author: PETERS, J.

text:
    DIEGO JIMENEZ ET AL. v. DAVID DEROSA
    (AC 28034)
    Flynn, C. J., and Robinson and Peters, Js.

      Argued April 21
    officially released July 22, 2008

      David C. Pite, with whom, on the brief, was Alan E. Silver, for the appellants (plaintiffs).

      Alfred J. Onorato, for the appellee (defendant).
   Opinion

PETERS, J.

A default judgment must be set aside if the defaulted defendant establishes that the court did not have personal jurisdiction to render the judgment against him. Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 195-96, 629 A.2d 1116 (1993). In this case, the defendant challenged the validity of a default judgment on the ground that he had been served by abode service at an address where he was no longer residing. Finding that the service had been improper, the trial court granted the defendant’s motions to set the default judgment aside and to dismiss the action. In their appeal, the plaintiffs argue that the service was adequate and that the defendant’s motions challenging the validity of the judgment and the cause of action were untimely. We disagree and affirm the judgment of the trial court.

The record discloses the following relevant facts and procedural history. In January, 2003, the plaintiffs, Diego Jimenez and Luz Jimenez, commenced a negligence action by serving the defendant, David DeRosa, by abode service. Their action was based on an allegation that the defendant had injured Diego Jiminez in an automobile accident. A state marshal served the defendant by leaving process at an address in Northford that had been the defendant’s home and that continued to be listed in the records of several government agencies as his residence. The defendant was defaulted for failure to appear, and, on July 17, 2003, the court, Hon. William L. Hadden, Jr., judge trial referee, after a hearing in damages, rendered a judgment against the defendant in the amount of $19,182. After issuance of notice of the judgment, the plaintiffs filed a return of notice, certifying that a copy of the judgment had been mailed to the defendant at the Northford address.

More than two years later, the defendant moved to set the default judgment aside and to dismiss the action on the ground of ineffective service of process. In these proceedings, he alleged that the abode service had been ineffective because he had vacated the Northford property in September, 2001, sixteen months prior to the service.

In the interval between the final hearing on the defendant’s motions and the trial court’s decision on the motions, the plaintiffs assigned their default judgment and lien to a third party, Lienfactors, LLC. On August 23, 2006, without having been notified of the assignment, the court, Hon. David W. Skolnick, judge trial referee, found the facts to be as alleged by the defendant and granted his motions to set the default judgment aside and to dismiss.

The plaintiffs have appealed. They claim that, contrary to the trial court’s conclusion, (1) the defendant was served properly and (2) the defendant’s motions to set aside and to dismiss were untimely. The defendant disputes the validity of the plaintiffs’ claims. In addition, he asserts that, due to the plaintiffs’ assignment of the default judgment to Lienfactors, LLC, they lack standing to pursue their appeal. We affirm the judgment of the trial court setting aside the default judgment and dismissing the action.

I

THE PLAINTIFFS’ STANDING TO APPEAL

In light of the plaintiffs’ assignment to Lienfactors, LLC, the defendant filed a motion in this court to dismiss the plaintiffs’ appeal on the ground that they no longer had standing to pursue it. He has renewed this jurisdictional claim in his brief on appeal.

It is well established that this court has subject matter jurisdiction to hear an appeal only if the appellant has presented a justiciable issue that the appellant has standing to pursue. In re Investigation of the Grand Juror, 188 Conn. 601, 603, 452 A.2d 935 (1982). To demonstrate the requisite standing, however, it is sufficient for the appellant to demonstrate that there is a reasonable possibility, as distinguished from a certainty, that the contested ruling has had an adverse impact on a legally protected interest. Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 370, 880 A.2d 138 (2005).

To enable us to assess the jurisdictional significance of the plaintiffs’ assignment of their judgment to Lien-factors, LLC, we remanded this case to the trial court for further factual findings. See Practice Book § 60-2 (9). After a hearing, the trial court determined that the plaintiffs’ assignment to Lienfactors, LLC, would “fail” if this court were to affirm the trial court’s judgment in favor of the defendant. It based this determination on a clause in the assignment that states: “Assignor represents that they have a validly binding judgment and judgment hen . . . .”

We must decide whether the plaintiffs’ assignment deprives us of subject matter jurisdiction to hear their appeal. We are persuaded that it did not. Like the trial court, we find it significant that the assignment included a representation by the plaintiffs that the assigned judgment was valid and enforceable. This representation was the functional equivalent of a warranty imposing contingent liability on the plaintiffs to reimburse the assignee if we uphold the trial court’s decision on the defendant’s motions. See Cooper v. Sagert, 111 Or. 27, 33, 223 P. 943 (1924) (if assigned judgment is set aside, assignee may recover for failure of consideration); cf. Hull v. Mathewson, 192 Wash. 651, 662-63, 74 P.2d 209 (1937) (no warranty of collectibility). On this record, because there is a reasonable possibility that, unless we reverse, the judgment of the trial court will have an adverse impact on a legally protected interest of the plaintiffs, the plaintiffs have standing, and we have jurisdiction to hear their appeal.

II

We turn now to the merits of the plaintiffs’ claims on appeal. The plaintiffs challenge the validity of the trial court’s decision to set aside the default judgment and to dismiss the case for two principal reasons. The plaintiffs maintain that the trial court improperly determined that (1) the default judgment had been rendered without personal jurisdiction over the defendant and (2) the defendant’s motions were not untimely. We disagree with the plaintiffs.

A

Abode Service

The Superior Court has no authority to render a judgment against a person who was not properly served with process. Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., supra, 227 Conn. 195-96. Without challenging this fundamental principle of law, the plaintiffs argue that the trial court misapplied it under the circumstances of this case because (1) abode service was proper in light of the defendant’s failure to inform government agencies that he was no longer a resident at the Northford address and (2) the defendant had actual timely notice of the negligence action, both at its inception and after the rendering of the default judgment. We are not persuaded.

As a preliminary matter, we set forth the standard of review governing the plaintiffs claims. “A challenge to the jurisdiction of the court presents a question of law. . . . Our review of the court’s legal conclusion is, therefore, plenary. . . . Our review of the trial court’s factual findings is governed by the clearly erroneous standard of review.” (Citation omitted; internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn. App. 697, 713, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007).

The legal principles that guide our resolution of the plaintiffs’ claims are equally well established. “[T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court’s exercise of personal jurisdiction.” (Internal quotation marks omitted.) Kim v. Magnotta, 249 Conn. 94, 101-102, 733 A.2d 809 (1999). “[W]hen aparticular method of serving process is set forth by statute, that method must be followed. . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction.” (Citations omitted; internal quotation marks omitted.) Commissioner of Transportation v. Kahn, 262 Conn. 257, 272, 811 A.2d 693 (2003). “A proper officer serving process must comply with the provisions of [General Statutes] § 52-57 (a), which require that process be served by leaving it with the defendant, or at his usual place of abode .... Abode service is not effective if it is left at an address that is not the usual address of the party to be served, and an action commenced by such improper service must be dismissed.” (Citation omitted; internal quotation marks omitted.) Hibner v. Bruening, 78 Conn. App. 456, 463, 828 A.2d 150 (2003); see also Practice Book § 10-13.

For service pursuant to § 52-57 (a), the “usual place of abode” presumptively is the defendant’s home at the time when service is made. Grant v. Dalliber, 11 Conn. 234, 237-38 (1836). Whether a particular locale is the usual place of abode is a question of fact. Collins v. Scholz, 34 Conn. Sup. 501, 502, 373 A.2d 200 (1976). “When, however, the defendant is a resident of Connecticut who claims that no valid abode service has been made . . . that would give the court jurisdiction over [the defendant’s] person, the defendant bears the burden of disproving personal jurisdiction. . . . When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise.” (Internal quotation marks omitted.) Tax Collector v. Stettinger, 79 Conn. App. 823, 825, 832 A.2d 75 (2003).

The plaintiffs do not dispute the validity of the trial court’s finding that, at the time of the abode service, the defendant no longer resided physically at the Northford address. They argue instead that the defendant cannot rely on his change of residence because he failed to update his address on government records in order to evade service and deliberately disregarded actual notice of the litigation against him. We disagree.

