempt of the [stipulated] agreement [and] the court’s . . . prior order, for the plaintiff’s failure to cease all unpermitted activities on the . . . property ... in accordance with the stipulation judgment of this court.” Thereafter, the court ordered “the plaintiff, or anyone working on the plaintiffs behalf, [to] cease all nonpermitted excavation earth materials] , recycling and processing and any other nonpermitted activities on the . . . property.” The order provided that “[i]f the plaintiff [did] not cease such operations [by March 17, 2008], a fine of $1000 . . . per day [would] be ordered . . . .”

On April 8, 2008, the defendant filed a motion for judgment, requesting, inter alia, that the court render judgment in its favor on the basis of the plaintiffs continuing violations of the court’s order. After conducting a hearing on the defendant’s motion, the court issued an order that provided that “[j]udgment shall enter in the amount of $28,000, which represents [twenty-eight] days of violation of the court’s order.” It further provided that “[t]he fine for violation of the court’s order will remain at $1000 per day.” This appeal followed.

The plaintiff claims that the court improperly (1) granted the defendant’s motion for contempt and (2) determined that he violated the order directing him to cease nonpermitted activities on the property. In the related case of Przekopski v. Zoning Board of Appeals, 131 Conn. App. 178, 26 A.3d 657 (2011), we addressed the same claims raised by the plaintiff in the present appeal with respect to a different parcel of real property. We adopt the reasoning and conclusions of that opinion herein.

The judgments are affirmed.

In this opinion the other judges concurred.

       According to the record, on December 22, 2006, Colchester Concerned Citizens, Inc. (Concerned Citizens), filed a notice of intervention with the court, pursuant to General Statutes § 22a-19. Concerned Citizens thereafter intervened in the action as a defendant. We refer in this opinion to the zoning board of appeals of the town of Colchester as the defendant.

       The plaintiff and his wife also own a second parcel of real property located at 36 Pine Road in Colchester, which is contiguous to the property at issue in the present appeal. The property located on Pine Road is used for the same industrial activities, and that property is the subject of our decision in Przekopski v. Zoning Board of Appeals, 131 Conn. App. 178, 26 A.3d 657 (2011).

       The application requested a special exception from the zoning regulations to conduct an excavation operation and to process and to recycle earth materials.

       By order dated March 19, 2008, the court extended the date by which the plaintiff had to cease the operations proscribed in the February 27,2008 order to March 26, 2008. It provided that the fine of $1000 per day would be “retroactive beginning March 19, 2008,” if such operations did not cease.


author: LAVERY, J.

text:
    JOHN LATHROP v. MALCOLM PIRNIE, INC.
    (AC 32510)
    (AC 32511)
    Gruendel, Espinosa and Lavery, Js.
    Argued May 19
    officially released September 6, 2011

      Christopher J. Murray, for the appellant (named plaintiff).

      Jeffrey R. Babbin, with whom, on the brief, was Joan Allen Rowe, for the appellant (intervening plaintiff Olin Corporation-New Haven Copper Company).

      Cara Joyce, with whom, on the brief, was Patrice Noah, for the appellee (named defendant).
   Opinion

LAVERY, J.

In these consolidated appeals, the plaintiff, John Lathrop, and the intervening plaintiff, Olin Corporation-New Haven Copper Company (Olin), appeal from the summary judgment rendered by the trial court in favor of the defendant, Malcolm Pimie, Inc. The dispositive issue on appeal is whether the court properly determined that no genuine issue of material fact existed as to whether the seven year statute of limitations set forth in General Statutes § 52-584a applies in the present case. The plaintiffs argue that a genuine issue of material fact exists as to whether the defendant provided services in connection with “an improvement to real property” within the meaning of § 52-584a (a). We agree with the plaintiffs that a genuine issue of material fact exists. Accordingly, we reverse the judgment of the trial court granting summary judgment in favor of the defendant.

