author: BISHOP, J.

text:
    HAYES FAMILY LIMITED PARTNERSHIP ET AL. v. TOWN PLAN AND ZONING COMMISSION OF THE TOWN OF GLASTONBURY
    (AC 29304)
    Bishop, Harper and Schaller, Js.

      Argued April 28
    officially released July 14, 2009

      Robert A. Fuller, with whom was Stephen T. Penny, for the appellants (plaintiffs).

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

BISHOP, J.

The plaintiffs, the Hayes Family Limited Partnership, Richard P. Hayes, Jr., and the Manchester/ Hebron Avenue, LLC, appeal from the judgment of the trial court dismissing their zoning appeal from the decision of the town plan and zoning commission of the town of Glastonbury (commission). On appeal, the plaintiffs claim that the commission does not have discretion to deny an application for a special permit when, as in this case, the applicant has complied with all applicable zoning regulations. The plaintiffs further contend that the court improperly concluded that there was substantial evidence in the record to support the commission’s reasons for the denial of their application for a special permit. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts are relevant to the resolution of the plaintiffs’ appeal. On June 27, 2005, the plaintiffs filed an application for a special permit to construct a CVS pharmacy on a 2.4 acre parcel of land located at the comer of Hebron Avenue (Route 94) and Manchester Road (Route 83) in Glastonbury. The plaintiffs proposed to constmct a 13,013 square foot, thirty-two foot high building with seventy parking spaces and a drive-through window on the property. The subject property is comprised of a ledge, which rises steeply from the edges of the roadways to a heavily wooded plateau abutting an established single-family neighborhood in the mral residential zone. The execution of the plaintiffs’ proposal would require the excavation of 80,000 cubic yards of rock and the erection of a 225 foot retaining wall backed by 2:1 slopes. The subject property and the adjacent property to the west, which is occupied by a Shell gasoline station, are located in the planned business and development zone; all other surrounding property on the south side of Hebron Avenue is zoned mral residential. Although the subject property is zoned for commercial development, all uses in the planned business and development zone require a special permit with design review approval.

Commencing on September 6, 2005, the commission held public hearings on the plaintiffs’ special permit application. On November 29, 2005, the commission denied the plaintiffs’ application because of its scale and intensity in relation to the size and topography of the parcel, its impact on and lack of compatibility with the existing neighborhood and the inadequacy of the proposed landscaping.

Thereafter, the plaintiffs appealed to the Superior Court. The court dismissed the plaintiffs’ appeal, stating that the commission’s decision was supported by substantial evidence in the record. This appeal followed.

We begin our analysis by setting forth the standard of review for the denial of an application for a special permit. Our Supreme Court has “observed that [a] special [permit] allows a property owner to use his property in a manner expressly permitted by the local zoning regulations. . . . Nevertheless, special [permits], although expressly permitted by local regulations, must satisfy [certain conditions and] standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values [as required by General Statutes § 8-2]. . . . Moreover, we have noted that the nature of special [permits] is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site.” (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 426, 941 A.2d 868 (2008). “Review of a special permit application is inherently fact-specific, requiring an examination of the particular circumstances of the precise site for which the special permit is sought and the characteristics of the specific neighborhood in which the proposed facility would be built.” Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 457, 853 A.2d 511 (2004).

The plaintiffs contend that because they complied with the Glastonbury building zone regulations (regulations) regarding such requirements as the size of the building, the distance it must be set back from the roadways and the number of parking spaces permitted, the commission did not have the authority or the discretion to deny their application. The plaintiffs’ argument, however, misstates the law and ignores the regulations regarding special permits.

Section twelve of the regulations sets forth the requirements for special permits with design review approval and authorizes the commission to grant a special permit for the purpose of “meeting the provisions of this section and these [regulations.” Section 12.4 requires the commission to consider four general criteria: appropriateness of location or use; conformance with Glastonbury building zone regulations or other applicable laws, codes or ordinances; safety, health and environment; and overall design, architectural treatment and aesthetic character. Included in these general categories are the specific considerations of the size and intensity of the proposed use and its effect on and compatibility with the neighborhood; the topography and landscaping of the site; and the effect on values and utilization of neighborhood properties; the preservation of the character of the neighborhood. Additionally, § 12.5 requires the commission to consider similar factors such as the size and topography of the property, its existing and proposed contours, existing trees and shrubs and proposed landscaping, and the relationship of the proposed uses with the land. The commission’s reasons for denying the plaintiffs’ application trace much of the language of §§ 12.4 and 12.5 of the regulations. Thus, the commission had the discretion to deny the plaintiffs’ application for a special permit on the basis of the reasons cited.

We now consider whether the evidence before the commission adequately supports the reasons given for its decision. “In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which . . . [conclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission]. . . . The question is not whether the trial court would have reached the same conclusion . . . but whether the record before the [commission] supports the decision reached. ... If a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board. ... If there is conflicting evidence in support of the zoning commission’s stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission. . . . The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.” (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 285 Conn. 427. “[E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn. App. 622, 627, 814 A.2d 396, cert. denied, 263 Conn. 901, 819 A.2d 836 (2003).

Here, the record amply supports the commission’s decision. The commission heard evidence that to build the largest CVS possible, the plaintiffs sought to remove the existing hillside comprising the subject property, excavating to within twenty-five feet of the property lines of abutting residential properties, more than 80,000 cubic yards of material, and build a steep-sloped 225 foot long, fourteen foot high retaining wall to accommodate a 13,013 square foot building with a drive-through window, surrounded on three sides by six foot wide sidewalks, two dumpsters, loading docks and seventy parking spaces. The record reflects that the proposed retaining wall was among the largest that the commission had ever reviewed and that it was atypical in that such steep slopes are generally found in connection with road construction projects, not residential neighborhoods. The evidence revealed that the removal of the excavated material from the site would require more than 5700 dump truck loads and more than 11,000 round trips, with a truck leaving the site every two minutes. All existing vegetation would be stripped, and the newly formed slope would be so steep as to render it unlikely to sustain the sparse vegetation proposed by the plaintiffs as a buffer to nearby homes. Additionally, evidence was presented that the plaintiffs’ proposal would directly impact neighboring residential properties not only by way of increased noise and traffic, but also in that it would adversely affect their property values. On the basis of the foregoing and our thorough examination of the record, we conclude that there was adequate evidence to support the commission’s reasons for denying the special permit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs also claim that the intervening defendants, abutting landowners who have sold their interest in their neighboring properties, should not have been allowed to maintain their intervenor status after they sold their properties. Because the intervening defendants did not participate in the appeal, and their status as intervenors has no bearing on the resolution of the plaintiffs’ claims on appeal, we need not address this issue.

       Such slopes are one foot of vertical rise in two feet of horizontal distance.

       Specifically, the commission denied the plaintiffs’ application because: “(1) The scale of the proposal (building size and associated infrastructure) is inappropriate based upon the project intensity in relationship to the parcel size and steep topography. Site development activity and topographic modifications in the form of grading, excavation, vegetation removal and construction of a large retaining wall exceeds acceptable conditions and therefore does not meet the intent and standards of [sjection 12 ([sjpecial [pjermit with [djesign [Review) of the [bjuilding [z]one [Regulations.
      “(2) The project would result in an unacceptable level of impact on neighboring properties, in the form of both noise and visual intrusions, and on the environment, and is therefore incompatible with the existing neighborhood.
      “(3) Landscaping proposed will not adequately replace existing vegetation nor provide adequate buffering to residential properties.”

       The plaintiffs claim that the commission could not deny their application on the basis of the consideration of a neighboring residential zone and that the commission’s “neighborhood” considerations should have been limited to the commercial zone. The plaintiffs have provided no basis for this argument either in the law or in the regulations, nor have we found any. Accordingly, we conclude that this claim is without merit.