The plaintiffs’ first contention cannot be sustained in light of Hibner v. Bruening, supra, 78 Conn. App. 456. In that case, we held that for purposes of effective abode service, an address on file with a government agency, in and of itself, could not establish a party’s usual place of abode. Id., 465; see also Piorkowski v. Federal Express Corp., Superior Court, judicial district of New Haven, Docket No. CV-97-0405352-S (February 6,1998) (“[t]his court cannot now write a statute which provides that a plaintiff may serve another person at the address on file with the department of motor vehicles even though that address is not his usual place of abode”). These cases, which the plaintiffs have not endeavored to distinguish, establish that the trial court properly declined to bypass the statutory requirements for abode service.

The plaintiffs’ notice claim is similarly unpersuasive. It is true, as we recently have held, that if a putative party can be shown to have been evading service of process, “[njotice of a complaint coupled with good faith attempted service is sufficient to confer jurisdiction . . . .” (Internal quotation marks omitted.) Bove v. Bove, 93 Conn. App. 76, 82, 888 A.2d 123, cert. denied, 277 Conn. 919, 895 A.2d 788 (2006). The difficulty with applying that precedent in this case arises out of the failure of the plaintiffs to establish the requisite predicate facts. Although they presented testimony that the defendant had been handed the summons and the complaint personally, the defendant testified to the contrary. The trial court did not resolve this evidentiary conflict. The plaintiffs did not file a motion for articulation requesting the trial court to do so. See Practice Book § 66-5. We cannot fill this evidentiary gap.

On this state of the record, the plaintiffs are left with their contention that the court improperly required them to assume the burden of proving evasion of process on the part of the defendant. This claim focuses on the following statement in the court’s memorandum of decision: “Absent evidence that the defendant deliberately failed to provide these agencies with his present address in an attempt to evade service of process, the court finds that his conduct does not validate the service of process at his former address.” We disagree with this contention as well.

Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 459 A.2d 503 (1993), sets forth the fundamental principle governing proof of disputed issues of personal jurisdiction. There, our Supreme Court stated: “Placing the burden on the plaintiff to prove contested factual issues pertaining to jurisdiction is in accord with rulings in other states which have addressed the same question. . . . When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction.” (Citations omitted; emphasis added.) Id., 53-54.

Nonetheless, as the trial court properly held, because an officer’s return of abode service is prima facie evidence of the facts stated therein; Buckingham v. Osborne, 44 Conn. 133, 141 (1876); a defendant who contests the facts stated in the return bears the initial burden of disproving personal jurisdiction. Tax Collector v. Stettinger, supra, 79 Conn. App. 825. The plaintiffs do not challenge the validity of the court’s finding that the defendant satisfied that burden in this case by presenting persuasive evidence that he was no longer residing at the Northford address at the time of the abode service.

The plaintiffs argue instead that the defendant also had the initial burden of establishing that he had not engaged in conduct demonstrating evasion of service of process. This argument fails for lack of supporting legal authority. We know of no case imposing such a burden on a defendant who has established a defect in personal service. The plaintiffs have cited none. In the absence of controlling authority to the contraiy, we are persuaded that the governing principle articulated in Standard Tallow Corp. continues to be operative. Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 53-54. Standard Tallow Corp. imposes on the plaintiffs the burden of establishing the court’s jurisdiction over the defendant. Id. In this case, they failed to do so.

B

Timeliness of Motion to Set Aside Default Judgment

The plaintiffs alternatively claim that the court improperly granted the defendant’s motion to set aside the default judgment because that motion was itself proceduraily defective in that, for two independent reasons, it was untimely. First, they maintain that the defendant’s motion was untimely because it was filed after expiration of the four month time limit set forth in General Statutes §§ 52-212 and 52-212a and Practice Book § 17-4. Second, they maintain that the court abused its discretion in permitting the defendant to file his motions more than two years after he had received actual notice of the default judgment. We find neither of these claims persuasive.

We again begin by setting forth the applicable standard of review. Appellate review of a trial court’s ruling on a motion to set aside or to open a judgment is limited to a determination of whether the trial court acted unreasonably and in clear abuse of its discretion. Wilkinson v. Boats Unlimited, Inc., 236 Conn. 78, 84, 670 A.2d 1296 (1996).

The plaintiffs’ first claim of untimeliness is that the trial court should have denied the defendant’s motion to set aside the default judgment because the motion was filed at a time in excess of the four month limitation contained in General Statutes §§ 52-212 and 52-212a and Practice Book § 17-4. That contention cannot be sustained in light of Wilkinson v. Boats Unlimited, Inc., supra, 236 Conn. 78, which held that this statutory limitation is inapplicable to a collateral attack on a judgment that, as in this case, is based on the absence of personal jurisdiction to render the contested judgment. Id., 83-84; see also Misinonile v. Misinonile, 190 Conn. 132, 134-35, 459 A.2d 518 (1983); Bove v. Bove, 77 Conn. App. 355, 366-67, 823 A.2d 383 (2003).

The plaintiffs’ second claim of untimeliness focuses on the two year delay between the defendant’s receipt of actual notice of the default judgment and his present motions to challenge that judgment. They argue that this two year gap required the trial court to exercise its discretion to dismiss the defendant’s motions. We disagree. Not only have they failed to demonstrate that the trial court ruled on this claim, but they mistakenly rely on a case; Pavone v. West, 82 Conn. App. 623, 846 A.2d 884 (2004); that did not involve a claim of lack of personal jurisdiction to render a valid judgment. Id., 625. Their claim, therefore, is without merit.

C

Timeliness of Motion to Dismiss

In their final challenge, the plaintiffs maintain that the defendant’s motion to dismiss was untimely because it was not filed within thirty days of his initial motion to set aside the default judgment, which, contrary to the holding of the trial court, they characterize as the filing of a general appearance. The plaintiffs argue that the defendant failed to comply with the requirements of Practice Book § 10-30, which provides in relevant part: “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 . . . .”

The defendant filed his motion to dismiss on February 7, 2006. The trial court judged this motion timely because it was filed within thirty days of January 17, 2006, the date when the defendant entered his appearance by filing the standard judicial appearance form. On appeal, the plaintiffs raise the claim, as they did before the trial court, that the thirty day limitation instead should be calculated from December 20, 2005, the date the defendant moved to set the default judgment aside. This calculation would render the motion to dismiss untimely.

The predicate for the applicability of the thirty day limitation is the initial filing of a general appearance. In this case, the trial court expressly ruled that the December 20 motion to set aside did not constitute a general appearance because the function of the motion was to contest the court’s personal jurisdiction. The narrow question before us, therefore, is whether the motion, as a matter of law, constituted a general appearance. Fontaine v. Thomas, 51 Conn. App. 77, 81-82, 720 A.2d 264 (1998). We agree with the trial court and conclude that it did not.

The plaintiffs challenge the validity of the court’s ruling on the grounds that the defendant’s motion to set aside failed to allege the supposed basis for lack of personal jurisdiction and that the motion’s language operated as an implied general appearance. The plaintiffs’ assertions cannot be reconciled with the text of the defendant’s motion, which stated expressly that “[sjervice of process in this case was . . . never validly made upon this defendant.” The defendant’s further statement, in another paragraph of the motion, that he had a good defense to the plaintiffs’ claims for recovery is not to the contrary because it was not a request for affirmative and distinctive relief beyond the scope of the issues presented by the plaintiffs’ complaint. See Leslie v. Leslie, 174 Conn. 399, 401, 389 A.2d 747 (1978).

In sum, we conclude that the trial court properly granted the defendant’s motions to set aside the default judgment and to dismiss the plaintiffs’ complaint. The court properly determined that the plaintiffs’ default judgment was void because it had, in fact, been rendered without service to obtain personal jurisdiction over the defendant. The court likewise properly determined that the defendant’s motions to set the judgment aside and to dismiss the action had, in law, been timely filed.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-57 provides in relevant part: “(a) Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state. . . .”
      Practice Book § 10-13 provides in relevant part: “Service upon the attorney or upon a pro se party . . . may be by delivering a copy or by mailing it to the last known address of the attorney or party. Delivery of a copy within this section means handing it to the attorney or to the party; or leaving it at the attorney’s office with a person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the usual place of abode. . . .”

       The defendant testified that he filed the motions after discovering that the Northford property was encumbered by a lien based on the default judgment.

