author: ROBINSON, J.

text:
    MARK S. URICH v. RICHARD FISH
    (AC 29030)
    Flynn, C. J., and Robinson and Stoughton, Js.

      Argued December 9, 2008
    officially released March 3, 2009

      Max F. Brunswick, for the appellant (plaintiff).

      K. Wynne Bohonnon, for the appellee (defendant).
   Opinion

ROBINSON, J.

The plaintiff, Mark S. Urich, appeals from the judgment of the trial court awarding the defendant, Richard Fish, postjudgment interest and attorney’s fees. The plaintiff claims that the court improperly (1) awarded additional attorney’s fees to the defendant even though he was not a prevailing party under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and (2) concluded that the plaintiff was not entitled to postjudgment interest on his 1998 judgment. We affirm the judgment of the trial court.

The following facts and procedural history provide the necessary backdrop for the plaintiffs appeal. The present case arises from the plaintiffs 1993 sale of a yacht to the defendant. In 1994, the plaintiff commenced this action against the defendant seeking recovery of the balance of the contract price. The defendant filed a counterclaim seeking recovery under CUTPA for items purportedly withheld by the plaintiff in violation of the contract for sale. On March 30, 1998, the court, Hon. Anthony V. DeMayo, judge trial referee, rendered judgment in favor of the plaintiff in the amount of $20,000 and in favor of the defendant on his counterclaim in the amount of $20,005.72. Both parties appealed, and, on June 13, 2000, this court affirmed the judgment in favor of the plaintiff but reversed the judgment relating to the defendant’s counterclaim. See Urich v. Fish, 58 Conn. App. 176, 753 A.2d 372 (2000). On remand, the court, Blue, J., rendered judgment in favor of the defendant, finding that several items that should have been included in the sale price had been removed prior to delivery of the yacht. After a supplemental hearing, the court awarded the defendant punitive damages and attorney’s fees under CUTPA, as well as prejudgment interest in accordance with General Statutes § 37-3a. The plaintiff appealed from this judgment and upon review of his arguments, our Supreme Court reversed and remanded the case once again. See Urich v. Fish, 261 Conn. 575, 804 A.2d 795 (2002).

At the conclusion of the third trial of the defendant’s counterclaim, the court, Hon. Frank S. Meadow, judge trial referee, rendered judgment in favor of the defendant and awarded damages in the amount of $12,427.41. The defendant also was awarded $14,395 in prejudgment interest pursuant to § 37-3a, $20,000 in punitive damages pursuant to CUTPA and $25,000 in attorney’s fees pursuant to CUTPA. The plaintiff appealed from this judgment, claiming that the court improperly awarded (1) attorney’s fees and punitive damages to the defendant under CUTPA, and (2) prejudgment interest pursuant to § 37-3a. This court did not address the merits of the first argument, however, having declined to review the claim due to the plaintiffs failure to raise it at the trial level. Regarding the second argument, this court concluded that the trial court did not abuse its discretion by awarding prejudgment interest. Accordingly, the judgment was affirmed. See Urich v. Fish, 97 Conn. App. 797, 801-803, 907 A.2d 96 (2006), cert. denied, 281 Conn. 926, 918 A.2d 280 (2007).

Following the resolution of the third appeal, the defendant filed two motions with the trial court requesting additional attorney’s fees and postjudgment interest on his counterclaim judgment. The plaintiff filed an objection to both motions as well as his own motion for postjudgment interest on May 8, 2007. The defendant’s motion requesting additional attorney’s fees was granted on June 4,2007, and the sum of $10,350 was awarded to the defendant. On July 6, 2007, the court granted the defendant’s motion for postjudgment interest and subsequently awarded the defendant the sum of $18,947.52. On this same date, a memorandum of decision regarding posljudgment interest also was filed, in which the court denied the plaintiffs motion for postjudgment interest. The plaintiff then filed the present appeal.

We begin our analysis by setting forth the relevant standard of review. “Our standard of review for issues of statutory interpretation is well settled. Issues of statutory construction raise questions of law, over which we exercise plenary review.” (Internal quotation marks omitted.) State v. Cyrus, 111 Conn. App. 482, 487-88, 959 A.2d 1054 (2008). “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 [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.) Lopa v. Brinker International, Inc., 111 Conn. App. 821, 825-26, 960 A.2d 1107 (2008), cert. granted on other grounds, 290 Conn. 913, 964 A.2d 547 (2009).

I

The plaintiff first argues that the court’s decision to award attorney’s fees to the defendant was improper because CUTPA authorizes such an award only to a prevailing plaintiff. We disagree because on the counterclaim, the defendant stands in the position of the plaintiff.

The plaintiff correctly acknowledges that CUTPA initially authorized an award of legal fees to “either party” but that this language subsequently was amended to narrow the availability of such recovery. See Public Acts 1976, No. 76-303. The current version of General Statutes § 42-1 lOg (d) provides in relevant part: “In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. ...” (Emphasis added.) The plaintiff maintains that when the current language is viewed in the context of the legislative history, it establishes the legislature’s clear intent to limit recovery of attorney’s fees to plaintiffs only, and, therefore, the court was without authority to award attorney’s fees to the defendant.

Although the plaintiffs review of the legislative history is accurate, his inteipretation of the current statutory language is unpersuasive given the procedural context of the present case. Relying solely on the legislative history of CUTPA to support his argument that the award was improper, the plaintiff fails to provide any analysis or argument to address the fact that the defendant prevailed on his counterclaim pursuant to CUTPA and, therefore, was a counterclaim plaintiff not a defendant. As this court has stated previously, a counterclaim is an independent action. See Urich v. Fish, supra, 97 Conn. App. 803. Furthermore, this court previously has upheld awards for attorney’s fees to a counterclaim plaintiff, and the plaintiff has failed to distinguish the present case from this long line of precedent. See, e.g., Heller v. D. W. Fish Realty Co., 93 Conn. App. 727, 735, 890 A.2d 113 (2006) (concluding that court properly awarded named defendant attorney’s fees related to CUTPA counterclaim); Monetary Funding Group, Inc. v. Pluchino, 87 Conn. App. 401, 413, 867 A.2d 841 (2005) (affirming judgment of court that awarded defendant attorney’s fees after finding in his favor with respect to CUTPA counterclaim); Kronberg Bros., Inc. v. Steele, 72 Conn. App. 53, 63, 804 A.2d 239 (same), cert. denied, 262 Conn. 912, 810 A.2d 277 (2002). Accordingly, we affirm the judgment of the trial court as to the award of attorney’s fees.

II

The plaintiff next argues that the court improperly failed to award postjudgment interest on his 1998 judgment. Specifically, he argues that he is entitled to post-judgment interest as a matter of law because the judgment constitutes a final resolution of the dispute. We disagree.

A review of the plaintiffs argument reveals a foundation of misinterpreted authority. Specifically, the plaintiff maintains that General Statutes § 52-350f provides for the automatic collection of postjudgment interest on money judgments; however, this argument is unsupported by the statutory language. Section 52-350Í provides in relevant part: “The money judgment may be enforced, by execution or by foreclosure of a real property lien, to the amount of the money judgment with . . . interest as provided by chapter 673 on the money judgment . . . .” (Emphasis added.) General Statutes § 52-350Í. Additionally, § 37-3a (a), the relevant statute of chapter 673, provides in relevant part: “[Ijnterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. . . .” (Emphasis added.) General Statutes § 37-3a (a).