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    MA’AYERGI AND ASSOCIATES, LLC, ET AL. v. PRO SEARCH, INC., ET AL.
    (AC 29706)
    Flynn, C. J., and Beach and Borden, Js.

      Argued April 14
    officially released July 14, 2009

      Allen A. Currier, for the appellant (plaintiff Hamza Ma’Ayergi).

      Brenden P. Leydon, for the appellees (defendants).
   Opinion

FLYNN, C. J.

The individual plaintiff Hamza Ma’Ayergi appeals from the judgment of the trial court dismissing his complaint against the defendants, Pro Search, Inc., and Robert N. Jaeger. On appeal, the plaintiff claims that the court improperly dismissed his defamation claim after concluding that he lacked standing to sue in his individual capacity. We agree and, accordingly, reverse in part the judgment of the trial court.

The following facts, as alleged or necessarily implied from the complaint, are relevant to our resolution of the plaintiff’s appeal. See May v. Coffey, 291 Conn. 106, 108, 967 A.2d 495 (2009) (in reviewing “the trial court’s decision to grant a motion to dismiss, we take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a maimer most favorable to the pleader” [internal quotation marks omitted]). The defendant Pro Search, Inc., is a Connecticut corporation, and the defendant Jaeger is its president and sole shareholder. As of September, 2003, the plaintiffs law firm, Ma’Ayergi & Associates, LLC, conducted a title search business and an immigration law practice, employing twelve people. Jaeger was employed at First American Title Insurance Company as its vice president when he approached the plaintiff with a proposal for the plaintiff to expand his title search business. Jaeger proposed that he would use his existing business relationships to expand the plaintiffs title search business in return for a weekly stipend of $2000 and payment of his expenses. He also suggested that the plaintiff form a new company to assume the business being conducted by Jaeger’s wholly owned corporation, Pro Search, Inc. Jaeger proposed that all funds from the plaintiffs prospective new company be deposited into Jaeger’s account so that he could deduct his stipend and his expenses before remitting the balance to the plaintiff.

Jaeger and the plaintiff entered into an oral agreement for the benefit of the plaintiff, the plaintiffs law firm, the plaintiffs prospective new company and the defendants, in September, 2003. The defendants were to operate in an agency capacity for the plaintiff and the plaintiffs company. On October 3, 2003, the plaintiff established the new company, Pro Search of Connecticut, LLC, in accordance with the proposal and agreement of the parties, expecting to see substantial increases in the title abstract business because of Jaeger’s connections. On a monthly basis from September, 2003, to September, 2006, the plaintiff, instead, saw a steady decrease in income from the title abstract business being conducted by Jaeger, who told the plaintiff on several occasions that certain title companies and law firms were dissatisfied with the plaintiffs work. The plaintiffs receipts for abstract of title work went from $800,000 in 2003 to $150,000 in 2006.

The plaintiff subsequently learned that Jaeger was telling title companies and law firms that sending business to Jaeger’s company, Pro Search, Inc., was the same as sending the business to the plaintiffs company, Pro Search of Connecticut, LLC, or to the plaintiffs law firm. Additionally, the plaintiff learned that Jaeger repeatedly told title companies and law firms that the plaintiff was incompetent, as were his employees, and that they were not qualified to conduct title abstract work in a proper manner. Many of the plaintiffs customers were redirected to Jaeger and Pro Search, Inc.

On the basis of these alleged facts, the plaintiffs brought an eleven count complaint against the defendants. All of the counts were brought on behalf of the plaintiff, his law firm and his company, and all of the counts were brought against both defendants.

On September 20, 2007, the defendants filed a motion to dismiss the complaint in its entirety as to the plaintiff on the ground that he did not have standing to assert claims on his behalf for harm caused to a limited liability company. On December 11, 2007, the court granted the motion, specifically adopting the reasoning in the defendants’ brief. After the plaintiffs filed a motion for clarification, the court clarified its judgment, on January 8, 2008, by stating: “The decision of December 11, 2007 stands. The matter was not properly [pleaded] regarding an individual’s claim of defamation. Furthermore, a derivative claim of an individual must be properly [pleaded].” This appeal followed.

On appeal, the plaintiff claims that the court improperly granted the motion to dismiss. Although he makes a general statement regarding the complaint in its entirety, his brief focuses on the court’s dismissal of the defamation count of the complaint. This also was the focus of his oral argument before this court and of his arguments before the trial court. Insofar as the plaintiff makes an argument that he, individually, has standing to assert all of the causes of action on behalf of his companies because he is the sole member of those companies, we do not agree. Similar to Louis XIV’s declaration, “Je suis l’etat,” the plaintiff, in effect, argues that he is his company. However, “[a] corporation is a separate legal entity, separate and apart from its stockholders. ... It is an elementary principle of corporate law that . . . corporate property is vested in the corporation and not in the owner of the corporate stock. . . . That principle also is applicable to limited liability companies and their members.” (Citation omitted; internal quotation marks omitted.) Litchfield Asset Management Corp. v. Howell, 70 Conn. App. 133, 147, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). In this case, the companies were parties to the action at trial, and, as such, they have asserted their own interests in this lawsuit. Furthermore, the plaintiff admitted during oral argument that there is no difference in the harm alleged or suffered to either of the companies or to him except for that alleged in the defamation count. He also stated that, with the exception of the defamation count, it really made no difference that the claims he asserted individually were dismissed. Accordingly, we focus our analysis on the defamation count.

The plaintiff argues that he properly pleaded a claim of defamation on behalf of himself because, although he alleged injury to his law firm and to his company, he also alleged that the defendants had told prospective clients that he was incompetent and that he could not properly perform abstract of title work. He further argues that the fact that he is the sole member of a limited liability company should not interfere with his right to bring a defamation claim against people or entities who specifically slandered him and ruined his individual professional reputation. We agree.

In reviewing the court’s decision to grant a motion to dismiss, “we take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... [A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.” (Citation omitted; internal quotation marks omitted.) May v. Coffey, supra, 291 Conn. 108.

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue .... Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests. . . .

“The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Practice Book § 10-31 (a). [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute. . . . Because a determination regarding the trial court’s subject matter jurisdiction raises a question of law, our review is plenary.” (Citation omitted; internal quotation marks omitted.) May v. Coffey, supra, 291 Conn. 112-13.

The plaintiff claims that the court improperly determined that he did not have standing to assert an individual cause of action for defamation against the defendants. He argues that he alleged, in part, that the defendants had attacked and challenged his individual reputation and competence and that this gives him standing in his individual capacity to assert such a cause of action. The defendants argue that the plaintiff cannot assert a claim, in his individual capacity, for an alleged wrong to a limited liability company because that would amount to a derivative action, which,is improper under May. We disagree with the defendants and conclude that the plaintiff did plead damage to his individual professional reputation and that the law of derivative actions is not applicable to the plaintiffs individual claim of defamation.

We began our analysis by discussing the law of derivative actions and why it is inapplicable to the individual claim of defamation. “The derivative suit is an action brought on behalf of a corporation by some percentage of its shareholders. Ross v. Bernhard, 396 U.S. 531, 538, 90 S. Ct. 733, 24 L. Ed. 2d 729 (1970). [In many of these actions, the] corporation is in an anomalous position of being both a defendant and a plaintiff in the same action. This unusual posture for the corporation is the result of the historical evolution of the derivative suit. At common law, there was no action in law permitting a shareholder to call corporate managers to account. Id., 534. In equity, there were two actions that evolved into a single derivative action: in one action the corporation was named as a defendant in order to compel it to take action against its controlling officers; in the second, the shareholder maintained an action against the officers and directors of the corporation, on behalf of the corporation. The dual actions were cumbersome and evolved into the present day unitary derivative action.” Rosenfield v. Metals Selling Corp., 229 Conn. 771, 790-91, 643 A.2d 1253 (1994). “A shareholder’s derivative suit is an equitable action by the corporation as the real party in interest with a stockholder as a nominal plaintiff representing the corporation. ... It is designed to facilitate holding wrongdoing directors and majority shareholders to account and also to enforce corporate claims against third persons.” (Citations omitted.) Barrett v. Southern Connecticut Gas Co., 172 Conn. 362, 370, 374 A.2d 1051 (1977).