       In several cases, the Superior Court has articulated the principle that a defendant may be estopped from contesting personal jurisdiction if he or she has attempted to evade service. See, e.g., Stevenson Lumber Co. Suffield, Inc. v. Salcedo, Superior Court, judicial district of Hartford, Docket No. CV-00-0595374-S (July 18, 2000) (27 Conn. L. Rptr. 568); Zingarelli v. Dinan, Superior Court, judicial district of Fairfield, Docket No. CV-93-0309746-S (May 20, 1994) (9 C.S.C.R. 630). Whether a defendant has engaged in such evasive maneuvers is a question of fact.

       General Statutes § 52-212 provides in relevant part: “(a) Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint' or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense. . . .”
      General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .
      Practice Book § 17-4 provides in relevant part: “(a) Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court. . . .”

       In Pavone v. West, supra, 82 Conn. App. 623, process had been served by a stale marshal pursuant to General Statutes § 52-63, which provides in relevant part: “(c) Service of civil process may be made on the owner of a motor vehicle registered under the provisions of chapter 246 by leaving a true and attested copy of the writ, summons and complaint at the office of the Commissioner of Motor Vehicles at least twelve days before the return day and by sending such a true and attested copy at least twelve days before the return day, by registered or certified mail, postage prepaid and return receipt requested, to the defendant at his last address on file in the Department of Motor Vehicles if (1) it is impossible to make service of process at the owner’s last address on file in the Department of Motor Vehicles, (2) the owner has loaned or permitted his motor vehicle to be driven by another, and (3) the motor vehicle has caused injury to the person or property of another.”

       Practice Book § 10-32 provides in relevant part: “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss . . . within the time provided by Section 10-30.”

       Practice Book § 3-2 (a) provides in relevant part: “After the writ has been filed the attorney for any party to any action, or any party himself or herself may enter his or her appearance in writing with the clerk of the court .... [A]n appearance for a party after the entry against such party of a nonsuit or judgment after default for failure to appear shall not affect the entry of the nonsuit or any judgment after default.”
      Practice Book § 3-3 provides in relevant part: “Each appearance shall (1) be typed or printed on size 8-1/2” x 11” paper, (2) be headed with the name and number of the case, the name of the court location to which it is returnable and the date, (3) be legibly signed by the individual preparing the appearance with the individual’s own name and (4) state the party or parties for whom the appearance is being entered and the official (with position or department, if desired), firm, professional corporation or individual whose appearance is being entered, together with the juris number assigned thereto if any, the mailing address and the telephone number. ...”
      The defendant filed a standard judicial appearance form, JD-CL-12 Rev. 11-99, on January 17, 2006.

       There is no dispute that, had the trial court calculated the thirty day period from the December date, the motion to dismiss would have been procedurally barred pursuant to Practice Book § 10-30.

       The initial paragraphs in the motion, alleging the defect in the abode service, prefaced this statement.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    THOMAS W. CORNACCHIA ET AL. v. ENVIRONMENTAL PROTECTION COMMISSION OF THE TOWN OF DARIEN
    (AC 27661)
    Bishop, Gruendel and Beach, Js.

      Argued May 1
    officially released July 29, 2008

      Robert F. Maslan, Jr., with whom, was Amy J. Boland, for the appellants (plaintiffs).

      Ira W. Bloom, with whom was Mario F. Coppola, for the appellee (defendant).
   Opinion

GRUENDEL, J.

This appeal concerns the denial of an application for a permit to conduct regulated activity in an upland review area. The plaintiffs, Thomas W. Comacchia and Nancy Comacchia, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant, the environmental protection commission of the town of Darien (commission), denying in part and approving in part the plaintiffs’ application for a permit to conduct regulated activities on their property. The plaintiffs claim that the court improperly dismissed their appeal because the commission improperly concluded that the proposed activities would have a significant impact on the wetlands and watercourses despite the fact that the record lacked substantial evidence to support this conclusion. We reverse the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The size of the plaintiffs’ property is approximately 1.38 acres. The property contains a single-family, two story home, an asphalt driveway and a stone terrace, which extends from the rear of the house. An inland watercourse known as Stony Brook flows along the rear, easterly boundary of the property, and the portion of the plaintiffs’ rear lawn located adjacent to Stony Brook is classified as a wetlands area because of the soil type. The rear lawn, from where the wetland soil ends, extending in the direction of the house, is a nonwetland, upland review area. The plaintiffs sought to construct an in-ground swimming pool and related features in the upland review area of their property, as well as a riparian buffer within the wetland area along the shore of Stony Brook. Because the activity associated with both the construction of the pool and the riparian buffer is defined in the Darien inland wetlands and watercourses regulations as a “regulated activity” for which a permit is required, the plaintiffs filed an application with the commission seeking such a permit. After publishing notice of and holding a public hearing on the matter of the permit, the commission granted that part of the plaintiffs’ application that sought to create a riparian buffer along the shore of Stony Brook and denied that part of the plaintiffs’ application that sought to build an in-ground swimming pool and related features in the upland review area.

The plaintiffs appealed to the Superior Court from that part of the commission’s decision denying them a permit to construct the in-ground swimming pool and related features. The court dismissed the appeal, finding, inter aha, that there was “significant evidence in the record to support the [commission’s] decision to deny the permit based on the proposed construction’s significant impact on the wetland areas.” This appeal followed. Additional facts will be set forth as necessary.

“[I]n an appeal from a decision of an inland wetlands commission, a trial court must search the record of the hearings before that commission to determine if there is an adequate basis for its decision. . . . Even if the agency’s reasons for denying an application are merely speculative, the reviewing court must search the record for reasons to support the agency’s decision . . . and, upon finding such, uphold that decision regardless of the language used by the agency in stating its reasons for the denial.” (Citation omitted; internal quotation marks omitted.) Manatuck Associates v. Conservation Commission, 28 Conn. App. 780, 784, 614 A.2d 449 (1992).

Although the reviewing court must sustain the agency’s determination if an examination of the record discloses evidence that supports any one of the reasons given, “[t]he evidence ... to support any such reason must be substantial; [t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence .... Evidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence.” (Internal quotation marks omitted.) Toll Bros., Inc. v. Inland Wetlands Commission, 101 Conn. App. 597, 600, 922 A.2d 268 (2007).

“The [Inland Wetlands and Watercourses Act] is contained in . . . §§ [22a-28] through 22a-45, inclusive. Under the act the [commissioner of environmental protection] is charged with the responsibility of protecting inland wetlands and watercourses by . . . regulating activity which might have an adverse environmental impact on such natural resources.” (Internal quotation marks omitted) River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 71, 848 A.2d 395 (2004). “The designated wetlands agency of each municipality is expressly authorized to promulgate regulations that are necessary to protect the wetlands and watercourses within its territorial limits. General Statutes 22a-42 (c).” (Internal quotation marks omitted.) Mario v. Fairfield, 217 Conn. 164, 168-69, 585 A.2d 87 (1991). In considering an application to engage in a regulated activity, it is the impact on the regulated area that is pertinent, not the environmental impact in general. River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 72.

In order to protect the wetlands and watercourses, local agencies are authorized not only to regulate activities occurring within the wetlands and watercourses, but also are authorized to promulgate regulations for activities within areas around wetlands and watercourses if those regulations are “in accordance with the provisions of the inland wetlands regulations adopted by such agency related to the application for, and approval of, activities to be conducted in wetlands or watercourses,” and “apply only to those activities which are likely to impact or affect wetlands or watercourses.” General Statutes § 22a-42a (f). An impact on the wetlands or watercourses that is speculative or not adverse is an insufficient ground for denial of a wetlands application. River Bend, Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. 79 n.28.