This court previously has determined that an award of postjudgment interest is authorized by § 37-3a. See Aubin v. Miller, 64 Conn. App. 781, 801, 781 A.2d 396 (2001); Foley v. Huntington Co., 42 Conn. App. 712, 741, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). This statute has been construed “to make the allowance of interest depend upon whether the detention of the money is or is not wrongful under the circumstances. . . . The allowance of interest as an element of damages is, thus, primarily an equitable determination and a matter lying within the discretion of the trial court. . . . We have seldom found an abuse of discretion in the determination by a trial court of whether a detention of money was wrongful.” (Internal quotation marks omitted.) Sosin v. Sosin, 109 Conn. App. 691, 703, 952 A.2d 1258, cert. granted on other grounds, 289 Conn. 934, 958 A.2d 1245 (2008); McCullough v. Waterside Associates, 102 Conn. App. 23, 33, 925 A.2d 352, cert. denied, 284 Conn. 905, 931 A.2d 264 (2007). As an award of postjudgment interest is discretionary, the plaintiffs argument that he is entitled to postjudgment interest as a matter of law is premised on a misreading of statutory authority. Furthermore, he has failed to establish that the court abused its discretion by refusing to allow postjudgment interest.

The judgment is affirmed.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    JOHN F. FEDUS ET AL. v. ZONING AND PLANNING COMMISSION OF THE TOWN OF COLCHESTER
    (AC 29350)
    Bishop, Gruendel and Lavery, Js.

      Argued October 10, 2008
    officially released March 3, 2009

      Eric H. Rothauser, with whom, on the brief, were John L. Bonee III and Jay B. Weintraub, for the appellants (plaintiffs).

      Matthew Ranelli, for the appellee (named defendant).

      Lewis K. Wise, for the appellee (defendant Colches-ter, LLC).
   Opinion

LAVERY, J.

The plaintiffs appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant zoning and planning commission of the town of Colchester (commission) approving the site plan application of the defendant developer Col-chester, LLC. On appeal, the plaintiffs claim impropriety in the court’s upholding of (1) a footprint only approval for the largest building in the proposed site plan, (2) an approval of a drainage plan that does not conform to the relevant Colchester zoning regulations and (3) the commission’s approval of a site plan without the permits required by the zoning regulations. Because the commission did not follow the zoning regulations regarding drain pipe material and necessary permits in approving this site plan, we reverse the judgment of the trial court.

The following facts and procedural history are relevant to our discussion of the present appeal. The developer submitted a site development plan application to the commission on February 14, 2002. The developer proposed a retail development on a 72.29 acre site located along Route 2 in Colchester. The project proposed about 253,470 square feet of retail and bank space with an anchor store (building A) that would occupy 165,174 square feet. At the time of the application, the developer did not know any of the potential tenants of the development and, therefore, sought a footprint only approval for building A so that the tenant could modify the building for its use.

After public hearings were held on June 5, 19 and 26, 2002, the commission granted site plan approval for the plan, excluding the facade of the main building, but approved its footprint. In its memorandum of decision, dated August 21, 2002, the commission explained in detail several required modifications to the plan in order to be in conformance with the regulations. This decision was directly appealed by the plaintiffs to the Superior Court, which, sua sponte, dismissed the plaintiffs appeal for defective service of process. This court granted certification, and the case was transferred to the Supreme Court pursuant to General Statutes § 51-199 and Practice Book § 65-1. In Fedus v. Planning & Zoning Commission, 278 Conn. 751, 900 A.2d 1 (2006), our Supreme Court reversed the judgment of the trial court and remanded the case to decide the appeal on its merits. On remand, the court affirmed the commission’s granting of site plan approval and dismissed the plaintiffs appeal. This court granted certification to appeal. Additional facts will be set forth as necessary.

“A site plan is a plan filed with a zoning commission or other municipal agency or official to determine the conformity of a proposed building, use or structure with specific provisions of the zoning regulations. It is a physical plan showing the layout and design of a proposed use, including structures, parking areas and open space and their relation to adjacent uses and roads, and containing the information required by the zoning regulations for that use.” (Internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 46 Conn. App. 566, 570, 700 A.2d 67, cert. denied, 243 Conn. 935, 702 A.2d 640 (1997). “A zoning commission’s authority in ruling on a site plan is limited.” Berlin Batting Cages, Inc. v. Planning & Zoning Commission, 76 Conn. App. 199, 220, 821 A.2d 269 (2003). “The agency has no independent discretion beyond determining whether the plan complies with the site plan regulations and applicable zoning regulations incorporated by reference.” (Internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning & Zoning Commission, supra, 570. “A site plan and special permit application aid zoning agencies in determining the conformity of a proposed building or use with specific provisions of the regulations.” Smith-Groh, Inc. v. Planning & Zoning Commission, 78 Conn. App. 216, 230, 826 A.2d 249 (2003). General Statutes § 8-3 (g) sets out a zoning commission’s authority to act on a site plan application: “A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inland wetlands regulations. ...”

“Resolution of the plaintiffs’ claim requires us to review and analyze the relevant zoning regulations. Our Supreme Court has stated that [b]ecause the interpretation of the regulations presents a question of law, our review is plenary. . . . Additionally, zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes. . . . Ordinarily, [appellate courts afford] deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when [an] agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law.” (Citation omitted; internal quotation marks omitted.) Borrelli v. Zoning Board of Appeals, 106 Conn. App. 266, 270, 941 A.2d 966 (2008). Further, “a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty.” Suffield Heights Corp. v. Town Planning Commission, 144 Conn. 425, 428, 133 A.2d 612 (1957). “[0]n appeal from [the] zoning board’s application of [a] regulation to [the] facts of [a] case, [the] trial court must decide whether the board correctly interpreted the regulation and applied it with reasonable discretion . . . .” (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001). “[C]ourts should accord great deference to the construction given [a] statute by the agency charged with its enforcement.” (Internal quotation marks omitted.) Cimochowski v. Hartford Public Schools, 261 Conn. 287, 296, 802 A.2d 800 (2002).

“A local ordinance is a municipal legislative enactment and the same canons of construction which we use in interpreting statutes are applicable to ordinances. ... A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. ... A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance. . . . The words employed are to be interpreted in their natural and usual meaning. . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant. . . . The regulations must be construed as a whole and in such a way as to reconcile all their provisions as far as possible. . . . [Regulations are to be construed as a whole since particular words or sections of the regulations, considered separately, may be lacking in precision of meaning to afford a standard sufficient to sustain them.” (Citations omitted; internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning & Zoning Commission, supra, 46 Conn. App. 571.

“A commission is not at liberty to ignore its existing regulations and to treat them as invalid. See Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 374, 387, 610 A.2d 617 (1992); Reed v. Planning & Zoning Commission, 12 Conn. App. 153, 156, 529 A.2d 1338 (1987), aff'd, 208 Conn. 431, 544 A.2d 1213 (1988). When acting in a legislative capacity, a zoning commission is free to amend its regulations whenever time, experience, and responsible planning for contemporaiy or future conditions reasonably indicate the need for a change. . . . Parks v. Planning & Zoning Commission, [178 Conn. 657, 660, 425 A.2d 100 (1979)]. In contrast, when acting in an administrative capacity, a zoning commission’s more limited function is to determine whether the applicant’s proposed use is one which satisfies the standards set forth in the regulations and statutes.” (Internal quotation marks omitted.) Samperi v. Planning & Zoning Commission, 40 Conn. App. 840, 848, 674 A.2d 432 (1996). “An administrative agency must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. . . . Agency actions occasionally exceed these limitations, and are set aside by the courts when the action taken is within one of the following areas ... (4) the agency’s decision did not conform with the standards in its own regulations . . . .” R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 22.1, p. 649.

If zoning regulations have specific requirements for site plan approval and there is no regulation giving the zoning authority the ability to waive or substitute the requirements for given reasons, then the commission must enforce the regulations and disapprove any site plan application that does not follow the regulation.

I

The plaintiffs claim that it was illegal, arbitrary and an abuse of discretion for the commission to approve a site plan with a footprint only approval of building A because the approval did not comply with the regulations. The defendants argue that the commission had the discretion to condition its approval of the site plan upon the future approval of building A’s architectural elements. We agree "with the defendants.