“The use of a nominal plaintiff in a derivative action makes it an unusual procedural device by reason of its dual nature in that it consists of the basic cause of action, which pertains to the corporation and on which the corporation might have sued, and the derivative cause of action, based upon the fact that the corporation will not or cannot sue for its own protection. . . . Thus the dual nature of the stockholder’s action: first, the plaintiffs right to sue on behalf of the corporation, and, second, the merits of the corporation’s claim itself.” (Citation omitted; internal quotation marks omitted.) Id.

A derivative action is one brought on behalf of a company, where the company cannot or will not sue on its behalf for its injuries. In the present case, the company was a party to the action, and each count of the complaint was brought by the company and the law firm. As far as the defamation count, which is the only count relevant to this appeal, it was brought by the company, the law firm and the plaintiff, in his individual capacity. This fact alone makes the case very different from cases such as May, in which the minority shareholders attempted to assert a claim against the majority shareholders on behalf of the corporation.

The defamation count in the present case alleges that Jaeger made repeated representations to business associates that “the plaintiff and his company’s employees were incompetent and incapable of properly completing title abstracts . . . [and that he] sought to defame the plaintiffs in order to destroy his professional reputation and thereby divert his sources of business, and the revenue relative thereto, to himself and his company. ... As a consequence thereof the plaintiffs have been damaged by loss of revenue estimated to exceed $1,000,000 for the period from September 2003 to the date of this complaint.” Although the complaint may be inartfully drafted, and confusing in parts, taking the facts alleged in the defamation count, including those facts necessarily implied, and construing them in a manner most favorable to the plaintiff, we conclude that the plaintiff has alleged harm to his individual professional reputation in addition to the harm that the company or law firm may have alleged. The count, at least in part, alleges that the defendants, or more particularly, Jaeger, had publicly attacked the plaintiffs competence and ability to perform title abstracts in a proper manner. This alleged, at least in part, an injury that was personal to the plaintiffs individual reputation and, accordingly, could not be considered derivative. Although the count also alleges specific harm to the plaintiffs company or the plaintiffs law firm, that does not take away from the allegations that his personal professional reputation has been tarnished by the defendants’ slanderous words.

The judgment is reversed in part and the case is remanded with direction to deny the defendants’ motion to dismiss as to the plaintiffs defamation claim and for further proceedings according to law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The remaining plaintiffs, Ma’Ayergi & Associates, LLC (the plaintiffs law firm), and Pro Search of Connecticut, LLC (the plaintiffs company), are not parties to this appeal. We will refer to Hamza Ma’Ayergi as the plaintiff for purposes of this opinion.

       The complaint alleged breach of contract, breach of fiduciary duty, misrepresentation or fraud (two counts), tortious interference with business expectancies, statutory theft, violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.; defamation, upjust enrichment and conversion and sought an accounting.

       “I am the state.”


author: LAVINE, J.

text:
    TIMOTHY TOWNSEND, JR. v. MARK HOGAN ET AL.
    (AC 29703)
    Lavine, Beach and Dupont, Js.
    Argued April 27
    officially released July 14, 2009

      Timothy Townsend, Jr., pro se, the appellant (plaintiff).

      Henri Alexandre, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendants).
   Opinion

LAVINE, J.

The plaintiff, Timothy Townsend, Jr., appeals from the trial court’s judgment dismissing the action for lack of subject matter jurisdiction. On appeal, the plaintiff claims that the court improperly concluded that it lacked subject matter jurisdiction to hear an appeal from a disciplinary hearing decision of the department of correction (department). We affirm the judgment of the trial court.

The following facts and procedural history are relevant for our consideration of the appeal. On November 12, 2005, the plaintiff was incarcerated at a correctional facility and became involved in an altercation with another inmate and staff. The defendants in the matter are Mark Hogan, Sandra Savage, Angel Quiros, Daniel Martin, Mark Strange, John Doe, Amanda Hannah and a disciplinary hearing officer identified only as Soto, who were at all relevant times employees at the correctional facility where the plaintiff was incarcerated. Following a guilty finding at a prison disciplinary hearing, the plaintiff filed an administrative appeal pursuant to General Statutes §§ 4-183 and 18-78a. On June 27, 2007, the defendants filed a motion to dismiss on the ground that the court lacked subject matter jurisdiction to hear the plaintiffs appeal because there is no statutory right to appeal to the court from the department’s disciplinary hearing decision. The plaintiff filed an objection on July 6, 2007, claiming that the court did not lack subject matter jurisdiction because he had a statutory and constitutional right to file an administrative appeal from the decision.

Following a hearing, the court granted the defendants’ motion on January 22, 2008. In its memorandum of decision, the court concluded that it lacked subject matter jurisdiction because General Statutes §§ 18-78a and 4-166 (2) “expressly and unequivocally” excluded the plaintiffs appeal from the provisions of the Uniform Administrative Procedure Act (act), General Statutes § 4-166 et seq. The plaintiff, who is acting pro se, filed the present appeal on March 5, 2008, claiming that the court improperly concluded that it lacked subject matter jurisdiction to hear his appeal. We disagree.

Section 18-78a, in relevant part, applies provisions of the act to the department. Section 4-183 (a), which is a part of the act, provides in relevant part that “[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section.”

Our Supreme Court has addressed § 4-183 (a) in the context of a statutory right to appeal from an action of the board of pardons and paroles and stated: “Whether the plaintiff has a statutory right to appeal from the board’s action under § 4-183 (a) is a question of statutory interpretation over which our review is plenary. . . . We begin our analysis with the language of the statute. Section 4-183 (a) provides in relevant part that [a] person who has exhausted ah administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . . General Statutes § 4-166 (3) (A) defines [f]inal decision as the agency determination in a contested case . . . .” (Citation omitted; internal quotation marks omitted.) Missionary Society of Connecticut v. Board of Pardons & Paroles, 272 Conn. 647, 651, 866 A.2d 538 (2005). The court then noted that subdivision (2) of § 4-166 excluded hearings conducted by the board of pardons and paroles from the definition of “contested case” and held that “the legislature has expressly excluded proceedings before the board from the class of ‘contested cases.’ Therefore, decisions in such proceedings are not ‘final decisions’ for purposes of § 4-183 (a). Accordingly, there is no right to appeal from the board’s decisions.” Id., 652.

We conclude that, similarly, there is no right to appeal from a disciplinary hearing decision by the department. “Contested case” is defined in § 4-166 (2) as a “proceeding ... in which the legal rights, duties or privileges of a party are required by state statute or regulation to be determined by an agency . . . but does not include . . . hearings conducted by the [department of [c]orrection or the [b]oard of [p]ardons and [p]aroles . . . .” (Emphasis added.). General Statutes § 4-166 (2). Because hearings conducted by the department are expressly excluded by the legislature from the class of contested cases under § 4-166 (2), they are not final decisions under § 4-183 (a). See Missionary Society of Connecticut v. Board of Pardons & Paroles, supra, 272 Conn. 652. The plaintiff therefore has no right to appeal from a disciplinary hearing decision rendered by the department.

We conclude that the court properly concluded that it lacked subject matter jurisdiction to hear an appeal from a disciplinary hearing decision of the department.