In denying, in part, the plaintiffs’ application, the commission made several findings. It found that “these structures pose a substantial intrusion into the wetland setback area by encroaching 43’ (more than 80%) into the 50’ setback. The proposed construction introduces a new, intense use directly adjacent to the wetlands and introduces risks, including but not limited to the use and dispersion of chemicals adjacent to the wetlands for the treatment of the pool and the cleaning of the pool structure; substantial displacement of soil in the protected area; and loss of lawn area regarded as an important component of the buffer.” Furthermore, the commission considered the testimony of the plaintiffs’ expert, Michael Fishman, a certified professional wetland scientist and wildlife biologist, regarding the use of infiltrators to compensate for the loss in filtration and percolation posed by the construction activity. It concluded that although it recognized and appreciated that such technology might prove to mitigate soil displacement as well as loss in filtration and percolation and other intrusions into the wetland buffer, it rejected the technology and found that “[i]nfiltrators that are inundated with groundwater during wet seasons would not, in the [Commission’s view, offset the impacts posed by the construction.” In addition, the commission found that the proposed construction “would put additional pressure on the resource’s capacity to facilitate drainage and serve as flood control,” “poses potential damage from erosion, flooding and pollution, and subsequent impairment of economic and aesthetic values of downstream neighbor’s properties,” and “poses a threat to water quality by proposing an increase of impervious surface area to 17%. ” Furthermore, the commission found that “the construction does propose such an impact that would limit future options that would benefit the wetlands, its long-term productivity, and [flood plain] area.” It also found that “the construction poses an irretrievable commitment of the wetland setback area which serves to protect and buffer the wetlands and Stony Brook.” Moreover, the commission found that “there is no ‘hardship’ or necessity, to justify the proposed [in-ground] pool’s extreme proximity and significant potential for impact to the wetlands.”

Upon reviewing the commission’s findings, the court dismissed the plaintiffs’ appeal because it determined, inter alia, that there was “significant evidence” in the record to support the commission’s denial of the application for a permit to conduct regulated activity in the upland review area on the basis of the proposed activities significant impact on the wetlands. Specifically, the court found that the record revealed “substantial support” for the commission’s determinations that the proposed construction significantly would impact the wetlands because it would result in an increase of impermeable surface area on property already plagued by flood problems and would have an adverse impact on the water quality. In making these determinations the court relied on testimony from the public hearing on the permit, as well as a letter from a commission staff member, Nancy H. Samer, to the plaintiffs’ attorney.

A review of the record reveals that the plaintiffs’ expert, Fishman, provided the commission with an environmental impact report, a drainage report and additional information regarding the application as requested by the commission. In addition, a public hearing was held at which Fishman testified about the various reports he had prepared and responded to questions posed by the commission and the adjacent property owners. Fishman’s reports and testimony indicated that there would not be a likely adverse impact on the wetlands and watercourses from the construction of the in-ground swinuning pool and related features in the upland review area.

The public also was invited to voice concerns and to ask questions during the public hearing on the application. Several property owners adjacent to the plaintiffs’ property voiced a general concern about flooding in the area. Mostly, the adjacent property owners were concerned about the flooding that already plagued the area and how it could be remediated. They did not express concerns with the construction of the pool itself. One neighbor was concerned that the pool would displace wetland soil that serves to absorb excess water and would thereby decrease the soil's ability to assist with flood control. Another neighbor was concerned with flooding in the area and inquired about the frequency with which the pool would need to be drained and how that might affect flooding in the wetlands and watercourses. In response, Fishman explained that there is no scheduled frequency for draining pools and that it is advisable to keep them full unless the pool requires maintenance. Further, he explained that if the proposed pool had to be drained, the protocol would be to discontinue the use of chemicals for one week prior to draining it, in which time the chlorine and chemicals will dissipate, and that a tarp would be used to drain the water so as to prevent soil erosion. Additionally, he explained that the wetland soil would absorb a majority of the water before it would reach the watercourses. Alternatively, Fishman testified that if the proposed pool required draining, the water could be pumped into a truck and carried away.

The record also contains a letter from Samer expressing a concern about the impact on drainage and water quality due to the increase in impervious surface area from the constmction of the pool, and requesting an updated calculation on the proposed impervious surface area that included the pool and related features. Fishman provided this information to Samer and indicated that the constmction of the pool would be well outside the 100 year flood plain and would therefore not interfere with the flood plain’s storage capacity and that the increase in impervious surface area would not have any significant impact on the peak rate of runoff.

The court and the commission refer to the Samer letter and the neighbors’ testimony at the public hearing to support the commission’s deteimination to deny in part the plaintiffs’ application. Specifically, the commission found that water quality has been shown to become impacted as the size of the impervious area on a property increases and that there was a risk that chemicals would be dispersed in the upland review area. Our review of the record indicates that there is no evidence to support the finding that an impact on water quality could result from the constmction of the pool and that there is no evidence to support the finding that an adverse impact on the wetlands and watercourses was likely to result from a risk of chemicals being dispersed in the upland review area. The Samer letter and the testimony of the neighbors are, instead, unsubstantiated concerns about possible impacts to the wetlands and the watercourses. In contrast, the commission was presented with evidence from Fishman that no significant impact to the wetlands or watercourses would occur from the construction activities in the upland area. Although the commission is the arbiter of the credibility of witnesses and was, therefore, not bound to accept Fishman’s testimony and reports; Toll Bros., Inc. v. Inland Wetlands Commission, supra, 101 Conn. App. 600; the conclusions he provided were the only factually based conclusions before the commission substantiated by evidence in the record. Therefore, without his testimony and reports there would be no substantial evidence before the commission regarding any actual impacts to the wetlands and watercourses from the proposed construction. Because concerns and potential impacts are not substantial evidence of a likely adverse impact on the wetlands and watercourses, the Samer letter and the concerns of the plaintiffs’ neighbors were insufficient evidence to support the commission’s denial of the plaintiffs’ application. See id. (“[e]vidence of general environmental impacts, mere speculation, or general concerns do not qualify as substantial evidence” [internal quotation marks omitted]).

Additionally, although the commission found that the constmction posed “a potential [for] damage from erosion, flooding and pollution, and subsequent impairment of economic and aesthetic values of downstream neighbors’ properties,” a finding of potential generalized impacts is insufficient to support a denial of an application for a permit to conduct a regulated activity. The commission must make a determination that the activity will have a likely adverse impact on the wetlands and watercourses and that finding must be supported by substantial evidence in the record. See River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. 74, 79 n.28.

Because we must uphold the commission’s decision if an examination of the record discloses evidence that supports any one of the reasons given, we next address the remainder of the commission’s findings. We conclude that the remainder of the commission’s findings concern potential impacts to the wetlands and watercourses and potential impacts to the upland review area rather than findings of likely adverse impacts on the wetlands or watercourses. Such findings are insufficient to deny an application for a permit to conduct a regulated activity.

In accordance with the commission’s regulations, the area of the plaintiffs’ property that is within fifty feet of the wetlands and watercourses, referred to by the commission as the “buffer,” “set back area,” “protected area” and “regulated area,” is not a protected or regulated area but rather an upland review area where certain activities may be regulated because of the activities’ likely impact or effect on the nearby wetlands and watercourses. See General Statutes § 22a-42a (f); see also Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 199, 779 A.2d 134 (2001) (“[T]he upland review process does not forbid activity based solely on proximity to wetlands. Rather, the upland review process merely provides a basis for determining whether activities will have an adverse impact on the adjacent wetland or watercourse, and if necessary, regulating them.”). In order for the commission to deny the plaintiffs an application for a permit to conduct regulated activity in the upland review area, it must determine that the proposed activity will have a likely adverse impact on a wetland or watercourse, and such a determination must be supported by substantial evidence in the record. See River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. 74 (“[t]he sine qua non of review of inland wetlands applications is a determination whether the proposed activity will cause an adverse impact to a wetland or watercourse”) and 79 n.28.

The commission found that the construction would pose a substantial intrusion into the upland area, would introduce a new and intense use and risks adjacent to the wetlands, and would cause substantial displacement of soil and loss of lawn in the upland area. It failed to make any findings regarding whether these potential intrusions on the upland review area would have a likely adverse impact on the wetlands and watercourses, nor is there any evidence in the record to support a likely adverse impact on the wetlands and watercourses from these potential intrusions. The commission also found that although the infiltrators might prove to mitigate soil displacement as well as loss in filtration and percolation in the upland review area, it rejected the technology and found that, in its view, the infiltrators would not offset the impacts posed by the construction. Again, the only impacts the commission had identified were those on the upland review area. Impacts on the upland review area are not sufficient to deny an application for a permit to conduct a regulated activity. Finally, the commission found that “the construction would pose such an impact that would limit future options that would benefit the wetlands, its long-term productivity and [flood plain] area” without articulating what impact it posed to the wetlands, and found that the construction “poses an irretrievable commitment of the wetland setback area” without articulating how the commitment of the wetland setback area would impact the wetlands and Stony Brook. Moreover, the commission determined that the proposed activities presented a “significant potential for impact to the wetlands.” A finding that there is a significant potential for an impact to the wetlands is insufficient to deny an application for a permit to conduct a regulated activity. The impact on the wetlands and watercourses must be adverse and must be likely. See River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, supra, 269 Conn. 74, 79 n.28.