The following facts and procedural history are relevant to our review of the plaintiffs’ appeals. The present appeals stem from a negligence action arising from injuries that Lathrop, an Olin employee, allegedly sustained after he tripped due to a sunken concrete cap that had been placed in the floor of a factory owned by Olin. Olin previously had contracted with the defendant, a professional engineering firm, to test for soil contamination. The defendant, in turn, contracted with a subcontractor, Glacier Drilling Company, LLC (Glacier), to drill boring holes through the factory floor in order to provide access to the soil. Glacier began drilling on December 27, 2004, and completed its services on January 17,2005. Under its contract with the defendant, Glacier also was responsible for filling the boring holes by using a process known as “backfilling.” The contract between Glacier and the defendant specified how the backfilling would be performed. It provides in relevant part: “All . . . borings will be sealed with a grout mixture of 95 percent by weight Portland cement and 5 percent . . . bentonite . . . .” The top of the hole, however, was to be covered by a concrete cap that would be of equal level with the factory floor. The plaintiffs allege that at least one hole was not filled in accordance with the specifications in the contract. Specifically, the plaintiffs allege that the concrete cap on one backfilled hole had settled, leaving a 1.25 inch depression in the floor. Lathrop alleges that he sustained injuries on April 5, 2006, due to the negligent backfilling of a boring hole, which caused a concrete cap to sink below the floor.

Lathrop served the defendant with a complaint on March 26, 2008. On June 13,2008, Olin filed an intervening complaint against the defendant to recover the workers’ compensation benefits that it had paid to Lathrop. The defendant then filed a complaint against Glacier on August 26, 2008, seeking apportionment of liability pursuant to General Statutes § 52-102b. On September 24, 2008, Lathrop filed an amended complaint in order to assert a claim for money damages against Glacier. Thereafter, both Glacier and the defendant filed answers and special defenses denying the material allegations of Lathrop’s amended complaint.

On December 10, 2009, the defendant and Glacier filed a motion for summary judgment, arguing that no genuine issue of material fact existed and that they were entitled to judgment as a matter of law because Lathrop’s negligence action was barred by the three year hmitation period of General Statutes § 52-584. Lathrop filed an objection on June 16, 2010, arguing that his negligence action was not time barred because he had filed his complaint within the seven year limitation period set forth in § 52-584a. On June 22, 2010, the court heard oral argument on the motion. On July 16, 2010, the court issued its memorandum of decision granting the motion for summary judgment. These appeals followed.

On appeal, the plaintiffs claim that the court improperly concluded that the negligence action was barred under § 52-584, and that there exists a genuine issue of material fact as to whether the defendant had provided services in connection with “an improvement to real property” within the meaning of § 52-584a. The defendant argues that the court properly determined that the three year statute of repose set forth in § 52-584 barred the plaintiffs’ negligence action, and that the court properly determined that the seven year statute of limitations set forth in § 52-584a does not apply. We agree with the plaintiffs.

“The standard of review of a trial court’s decision to grant summary judgment is well established. [W]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. ... A material fact is a fact which will make a difference in the result of the case. . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist. . . .

“The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . Where the trial court is presented with undisputed facts, as it was here, our review of its conclusions is plenary, as we must determine whether the court’s conclusions are legally and logically correct [and find support in the facts that appear in the record].” (Citations omitted; internal quotation marks omitted.) Vestuti v. Miller, 124 Conn. App. 138, 142-43, 3 A.3d 1046 (2010).

“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. . . . Our review of the trial court’s decision to grant [the defendant’s] motion for summary judgment is plenary. . . . Issues of statutory construction . . . are also matters of law subject to our plenary review.” (Internal quotation marks omitted.) Plato Associates, LLC v. Environmental Compliance Services, Inc., 298 Conn. 852, 862, 9 A.3d 698 (2010).

The defendant’s motion for summary judgment was granted because the court found that the three year statute of repose contained in § 52-584 applied, thus barring the plaintiffs’ negligence action. The plaintiffs argued that the seven year statute of limitations in § 52-584a should have been applied, and therefore the action should be allowed to proceed. We believe it helpful to begin our discussion with an examination of the two statutes in question.

Section 52-584 provides in relevant part: “(a) No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .” (Emphasis added.) Section 52-584a (a) provides in relevant part: “No action . . . whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of, or land surveying in connection with, an improvement to real property . . . (C) for injury to the person . . . arising out of any such deficiency, or (2) for contribution or indemnity which is brought as a result of any such claim for damages shall be brought against any architect, professional engineer or land surveyor performing or furnishing the design, planning, supervision, observation of construction or construction of, or land surveying in connection with, such improvement more than seven years after substantial completion of such improvement.” (Emphasis added.)