The judgment is affirmed.

In this opinion the other judges concurred.

       We decline to address any constitutional claims the plaintiff may be attempting to raise. The plaintiff clearly alleged in his complaint that his appeal was administrative and that it was filed pursuant to §§ 4-183 and 18-78a. Nonetheless, the plaintiff appears to argue in his appellate brief that he has a right to file an administrative appeal, or that the court has subject matter jurisdiction to hear it, because he was not afforded due process at his disciplinary hearing. The plaintiff refers to § 18-78a (b), a provision that mentions procedural due process but is inconsequential to the determination of whether the court has subject matter jurisdiction over administrative appeals from disciplinary hearing decisions of the department.
      The plaintiff additionally has stated in his complaint, without providing any legal analysis or citing to any pertinent authority, that he was entitled to file an administrative appeal pursuant to the first amendment to the United States constitution, “the state of Connecticut constitution, article [first, §] 10 . . . and concerns issue of denial of ‘due process,’ and more.” He also has argued in his objection to the defendants’ motion to dismiss that he had a constitutional right to file an administrative appeal.
      We conclude that although the substance of the plaintiffs appeal might have been an allegation that he was deprived of due process at the disciplinary hearing, the court properly considered and reviewed the plaintiffs appeal as an administrative appeal because the plaintiff clearly alleged in his complaint that he was appealing pursuant to § 4-183. We therefore decline to review any vaguely framed or inadequately briefed constitutional issues the plaintiff may be raising. See, e.g., Pasquariello v. Stop & Shop Cos., 281 Conn. 656, 662, 916 A.2d 803 (2007) (our courts exercise sell-restraint so as to eschew unnecessary determinations of constitutional questions).


author: PER CURIAM.

text:
    KAREN A. MURPHY v. CITY OF STAMFORD ET AL.
    (AC 30168)
    Bishop, Lavine and Borden, Js.
    Argued April 20
    officially released July 14, 2009

      Karen A. Murphy, pro se, the appellant (plaintiff).

      Kenneth B. Povodator, assistant corporation counsel, with whom, on the brief, was Thomas M. Cassone, corporation counsel, for the appellee (named defendant).

      Robert G. Rafferty filed a brief for the appellee (defendant DeRosa Tennis Contractors, Inc.).
   Opinion

PER CURIAM.

The pro se plaintiff, Karen A. Murphy, appeals from the judgment of the trial court dismissing her action against the defendants, the city of Stamford (city) and DeRosa Tennis Contractors, Inc. On appeal, the plaintiff claims that the court improperly concluded that she lacked standing to challenge the city on the ground that it had exceeded its spending and bonding authority under the city charter when it made payments under a $5.7 million contract for the construction of four synthetic soccer fields. After reviewing the record and the briefs of the parties and listening to their oral arguments, we conclude that the court properly granted the city’s motions to dismiss. We therefore affirm the judgment of the trial court.

In this action, the plaintiff sought declaratory and injunctive relief relating to the installation of artificial turf on playing fields in three locations in the city by virtue of her status as a taxpayer, claiming that she will suffer an increase in taxes she must pay. The city filed motions to dismiss, claiming that the plaintiff lacked standing to bring the claims. Whether the plaintiff has standing, is a threshold issue.

“Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. . . .” Practice Book § 10-30. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter . . . .” (Internal quotation marks omitted.) Sadloski v. Manchester, 235 Conn. 637, 646 n.13, 668 A.2d 1314 (1995). “[Standing . . . implicates a court’s subject matter jurisdiction, which may be raised at any point injudicial proceedings.” Stamford Hospital v. Vega, 236 Conn. 646, 656, 674 A.2d 821 (1996).

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action . . . .” (Internal quotation marks omitted.) In re Sharon S., 262 Conn. 155, 164, 810 A.2d 799 (2002). “Standing is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy . . . .” (Internal quotation marks omitted.) Water Pollution Control Authority v. OTP Realty, LLC, 76 Conn. App. 711,714,822 A.2d 257 (2003). The “plaintiff has the burden of proving standing.” Sadloski v. Manchester, supra, 235 Conn. 649. West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 901 A.2d 649 (2006), controls the issue of taxpayer standing in this case.

“The plaintiffs status as a taxpayer does not automatically give [it] standing to challenge alleged improprieties in the conduct of the defendant town. . . . The plaintiff must also allege and demonstrate that the allegedly improper municipal conduct cause[d it] to suffer some pecuniary or other great injury. ... It is not enough for the plaintiff to show that [its] tax dollars have contributed to the challenged project .... [T]he plaintiff must prove that the project has directly or indirectly increased [its] taxes ... or, in some other fashion, caused [it] irreparable injury in [its] capacity as a taxpayer.” (Internal quotation marks omitted.) Id., 13.

In Seymour v. Region One Board of Education, 274 Conn. 92, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S. Ct. 659,163 L. Ed. 2d 526 (2005), in which the plaintiff challenged a tax abatement, our Supreme Court stated that “[bjecause standing is a practical concept, common sense suggests that a taxpayer who challenges a part of a particular governmental program must demonstrate [its] injury in the entire fiscal context of that program, taking into account both the burdens and benefits of the program, and not just by demonstrating that the presumably burdensome part of the program itself, divorced from the larger program of which it is a part, causes injury.” (Internal quotation marks omitted.) Id., 103. To assert taxpayer standing, a more stringent standard is imposed than is required to invoke standing on the basis of classical aggrievement. West Farms Mall, LLC v. West Hartford, supra, 279 Conn. 14. Beginning at least in 1943; see Cassidy v. Waterbury, 130 Conn. 237, 245, 33 A.2d 142 (1943); our Supreme court articulated a two-pronged standard of proof for taxpayer standing: “taxpayer status and conduct that has caused or will cause increased taxes or other irreparable injury . . . .” West Farms Mall, LLC v. West Hartford, supra, 14.

In this case, the plaintiff claimed that her taxes probably would increase due to the cost of installing the new artificial surfaces on the playing fields. Although the plaintiff established that she is a taxpayer of the city, the court found that she did not sustain her burden of proof that the installation of the artificial surface caused or will cause increased taxes or other irreparable injury to her. She ignored the evidence presented by the defendants that the ordinary cost of maintaining the fields in their present condition also would cost her money. The plaintiff did not prove that the cost of installing the new artificial surface would exceed the cost of maintaining the present surface.

The plaintiff also claimed that the city violated § C630-13 of the city charter in that the project to install the artificial surface was not referred to the city’s planning board. The court again was guided by West Farms Mall, LLC v. West Hartford, supra, 279 Conn. 1, and Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 427 A.2d 822 (1980), in resolving this claim. Our Supreme Court has “long recognized the capacity of taxpayers of towns and cities to challenge the legality of the actions of their municipal officers by seeking injunctive relief against such action. . . . Such actions may also be brought where the alleged improper action is that of a quasi-municipal corporation. . . . Absent the existence of another special legal relationship . . . however, this court has not recognized the capacity of an individual or a private corporation that has not alleged taxpayers’ status to maintain an action challenging the propriety of the conduct of a municipal corporation. We have said that a party’s status as a taxpayer, without a demonstration by him of some tangible injury, does not by itself confer standing upon him where the defendant is a municipal corporation. . . .

“Thus, our cases in this area have required two conditions for the maintenance of actions seeking to challenge municipal conduct: (1) the plaintiff must be a taxpayer of the defendant municipal entity; and (2) the plaintiff must allege and demonstrate that the alleged improper municipal conduct causes him to suffer some pecuniary or other great injury. . . . The first condition ensures that there be some legal relationship or nexus between the plaintiff and the municipal entity that establishes the municipality’s duty to expend or allocate tax monies in a manner consistent with law. . . . The second condition ensures that our courts will be called upon to decide matters in which the litigants have a specific, legal interest, as distinguished from a mere general interest, in the subject matter of the controversy.” (Citations omitted; internal quotation marks omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra, 179 Conn. 548-49.