Because the commission’s findings regarding potential impacts to the wetlands and watercourses and potential impacts on the upland review area were not sufficient to deny the plaintiffs’ application and because there is no evidence in the record to support a likely adverse impact on the wetlands and watercourses as a result of the proposed construction in the upland area, the commission abused its discretion when it denied that part of the plaintiffs’ application for a permit to construct an in-ground swimming pool and related features. The court should have sustained the plaintiffs’ appeal.

“[N]ormally, [w]hen agency action is overturned . . . because of invalid or insufficient findings, we have held that a court must ordinarily remand the matter under consideration to the agency for further consideration. ... A direct order to the commission is therefore legally unwarranted and the case must be remanded to the commission for further consideration of any conditions that should be attached to the issuance of the permit as supported by evidence in the present record. ... An exception to that rule, however, exists when it appears as a matter of law that there is only one single conclusion that the [agency] could reasonably reach, [and therefore] the trial court can direct the agency to take the action on remand.” (Internal quotation marks omitted.) Toll Bros., Inc. v. Inland Wetlands Commission, supra, 101 Conn. App. 602.

After a full hearing on the matter in which evidence that was requested was provided, the record fails to reflect any evidence that would show that the construction of the in-ground swimming pool and related features would have a likely adverse impact on the wetlands and watercourses. Because the commission may deny an application for a permit to conduct a regulated activity only on the basis of a likely adverse impact on the wetlands and watercourses, without any evidence in the record to support such a finding in this case, the commission should have granted the part of the plaintiffs’ application seeking permission to construct an in-ground swimming pool and related features. In addition, on the state of the current record, there is no evidence of even a minimal intrusion on the wetlands and watercourses. As such, there are no conditions or modifications that the commission could require, and we are convinced that, as a matter of law, there is only one single conclusion that the commission reasonably could have reached. The case, therefore, must be remanded to the trial court with direction to render judgment sustaining the plaintiffs’ appeal and directing the commission to grant the part of the plaintiffs! application that sought a permit to construct an in-ground swimming pool and related features. Cf. Executive Television Corp. v. Zoning Board of Appeals, 138 Conn. 452, 457, 85 A.2d 904 (1952) (“Having established that there was no basis upon which the defendant could have determined that the safety of the public would be unduly imperiled, the plaintiff had met the full burden imposed upon it. . . . The appeal should have been sustained, and, since upon the record before the court the only reasonable conclusion is that the plaintiff was entitled to receive a certification of approval, the defendant should have been directed to issue it.”).

The judgment is reversed and the case is remanded to the trial court with direction to render judgment sustaining the plaintiffs’ appeal and directing the commission to grant that part of the plaintiffs’ application for a permit to construct an in-ground swimming pool, spa, pool house-storage shed and surrounding terrace.

In this opinion the other judges concurred.

       “An upland review area is a nonwetland or nonwatercourse area in which an inland wetland commission may regulate activities that are likely to affect or to impact wetlands or watercourses. . . . See Department of Environmental Protection, Guidelines for Upland Review Area Regulations Under Connecticut’s Inland Wetlands & Watercourses Act (1997).” (Internal quotation marks omitted.) Prestige Builders, LLC v. Inland Wetlands Commission, 79 Conn. App. 710, 712 n.3, 831 A.2d 290 (2003), cert. denied, 269 Conn. 909, 852 A.2d 739 (2004).

       The plaintiffs also claim that the commission improperly concluded that the proposed activities would pose a significant impact on the wetlands and watercourses despite expert testimony that established that the proposed activities would not have such an impact, and the commission failed to articulate a basis for rejecting the expert testimony. Because we reverse on other grounds, we need not reach this claim.

       This section of lawn is classified as a wetlands area because the soil is poorly drained. See § 2.1 (jj) of the Darien inland wetlands and watercourses regulations.

       Specifically, the permit sought permission to build an in-ground swimming pool, spa, pool house-storage shed and surrounding terrace.

       Section 6.1 of the Darien inland wetlands and watercourses regulations provides that any person who engages in a “regulated activity” must first obtain a permit for such activity from the commission.
      Section 2.1 (y) provides in relevant part: “ ‘Regulated activity’ means any operation within or use of a wetland or watercourse (or activity removed from a wetland or watercourse which affects a wetland or watercourse) involving removal or deposition of material; or any obstruction, construction, alteration or pollution of such wetlands or watercourses, but shall not include the specified activities in Section 4 of these regulations.
      In addition, regulated activities shall include: “1. grading, filing, excavation, or any other earth disturbing activities; or removal or deposition of any material; or removal of any existing vegetation within fifty feet of wetlands or watercourses.”

       Specifically, Fishman’s report indicated that there would be a “slight, but insignificant increase in runoff from the pool terrace and pool house roof,” and that any runoff would be absorbed by the pool, lawn and restored riparian corridor. The proposed plan would improve the functional value of the wetland soils, and “will filter runoff better for better water quality.” In addition, “[s]ince the proposed pool, terrace, and pool shed will have minimal impacts at most, this proposed project will result in a net improvement of ecological conditions on the site.” Furthermore, the report indicates that “[t]he proposed development activities on the parcel pose minimal impacts that are confined to upland areas immediately adjacent to the existing house and driveway, minimizing the area of proposed use and maximizing its distance from the truly valuable resource on the property, Stony Brook,” and that “[t]he proposed activities will have little or no direct or indirect impact on wetlands on the site and no adverse impact to Stony Brook.” Moreover, the report indicates that “[a]s proposed, the development activities on this site will result in no long term or permanent adverse impacts to the regulated wetland area” and that “this project will not have significant net adverse impacts to wetlands or other natural resources on the property.”

       Fishman’s report indicated that no wetland soil would be disturbed or displaced during construction of the pool in the upland area.

       In accordance with § 2.1 (z) of the Darien inland wetlands and watercourses regulations, regulated area means any inland wetland or watercourse, as defined in these regulations. The area where the plaintiffs proposed to build is not a wetland or watercourse. As such, it is not a regulated area.

       In fact, the only evidence before the commission regarding actual impacts on the wetlands and watercourses was the evidence from Fishman that the construction would not have a likely adverse impact on the wetlands and watercourses. See footnote 6 of this opinion.


author: HARPER, J.

text:
    ANGELA H. SCHLICHTING v. NICHOLAS COTTER ET AL.
    (AC 28745)
    Harper, Beach and Hennessy, Js.

      Argued March 28
    officially released July 29, 2008

      Gerald L. Garlick, with whom, on the brief, was Katherine E. Abel, for the appellants (defendants).

      Richard A. Smith, for the appellee (plaintiff).
   Opinion

HARPER, J.

The defendants, Nicholas Cotter, Marjorie Cotter and Sound Federal Savings, appeal from the judgment of the trial court determining that the plaintiff, Angela H. Schlichting, had gained title to a portion of the Cotters’ real property through adverse possession and granting a permanent injunction in favor of the plaintiff. The defendants claim that the court improperly (1) determined that the plaintiff had acquired title to the disputed parcel through adverse possession and (2) granted injunctive relief in the plaintiffs favor. We affirm in part and reverse in part the judgment of the trial court.

The court made the following findings of fact in its memorandum of decision. The plaintiff and her husband, Walter Schlichting, purchased the real property located at 102 Holmes Road in Ridgefield in 1979. At the time of the purchase, the adjacent lot, 100 Holmes Road, was owned by Fethon Nitsos and Dorothy Nitsos. The Schlichtings and the Nitsoses believed that the middle of a wooded area that divided the two lots constituted the boundary line between the lots. The legal boundary line, however, actually ran through the lawn between the wooded area and the Schlichtings’ home and, thus, was located closer to the Schlichtings’ home than the two couples had assumed. The area between the believed boundary line and the legal boundary line (disputed parcel) constitutes the property the plaintiff eventually sought to acquire by adverse possession.