The following facts are relevant to the plaintiffs’ claim. Counsel for the developer acknowledged that it purposely left the details of building A out of the site plan because a tenant had not yet been determined, and the developer wanted to leave the design of the building up to the tenant when one was found. The developer sought for the commission to “condition the approval on the requirement of course that [the developer] come back for a secondary approval for the elements associated with the larger building. What we’re asking for now is approval for basically a footprint . . . .” The commission granted the site plan application but noted that the approval was “based upon its understanding that building A will contain a single/retail commercial user where the site plan shows this” and that building A, at the time of the commission’s decision, was “not approved for construction.” The court found that the site plan application lacked only the final architectural rendering of building A and that there was sufficient information for the commission to determine compliance with the regulations. Further, the court found that “[a] commission has authority to approve a site plan subject to reasonable conditions that require compliance with the zoning regulations.”

The plaintiffs claim that the footprint only approval does not comply with the following regulations: “3.7.3.B. Neighborhood. The use of land, buildings and other structures, the location and bulk of buildings and other structures and site development shall be of a character so as to harmonize with the neighborhood, to accomplish a transition in character between areas of unlike character, to protect property values and to preserve and enhance the appearance and beauty of the community. . . . 3.7.3.Q. Building Design. Buildings and other structures shall conform to the following: 3.7.3.Q.I. Exterior walls of any building that are visible from any street or any other lot shall present a finished appearance by means of materials consistent with the design of the building as a whole. 3.7.3.Q.2. No mechanical equipment shall be located on the roof of a building if visible from any street or any other lot unless such equipment is housed or screened from view in a manner consistent with the architectural design of the building. . . . 12.3.19. Class 2 structures should be in substantial design conformity with the surrounding area. Architectural elevations and photographs of the surrounding properties must be submitted for review and approval. . . . 12.5.3.H. Architectural Plans. Architectural plans, which shall include all proposed buildings, structures and signs and all existing buildings, structures, and signs proposed to be reconstructed, enlarged, extended, moved or structurally altered. Architectural plans may be in preliminary form but shall include exterior elevation drawings, exterior materials, generalized floor plans and perspective drawings, prepared, except for drawings for signs, as may be required by law by an architect or professional engineer licensed to practice in the state of Connecticut. Three (3) copies of architectural plans shall be submitted.”

In analyzing the plaintiffs’ claim, it should be recognized that the elements left by the commission for a future modification request were only the architectural elements, while the location, square footage, height, parking, color scheme and landscaping were approved by the commission and are not at issue in this appeal. The defendants cite the language of § 8-3 (g) for the proposition that the commission had the discretion to approve the site plan subject to modifications and conditions where necessary. In the present case, the site plan was appropriately modified when the commission determined that parts of the plan failed to comply with the regulations. On its face, the site plan application that admittedly did not include architectural renderings for building A did not comply with § 12.5.3.H of the regulations. This is because there was no exterior elevation drawings proposed in the site plan. The commission’s approval of the site plan, however, was not unreasonable, arbitrary or illegal because the commission reserved final approval over the construction of building A until a more complete architectural design could be submitted. Further, the other regulations that the plaintiffs claim were violated by the conditional approval allow the commission discretion to determine how the site plan would fit with the developments already in existence within the town of Colchester. For example, § 3.7.3.B requires that the proposed buildings be in “harmony” with others in the neighborhood, § 3.7.3.Q states that they “shall present a finished appearance,” and § 12.3.19 states that “structures should be in substantial design conformity with the surrounding area.” Such terms are not defined within the regulations; therefore, we use the ordinary meanings of such terms. It is clear from the text of the regulations that the overall purpose of such regulations is to maintain the overall visual appearance of the community, while still allowing development that furthers the interests of the community. The commission did not abuse its discretion in applying these regulations to the site plan in delaying final approval for the architectural elements of building A.

II

The plaintiffs next claim that it was improper for the commission to approve the site plan when the materials proposed for the drainage pipes and the reductions of peak flow rates of water do not conform to the regulations. The defendants argue in regard to the peak flow rates of water that the commission acted lawfully and that there is no adverse impact on the plaintiffs. They do not substantially dispute that the drainage pipes do not conform to the regulations. The defendants instead argue that this claim was not included in the plaintiffs’ petition for certification and therefore is not before this court. The pipe material claim was raised in the petition for certification, and we therefore review the claim and agree with the plaintiffs. On the claim regarding the peak flow rates, we agree with the defendants.

Section 12.5.4 of the zoning regulations pertains to drainage design and calculations. Section 12.5.4.G, entitled “pipe,” states in relevant part that “[a]ll pipe for storm drains shall be reinforced concrete pipe (RCP), Class 4, conforming to DOT Form 815 or latest edition, and shall be approved for use by the Town Engineer. . . .” Section 12.5.4.0.2 states that “[w]hen it is determined that stormwater detention structures are required, they shall be designed so that the peak flow(s) or volume of runoff after development shall not exceed nor be substantially less than the peak flow(s) or volume of runoff prior to development for each of the design storm events. . . .”

During the public hearings, the plaintiffs presented a memorandum from Donald T. Ballou, a professional engineer, who had examined the storm water management report presented by the developer. In his list of the areas of the developer’s proposal that needed review or correction, he pointed out that under the regulations, storm piping was to be made of reinforced concrete and not the corrugated high density polyethylene pipe that was proposed. He also noted that the runoff volume was not addressed in the proposal. The developer had its professional engineer, Terrance M. Gallagher, respond. He responded that there was no change in overall water discharge and a “significant net reduction in peak flow rates for 2 Year (23.7 [percent] reduction) through 100 Year (51.7 [percent] reduction) storms at [one of the stormwater basins].” He further commented that the site engineering report “shows peak runoff rates reduced in all watersheds by significant percentages.” Regarding the corrugated high density polyethylene piping, he stated that the developer would use reinforced concrete pipe if the commission or the town engineer requested it. The town engineer, Salvatore A. Tassone, in response, wrote a memorandum to the commission stating that the town had accepted the use of corrugated high density polyethylene for more than ten years.

The commission’s memorandum of decision states that “[d] espite the testimony presented to it by opponents to the project and Mr. Donald T. Ballou, a professional engineer hired by one of them, the commission finds the drainage design to be in conformance with Section 12.5.4 of the zoning regulations .... The commission makes this finding on the basis of all of the evidence presented to it and with particular attention to the report of the town engineer, Salvatore A. Tassone, P.E. . . .”

The court found that “[t]he record demonstrates that the commission carefully considered the issues regarding the drainage system, giving particular regard to the town engineer’s comments. The commission found ‘the drainage design to be in conformance with Section 12.5.4 of the zoning regulations . . . .’ Similarly, it determined that corrugated polyethylene pipe satisfied the zoning regulations’ requirement of reinforced concrete pipe where the town engineer approved its use. The commission considered testimony from the engineers of [the developer], the plaintiffs and the town, and ultimately followed the recommendations of the town engineer. The court is not permitted to substitute its judgment for that of the commission when evaluating the weight of competing testimony. . . . Furthermore, the commission’s interpretation of its zoning regulations regarding what constitutes a substantial reduction in the peak flow or volume of runoff is reasonable and is entitled to the court’s deference. See Jalowiec Realty Associates, L.P. v. Planning & Zoning Commission, 278 Conn. 408, 414, 898 A.2d 157 (2006)

In creating § 12.5.4.0.2 of the regulations, the commission allotted itself reasonable discretion to review proposed drainage plans. Even though the developer’s engineer uses the phrase, “significant,” in relation to some eventual storm water reduction, the commission has the discretion to determine if such a reduction is “substantial” and would therefore not conform with the regulation. The commission analyzed the reports of engineers for the developer, the plaintiffs and the town and made its determination that the storm water reduction was not substantial. This was an appropriate use of its discretion.