It is undisputed that in the present case the limitation period began to run on the same day under both statutes, January 17,2005, the day that Glacier had finished drilling and backfilling the boring holes. The complaint was not served until March 26, 2008. Therefore, if the three year statute of repose contained in § 52-584 applies, then the action is barred, but if the seven year statute of limitation in § 52-584a applies, then the action can go forward. Our Supreme Court has stated that the seven year statute of limitations contained in § 52-584a applies for certain actions against architects and engineers arising out of a deficiency in the design, planning, contract administration, supervision, observation of construction or construction of an improvement to real property. Grigerik v. Sharpe, 247 Conn. 293, 305, 721 A.2d 526 (1998). Because the defendant conceded before this court at oral argument that it is a professional engineer and was hired to perform the duties of a professional engineer, the sole issue on appeal is whether the defendant’s actions constitute an “improvement to real property,” as that term has been defined by Connecticut law.

Our Supreme Court defined the term “improvement to real property” as it relates to § 52-584a in Verna v. Commissioner of Revenue Services, 261 Conn. 102, 108-109, 801 A.2d 769 (2002). The court recently reaffirmed its definition in Plato Associates, LLC v. Environmental Compliance Services, Inc., supra, 298 Conn. 867-68. In Plato Associates, LLC, our Supreme Court explained that “[i]n Grigerik v. Sharpe, [supra, 247 Conn. 306-307], we defined the term improvement to real property in the context of interpreting ... § 52-584a. In that case, we stated that [t]he phrase improvement to real property is a phrase that has acquired a particular meaning in the law. Without attempting to define the phrase in all its possible nuances and applications, we have little difficulty in concluding that an improvement to real property, as commonly understood in the law, [generally has reference to buildings, but may also include any permanent structure or other development [of the real property in question]. Black’s Law Dictionary (6th Ed. 1990). Consistent with that understanding, we defined an improvement to real property as an alteration or development of the property in order to enhance or promote its use for a particular purpose. . . . Our conclusion in Grigerik is consistent with the definition of improvement found in the [seventh] edition of Black’s Law Dictionary, [which was] . . . published in 1999. Therein], the term is defined as [a]n addition to real property, whether permanent or not; [especially] one that increases its value or utility or that enhances its appearance. Black’s Law Dictionary (7th Ed. 1999).” (Citations omitted; internal quotation marks omitted.) Plato Associates, LLC v. Environmental Compliance Services, Inc., supra, 867-68.

The defendant argues that it provided environmental testing services only, and, as such, its activities do not constitute an improvement to real property. It is undisputed that Olin hired the defendant to test its factory for environmental pollutants. To this end, the defendant was required to perform an investigation in order to determine which pollutants were present at the factory, design a remediation plan and “supervise the remediation and/or removal of pollutants.” The defendant also was required to perform a variety of specific tasks, including the following: to look into the nature of operations, to assess sources of pollution, to develop an investigation plan to determine the nature and extent of contamination, to collect groundwater samples, to oversee soil borings, well borings and the proper backfilling of soil borings, to evaluate test data, to determine the need for remediation and develop a remediation plan. In order to enable the defendant to perform the foregoing tasks, Glacier drilled two types of boring holes into the factory floor, soil borings and well borings. The soil borings enabled the defendant to collect soil samples, while the borings for monitoring wells enabled the defendant to collect water samples. It is not clear how many borings were drilled, but Glacier’s owner, Mark Schock, estimated that Glacier had drilled two dozen borings, including several monitoring wells. During his deposition, Mark Bamasse, one of the defendant’s employees, stated that several monitoring wells remained on the site.

After the defendant removed a sample from a boring, Glacier “backfilled” the hole. As specified in the contract between the defendant and Glacier, the borings were to be backfilled with a grout mixture of 95 percent by weight Portland cement and 5 percent bentonite. After the holes were backfilled, they were to be topped with a concrete cap. At oral argument before this court, the defendant’s attorney argued that the defendant’s work could in no way constitute an improvement to real property; in other words, its actions, as a matter of law, do not constitute an improvement to real property. To support its argument, the defendant directs us to our Supreme Court’s decision in Grigerik v. Sharpe, supra, 247 Conn. 293.