Over the course of the next twenty-five years, the Schlichtings conducted various activities consistent with the residential nature of the area on the disputed parcel. The Nitsoses, by contrast, did not conduct any activities on the disputed parcel, and, in the event they wanted to enter that parcel, asked the Schlichtings’ permission.

In September, 2005, the Nitsoses conveyed their interest in 100 Holmes Road to the Cotters by way of warranty deed. In March, 2006, the Cotters, after having surveyed the property, installed a fence along the legal boundary line and destroyed gardens, ornamental flowers, ground cover and a stone wall located on the disputed parcel. These acts resulted in the plaintiffs filing an action sounding in adverse possession, seeking to quiet title in the plaintiff, and malicious erection of a structure in violation of General Statutes § 52-570. After a trial to the court, the court issued a memorandum of decision and rendered judgment in favor of the plaintiff on her claim of adverse possession and in favor of the defendants on the claim of malicious erection of a structure. The defendants filed a motion to reargue, contending that the court had failed to consider their argument that the plaintiff had failed to prove that her use of the disputed parcel was under claim of right, an essential element of adverse possession. The motion sought that the court “revise its [memorandum of decision] so that judgment shall enter for the [defendants on all counts of the [plaintiffs [c]omplaint.” The court granted the defendants’ request for reargument and, after hearing argument, denied the relief sought. This appeal followed.

I

The defendants first claim that the court improperly determined that the plaintiff had acquired title to the disputed parcel through adverse possession. In support of this claim, the defendants argue that the court improperly concluded that the plaintiff established that she had used the disputed parcel (1) under claim of right and (2) in an open and visible manner. We will address each argument in turn.

As a preliminary matter, however, we will identify the applicable legal principles and standard of review. “[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his [or her] own and without the consent of the owner.” (Internal quotation marks omitted.) Eberhardt v. Imperial Construction Services, LLC, 101 Conn. App. 762, 763, 923 A.2d 785, cert. denied, 284 Conn. 904, 931 A.2d 263 (2007); General Statutes § 52-575.

Furthermore, “[a] finding of [a]dverse possession is not to be made out by inference, but by clear and positive proof. . . . [C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. . . . The burden of proof is on the party claiming adverse possession.” (Citation omitted; internal quotation marks omitted.) Eberhardt v. Imperial Construction Services, LLC, supra, 101 Conn. App. 767.

“Despite that exacting standard, our scope of review is limited. Adverse possession is a question of fact, and when found by the trial court will not be reviewed by this court as a conclusion from evidential facts, unless it appears that these facts, or some of them, are legally or logically necessarily inconsistent with that conclusion.” (Internal quotation marks omitted.) Id., 767-68.

A

The defendants first argue that court improperly concluded that the plaintiff had used the disputed parcel under claim of right. We decline to review this argument.

The court, in its memorandum of decision, inadequately addressed the element of claim of right. Although the court did provide a terse legal analysis of what we interpret to be the element of claim of right, as well as a lengthy legal analysis of the related element of hostility, the court made no factual findings with respect to either of these elements. Furthermore, the defendants neglected to file a motion for an articulation so as to elicit such findings. In order to review the defendants’ claim, we would be forced to engage in mere guesswork as to the factual grounds on which the court determined that the element of claim of right had been satisfied. Such is not our role as an appellate court. “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by the trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us . . . would be entirely speculative.” (Internal quotation marks omitted.) Newtown Pool Construction, LLC v. Errico, 103 Conn. App. 566, 570-71, 930 A.2d 50 (2007); see also Moasser v. Becker, 107 Conn. App. 130, 138, 946 A.2d 230 (2008) (“the failure of a litigant to file a motion for articulation upon a court’s failure to rule upon a claim vitiates appellate review of their claim”). Accordingly, we decline to review the defendants’ claim.

B

The defendants next argue that court improperly concluded that the plaintiff had used the disputed parcel in an open and visible manner. We disagree.

The court, in its memorandum of decision, concluded as follows: “With respect to the open and visible ouster of the [Cotters], there seems to be no evidence that contradicts [the testimony of] Mrs. Nitsos concerning the action between 1979 and 2006. . . . Use by the plaintiff [of the disputed parcel] in an open and visible possession consisted of spraying, pruning and removal of trees, planting and maintenance of pachysandra, German ferns, berry bushes, rhododendron, removal of poison ivy from the trees and the removal of sumac from the foliage in the area, utilization of gypsy moth traps and spraying . . . the dumping, blowing and raking of leaves, the mowing and fertilizing and maintenance of the lawn area, the planting, cultivating and maintenance of the garden, and the paving, plowing, sealing and use of the driveway from 1979 to 2006 to the exclusion of others was open and notorious and put the Nitsoses on notice that the property area was being occupied by the Schlichtings.”

The defendants rely on the following passage from Robinson v. Myers, 156 Conn. 510, 244 A.2d 385 (1968), to contend that the court misapplied the element of open and visible use: “The requirement that an adverse possession be notorious ... is obviously to give actual notice to an owner that a claim contrary to his ownership is being asserted or to lay a foundation for a finding of constructive notice.” (Citation omitted; internal quotation marks omitted.) Id., 518. The defendants argue that “[i]n light of the agreement between the [Schlichtings and the Nitsoses] as to the use of the disputed [parcel], the use by the plaintiff certainly would not have given notice to [the Nitsoses] that the plaintiff was actually claiming title to the property.” The defendants’ reliance on Robinson is misplaced, as the defendants, in relying on this short passage, have misconstrued the element of open and visible possession.

The legal significance of the open and visible element is not, as the defendants contend, an inquiry as to whether a record owner subjectively possessed an understanding that a claimant was attempting to claim the owner’s property as his own. Rather, the open and visible element requires a fact finder to examine the extent and visibility of the claimant’s use of the record owner’s property so as to determine whether a reasonable owner would believe that the claimant was using that property as his or her own. See 2 C.J.S. 482, Adverse Possession § 53 (2003) (“The purpose of the ‘open,’ ‘visible,’ and ‘notorious’ requirements ... is to provide the true owner with adequate notice that a trespass is occurring, and that the owner’s property rights are in jeopardy. Hence, a claimant will fail to satisfy these requirements unless the possession and use were sufficiently apparent to put the true owner on notice that the claimant was making an adverse claim of ownership.”); 3 Am. Jur. 2d 139, Adverse Possession § 63 (2002) (“the words ‘open and notorious possession’ . . . mean that an adverse claim of ownership must be evidenced by such conduct as is sufficient to put a person of ordinary prudence on notice of the fact that the land in question is held by the claimant as his or her own”).

The present case, as the court aptly observed, involves two relatively small, adjacent residential lots, with the plaintiff consistently using the full extent of the disputed parcel in a manner consistent with its residential nature. The defendants have not challenged these factual findings but, rather, have argued that the Nitsoses could not have been put on notice of the plaintiffs use because the Nitsoses had given permission to the plaintiff to use the disputed parcel. Such an argument is simply irrelevant to the analysis of the element of open and visible use. Accordingly, the defendants have not convinced us that it was clear error for the court to have found that the plaintiffs use of the disputed parcel was open and visible.

II

The defendants next claim that the court improperly granted a permanent injunction in favor of the plaintiff. The defendants advance three arguments in support of their claim: (1) it was improper for the court to have granted the equitable remedy of injunctive relief because there existed an adequate remedy at law; (2) the plaintiffs complaint failed to allege facts warranting injunctive relief; and (3) it was inequitable for the court to have granted injunctive relief, given that the Cotters were, at the time they performed work on the disputed parcel, the record owners of that property. As we conclude that the plaintiff failed to meet her burden of proving that no adequate remedy at law existed, we need not address the defendants’ other arguments.

The following additional facts are relevant to our review. The court, in its judgment, issued a permanent injunction in accordance with the plaintiffs prayer for relief, ordering the Cotters “to remove their fence and piles of stone and to replace the ground cover and flowering bushes and shrubs and wall that they have destroyed within sixty (60) days of this decision.” The defendants contend that because there existed an adequate remedy at law, in the form of money damages, it was improper for the court to have granted the equitable remedy of a permanent injunction.