After a review of the regulations and § 12.5.4, this court finds that the language of § 12.5.4 is clear on its face, and there are no exceptions to this regulation or to the requirement that pipes be made from reinforced concrete. The commission was acting in an administrative capacity and was supposed to determine only the proposal’s conformance with the regulations. See Samperi v. Planning & Zoning Commission, supra, 40 Conn. App. 848. In acting within its legislative capacity, the commission created this regulation and therefore bound itself to comply with it until it finds that a change is needed and then decides to amend it. The commission’s decision that the drainage design conformed with this clear regulation was illegal, arbitrary and unreasonable and must, therefore, be overruled.

Ill

The plaintiffs’ final claim is that it was improper for the commission to approve the site plan because the developer had not obtained the permits required by the regulations. The defendants argue that it is impossible to obtain such approvals prior to local approval, and, therefore, the developer could not be required to follow the regulations.

The challenged regulations state: “[§] 12.3.16: If approval from any state, local, or federal departments, offices or agencies is required, such approval shall be obtained prior to submission of the plan. Approval from Connecticut department of transportation may be preliminary. ...[§] 12.5.3.C.12 . . . Where the proposed storm system is to be connected to an existing state of Connecticut drainage system, computations shall meet state design standards and all necessary permits shall be obtained from the State of Connecticut.”

In its operations and maintenance plan appendix to the site engineering report, the developer exclaimed that it “will receive a number of permits, which may contain special conditions .... These permits may include the following . . . U.S. Army Coips of Engineers Wetlands Permit . . . Connecticut State Traffic Commission Certificate . . . Connecticut Department of Transportation Encroachment Permit . . . Connecticut General Permit for the Discharge of Stormwa-ter Associated with Construction Activity . . . [and] Connecticut General Permit for the Discharge of Stormwater Associated with Commercial Activity.” The commission found that applications with the United States Army Corps of Engineers and state traffic commission were pending at the time of the commission’s approval.

The court noted the argument of the commission that the state traffic commission, pursuant to General Statutes § 14-311 (c), has the authority to wait for local zoning approval prior to making its decision. It then held that strict application of a rule requiring approval of the necessary permits would result in a stalemate, with no government agency willing to grant the first approval, and that in such situations it was appropriate to approve an application subject to the condition that the necessary permits be obtained.

Although it is permissible to condition the approval of a site plan on the approval of other municipal agencies; see Blaker v. Planning & Zoning Commission, 212 Conn. 471, 482, 562 A.2d 1093 (1989); it is notpermissible for a commission to ignore its existing regulations. The plain language of § 12.3.16 is clear on its face, and the use of the term “shall” makes the regulation mandatory and not permissive. If there are other permits needed, other than from the department of transportation, then a site plan applicant must secure the permits before the site plan may be approved. As discussed in part II, the commission was acting in its administrative capacity in deciding whether to grant this application, and as an administrative agency, it was limited to determining whether the site plan conformed with the existing regulations. The commission may act within its legislative capacity and amend any regulations it sees fit to amend, but when it sits as an administrative body, its authority is limited. Because at the time of the application, the developer had numerous permits to obtain for this site plan, the plan did not conform to the relevant regulation and could not have been granted.

The judgment is reversed and the case is remanded with direction to sustain the plaintiffs’ appeal.

In this opinion the other judges concurred.

       The plaintiffs are John F. Fedus, AJyce Daggett, Rose Fedus, Mae Fedus and Steven Fedus, Jr.

       The defendants cite Lurie v. Planning & Zoning Commission, 160 Conn. 295, 307, 278 A.2d 799 (1971), for the proposition that zoning authorities may create conditions of approval when there is a situation in which there are permits required that ordinarily are not obtained until after zoning approval. Lurie and the cases that cite it have been taken out of context by the defendants. These cases specifically concern situations in which a special exception or a variance was being requested. The developers in the case at bar requested no such exceptions.


author: Per Curiam.

text:
    SCOTT E. RHOADS v. GARBO LOBSTER COMPANY, INC., ET AL.
    (AC 29017)
    Harper, Beach and Laveiy, Js.
    Argued December 8, 2008
    officially released January 6, 2009
   Per Curiam.

The decision of the workers’ compensation review board is affirmed.


text:
    ROY E. WRIGHT v. COMMISSIONER OF MOTOR VEHICLES
    (AC 29585)
    McLachlan, Gruendel and Pellegrino, Js.
    Argued December 5, 2008
    officially released January 6, 2009
   Per Curiam.

The judgment is affirmed.


text:
    TANISHA YOUNGER v. MARK D. BELCHER ET AL.
    (AC 29347)
    Harper, Lavine and Robinson, Js.
    Submitted on briefs January 12
    officially released February 3, 2009
   Per Curiam.

The judgment is affirmed.


text:
    BENITO SOSTRE v. COMMISSIONER OF CORRECTION
    (AC 29408)
    McLachlan, Robinson and Hennessy, Js.
    Argued January 12
    officially released February 3, 2009
   Per Curiam.

The judgment is affirmed.


text:
    GREGORY GAYMON v. COMMISSIONER OF CORRECTION
    (AC 29353)
    McLachlan, Harper and Schaller, Js:
    Argued January 13
    officially released February 3, 2009
   Per Curiam.

The appeal is dismissed.


text:
    JAMES KING v. ELISHA LAROSE ET AL.
    (AC 29712)
    Harper, Lavine and Pellegrino, Js.
    Argued January 15
    officially released February 3, 2009
   Per Curiam.

The judgment is affirmed.


text:
    CHARLES GIANETTI v. GREATER BRIDGEPORT INDIVIDUAL PRACTICE ASSOCIATION ET AL. CHARLES GIANETTI v. PHYSICIANS HEALTH SERVICES, INC., ET AL.
    (AC 27815)
    Harper, Lavine and Pellegrino, Js.
    Argued January 15
    officially released February 3, 2009
   Per Curiam.

The judgment is affirmed.


text:
    CECELIA LEBBY v. JOHN MCKENNA ET AL.
    (AC 29676)
    Bishop, Gruendel and Borden, Js.
    Argued January 21
    officially released February 3, 2009
   Per Curiam.

The judgment is affirmed.


text:
    CECELIA LEBBY v. JOHN MCKENNA ET AL.
    (AC 29677)
    Bishop, Gruendel and Borden, Js.
    Argued January 21
    officially released February 3, 2009
   Per Curiam.

The judgment is affirmed.


text:
    JAMES DAVIS v. COMMISSIONER OF CORRECTION
    (AC 28975)
    DiPentima, Beach and Thim, Js.
    Argued January 21
    officially released February 3, 2009
   Per Curiam.

The appeal is dismissed.


author: BEACH, J.

text:
    HOLLY BLINKOFF ET AL. v. O AND G INDUSTRIES, INC.
    (AC 28506)
    McLachlan, Lavine and Beach, Js.

      Argued September 23, 2008
    officially released March 3, 2009

      Holly Blinkoff, pro se, the appellant (named plaintiff).

      Everett E. Newton, for the appellee (defendant).
   Opinion

BEACH, J.

The plaintiff Holly Blinkoff appeals from the judgment of the trial court, rendered in favor of the defendant, O & G Industries, Inc. (O & G), on a motion for summary judgment. The plaintiffs one count complaint alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and contained eight allegations. The plaintiff claims that the court improperly rendered summary judgment as to all of the allegations. We disagree and affirm the judgment of the trial court.

At relevant times, the plaintiff owned and operated a sand and gravel quarry, and O & G owned and operated a competing quarry, both of which were located in Tor-rington. At times, permits from the Torrington planning and zoning commission (commission) were necessary for the operation of both businesses. In the present action, the plaintiff alleged that O & G unfairly influenced the commission to the benefit of O & G and to the detriment of the plaintiff through various alleged improper dealings and relationships between O & G and the commission. This case is the latest in a series spanning one decade of litigation. To appreciate the present case and the claims made by the plaintiff, the following litigation history is useful.