The court concluded that the plaintiff in this case had failed to establish her standing as a taxpayer and had failed to demonstrate that the allegedly improper municipal conduct caused her to suffer some pecuniary or other great injury. The court found that the city had presented evidence that the cost of maintaining the fields as they are presently configured was, in fact, more costly than the installation of the artificial surfaces given the need for repeated repair each year. The court found the testimony of the city’s witnesses to be more credible than the plaintiffs arguments.

The judgment is affirmed.

       In light of the facts of West Farms Mall, LLC, our Supreme Court declined “to determine expressly whether a taxpayer has standing to assert a claim predicated on misappropriation of public funds and, if so, what, if any, prerequisites the taxpayer must establish to prevail. ” West Farms Mall, LLC v. West Hartford, supra, 279 Conn. 23.


author: ROBINSON, J.

text:
    BECKENSTEIN ENTERPRISES-PRESTIGE PARK, LLC, ET AL. v. JONATHAN M. KELLER ET AL.
    (AC 28680)
    Harper, Beach and Robinson, Js.

      Argued October 24, 2008
    officially released July 21, 2009

      Michael P. Berman, with whom was Suzanne LaPlante, for the appellants (plaintiffs).

      Richard P. Weinstein, with whom was Nathan A. Schatz, for the appellees (named defendant et al.).
   Opinion

ROBINSON, J.

The present case arises from the sale of commercial property in East Hartford for the amount of $56.9 million. The plaintiffs are the grantors of the property and include the following business entities: Beckenstein Enterprises-Prestige Park, LLC; 155 Realty; Riverview Square, LLC; Riverview Square II, LLC; and Tolland Enterprises. By way of a substituted revised complaint filed on November 30, 2006, the plaintiffs asserted four counts, sounding in tortious interference with a contract, civil conspiracy, breach of the implied covenant of good faith and fair dealing and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., respectively, against the purchasers of the property, including Jonathan M. Keller; the Fremont Group, LLC; Fremont 155, LLC; Fremont 131, LLC; Fremont 183, LLC; Fremont Riverview, LLC; Fremont Prestige Park, LLC; and 654 Tolland Street, LLC. The plaintiffs appeal from the judgment of the trial court, rendered after a jury trial, in favor of the defendants. On appeal, the plaintiffs claim that the court improperly (1) charged the jury that the statute of limitations served to narrow the actionable claims to only those that arose from wrongful conduct occurring after October 4, 2000, (2) refused to allow the plaintiffs to assert and to prove that an earlier action tolled the statute of limitations, (3) denied the plaintiffs’ request for leave to amend their reply and (4) directed a verdict in favor of the defendants on the claim for breach of the implied covenant of good faith and fair dealing. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our review. Robert Beckenstein was the managing partner of various entities that owned and operated a large portfolio of commercial real estate. The various entities were under the general management of Beckenstein Enterprises. In contemplation of his death, Robert Beckenstein decided to liquidate the real estate holdings of Beckenstein Enterprises and to plan for the orderly dissolution of the related companies. To effect this end, Beckenstein negotiated employment agreements with certain members of his executive staff, in particular, offering a significant salary and severance package to his in-house counsel, Dennis Smith, to retain his services during the liquidation process. The term of the employment agreement began on March 1, 1999, and continued through March 1, 2001. During this time, Smith was to provide his services in a full-time capacity.

On May 25, 2000, Smith, acting on behalf of Beckenstein Enterprises, entered into a purchase and sale agreement with the Fremont Group, LLC, an entity controlled by Keller, for the purchase and sale of several commercial properties located in East Hartford. The purchase price stated in the agreement was $58 million. On June 6, 2000, before the sale of the real estate could be finalized, Beckenstein died. By way of a rider to the original agreement, the purchase and sale agreement was subsequently amended on August 17, 2000, and stated an amended purchase price of $56.9 million, $1.1 million less than the original contract price. By limited warranty deeds dated October 26, 2000, a total of twenty-three properties were conveyed to the defendants pursuant to this agreement.

On October 24, 2003, the plaintiffs instituted the present action, alleging that in the months preceding Beckenstein’s death and in the time thereafter, Keller, acting alone and in concert with Smith, used the opportunities presented by the sale of the Beckenstein properties to enrich himself and the entities he controlled. A substituted revised complaint was filed with the court on November 30, 2006. Thereafter, on December 13, 2006, the defendants filed an answer and asserted nine special defenses. The plaintiffs, by way of a reply filed on December 15, 2006, responded with a general denial to each special defense.

The trial commenced on January 24, 2007. On March 1, 2007, the court denied the plaintiffs’ request for leave to amend their reply to the defendants’ statute of limitations defense. Thereafter, at the charging conference held on March 6, 2007, the court issued several oral rulings to address pending matters before the court. Specifically, the court granted the defendants’ motion for a directed verdict on the third count of the substituted revised complaint, sounding in breach of the implied covenant of good faith and fair dealing. The court then denied the plaintiffs’ motion for a directed verdict on the defendants’ statute of limitations defense. After deliberations, the jury returned a verdict in favor of the defendants on the three remaining counts. This appeal followed. Additional facts will be set forth as necessary.

I

Before we can address the plaintiffs’ three claims on appeal regarding the defendants’ statute of limitations defense, we must first address an argument posed by the defendants in their brief. The defendants argue that this court cannot review the plaintiffs’ claims as a result of the general verdict rule. We disagree.

The general verdict rule provides that “if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.” (Internal quotation marks omitted.) Curry v. Burns, 225 Conn. 782,786,626 A.2d 719 (1993). In circumstances in which a party has requested interrogatories that fail to flesh out the basis of the jury’s verdict, this court has noted that the general verdict rule is still applicable because “[i]t is not the mere submission of interrogatories that enables us to make that determination; rather, it is the submission of properly framed interrogatories that discloses the grounds for the jury’s decision.” (Emphasis in original.) Fabrizio v. Glaser, 38 Conn. App. 458, 463, 661 A.2d 126 (1995), aff'd, 237 Conn. 25, 675 A.2d 844 (1996). “[I]n a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall.” (Internal quotation marks omitted.) Modugno v. Colony Farms of Colchester, Inc., 110 Conn. App. 200, 203, 954 A.2d 270 (2008).

“On the appellate level, the rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. In a typical general verdict rule case, the record is silent regarding whether the jury verdict resulted from the issue that the appellant seeks to have adjudicated. Declining in such a case to afford appellate scrutiny of the appellant’s claims is consistent with the general principle of appellate jurisprudence that it is the appellant’s responsibility to provide a record upon which reversible error may be predicated.” (Internal quotation marks omitted.) Dowling v. Finley Associates, Inc., 248 Conn. 364, 371, 727 A.2d 1245 (1999).

A review of the record reveals that the defendants denied the allegations underlying all four of the claims contained in the plaintiffs’ substituted revised complaint. The defendants also asserted nine special defenses, four of which were presented to the jury by way of a jury charge, including the statute of limitations, waiver, equitable estoppel and ratification. Because the grounds for the jury verdict were not fleshed out by properly framed interrogatories, any of those four special defenses or the denial could have supported the jury’s general verdict in favor of the defendants. See Modugno v. Colony Farms of Colchester, Inc., supra, 110 Conn. App. 203 (“general verdict rule applies, inter alia, to a situation in which there has been a denial of a complaint along with the pleading of a special defense” [internal quotation marks omitted]).