“A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. ... A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion. . . . Therefore, unless the trial court has abused its discretion, or failed to exercise its discretion . . . the trial court’s decision must stand.” (Citations omitted; internal quotation marks omitted.) Advest, Inc. v. Wachtel, 235 Conn. 559, 562-63, 668 A.2d 367 (1995).

We conclude that the plaintiff has not met her burden of proving the lack of an adequate remedy at law. Upon our careful review of the record, it is clear to us that the plaintiff produced no evidence to the court that would have supported an alternate conclusion. We therefore conclude that the court abused its discretion in granting permanent injunctive relief.

The judgment is reversed only as to the granting of injunctive relief and the case is remanded with direction to render judgment denying such relief.

In this opinion the other judges concurred.

       Sound Federal Savings is the mortgage holder on the Cotters’ property.

       In 1993, the plaintiffs husband conveyed his interest in that property to her.

       Specifically, the court found that the Nitsoses and Schlichtings believed that the boundary line ran from an underground utility box at the front of the wooded area to a large rock at the rear. Although the defendants claimed during oral argument that this finding was not supported by the evidence adduced at trial, they have failed to brief this claim, and, accordingly, we decline to afford it review. See Nipmuc Properties, LLC v. PDC-El Paso Meriden, LLC, 103 Conn. App. 90, 93 n.2, 927 A.2d 978, cert. denied, 284 Conn. 932, 934 A.2d 247 (2007).

         It is well settled that “[a] claim of right does not necessarily mean that the adverse possessor claims that it is the proper titleholder, but that it has the intent to disregard the true owner’s right to possession.” (Internal quotation marks omitted). Eberhardt v. Imperial Construction Services, LLC, supra, 101 Conn. App. 768. Further, “[i]f any [claimant] during the period in question recognized the [owner’s] ownership of the land, in words or by [its] conduct, the [claimant] cannot claim that [its] possession was adverse to the [owner].” (Internal quotation marks omitted.) Top of the Town, LLC v. Somers Sportsmen’s Assn., Inc., 69 Conn. App. 839, 843, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002).
      The following paragraph from the court’s memorandum of decision, while not specifically mentioning claim of right, closely resembles a claim of right discussion: “To render possession adverse, it was not necessary as it should be with the wrongful intent to disseise the true owner or accompanied with a denial of his title or with a claim of title in the person entering, and that where a person enters into a possession of land as his own, taking the rents and profits for himself and managing it as an owner manages his own property, the possession is adverse and is a disseisin. The very act itself has to be an assertion of his own title and, thus, equivalent to a denial of the title of all others, and it does not matter that he was mistaken and if he had been better informed he would not have entered upon the land. This has since been adhered to as the law in this state and still has our approval.”

       The element of hostility is a related, although broader element than claim of right. See, e.g., 3 Am. Jur. 2d 183, Adverse Possession § 118 (2002) (“the term ‘claim of right’ means no more than the term ‘hostile;’ and if possession is hostile, it is under a claim of right”).

       The court’s memorandum of decision is replete with instances, such as that quoted in the body of this opinion, in which the court unnecessarily conflates its analysis of distinct adverse possession elements. Although we find this practice to be confusing, the court’s conflation of the elements of “ouster” and “open and visible” does not detract from its overall finding that the plaintiff used the disputed parcel in an open and visible manner.

       We further note that Robinson is factually distinguishable from the present case. Robinson involved two actjacent multiacre, rural, wooded tracts of land. Robinson v. Myers, supra, 156 Conn. 511, 516. It suffices to observe that unlike the situation in the present case, the only relevant use of the disputed parcel by the claimant in Robinson was occasional walking and hunting, and an isolated removal of dilapidated automobiles from the disputed wooded area. Id., 516. The Robinson court concluded that such “sporadic trespasses” could not amount to open and notorious possession, as such trespasses had not provided “notice to an owner that a claim contrary to his ownership is being asserted . . . Id., 518.

       Although the defendants listed five separately numbered arguments in their appellate brief, essentially they advanced only three distinct arguments.

       We further note that we see no reason why the plaintiff could not have obtained money damages for the injuries caused to the disputed parcel, had she presented and proved an appropriate claim to the court. See, e.g., 22 Am. Jur. 2d 238, Damages § 255 (2003) (“[o]ne whose interest in realty has been injured by the tortious act or omission of another is entitled to those damages which will compensate him or her for the injury sustained”). Specifically, in Connecticut, “[djamage to real estate is measured by the diminution in value to the plaintiffs property caused by the tortious acts of the defendant. Diminution in value may be determined by the cost of repairs, so long as the cost does not exceed the former value of the property and the repairs do not enhance the value higher than it was prior to the damage.” 2 D. Pope, Connecticut Actions and Remedies, Tort Law (1993) § 26:04, p. 26-6. Given the ¡injuries complained of by the plaintiff, such a valuation method certainly could have been employed so as to determine an amount of money damages that she may have been awarded.


author: FLYNN, C. J.

text:
    LAVENE JACKSON v. H.N.S. MANAGEMENT COMPANY, INC.
    (AC 28947)
    Flynn, C. J., and DiPentima and Robinson, Js.

      Submitted on briefs June 3
    officially released July 29, 2008

      Christopher D. DePalma filed a brief for the appellant (plaintiff).

      Michael P. Foley, Jr., filed a brief for the appellee (defendant).
   Opinion

FLYNN, C. J.

Our appellate process involves a constant balancing of two competing and often conflicting goals, which rub against one another. The first seeks to bring a finality to civil litigation; the second seeks to ensure that where injustice might otherwise result from trial error, reversal and retrial of such a case is appropriate. The second alternative is available only when an adequate record is before us, permitting a conclusion that any error was harmful. The general verdict rule operates when a jury deliberates and returns a general verdict without special interrogatories. Under the general verdict doctrine, an appellate court will presume that the jury found every issue in favor of the prevailing party; see Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993); and decline further appellate review. It operates, inter alia, where there is a denial of the allegations of a complaint and the raising of a special defense by the defendant, and the claimed error affects one but not the other. See Tetreault v. Eslick, 271 Conn. 466, 473, 857 A.2d 888 (2004); Turturino v. Hurley, 98 Conn. App. 259, 263, 907 A.2d 1266 (2006). Where there was an error free path available to the jury to reach its verdict, and no special interrogatories were submitted showing which road the jury went down, any judgment rendered on such a verdict must be affirmed. Curry v. Burns, supra, 786. The plaintiff, Lavene Jackson, appeals from such a judgment, and, on the basis of the general verdict rule, we affirm the judgment of the trial court.

The jury reasonably could have found that, on October 19, 2004, the plaintiff was late for work, and, in her rush to board a bus operated by the defendant, H.N.S. Management Company, Inc., doing business as Connecticut Transit, she sat down without first paying the required fare. While the bus was in motion, the plaintiff got her fare and proceeded to the front of the bus in order to pay. In that process, the plaintiff was thrown from her feet when the bus made an abrupt stop at a red light. The plaintiff subsequently commenced a personal injury action against the defendant, seeking damages for the injuries she sustained as a result of her fall. In her one count complaint, the plaintiff set forth several specifications of negligence. In response, the defendant denied the allegations of negligence and interposed a defense of comparative negligence, alleging that the plaintiffs own failure to exercise due care caused her injuries and damages. The case was tried to the jury, which returned a verdict in favor of the defendant. No interrogatories were submitted to the jury. The plaintiff filed a motion to set aside the verdict. The court denied the motion and rendered judgment for the defendant in accordance with the jury verdict. This appeal followed.

It was not disputed that the bus operated by the defendant was a common carrier. The plaintiffs principal claim on appeal is that the court refused to charge the jury that in considering whether the defendant negligently breached its duty to the plaintiff passenger, the jury was entitled to consider not just direct evidence about the suddenness of the stop, concerning which the bus driver and the plaintiff were in conflict, but also indirect evidence of the bus driver’s negligence, including inferences drawn from the nature and the severity of the plaintiffs injury and the throwing of the plaintiff backward to the floor. See Belledeau v. Connecticut Co., 110 Conn. 625, 633-34, 149 A. 127 (1930). We conclude that the general verdict rule precludes our review of this claim.