On January 20, 1995, the plaintiff filed a complaint with the commission on human rights and opportunities (CHRO). She alleged discrimination on the basis of gender and religion as to the commission and the Torring-ton city planner. See Blinkoff v. Torrington, CHRO No. 9530406 (May 10, 2004). O & G was not a party to that action. On January 6, 1997, the CHRO found probable cause to proceed on the allegations in the plaintiffs claim. Id. On its motion, however, the CHRO stayed the case, pending resolution of a similar complaint filed by the plaintiff in federal District Court.

In 2004, after the federal claims were resolved in favor of the commission, the commission filed a motion to dismiss the CHRO claim on the bases of res judicata and claim preclusion. The presiding referee, finding that the underlying facts of the federal action and the CHRO complaint were the same, dismissed the CHRO claim under the doctrine of res judicata. The CHRO appealed from the referee’s decision to the Superior Court, which dismissed the CHRO’s appeal on the ground of res judi-cata. See Blinkoff v. Commission on Human Rights & Opportunities, Superior Court, judicial district of New Britain, Docket No. CV-04-0528122-S (June 10, 2005). The CHRO then appealed to this court, which reversed the dismissal and remanded the case for further proceedings because the plaintiffs state law claims in the federal court action had been dismissed without prejudice. Commission on Human Rights & Opportunities v. Torrington, 96 Conn. App. 313, 319, 901 A.2d 46 (2006). This claim is apparently still pending before the CHRO.

Meanwhile, on July 9, 1997, while the CHRO claim was pending, the plaintiff filed an action in United States District Court for the District of Connecticut against the commission, members of the commission in their executive and individual capacities and the city planner. The plaintiff alleged discrimination due to her religious affiliation and gender, equal protection and due process violations under the fourteenth amendment, tortious interference with a business expectancy, intentional and negligent infliction of emotional distress and retaliation by selective treatment and denial of equal protection under the fourteenth amendment. O & G was not a defendant in the federal action. The District Court rendered summary judgment in favor of the defendants in that action as to most of the due process, tortious interference with a business expectancy and negligent infliction of emotional distress counts. The District Court did not, however, render summary judgment as to a limited claim under those counts to the extent that the plaintiffs claims related to a 1997 special exception permit application. The District Court also rendered summary judgment on all of the claims alleging intentional infliction of emotional distress and retaliation. The remaining counts were decided by the jury in favor of the defendants on April 16, 2002, and the District Comí; rendered judgment in accordance with that verdict. The plaintiffs appeal to the United States Court of Appeals for the Second Circuit was dismissed on June 18, 2003. See Commission on Human Rights & Opportunities v. Torrington, supra, 96 Conn. App. 317.

While the plaintiffs federal action was pending, Quality Sand and Gravel, Inc., a corporation owned by the plaintiff, appealed in state court from the decision by the commission denying its application for a special exception permit necessary for it to continue to operate its quarry. The court sustained its appeal. Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV-97-0074499-S (June 1, 1998). This court affirmed the Superior Court’s judgment. Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn. App. 533, 738 A.2d 1157 (1999).

While the plaintiff was awaiting the resolution of her appeal from the commission’s denial of her special exception permit, she appealed from the commission’s decision to grant an application for a special exception permit filed by O & G. See Blinkoff v. Planning & Zoning Commission, Superior Court, judicial district of Litchfield, Docket No. CV-98-0078081-S (June 23,1999). The defendants in that action were the commission and O & G. The plaintiff made several allegations in her complaint that the commission’s decision was illegal, arbitrary and an abuse of its discretion. In her brief, the plaintiff raised additional claims of impropriety on the part of the commission. Among those, the plaintiff claimed that a member of the commission, Raymond Turn, had a financial and personal conflict of interest when he acted on O & G’s application because he had worked as a subcontractor for O & G on at least three prior occasions. Although the court noted that it did not consider issues that were raised for the first time in the brief and not alleged in the complaint, the court did address the allegations concerning Turn and concluded that the plaintiff “failed to show that Turn had any actual or perceived conflict of interest, either personal or financial, in O & G’s application, and her appeal on that issue should be rejected.” Id. Addressing the merits of her appeal from the commission’s decision, the court dismissed each of the plaintiffs claims and, accordingly, dismissed her appeal.

The CUTPA action that is the subject of this appeal was brought via a one count complaint served on February 22, 2001, alleging that “[O & G] obtained and exercised unfair advantage in competition” with the plaintiff and Quality and “engaged in unfair and deceptive acts and practices in trade and commerce” and thus violated provisions of CUTPA. Specifically, the plaintiff made eight allegations of misconduct in paragraph six of her amended complaint, alleging that O & G placed public officials on its payroll for the reason that they were public officials or were related to public officials (6A); made political contributions to public officials with the understanding that local rules and regulations would be applied favorably to O & G in comparison with the plaintiff (6B); caused the plaintiffs permits to be denied when O & G’s permits under the same circumstances were granted (6C); caused business regulations to be applied and enforced in a discriminatory manner against the plaintiff (6D); made arrangements to tie the sale of certain products to others (6E); caused bid specifications to be written in such a way that only O & G could meet them (6F); enforced noncompetition requirements against potential competitors (6G); and caused bidding requirements to be waived when waiver benefited O & G (6H). O & G moved for summary judgment as to all of the plaintiffs eight allegations and submitted documentation in support of the motion. The court rendered summary judgment as to each of the allegations on the following bases: collateral estoppel on allegations 6A, 6B, 6C, 6D, 6F and 6H; statute of limitations on allegations 6A, 6B, 6C, 6D, 6E, 6F and 6H; Noerr-Pennington doctrine on allegations 6C, 6D and 6F; and lack of competent evidence on allegation 6G. This appeal followed. Additional facts will be set forth as necessary.

We review this matter under our well settled standard of review. A court shall render summary judgment “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.” Practice Book § 17-49. “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. . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts. . . . Our review of [a] trial court’s decision to grant [a] defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 26-27, 930 A.2d 682 (2007). “A defendant’s motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Internal quotation marks omitted.) Brunswick v. Safeco Ins. Co., 48 Conn. App. 699, 704, 711 A.2d 1202, cert. denied, 247 Conn. 923, 719 A.2d 1168 (1998).

I

We first address the seven allegations that were found to be barred by the applicable statute of limitations. “Summary judgment may be granted where the claim is barred by the statute of limitations.” Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the “material facts concerning the statute of limitations [are] not in dispute . . . .” Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). General Statutes § 42-1 lOg (f), which governs CUTPA claims, provides: “An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.” “Where ... a specific limitation is contained in the statute that creates the right of action and establishes the remedy, then the remedy exists only during the prescribed period and not thereafter.” Moore v. McNamara, 201 Conn. 16, 22-23, 513 A.2d 660 (1986). This statute of limitations is jurisdictional. Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 700, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). The plaintiff caused this CUTPA action to be served on February 22, 2001. Therefore, the alleged CUTPA violations must have occurred on or subsequent to February 22, 1998, to survive.

With the three year statute of limitations in mind, we turn to the plaintiffs allegations contained in paragraph six of the complaint. We first consider those subpara-graphs that alleged improper conduct specifically by O & G. These include the hiring of public officials (6A), making political contributions in return for favorable treatment (6B), tying products to one another to eliminate the plaintiff from the competition (6E) and enforcing noncompetition requirements against potential competitors (6G).