In Grigerik, a septic system could not be completed due to the negligence of a professional engineer. Our Supreme Court concluded that where the improvement to real property contemplated by the architect’s or engineer’s services is not completed because of the defect complained of, § 52-584a, and not § 52-584, applies to the plaintiffs cause of action. Grigerik v. Sharpe, supra, 247 Conn. 308. The defendant argues that the reason that our Supreme Court concluded that § 52-584a applied in Grigerik was that the defendant therein was hired to perform soil testing and to design a septic system. The defendant distinguishes Grigerik from the present case by noting that it was hired to perform only soil testing.

The plaintiffs, however, rely on our Supreme Court’s recent decision in Plato Associates, LLC v. Environmental Compliance Services, Inc., supra, 298 Conn. 852, and argue that a genuine issue of material fact is in dispute. In Plato Associates, LLC, the plaintiff sued an engineering firm and its engineer manager for negligence and breach of contract. As in the present case, the parties argued that different statutes of limitations applied. Id., 855. The plaintiff argued that because it contracted with the defendant engineering firm to conduct environmental tests by digging five boring holes and installing two monitoring wells, these activities were a sufficient improvement to real property to trigger the seven year limitation of § 52-584a. Id., 855-56. The court concluded that “whether the plaintiffs claims fall within the purview of § 52-584a (a) is a disputed factual issue that is not appropriate for summaiy judgment.” Id., 863. Specifically, the court held, inter alia, that whether the environmental tests were performed in connection with the planning of improvements to real property within the meaning of § 52-584a was a question of material fact, and thus, improper for summary judgment. Id., 866. The court also held that there existed a genuine factual issue as to whether the monitoring wells themselves constituted improvements to the property within the meaning of § 52-584a (a). Id., 866-67.

We conclude that there exists a genuine issue of material fact as to whether the monitoring wells constituted improvements to Olin’s property. As stated previously, our Supreme Court has interpreted the term “improvement to real property” broadly, including any alteration that is an addition to real property, whether permanent or not; especially one that increases its value or utility or enhances its appearance. Id., 867-68. During oral argument before this court, the defendant’s attorney argued that the defendant’s work “in no way could be constituted an improvement to real property.” In Plato Associates, LLC, the court dealt with the issue of whether monitoring wells constituted improvements to property. The court ultimately concluded, in a factual context similar to the context in the present case, that a genuine issue of material fact existed as to whether the factory was improved by the installation of monitoring wells. Id., 866-68. In this case, at least one monitoring well was installed. Moreover, the court in Plato Associates, LLC, noted that the wells were constructed out of “PVC screen and casing pipes that were two inches in diameter, and the wellheads were finished protective steel hand boxes in concrete collars that were placed in the ground.” (Internal quotation marks omitted.) Id., 868. Similarly, the monitoring wells at issue in the present case were constructed from “5 or 10 [foot] machine-slotted or woven well screens constructed of at least 2 inch I.D. threaded flush joint Schedule 40 or SCH 80 PVC or wire wound type 304 stainless steel. ... A 6 foot length of 4 inch inside diameter or larger steel protective pipe or casing shall be placed in the borehole around each well or piezometer riser pipe and anchored in the ground with Portland cement grout.” In light of our Supreme Court’s definition of an “improvement to real property,” we conclude, as a matter of law, that the defendant’s actions in conducting the environmental tests and installing the monitoring wells might constitute an improvement to the property for the purposes of § 52-584a. Accordingly, we find that a genuine issue of material fact exists in this case as to whether the defendant’s actions and alterations improved the property.

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

In this opinion the other judges concurred.

       We will refer to Lathrop and Olin individually by name and collectively as the plaintiffs.

       The plaintiffs concede that the trial court properly granted summary judgment in favor of Glacier Drilling Company, LLC (Glacier), because it is not a professional engineering firm. Accordingly, the plaintiffs do not challenge the court’s decision insofar as it concerns Glacier. We will refer in this opinion to Malcolm Pimie, Inc., as the defendant.