In their reply brief, the plaintiffs argue that the general verdict rule does not bar appellate review of their claims because the route to the jury verdict via any of the five grounds was tainted by the statute of limitations jury charge. Specifically, it is their contention that not only did the court’s jury instruction on the statute of limitations defense prevent the jury from considering the defendants’ actions on and prior to October 24, 2000, as a basis for liability, but this limitation also undermined the jury’s consideration of the defendants’ other special defenses, specifically, waiver, ratification and estoppel because it limited the time frame that the jury could consider in its determination of these special defenses.

Upon review of the record, we agree with the plaintiffs. The court’s instruction limiting the jury’s consideration to events occurring after October 24, 2000, logically would have an impact on the jury’s consideration of the other special defenses. Even if the jury found in favor of the defendants on their special defense of equitable estoppel, waiver or ratification, its determination necessarily would be limited by the statute of limitations instruction. Compare Sandow v. Eckstein, 67 Conn. App. 243, 248, 786 A.2d 1223 (2001) (finding untainted path to jury verdict because defect related only to one theory of liability, thereby leaving other paths unaffected), cert. denied, 259 Conn. 919, 791 A.2d 566 (2002) with Monterose v. Cross, 60 Conn. App. 655, 661, 760 A.2d 1013 (2000) (finding general verdict rule inapplicable because defect would impact jury’s consideration of both bases for liability). Because the jury’s consideration of all the bases that theoretically could support its general verdict is intertwined with the statute of limitations instruction, the general verdict rule does not bar our review of the plaintiffs’ claim that attacks this instruction. Accordingly, we now turn to a review of the plaintiffs’ claims on appeal.

II

The plaintiffs first argue that the court improperly charged the jury that the causes of action in the first, second and fourth counts of the substituted revised complaint could be based only on wrongful conduct occurring after October 24, 2000. Specifically, the plaintiffs maintain that they sufficiently pleaded and proved a continuing course of conduct to toll the statute of limitations; the court, however, denied their request to charge the jury with this instruction. Absent this instruction, the plaintiffs argue, the court’s statute of limitations instruction was clearly erroneous.

Although the plaintiffs claim an error in the jury instructions, we review this claim cognizant of the fact that it actually stems from the court’s decision to deny the plaintiffs’ request to charge the jury with instructions on the continuing course of conduct. In denying the plaintiffs’ request to charge, the court concluded that the doctrine was inapplicable because the plaintiffs had not pleaded the existence of a continuing course of conduct in avoidance of the statute of limitations defense. On appeal, the plaintiffs maintain that this conclusion was improper because they were not required to plead the continuing course of conduct doctrine in response to the defendants’ special defense because the factual allegations supporting the application of the doctrine were contained in the complaint. Therefore, the plaintiffs argue that the continuing course of conduct doctrine is not a “new matter” that must be pleaded in avoidance.

This court has previously concluded that the continuing course of conduct doctrine is a matter that must be pleaded in avoidance of a statute of limitations special defense. Bellemare v. Wachovia Mortgage Corp., 94 Conn. App. 593, 607 n.7, 894 A.2d 335 (2006), aff'd, 284 Conn. 193, 931 A.2d 916 (2007); see also Practice Book § 10-57. We are not persuaded by the plaintiffs’ argument contravening this authority.

Furthermore, we note that our Supreme Court has “previously . . . afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency.” Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003). The trial court’s decision under these circumstances is reviewed under the abuse of discretion standard. “When reviewing claims under an abuse of discretion standard, 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 . . . .” Id., 274.

In the present case, the court correctly indicated that the continuing course of conduct doctrine is a matter that must be pleaded in avoidance pursuant to Practice Book § 10-57. By replying with a general denial to the defendant’s special defenses, the plaintiffs failed to comply with this rule of practice. Accordingly, we conclude that the court did not abuse its discretion when it refused to charge the jury with instructions on the continuing course of conduct doctrine when the plaintiffs failed to plead the matter in avoidance.

Ill

The plaintiffs next argue that the court improperly denied their offer to prove the applicability of the accidental failure of suit statute; General Statutes § 52-592 (a); because it was not specifically pleaded. They maintain that the court improperly interpreted the rules of practice to require the specific pleading of this statute in avoidance of the defendants’ statute of limitations special defense. We disagree.

The question of whether the court properly concluded that § 52-592 must be pleaded in avoidance is a question of law over which our review is plenary. See Tocco v. Wesleyan University, 112 Conn. App. 28, 31, 961 A.2d 1009 (2009) (interpretation of rules of practice and statutes is question of law subject to plenary review). Although not directly on point, this court’s discussion in McKeever v. Fiore, 78 Conn. App. 783, 795, 829 A.2d 846 (2003), is instructive to our analysis of the plaintiffs’ argument. In McKeever, this court upheld the trial court’s conclusion that the plaintiffs did not have to plead or to prove the applicability of § 52-592. The court noted that the statute was not at issue in the case because the defendants did not raise a statute of limitations defense. In the course of its analysis, the court referenced the discussion set forth in Ross Realty Corp. v. Surkis, 163 Conn. 388, 392, 311 A.2d 74 (1972), in which our Supreme Court addressed a similar issue: “While it has been suggested that it might be desirable for the plaintiff to plead sufficient facts necessary to bring the matter within the purview of § 52-592 . . . [our Supreme Court] has never held this to be a requirement. ... It has been and is the holding of [our Supreme Court] that matters in avoidance of the Statute of Limitations need not be pleaded in the complaint but only in response to such a defense properly raised.” (Internal quotation marks omitted.) McKeever v. Fiore, supra, 795-96, quoting Ross Realty Corp. v. Surkis, supra, 392. Although this discussion does not directly determine the circumstances under which § 52-592 must be pleaded, it is significant to note that, contrary to the plaintiffs’ position in the present case, the court’s discussion does indicate, albeit indirectly, that § 52-592 is considered to be a matter to be pleaded in avoidance of a statute of limitations special defense.

In light of the foregoing, we conclude that the court properly denied the plaintiffs’ offer to prove the applicability of § 52-592 after the close of evidence when it had not been pleaded in the complaint or as a matter in avoidance of the statute of limitations defense.

IV

The plaintiffs next argue that even if they were required to plead § 52-592, the court improperly denied their request to amend their reply to assert this statute in avoidance of the defendants’ special defense. They argue that the court abused its discretion because the amendment would not have unduly delayed the trial and that denial of their request would prejudice their case severely. We disagree.

“The law is well-settled that belated amendments to the pleadings rest in the sound discretion of the trial court. . . . While our courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. . . . The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. . . . On rare occasions, this court has found an abuse of discretion by the trial court in determining whether an amendment should be permitted . . . but we have never found an abuse of discretion in denying an amendment on the eve of trial, long after the conclusion of pretrial proceedings.” (Citations omitted; internal quotation marks omitted.) Pitts v. DeCosta, 87 Conn. App. 605, 609, 867 A.2d 66 (2005).

In this case, the plaintiffs filed a request for leave to file an amended reply to the defendants’ ninth special defense on March 1,2007, immediately prior to the close of their case-in-chief. The court denied their request on the ground that “the amendment [was], in fact, untimely, [and] that the defendants justifiably relied on the general denial asserted in the reply to the statute of limitations special defense in the defense and prosecution of this case, at least up to this point. Permitting this amendment would, in fact, result in the interjection of additional, both legal and potentially factual, issues in a case where the plaintiffs have essentially rested.”