In subparagraph 6A, the plaintiff alleged that O & G employed members of the commission because they served on the commission. This allegation concerns two commission members in particular, Turri and Rita Pacheco. We first consider Turri. The plaintiff argues that although Turn was never an employee of O & G, he was influenced by O & G because it engaged him as a subcontractor on multiple occasions. In support, the plaintiff relies on several applications and permits that tend to show a business relationship between the two. These include a building permit showing O & G as the applicant and Charlotte Hungerford Hospital of Torrington as the owner, dated November 10, 1997; an application for an electrical permit by Turri as the contractor to work on property owned by Charlotte Hungerford Hospital, dated October 14, 1998; an application for an electrical permit by Turri as the contractor to work on property owned by Charlotte Hungerford Hospital, dated November 17, 1997; an application for an electrical permit by Turri as the contractor to work on property owned by Charlotte Hungerford Hospital, dated December 14, 1998; a building permit with O & G as the applicant and Charlotte Hungerford Hospital as the owner, dated May 1, 1997; an application for an electrical permit by Turri as the contractor to work on property owned by O & G, dated March 21, 1997; a building permit application for O & G for work to be conducted at Charlotte Hungerford Hospital, dated June 12, 1995; and a building permit application for O & G for work to be conducted at the Northwest Connecticut Association for the Arts, dated August 25, 1997. All but two of these documents predate the relevant statutory period. The two that fall within the period list Turri only, and not O & G, as the applicant for the electrical permits. With regard to Pacheco, the plaintiff refers to the fact that an employee of O & G recommended Pacheco for a position on the permanent commission on the status of women as evidence of impropriety. The recommendation letter that was submitted by the plaintiff to demonstrate this relationship is dated March 26, 1996, well before the statutory time period.

The plaintiff also claims that the city of Torrington retained the services of a consultant, Bruce Hoben, who allegedly is a cousin of Maurice Hoben, an employee of O & G. All but one of the documents submitted by the plaintiff as proof of this relationship are reports or recommendations made before the statutory period. The one document falling within the statutory period concerns O & G’s quarry in Woodbury, not Torrington, and that document is not in proper evidentiary form. Furthermore, O & G submitted affidavits from Maurice Hoben and Bruce Hoben attesting to the fact that the two have never spoken about Bruce Hoben’s consulting activities on behalf of Torrington. The plaintiff provided no evidence to challenge these affidavits. See Practice Book § 17-45.

In subparagraph 6B, the plaintiff alleged that O & G made political contributions to public officials in exchange for favorable treatment. In her deposition, the plaintiff referred only to one such contribution that occurred within the statutory period, a contribution of $250 by Raymond R. Oneglia, an employee of O & G, to the campaign of the then incumbent Torrington mayor, Mary Jane Gryniuk, on October 6, 1999. This contribution, however, was made by Oneglia in his personal capacity and not on behalf of O & G. Oneglia submitted an affidavit stating that this was a personal contribution and that there was no effort to attach any influence to the contribution. In her deposition, the plaintiff also refers to a contribution made by Thomas Gelormino in 1999. The plaintiff claims that Gelormino was “extremely close friends” with Oneglia and was the president of Vets Explosives, a supplier of dynamite to O & G. The plaintiff did not provide a factual basis from which the contribution of Gelormino can be imputed to 0 & G. Additionally, Oneglia’s affidavit states that O & G, as a corporate entity, never solicited or made political contributions. The plaintiff presents no evidence to challenge this. The plaintiff stated in a deposition that she had no knowledge of any “deal” between 0 & G and a Torrington official. Furthermore, O & G submitted affidavits denying that it employed any Torrington official, with one exception, after February 22, 2008. On the basis of evidentiary materials submitted to the court, then, it properly found that there was no genuine issue of fact as to the statute of limitations defense to subparagraph 6B.

We turn next to the plaintiffs allegation, set forth in subparagraph 6E of the amended complaint, that O & G exercised unfair advantage over the plaintiff by tying the sale of certain products only available from O & G to other products more generally available. In deposition testimony, the plaintiff claimed that she was told about supposed tying arrangements by a number of unnamed sources between 1992 and 1997. She made no allegations of any tying arrangements occurring after 1997, and the evidence she did provide was hearsay and not sufficient to create a genuine issue of fact. O & G submitted an affidavit denying the existence of any such tying arrangements. Therefore, summary judgment on statute of limitations grounds was appropriate as to this claim.

The second group of allegations concerned improper conduct by commission members, which was “caused” by O & G. In subparagraph 6C of the complaint, the plaintiff alleged that O & G caused the plaintiffs permits to be denied when, under similar circumstances, they would have been approved for O & G. The commission’s denial of her application occurred on July 23, 1997, and the granting of O & G’s application occurred on September 23, 1998. In addition to the fact that the denial of the plaintiffs application occurred outside of the statutory period, O & G has submitted an affidavit attesting that it has never taken a position with Torring-ton or the commission in opposition to any application by or on behalf of the plaintiff or Quality Sand and Gravel. The plaintiff has failed to submit any evidence to the contrary. In subparagraph 6D, the plaintiff alleged that O & G caused business regulations to be applied and enforced unequally between the plaintiff and itself. O & G has submitted an affidavit attesting that it never induced the commission or any public official to favor O & G over the plaintiff or Quality Sand and Gravel in any business dealing, permitting or enforcement action. The plaintiff has failed to present any evidence that the tortious or prohibited conduct alleged in subparagraphs 6C and 6D occurred within the statutory period.

In subparagraph 6F, the plaintiff alleged that O & G caused bid specifications to be written by public officials under its control in such a way that only O & G could meet them. In subparagraph 6H, the plaintiff alleged that O & G caused public officials to waive bidding requirements when it was likely that the plaintiff would be bidding against O & G. These allegations were premised on some level of influence or control being exercised by O & G over members of the commission or other Torrington officials. O & G has submitted affidavits denying any such conduct, and the plaintiff has failed to present any evidence to raise a genuine issue of material fact as to whether any such conduct occurred within the statutory period.

As to all of the allegations other than 6G, then, there is no genuine issue of fact as to whether O & G’s conduct, if any, occurred after February 22, 1998. The plaintiff suggests, however, that the continuing course of conduct doctrine applies to toll the statute of limitations. “When the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed. . . . [I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act. . . . The continuing course of conduct doctrine is conspicuously fact-bound.” (Citation omitted; internal quotation marks omitted.) Sanborn v. Greenwald, 39 Conn. App. 289, 295, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995).

In sum, “a precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff.” Sherwood v. Danbury Hospital, 252 Conn. 193, 204, 746 A.2d 730 (2000) (en banc). Second, “there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. . . . [T]hat continuing wrongful conduct may include acts of omission as well as affirmative acts of misconduct . . . .” (Citations omitted; internal quotation marks omitted.) Id., 204-205.

The plaintiff alleged that the commission’s appeal from the 1998 trial court decision that overturned the commission’s decision to deny a special exception permit for the plaintiffs quarry constituted “sham litigation” that should toll the statute of limitations. At the outset, we note again that O & G was not a party to that action. The plaintiff seems to argue that O & G’s influence over the commission caused the commission to pursue the appeal. The plaintiff has submitted no evidence to support her claim that O & G had any role in the commission’s decision to appeal. O & G has submitted an affidavit in which it attests that it never took a position adverse to the plaintiff on any of her permit applications. O & G was a party to only one appeal during the statutory period. That appeal was filed by the plaintiff to challenge the commission’s decision to grant O & G a special exception permit. See Blinkoff v. Planning & Zoning Commission, supra, Superior Court, Docket No. CV-98-0078081-S. O & G prevailed on that appeal. The plaintiff herself instituted that appeal.