       Because our conclusion that a genuine issue of material fact exists with respect to the plaintiffs’ claim that the defendant provided services in connection with an improvement to real property is dispositive, we do not address the plaintiffs’ additional claim that the court improperly required them to plead and prove that the alleged improvements to the property could not have been completed as a result of the defendant’s negligence.

       The court did not have the benefit of our Supreme Court’s decision in Plato Associates, LLC v. Environmental Compliance Services, Inc., supra, 298 Conn. 852. Our Supreme Court released its decision in November, 2010, after the trial court had granted the defendant’s motion for summary judgment in this case.

       We note that the definition of improvement in the current edition of Black’s Law Dictionary remains the same. See Black’s Law Dictionary (9th Ed. 2009) p. 826.


author: SULLIVAN, J.

text:
    WELLS FARGO BANK, NA v. FREDERICK CORNELIUS ET AL.
    (AC 32007)
    DiPentima, C. J., and Lavine and Sullivan, Js.

      Argued February 16
    officially released September 6, 2011

      Frederick Cornelius, pro se, the appellant (named defendant).

      Charles D. Ray, with whom was Matthew A. Weiner, for the appellee (plaintiff)-
   Opinion

SULLIVAN, J.

The defendant Frederick Cornelius appeals from the judgment of foreclosure by sale, rendered by the trial court in favor of the plaintiff, Wells Fargo Bank, NA. On appeal, the defendant claims that the court improperly (1) denied his motion to dismiss, (2) rejected his tender of payment as insufficient, (3) determined the amount of the debt, (4) considered the parties’ motions in the wrong order and (5) imposed costs for filing the motion to open prior to placing it on the motion calendar. We disagree with all of the defendant’s claims and, accordingly, affirm the judgment.

The record reveals the following facts and procedural history. On May 30, 2008, the plaintiff filed a complaint for foreclosure of a mortgage against Cornelius, Margaret A. O’Brien and the tax collector of the town of Farmington, for real property located at 1507 Farmington Avenue in Farmington. Service was made by a marshal leaving a copy of the process at the subject property based on the determination that it was the defendant’s usual place of abode. On June 27, 2008, the court rendered a default judgment against the defendant on a motion by the plaintiff for the defendant’s failure to appear. On July 14,2008, the court rendered judgment of foreclosure by sale and set a sale date of October 18, 2008.

On October 1, 2008, the defendant appeared in the action and filed a motion to dismiss alleging that he had not been properly served at his actual address. In response, the plaintiff filed an objection to the motion to dismiss, and later filed a motion to open and vacate the default judgment, which was granted. The plaintiff also filed a motion to cite in the defendant as a party. The court granted that motion and ordered that the defendant be properly served at the address he provided, which the plaintiff did. On February 9, 2009, the court denied the defendant’s motion to dismiss, noting in the order that the plaintiff had amended the summons and served the defendant at the address he provided.

On October 13, 2009, the court granted the plaintiffs motion for summary judgment as to liability, and on February 5, 2010, the court rendered judgment of foreclosure by sale, finding the debt and fair market value of the property and ordering a sale date of May 8, 2010. On February 18, 2010, the plaintiff filed a satisfaction of judgment, indicating that the defendant had paid the plaintiff all amounts due as found by the court in the February 5, 2010 judgment. On February 24, 2010, the defendant filed the present appeal.

We placed this appeal on the court’s own motion calendar. Counsel and pro se parties were ordered to appear and to give reasons, if any, why the defendant’s appeal from the judgment of foreclosure by sale should not be dismissed as moot due to the filing of the satisfaction of judgment. On July 15, 2010, the parties appeared to argue the issues, after which we marked off the motion and ordered the parties to address the mootness question in their briefs.

“Mootness implicates [the] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. . . . Because mootness implicates subject matter jurisdiction, it presents a question of law over which our review is plenary.” (Citations omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 502, 506-507, 970 A.2d 578 (2009).

The defendant argues that because he challenges the service of process and the court’s exercise of personal jurisdiction over him, the appeal is not moot. The defendant also suggests that the court can order restitution as a remedy, and, therefore, practical relief may be granted. We agree.