The plaintiffs argue that the court abused its discretion because their request to amend was not untimely. Specifically, they argue that the court improperly relied on Simmons v. Southern Connecticut Gas Co., 7 Conn. App. 245, 251, 508 A.2d 785 (1986), which upheld a trial court’s decision to deny the posttrial request to amend the reply to a statute of limitations defense that was asserted five years prior. The plaintiffs maintain that their case is distinguishable from Simmons because the defendants asserted their statute of limitations defense one month before trial, significantly closer to trial than the situation contemplated in Simmons. Although the plaintiffs are correct in their assertion that the defendants in Simmons filed a statute of limitations defense significantly earlier than the defendants did in the present case, the plaintiffs have not sustained their burden of persuading this court that the trial court abused its discretion by denying the amendment at the close of the plaintiffs’ evidence.

Therefore, we agree with the court and conclude that the denial of the request to amend the reply to the defendants’ special defenses was not improper.

V

The last claim asserted by the plaintiffs is that the court improperly granted the defendants’ motion for a directed verdict on the plaintiffs’ claim for breach of the implied covenant of good faith and fair dealing. Specifically, the plaintiffs maintain that there was evidence of a bad faith $1.1 million reduction in the contract price and that the court improperly directed a verdict on this factual issue that should have been presented to the jury. We disagree.

As an initial matter, we set forth the applicable standard of review for the plaintiffs’ claim. “Our standard for reviewing a challenge to a directed verdict is well settled. Generally, litigants have a constitutional right to have factual issues resolved by the jury. . . . Directed verdicts [therefore] are historically not favored and can be upheld on appeal only when the jury could not have reasonably and legally reached any other conclusion. . . . We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff. ... A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict.” (Internal quotation marks omitted.) Patterson v. Travelers Casualty & Surety Co., 104 Conn. App. 824,827,936 A.2d 241 (2007), cert. denied, 286 Conn. 920, 949 A.2d 481 (2008).

A review of the record reveals that the court granted the defendants’ motion for a directed verdict on two independent grounds. First, the court concluded that the plaintiffs changed the theory of recovery underlying this claim and that allowing this altered theory of recovery to go forward would constitute unfair surprise on and prejudice to the defendants. Second, and more importantly, the court determined that the plaintiffs’ claim failed as a matter of law because a claim for breach of the implied covenant of good faith and fair dealing must be based on the terms of the contract and cannot be applied to achieve a result contrary to the express terms. Thus, it was the court’s position that the jury legally could not have resolved this claim in the plaintiffs’ favor.

Our analysis as to the plaintiffs’ claim is impeded by the fact that the plaintiffs’ argument does not directly attack the grounds asserted by the court in support of its decision to grant the directed verdict. Rather, it appears as though the plaintiffs are attempting to recast the basis of the court’s decision to grant a directed verdict as a factual determination based on the sufficiency of the evidence. As the court did not base its determination on this ground, this argument misconstrues the court’s ruling. In making their argument, however, the plaintiffs indirectly attack the independent bases offered by the court. We will therefore discuss these arguments in the context of the court’s actual ruling.

We first address the argument as it relates to the legal conclusions of the court. As previously indicated, the record reveals that the court determined, as a matter of law, that the defendants were entitled to a directed verdict on the third count because the plaintiffs received the $56.9 million they were entitled to receive pursuant to the rider amending the original purchase and sale agreement. Accordingly, the court concluded that the plaintiffs could not assert a viable claim for a breach of the implied covenant of good faith and fair dealing premised on an allegation that they were entitled to a higher amount.

On appeal, the plaintiffs argue that they sufficiently pleaded and proved their claim because they demonstrated that the defendants “induced Smith to breach his duty of loyalty to [the] plaintiffs and cooperated with Smith in his self-dealing, all of which constituted bad faith, resulted in a $1.1 million reduction in the contract price, among other things, and deprived the plaintiffs of benefits afforded to them in the purchase and sale agreement.” They further argue that the $1.1 million reduction in price, as stated in the rider, was obtained at the same time that the defendants “were secretly promising lucrative management contracts for Smith’s company . . . .” This argument appears to imply that the court improperly concluded that a claim for breach of the implied covenant of good faith and fair dealing is not viable when the plaintiffs received what they had contracted for in the rider. Specifically, the plaintiffs indirectly argue that a legally viable claim exists when a party to a contract induces the person acting on the plaintiffs’ behalf to breach the covenant; however, the plaintiffs do not provide any legal analysis or authority to support their contention that the court’s legal finding was inaccurate. Rather, they simply restate their factual allegations and reference the supporting evidence. Accordingly, we decline to review this claim as it has been inadequately briefed. See, e.g., Ward v. Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004) (“[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” [Internal quotation marks omitted.]).

On the basis of this conclusion, we need not discuss whether the court properly found that the plaintiffs unfairly altered their theory of recovery after the close of evidence. Even if we were to find that the plaintiffs did not alter their damage claim at the close of evidence, their argument that the directed verdict was improper would still fail because of their failure to brief their argument adequately regarding the legal determinations of the court. Therefore, the plaintiffs’ claim is denied.

The judgment is affirmed.

In this opinion the other judges concurred.

       Nicholas R. Morizio, Dow & Condon, Inc., and Ronald J. Gross were also named as defendants, but the action against them was withdrawn prior to trial. We therefore refer to Jonathan M. Keller; the Fremont Group, LLC; Fremont 155, LLC; Fremont 131, LLC; Fremont 183, LLC; Fremont Riverview, LLC; Fremont Prestige Park, LLC; and 654 Tolland Street, LLC, as the defendants.

       The general verdict rale is not applicable to the plaintiffs’ claim on appeal challenging the court’s decision directing the verdict in favor of the defendants on the third count of the complaint, in which the plaintiffs alleged a breach of the implied covenant of good faith and fair dealing. That claim challenges the court’s legal determination that the plaintiffs could not prevail on their claim for breach of the implied covenant of good faith and fair dealing.

       The court’s decision to deny the plaintiffs’ request to charge the jury with instructions on the continuing course of conduct was one of a series of oral rulings on March 6, 2007.

       Pursuant to Practice Book § 10-57, a “ [mjatter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply. . . .”

       In support of their argument on this claim, the plaintiffs cite Ross Realty Corp. v. Surkis, supra, 163 Conn. 392, and posit that this decision stands for the proposition that “a party is not required to plead the accidental failure of suit statute, § 52-592 (a), although it would be desirable to do so.” As previously indicated, this argument misconstrues the basis of the court’s analysis. Ross Realty Corp. specifically addresses the situation in which a statute of limitations defense was not raised by the defendant; therefore, it is distinguishable from the facts of the present case.

       It should be noted that our review of this case has been impeded significantly by the lack of identifying references in the record. Given the number of pleadings filed with the court, and the quantity of transcripts, it was difficult to accurately ascertain the target of the parties’ arguments and related court rulings. Although the parties included citations to the transcript, our review of the cited portions of the record did not necessarily shed light on the argument before us, given the lack of identifying references in the transcript itself.

       “[Ejveiy contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party’s discretionary application or interpretation of a contract term. ... To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiffs right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith.” (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 16-17 n.18, 938 A.2d 576 (2008).


text:
    RONALD VANCE ET AL. v. KENNETH TASSMER ET AL.
    (AC 29980)
    Lavine, Robinson and Berdon, Js.
    Argued April 14
    officially released July 21, 2009

      Charlotte Croman, for the appellants (defendants).

      Vincent T. McManus, Jr., for the appellees (plaintiffs).
   Opinion

PER CURIAM.

The defendants, Kenneth Tassmer and Richard Perillo, appeal from the decision of the trial court ordering them to perform in accordance with a settlement agreement (agreement) with the plaintiffs, Ronald Vance and Carol Vance. The defendants contend that the agreement is not enforceable because (1) it is ambiguous, (2) it is contingent and (3) they were under duress at the time that they executed the agreement. We conclude that the court’s order enforcing the agreement is not a final judgment and, therefore, dismiss the appeal.