There was no other conduct within the statutory period that arguably could support the continuing course of conduct doctrine. A predicate to the application of the continuing course of conduct doctrine is that the defendant must owe the plaintiff a continuing duty after an initial wrongful act or omission. See Blanchette v. Barrett, 229 Conn. 256, 275, 640 A.2d 74 (1994). For there to be a genuine issue as to a continuing duty, there must be evidence of either a special relationship between the parties or some later wrongful conduct of the defendant related to the prior act. See id. There was clearly no special relationship between the parties, such as an attorney-client relationship, that would give rise to any continuing duty to act. For there to be a genuine issue as to the continuing course of conduct doctrine in this case, then, O & G must have committed some later wrongful conduct related to the prior act, and the initial act or omission was wrongful. See Sherwood v. Danbury Hospital, supra, 252 Conn. 204.

The plaintiff has failed to submit competent evidence to show that there was an initial wrongful act prior to the statutory period sufficient to trigger a course of conduct analysis and later related conduct within the period. The plaintiffs argument that the continuing course of conduct doctrine should apply is based on the commission’s decision to appeal from the trial court judgment that sustained the plaintiffs appeal from the commission’s denial of a special exception permit for the plaintiff. We assume that the prior related act is the initial decision by the commission, allegedly under the influence of Tuni and Pacheco, who were beholden to O & G, to deny the plaintiffs permit. The propriety of the commission’s conduct, and that of its members, however, has already been litigated in federal court and has been decided in favor of the commission. A claim that those actions are tortious is therefore barred by collateral estoppel.

“[Collateral estoppel, or issue preclusion, is that aspect of res judicata that prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim. ... An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. ... 1 Restatement (Second), Judgments § 27, comment (d) (1982).” (Citations omitted; emphasis in original; internal quotation marks omitted.) Efthimiou v. Smith, 268 Conn. 499, 506-507, 846 A.2d 222 (2004).

In Efthimiou, our Supreme Court held that when the liability of a defendant in an action is derivative of the liability of a defendant in a prior action, and the liability of the prior defendant was “properly raised in the pleadings or otherwise, submitted for determination, and in fact determined” and “that determination was essential to the judgment in the companion case, and it remains unchallenged,” the plaintiff in a present action is collaterally estopped from relitigating that issue in the present action. (Internal quotation marks omitted.) Id., 507. In the present case, the plaintiffs allegations that O & G improperly influenced the commission are premised on some wrongdoing on the part of the commission. This issue was litigated and decided in the earlier federal action. In particular, the plaintiffs allegations in subparagraphs 6C, 6D, 6F and 6H, and to some degree 6A and 6B, all claim that O & G caused the commission to act improperly. The allegations that the commission, and Turri and Pacheco in particular, acted improperly were fully litigated and decided against the plaintiff in the federal action. All of the plaintiffs allegations against the commission and its members in the federal action were disposed of either by summary judgment or by the jury, which specifically rejected each of the plaintiffs remaining claims in the jury interrogatories. Under Efthimiou, the actions of a defendant in a prior action, having been fully litigated in the prior proceeding, cannot be imputed to the current defendant if the relevant issues were decided against the plaintiff in the prior proceeding. Because the plaintiff has not presented evidence that O & G committed a prior wrong giving rise to a continuing duty, nor evidence of subsequent related conduct within the statutory period, the plaintiffs continuing course of conduct argument must fail. We conclude that the court properly rendered summary judgment on statute of limitations grounds with respect to the plaintiffs allegations in subparagraphs 6A, 6B, 6C, 6D, 6E, 6F and 6H.

II

Having concluded that the court properly decided seven of the plaintiffs eight allegations on statute of limitations grounds, we must address the plaintiffs remaining allegation, contained in subparagraph 6G of the amended complaint, that O & G enforced noncom-petition requirements among potential competitors in the area. O & G moved for summary judgment on this allegation on the ground that it lacked competent evidence. We agree with O & G because the plaintiff has failed to present any evidence to raise a genuine issue of material fact as to this allegation.

The plaintiff bases this allegation on a conversation between the plaintiff and an alleged employee of a competitor in which the employee described a noncompete agreement with O & G. In a deposition, the plaintiff admitted that the employee later denied the existence of any such agreement. Also, the plaintiff admitted that she had never seen the agreement. In response, O & G has submitted an affidavit attesting that it has not entered into any agreement with any competitor that would limit or restrict the competitor’s right to sell its products in competition with O & G. The plaintiff has failed to produce any evidence sufficient to raise a genuine issue of material fact regarding the existence of any noncompete agreements. Therefore, in light of O & G’s affidavit and the lack of any competent evidence submitted by the plaintiff in opposition, the court properly concluded that there was no genuine issue of material fact with respect to the plaintiffs allegation that O & G was enforcing noncompetition requirements against potential competitors.

The judgment is affirmed.

In this opinion the other judges concurred.

       A corporation apparently controlled by Blinkoff, Quality Sand and Gravel, Inc., was a plaintiff in the trial court. Because only Blinkoff has appealed, we refer to her as the plaintiff.

       The parties and the trial court analyzed independently each of the allegations of CUTPA violations. We will take the same approach.

       Because we conclude that the court properly rendered summary judgment on the basis of the statute of limitations as to seven of the eight allegations and on the eighth allegation on the ground that it lacked competent evidence, we need not reach the plaintiffs other claims in this appeal.

       The United States District Court for the District of Connecticut dismissed without prejudice the two counts of the plaintiffs action that alleged discrimination in violation of state law. Blinkoff v. Planning & Zoning Commission, United States District Court, Docket No. 3:97 CV 1345 (D. Conn. January 9, 2002). No release had been obtained pursuant to General Statutes § 46a-101.

       Several of the allegations that the plaintiff made in the federal action are functionally identical to or derivative of those made in the present case. In particular, the allegations contained in subparagraphs 6A, 6B, 6C, 6D, 6F and 6G of the complaint in this CUTPA action are the same as the allegations made by the plaintiff in her federal complaint.

       The plaintiff makes the same claim regarding an alleged improper relationship between Turn and the commission in the CUTPA action in the present case.

       The Noerr-Pennington doctrine, which originates from a “trio of federal antitrust cases, California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S. Ct. 609, 30 L. Ed. 2d 642 (1972), United Mine Workers v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965), Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961), and their progeny . . . shields from the Sherman [Antitrust] Act [15 U.S.C. § 1 et seq.] a concerted effort to influence public officials regardless of intent or purpose.” (Internal quotation marks omitted.) Zeller v. Consolini, 59 Conn. App. 545, 550, 758 A.2d 376 (2000). “The Noerr-Pennington doctrine has evolved from its antitrust origins to apply to a myriad of situations in which it shields individuals from liability for petitioning a governmental entity for redress.” Id., 551. The doctrine is applicable to “claims which [seek] to assign liability on the basis ofthe defendant’s exercise of its first amendment rights.” (Internal quotation marks omitted.) Id.

       O & G acknowledged that it employed one Torrington official during this period, Frank Rubino, but attested that he never served on a commission panel that took action adverse to the plaintiff and never decided an issue involving O & G.

       The commission’s granting of O & G’s application occurred later than February 22, 1998. This action, however, is not conduct of 0 & G, and submitting an application in itself is not alleged to be tortious. Whether the action of the commission can be considered a tortious act for the purpose of the continuing course of conduct doctrine will be considered in this opinion.

       Additionally, there are no facts advanced to suggest that acts of the commission are attributable to O & G. In the absence of any evidence of a related act by the defendant within the statute of limitations, the claim is barred. See Sherwood v. Danbury Hospital, supra, 252 Conn. 203-204, and cases cited therein.

       See footnote 10.


author: PER CURIAM.

text:
    WILLIAM C. WASHINGTON v. COMMISSIONER OF CORRECTION
    (AC 29309)
    McLachlan, Lavine and Schaller, Js.
    Argued December 9, 2008
    officially released March 3, 2009

      Deren Manasevit, special public defender, for the appellant (petitioner).

      Melissa Patterson, deputy assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and Peter A. McShane, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, William C. Washington, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims on appeal that the court abused its discretion in denying his petition for certification to appeal and improperly rejected his claim that his trial counsel and first habeas counsel rendered ineffective assistance. We disagree and dismiss the appeal.