In the present case, the defendant denied the plaintiffs allegations of negligence and pleaded the special defense of comparative negligence, either one of which could have supported the jury’s general verdict in favor of the defendant. The plaintiff did not submit interrogatories to the jury. Without interrogatories, we are unable to determine whether the jury found in favor of the defendant because the plaintiff did not prove the allegations of her complaint or whether the defendant prevailed on its special defense. Because the plaintiff does not claim any impropriety in connection with the special defense of comparative negligence, the special defense could have provided an error free path to the jury’s verdict under the general verdict rule. The jury reasonably could have concluded, and on appeal we assume that it did conclude, that the defendant prevailed on its special defense, thereby precluding our review of the plaintiffs instructional claim. See Curry v. Burns, supra, 225 Conn. 786. The plaintiff argues that because the one count complaint contained multiple specifications of negligence on the part of the defendant, the rationale of Curry should apply prohibiting application of the general verdict rule to single count complaints, where the court and the juiy would be burdened by multifarious special interrogatories. See id., 800-801. We are not persuaded by this argument. It misses the point that no impropriety is claimed as to the defendant’s special defense.

The judgment is affirmed.

In this opinion the other judges concurred.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. FRITZGERALD DIEUDONNE
    (AC 27960)
    Harper, Beach and Robinson, Js.
    Argued April 25
    officially released July 29, 2008

      Joseph Visone, special public defender, for the appellant (defendant).

      Paul J. Ferencek, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Joseph C. Valdes, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Fritzgerald Dieudonne, appeals from the judgment of conviction, rendered after a jury trial, of assault of public safety personnel in violation of General Statutes § 53a-167c and interfering with an officer in violation of General Statutes § 53a-167a. On appeal, the defendant claims that the trial court (1) violated his right against double jeopardy and (2) improperly declined to instruct the jury that the court had granted his motion for a judgment of acquittal on the count of conspiracy to sell narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (b). We affirm in part and reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. On October 26, 2004, the Stamford police department received an anonymous tip indicating that three black males were selling drugs on the comer of Ludlow and Pacific streets. The tip provided that two of the men were wearing dark clothing and black jackets and that the third man was wearing a green jacket. Sergeant James Matheny and Officer Christopher Baker responded to the call. At the scene, the officers observed the defendant and another man, Silvio Paguero, standing on the comer. Both men were wearing clothing that fit the description. As the officers approached the street comer, they observed the defendant hand a small item to Paguero. Believing that the two men might be involved in a dmg transaction, the officers exited their vehicle.

As Matheny approached the defendant, the defendant turned and, as he began walking away, reached into his pants, pulled out a white item and placed it in his mouth. Matheny identified himself as a police officer and ordered the defendant to stop. After the defendant ignored this request, Matheny placed his hand on the defendant’s jacket and again asked him to stop. In response, the defendant pulled out of his jacket and attempted to run. Matheny wrestled the defendant to the ground, positioned himself on the defendant’s back and instmcted the defendant to stop resisting and to spit the item out of his mouth. The defendant failed to comply and pushed Matheny off of him. Both men rolled into the street and continued to wrestle as Matheny attempted to subdue the defendant.

After Baker observed Matheny straggling with the defendant, he attempted to help restrain the defendant. The defendant, however, pushed both officers off of him several times. After additional officers arrived, the defendant was subdued successfully. The defendant was arrested and a search incident to the arrest revealed $167 in small bills. No drags were discovered. As a result of the straggle, Matheny sustained an interior chest wall injury that required medical treatment.

The jury found the defendant guilty of assaulting and interfering with Matheny, a peace officer, and the defendant was sentenced to the following terms of imprisonment: eight years for assault of public safety personnel and one year, concurrent, for interfering with an officer for a total effective sentence of eight years to be served concurrently with a five year sentence that the defendant was serving for violation of probation. This appeal followed.

I

The defendant first claims, and the state concedes, that the court imposed multiple punishments for the same offense in violation of his federal and state constitutional rights to be free from double jeopardy. See State v. Flynn, 14 Conn. App. 10, 20, 539 A.2d 1005 (“the crimes of interference with an officer and assault on an officer constitute the same offense and because there is no expression of legislative intent that the crimes warrant separate punishment, the . . . conviction on both counts . . . violate [s] the constitutional and common law prohibitions against double jeopardy”), cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). The only issue as to this claim, therefore, is the proper remedy. The defendant contends that the sentence for interfering with an officer must be vacated and that the case should be remanded to the trial court for resentencing. In response, the state agrees that “the conviction on the assault and interfering counts must merge and that the sentence on the interfering count must be vacated.” The state, however, maintains that resentencing is not warranted under the facts of this case. We agree with the state.

It is well established that the remedy in a case such as this is “to combine the conviction on the lesser included offense with the conviction on the greater and to vacate the sentence on the lesser included offense.” State v. Mincewicz, 64 Conn. App. 687, 693, 781 A.2d 455, cert. denied, 258 Conn. 924, 783 A.2d 1028 (2001). Accordingly, the defendant’s conviction of interfering with an officer must be combined with his conviction of assault of public safety personnel, and his sentence for interfering with an officer must be vacated. See id., 693-94. The court, which sentenced the defendant to eight years for assault of public safety personnel and a concurrent one year sentence for interfering with an officer, clearly intended its disposition on the assault conviction to control its sentencing scheme, and we can discern no reason why the court should again be required to exercise its sentencing discretion. See State v. Chicano, 216 Conn. 699, 714, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991).

II

The defendant next claims that the court improperly declined to instruct the jury that the court had granted his motion for a judgment of acquittal on the count of conspiracy to sell narcotics. Because the defendant failed to preserve this claim, we decline to afford it review.

The following additional factual and procedural history is relevant to our resolution of the defendant’s claim. At the conclusion of the state’s case, the defendant moved for a judgment of acquittal as to the count of conspiracy to sell narcotics, arguing that the state presented insufficient evidence to support a conviction. The court granted the motion. In its charge to the jury, the court instructed that “the information that I read to you contains three counts. To the extent you may recall the information contained any other charge or information, you are not to consider it in any way in reaching your verdict.” The defendant did not object to this instruction. During the jury’s deliberation, the court received a question from the jury inquiring about the conspiracy charge. The court informed the parties that it would repeat its earlier instruction. The defendant objected, claiming that it would be prejudicial to him for the jury to believe that “the charge is still lodged against him.” Thereafter, as to the conspiracy charge, the court instructed the jury that “[t]he matter has been resolved by the court. You’re not to guess or to otherwise surmise the resolution, and you’re not to have any consideration of that charge in your verdict. So, you’re to forget about it.”

The defendant argues that the court improperly refused to inform the jury that his motion for a judgment of acquittal had been granted, asserting, for the first time on appeal, that “[knowledge of the fact that the narcotics charge was dismissed pursuant to the defendant’s motion for a judgment of acquittal was relevant to the jury’s determination as to whether the defendant intended to interfere with the police officers’ efforts to retrieve drugs from his mouth.”

The defendant did not preserve his claim of instructional error for our review in that he neither filed a written request to charge nor took exception to the charge on this ground at trial. See Practice Book § 16-20. “Generally, [w]hen a party raises a claim for the first time on appeal, our review of the claim is limited to review under either the plain error doctrine as provided by Practice Book § 60-5, or the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).” (Internal quotation marks omitted.) State v. Shepard, 102 Conn. App. 101, 103, 924 A.2d 880 (2007). The defendant, however, has not sought review of his claim under either of those doctrines. Under the circumstances of this case, we will follow the general rule that “it is not appropriate to engage in a level of review that is not requested. . . . When the parties have neither briefed nor argued plain error [or Golding review], we will not afford such review.” (Internal quotation marks omitted.) Id. Accordingly, we will not review the defendant’s unpreserved claim of instructional error.

The judgment is reversed in part and the case is remanded with direction to vacate the sentence on the count of interfering with an officer and to combine the conviction of interfering with an officer with that of assault of public safety personnel. The judgment is affirmed in all other respects.

       After the state presented its case, the court granted the defendant’s motion for a judgment of acquittal on the count of conspiracy to sell narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (b).