Our case law, while infrequently addressing this issue, indicates that the filing of a satisfaction of judgment does not render appeals moot because of the possibility of restitution or reimbursement. In Bock v. Meriden Trust & Safe Deposit Co., 135 Conn. 94, 95 and n.l, 60 A.2d 918 (1948), our Supreme Court denied a motion to erase, holding that satisfaction of a judgment did not render an appeal of that judgment moot because if the judgment was erroneous, the defendant could secure reimbursement. In Preisner v. Aetna Casualty & Surety Co., 203 Conn. 407, 414-15, 525 A.2d 83 (1987), our Supreme Court noted: “[A]n order of execution, in the absence of a stay, does not moot the justiciability of a pending appeal. If a judgment has been satisfied before it is reversed . . . the law raises an obligation in the party to the record, who has received the benefit of the erroneous judgment, to make restitution to the other party for what he has lost; and the mode of proceeding to effect this object must be regulated according to circumstances.” (Internal quotation marks omitted.) See also New Haven v. God’s Corner Church, Inc., 108 Conn. App. 134, 948 A.2d 1035 (2008) (trial court had jurisdiction to rule on defendant’s motion to determine debt owed under tax liens after defendant redeemed property and satisfaction of judgment filed). In the present case, title has fully vested in the defendant, but restitution remains an option were this court to conclude that his claims have merit. Although we are not persuaded by the defendant’s claims, the case is not moot and we will address each claim herein.

I

The defendant first claims that the court improperly denied his motion to dismiss for invalid service of process. The defendant argues that the court wrongly held that the motion to dismiss was not accompanied by a properly executed affidavit, notice was sufficient to establish personal jurisdiction, that the court abused its discretion in denying the defendant a “trial like” hearing on the merits of the motion, and that the plaintiffs motion to cite in did not cure the jurisdictional defect.

In the present case, the court, Hon. Samuel Freed, judge trial referee, ordered the plaintiff to effect service of process, and then the court, Aurigemma, J., concluded that service had been made. Even if we agreed with the defendant’s legal claims, his arguments do not address the conclusion by the court that service of process had been made at the address he provided. The defendant has raised no argument that the court’s conclusion that he had been served at the address that he provided was incorrect.

II

The defendant next claims that the court erred in concluding that the tender of payment made by the defendant in September, 2008, was insufficient. This claim has no merit. The court did not take any action to influence whether the plaintiff would accept or reject the tender of payment that the defendant offered, nor did the defendant ask the court to order the plaintiff to accept the tender. In its articulation, the court, Hon. Robert Satter, judge trial referee, noted that at the time of the tender, the outstanding judgment against the defendant exceeded the amount of the tender. We need not decide whether the court had the authority to require the plaintiff to accept a lesser amount because the court was not called upon to do so.

III

The defendant next claims that the court erred in determining the amount of the debt in the judgment. The defendant argues that following the rejection of the tender of payment by the plaintiff, he was no longer liable for any subsequent interest or costs. The defendant’s argument depends on the conclusion that he tendered full payment to the plaintiff. As we have concluded already, the plaintiff was not required to accept any payment that was less than the full amount to which it was entitled, which, at the time of tender, had been determined by a judgment of the court. Thus, there is no basis for us to conclude that the subsequent fees should not have been included in the judgment.

IV

The defendant next claims that the court improperly considered the plaintiffs motion to cite in before ruling on his motion to dismiss. Again, the claim lacks merit. The case law relied on by the defendant primarily concerns the question of subject matter jurisdiction, which indisputably must be resolved prior to the court ruling on other motions. By contrast, the very nature of a motion to cite in a new party means that the court will order a party summoned prior to obtaining personal jurisdiction. See Practice Book § 9-18.

V

Finally, the defendant claims that the court improperly required him to pay fees to the clerk on the motion to open prior to placing it on the motion calendar. This claim has been briefed inadequately, and we therefore will not address it. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).

The judgment is affirmed.

In this opinion the other judges concurred.

       The action was withdrawn as against the defendant Margaret A. O’Brien in June, 2008. The tax collector of the town of Farmington is not a party to this appeal. We therefore refer in this opinion only to Frederick Cornelius as the defendant.