The record reveals the following facts and procedural history. The petitioner was charged with attempt to commit murder, assault in the first degree, carrying a pistol without a permit and escape in the first degree, following an August 6, 1993 incident in which he shot an acquaintance. The petitioner pleaded not guilty to all charges and elected a jury trial. Dming his trial, on October 31,1994, the petitioner withdrew his not guilty pleas and entered an Alford plea on the charge of attempt to commit murder and guilty pleas on the remaining charges. On December 13, 1994, the petitioner was sentenced to a total effective term of thirty years of incarceration, execution suspended after twenty-five years, and three years of probation.

On April 20,1995, the petitioner filed a pro se petition for a writ of habeas corpus. The petitioner alleged that prior to his trial, in May, 1994, the state offered him a plea agreement in which he would plead guilty to all of the charges in exchange for a total effective sentence of ten years, execution suspended after five years. The petitioner argued that although he initially rejected the offer, he later changed his mind but could not communicate that to the state because his attorney had taken an extended leave of absence from May to October, 1994. When he finally reached his attorney in early October, 1994, the petitioner expressed his desire to accept the offer. When his attorney contacted the state’s attorney, however, the state’s attorney stated that the offer was no longer available. Instead, the state offered a new agreement consisting of fourteen years of incarceration, execution suspended after seven years. The petitioner rejected this offer and elected a jury trial. The petitioner claimed that his trial counsel rendered ineffective assistance because counsel’s extended leave of absence deprived the petitioner of the opportunity to accept the original plea offer. For his habeas relief, the petitioner requested that he be allowed to accept the original offer.

On May 24,1995, counsel was appointed to represent the petitioner at the upcoming habeas trial. On July 24, 1996, counsel filed a motion to withdraw, accompanied by an Anders brief, on the ground that he could not identify any nonfrivolous argument in support of the petitioner’s claim. The court held a hearing on counsel's motion and subsequently granted it on September 23, 1996, stating: “ [A]fter hearing the evidence in this matter and after further reviewing the petitioner’s habeas corpus file . . . this matter is wholly without merit.”

The petitioner commenced the present habeas action in 1999 and filed a second amended petition for a writ of habeas corpus on November 8, 2004. In the first count, the petitioner alleged again that his trial counsel rendered ineffective assistance because his extended leave of absence deprived the petitioner of the benefit of the original plea agreement. In the second count, the petitioner alleged that his habeas counsel from his first proceeding rendered ineffective assistance in that he did not review the transcripts from the underlying criminal matter before filing the motion to withdraw and failed to address the petitioner’s claim adequately.

On September 25, 2007, the court held an evidentiary hearing on the petitioner’s claims and on October 2, 2007, issued a written decision denying the petition. In its decision, the court found that contrary to the petitioner’s assertions, the evidence produced at the hearing indicated that his trial counsel did not take an extended leave of absence and, therefore, did not cause the loss of the original plea offer. The court further found that even if trial counsel had improperly taken an extended leave of absence, the petitioner had no vested interest in the first offer. The court concluded that the petitioner received effective assistance from his trial counsel and, therefore, received effective assistance from his habeas counsel, as there were no nonfriv-olous arguments for his habeas counsel to make against his trial counsel. On October 10, 2007, the court denied the petitioner’s petition for certification to appeal to this court, and this uncertified appeal followed.

We begin by setting forth the applicable standard of review. “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits.

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Bloomfield v. Commissioner of Correction, 111 Conn. App. 752, 756, 960 A.2d 1093 (2008), cert. denied, 290 Conn. 912, 964 A.2d 547 (2009).

“We examine the petitioner’s underlying claimfs] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Internal quotation marks omitted.) Parrott v. Commissioner of Correction, 107 Conn. App. 234, 236, 944 A.2d 437, cert. denied, 288 Conn. 912, 954 A.2d 184 (2008).

On appeal, the petitioner asserts that the court abused its discretion in denying his petition for certification to appeal because the resolution of the following three claims involves issues that are debatable among jurists of reason and could be decided in a different manner: (1) whether trial counsel’s breach of the duty to ensure timely acceptance of a plea offer constitutes ineffective assistance; (2) whether habeas counsel’s failure to read the trial transcript prior to filing his Anders brief constitutes ineffective assistance; and (3) whether habeas counsel’s failure to address the petitioner’s claim correctly constitutes ineffective assistance.

The petitioner’s first claim is premised on his factual allegation that his trial counsel took an extended leave of absence from May to October, 1994. The court, however, credited trial counsel's testimony that he was absent no longer than one or two weeks and found that trial counsel did not, in fact, cause a delay in the petitioner’s attempt to accept the plea agreement. The petitioner argues that this factual finding is clearly erroneous, and, therefore, “[t]his leaves on the table the legal question of [trial counsel’s] obligation to relay the [petitioner's acceptance of the plea bargain before it expired.” The court, however, is the sole arbitrator of credibility issues and is entitled to arrive at its conclusion regarding the witness’ credibility and what weight to afford his testimony. See Mitchell v. Commissioner of Correction, 109 Conn. App. 758, 763, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008). “Appellate courts do not second-guess the trier of fact with respect to credibility.” Vasquez v. Commissioner of Correction, 111 Conn. App. 282, 287 n.4, 959 A.2d 10, cert. denied, 289 Conn. 958, 961 A.2d 424 (2008). Contrary to the petitioner’s assertion, the question of whether trial counsel has an obligation to relay an acceptance of a plea agreement before it expires is not implicated in this case.

As to the petitioner’s second claim, given the nature of the petitioner’s claim in his first petition for a writ of habeas corpus, we conclude that it was not necessary for the petitioner’s first habeas counsel to review the transcripts from the plea proceeding and sentencing hearing before filing an Anders brief. The petitioner’s first habeas counsel testified at the petitioner’s second habeas proceeding that it would have been necessary to read the transcripts of those proceedings only if a claim were made with regard to the vohmtariness of a plea. The petitioner made no such claim in his pro se petition; instead, the focus of his claim was that the plea offer was withdrawn before he could accept it due to his trial counsel’s inappropriate leave of absence. This claim is entirely unrelated to the events at his plea proceeding and sentencing hearing. Moreover, the petitioner’s first habeas counsel testified that he eventually reviewed the transcripts and did not find any relevant material but that if he had, he would have withdrawn the Anders brief.

Finally, the petitioner argues that his first habeas counsel failed to address his claim properly because, in the Anders brief, counsel mischaracterized the petitioner’s claim to be that the state illegally withdrew the first plea offer, as opposed to a claim that trial counsel was ineffective. The basis for habeas counsel’s motion to withdraw and the accompanying Anders brief was that no nonfrivolous argument existed in support of the petitioner’s claim because the petitioner could not obtain the relief he requested. Specifically, habeas counsel maintained that under Mabry v. Johnson, 467 U.S. 504, 104 S. Ct. 2543, 81 L. Ed. 2d 437 (1984), the petitioner had no right to the original plea offer. The petitioner’s requested relief is the same under either characterization of the claim; thus, habeas counsel’s mischaracterization in his Anders brief was not the reason the court found the claim to be “wholly without merit.”

We conclude that the court did not abuse its discretion in denying the petitioner certification to appeal because he has not demonstrated “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Simms v. Warden, supra, 230 Conn. 616.

The appeal is dismissed.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       Under Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), “if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” Such a request must be “accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id.

       The petitioner also claimed that he was denied due process under the fourteenth amendment to the United States constitution “when he was denied appellate counsel in the appeal of his prior habeas petition.” This claim, however, was not mentioned at the habeas proceeding, nor in the court’s memorandum of decision, and is not raised in this appeal.

       “A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest.” Mabry v. Johnson, supra, 467 U.S. 507.