The following facts and procedural history are pertinent to the resolution of the defendants’ claims. The plaintiffs filed a one count complaint against the defendants with a return date of October 24, 2006, seeking a declaratory judgment that under the doctrine of adverse possession they were the owners of a triangularly shaped parcel of land located at the northwest comer of their lot at 131 Cook Hill Road in Wallingford, which borders the defendants’ property. The plaintiffs purchased their lot in 1994. According to the complaint, in 1984, Tassmer received by quitclaim deed certain real property located next to the plaintiffs’ lot, at 133 Cook Hill Road. In 1999, Tassmer conveyed an undivided half interest in this property to Perillo.

On July 31, 2007, the eve of trial, the parties reached a settlement agreement in which they stipulated in relevant part as follows: “Judgment of adverse possession may enter in favor of the [plaintiffs], contingent upon [A.] [T]he new shared boundary line between the properties of the parties shall mn the course as shown on the attached exhibits .... [E.] [The defendants] will apply for and pursue approval of a variance from the [zoning board of appeals of the town of Wallingford (board)] to permit this new shared boundary line at their own expense on or before [November 30, 2007]. In default of [board] approval by [November 30, 2007], the parties will appear for trial in this matter, at the convenience of the court in December, 2007. The application shall be filed no later than [August 18, 2007]. [F.] Counsel for the [plaintiffs] will submit a letter to the [board], in support of the variance application. [G.] Upon approval of the variance above [the] parties will enter into a boundary agreement for the new boundary line in accordance herewith [and] record same on the land records.” The agreement was signed by all of the parties on July 31, 2007, and was placed on the record before the court on that date. The defendants applied for a variance as required by the agreement on August 16, 2007.

On August 31, 2007, the defendants filed a motion to open the settlement agreement, alleging that their attorney, James Loughlin, “put them under ‘duress’ by stating at the beginning of the settlement negotiations: ‘We are doing this settlement agreement today, I’m your attorney and this is what we are doing; if you don’t want to do this now, then I am walking out that door, and you’ll have to deal with [the plaintiffs’ counsel] yourselves.’ ” The motion also alleged that their attorney would not answer several of their legal questions the day the agreement was reached and that he told them: “No one is allowed to speak to the judge.” As an additional reason in support of their motion, the defendants contended that the plaintiffs violated the terms of the agreement on three occasions.

After requesting numerous continuances from the board between September and November, 2007, the defendants withdrew their application for a variance on November 26, 2007, without a hearing by the board ever being held on its merits. The plaintiffs had recorded the agreement on the land records on September 14, 2007.

Upon the plaintiffs’ motion, the court held a hearing to enforce the agreement on April 8, 2008, pursuant to Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 626 A.2d 729 (1993). The court also heard argument on the defendants’ motion to open the agreement on that date. The court issued a memorandum of decision on May 8,2008, in which it found that “the fears [the defendants] entertained after Mr. Loughlin’s alleged threats and duress are incredulous. . . . The court finds the testimony of Mr. Loughlin to be totally credible and amply supported by the testimony of Thomas Tassmer [a relative of Kenneth Tassmer] and Carol Vance. All of that and the timetable of events and actions by the defendants render their explanation and claims of duress unbelievable and completely fabricated.” The court further found that the defendants’ claim that the plaintiffs breached a material clause of the agreement as justification for the defendants’ breach “is the type of pleading that invites the imposition of sanctions.” The court concluded that the agreement was clear and unambiguous and “order[ed] the defendants to proceed to perform in accordance with the terms of the July 31, 2007 settlement agreement.” This appeal followed.

Before reaching the merits of the defendants’ claims, we must first determine whether a final judgment exists and, therefore, whether this court has subject matter jurisdiction over this appeal. “The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding . . . subject matter jurisdiction is a question of law . . . .” (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 793, 967 A.2d 1 (2009). “The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear. . . . Neither the parties nor the trial court . . . can confer jurisdiction upon [an appellate] court. . . . The right of appeal is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met.” (Internal quotation marks omitted.) Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 654, 954 A.2d 816 (2008). The “policy considerations underlying the final judgment rule . . . are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level.” (Internal quotation marks omitted.) Palmer v. Friendly Ice Cream Corp., 285 Conn. 462, 468 n.7, 940 A.2d 742 (2008).

The defendants did not raise the final judgment issue themselves; this appeal was placed on the court’s own motion calendar for January 14, 2009, and the parties were ordered to “appear and give reasons, if any, why the defendants’ appeal from the trial court’s memorandum of decision, dated May 8, 2008, should not be dismissed for lack of a final judgment, because, pursuant to subsection l.E of the July 31, 2007 settlement agreement, further proceedings must take place before the zoning board of appeals that are not merely ministerial and that will determine whether a judgment of adverse possession may enter by stipulation or the parties will appear for trial.” On January 14, 2009, this court marked the court’s own motion “off at this time” and ordered the parties to file simultaneous supplemental briefs “on the final judgment issue, and the effect, if any, of the withdrawal of the application for variance. ” Both parties filed supplemental briefs by January 28, 2009.

The defendants, having briefed the issue, contend that the court’s decision ordering them to comply with the terms of the agreement was not a final judgment because the agreement is contingent on a hearing in front of, and action being taken by, the board. The agreement provides that the defendants must apply for a variance from the board but provides no settlement contingency for what is to occur if the board declines to grant the variance application. Under the terms of the agreement, if the board were to deny the variance application, the parties’ claims would not be settled and they would proceed to trial.

State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), provides the standard by which to gauge the finality of a matter for purposes of an appeal, of an interlocutory order. “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id., 31. “[T]he Curcio standard precludes any provisional, tentative or conditional adjudication, and it focuses on the completion of all steps necessary for the adjudication of the claim, short of execution or enforcement.” CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 400, 685 A.2d 1108 (1996), overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 154-55, 735 A.2d 333 (1999) (en banc).

We conclude that the court’s action on April 8, 2008, was not an appealable final judgment. Under the second prong of Curcio, the court’s order that the defendants proceed to perform under the agreement did not so conclude the rights of the parties that further proceedings could not affect them. “In applying this prong of the Curcio test, our focus is on whether appellate review is necessary [in order] to prevent the irreparable loss of a cognizable legal right. ... An essential predicate to the applicability of this prong is the identification of jeopardy to [either] a statutory or constitutional right that the interlocutory appeal seeks to vindicate.” (Internal quotation marks omitted.) Johnson v. Clark, 113 Conn. App. 611, 619-20, 967 A.2d 1222 (2009).

The defendants do not identify any cognizable legal right that will be jeopardized by the denial of appellate review. When the agreement was reached, it remained to be decided by the board whether to grant the variance. The agreement provides for the settlement of the parties’ claims only if the board granted the variance in the future. If the defendants complied with the agreement, and sought to obtain a variance from the board, but their variance application was denied, it would be as if no agreement had ever been reached. Because the court’s order of April 8, 2008, is not a final judgment, we lack subject matter jurisdiction.

The appeal is dismissed.

       The variance requested an exception to Wallingford’s minimum frontage requirement that would leave slightly less than the required 100 feet along the street line of the defendants’ property.

       We note that the defendants’ motion was entitled a “motion to reopen the settlement agreement. . . .’’Because the agreement had not previously been opened, the use of that term is both improper and misleading. The appropriate phrase is “motion to open,” and we reference it in this opinion accordingly. See Rino Gnesi Co. v. Sbriglio, 83 Conn. App. 707, 709 n.2, 850 A.2d 1118 (2004).

       This motion was filed pro se.

       The plaintiffs seem to contend that the court’s order was a final judgment because the defendants waived the provision in the agreement requiring board approval for the claims to be settled by breaching the contract, and, therefore, it was not a contingent agreement but an all-encompassing one.