author: GRUENDEL, J.

text:
    CHRISTINE MUSOLINO v. DANIEL MUSOLINO
    (AC 30612)
    Gruendel, Lavine and Alvord, Js.

      Argued January 4
    officially released June 8, 2010

      Christopher G. Winans, for the appellant (plaintiff).

      Stephen C. GaUagher, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Christine Musolino, appeals from the judgment of the trial court granting her motion for clarification of a support obligation concerning the defendant, Daniel Musolino. The plaintiff claims that the court abused its discretion in so doing. We affirm the judgment of the trial court.

The record discloses the following relevant facts. The parties married in 1987, and two children were bom of the marriage. Following the subsequent breakdown of their marriage, the plaintiff filed a complaint seeking dissolution thereof, and a hearing followed. At that hearing, the plaintiff appeared with counsel; the defendant, incarcerated at that time, was self-represented. On August 5, 1999, the court, Hon. Walter M. Pickett, Jr., judge trial referee, dissolved their marriage, finding that it had broken down irretrievably without attributing fault to either party as to the cause. The court further entered certain orders. Pertinent to this appeal is the following order: “A Visa bill in the amount of $1200 shall be the sole responsibility of the defendant.” Counsel for the plaintiff thereafter prepared a judgment file that included the aforementioned order.

Following the defendant’s release from incarceration in 2004, he filed a petition for bankruptcy protection pursuant to chapter 7 of the United States Bankruptcy Code. He informed the plaintiff of that proceeding, in which she was not named as a creditor. The defendant thereafter was granted a discharge in bankruptcy.

More than eight years after the judgment of dissolution entered, the plaintiff on December 26, 2007, filed a motion for contempt concerning, inter aha, the Visa bill order. Before the court acted on that motion, the plaintiff on March 20, 2008, filed a “motion for articulation and/or clarification” in which she alleged that the order in question contained an incorrect figure: “[T]he judgment . . . reads [that the] $1200 Visa bill [is the] sole responsibility] of [the defendant]. ... At the time of the judgment, the bill was $12,000, not $1200. Fortunately, there was only one Visa bill so, of factual necessity, the only issue is whether the [defendant gets the value of the scrivener misplacing a zero. . . . [T]he [defendant has asserted that because the judgment says [$1200], not [$12,000], he is only responsible for the former, not the latter.” (Internal quotation marks omitted.) In support thereof, the plaintiff submitted a transcript of the August 5,1999 dissolution proceeding, at which the plaintiff testified that there existed a $12,000 Visa bin.

By order filed November 14, 2008, the court, Roche, J., addressed the December 26, 2007 motion for contempt and the March 20, 2008 “motion for articulation and/or clarification,” which the court termed a “motion to determine certain arrearages/debts that may be owed by the defendant to the plaintiff . . . .” In doing so, the court interpreted the clarification motion as a modification motion without objection from the parties. In that order, the court found that “the credit limitation amount on the subject Visa credit card was $5000 to be split evenly and in equity between the parties ($2500 each), in which the defendant’s share is found to be a domestic support order and, therefore, should not be dischargeable in bankruptcy with the remaining balance of this Visa account the responsibility of the plaintiff. ... No contempt is found against the defendant

The court expounded on that finding in its April 8, 2009 memorandum of decision. It stated in relevant part: “The corud . . . finds that the defendant’s share of the balance on the Visa credit card is a domestic support order and, therefore, is not dischargeable in bankruptcy. . . . Under 11 U.S.C. § 523 (a) (5), a debtor may not discharge a debt to a former spouse that is for a domestic support obligation .... After an application of the five factors from Lewis v. Lewis, [35 Conn. App. 622, 627-28, 646 A.2d 273 (1994)], that are used to distinguish a domestic support obligation from a property settlement in the dissolution action and a careful review of the evidence and facts, this court concludes that the defendant’s obligation to pay the Visa credit card bill is a domestic support obligation. As a result, [that] debt is not dischargeable and the defendant must pay his share of that debt.

“The remaining balance on this credit card account is the responsibility of the plaintiff. Visa obtained a judgment against the plaintiff in the amount of $17,207.56 for the joint credit card held by her and the defendant. The August 5, 1999 dissolution decree ordered that the defendant was to be solely responsible for the Visa bill in the amount of $1200. At the October 3, 2008 motion for contempt hearing, during the cross-examination of the plaintiff, the following colloquy occurred:

“[The Defendant’s Counsel]: Now, with respect to the judgment on the Visa account, were you served with a lawsuit on behalf of Visa in 2004?
“[The Plaintiff]: I don’t recall being—and I saw the proof of service and that it says in hand, but I don’t recall receiving it, and as naive as I was back then, I probably looked at it and in raising my children on my own, I said, thank God I put it in the divorce decree and it’s not my responsibility and I naively set it aside.
“[The Defendant’s Counsel]: And did you subsequently receive motions for default from the attorneys that represented Visa?
“[The Plaintiff]: Yes. Occasionally. They didn’t bombard me with anything.
“ [The Defendant’s Counsel]: But you didn’t—in any— you didn’t—
“[The Plaintiff]: Oh, and during the time [the defendant] was in prison full-time, since we are arguing that, I paid $10 a month to the credit card company to try to keep it until he got out so it wouldn’t go into default. I did everything I could so this didn’t happen.
“[The Defendant’s Counsel]: But after you were served with a lawsuit you did nothing; is that correct?
“[The Plaintiff]: I’m sorry?
“[The Defendant’s Counsel]: After you were served with a lawsuit for the collection of the Visa card, you did nothing; is that correct?
“[The Plaintiff]: I did nothing. No. I did nothing.
“[The Defendant’s Counsel]: And you received motions for default.
“[The Plaintiff]: One, maybe.
“[The Defendant’s Counsel]: And isn’t it a fact that in 2007, you received a notice for the examination of a judgment debt; isn’t that correct?
“[The Plaintiff]: The reopening, you mean?
“[The Defendant’s Counsel]: No. You received a notice from the—or served rather with a motion for an examination of a judgment debtor on the file by the Visa’s attorneys in 2007; isn’t that correct?
“[The Plaintiff]: I was served? I don’t recall being served.
“[The Defendant’s Counsel]: But didn’t you receive a motion for—to appear in court in August of 2007?
“[The Plaintiff]: No.
“[The Defendant’s Counsel]: Didn’t you in fact, at that point, contact [the defendant]?
“[The Plaintiff]: I received that they reopened the matter. I’m not, you know—that was my understanding of it, and that’s when I contacted [the defendant].

“Based on the foregoing exchange, the court finds that the plaintiff allowed the Visa credit card to accumulate additional fees by not acting upon the notifications she received. Because of her lack of inquiry into the notices, the debt ballooned to over $17,000. There is no evidence that the defendant, who was incarcerated at that time, was aware of this situation. The plaintiff, therefore, should be responsible for the remaining balance on this Visa credit card account.” (Citation omitted; internal quotation marks omitted.)

The plaintiff on April 24, 2009, subsequently filed a motion for further articulation, which the court granted. In its May 12, 2009 articulation, the court stated: “[I]n the November 14, 2008 decision, this court relied on the best available evidence [regarding] the original judgment rendered by a deceased judge . . . and found that the balance on the subject Visa credit card was $12,000, not $1200. The credit limit on this card was $5000, which the court found the respective parties to be equally responsible for in its order . . . and articulation .... The remaining balance in whatever amount would remain the responsibility of the plaintiff. Whether the difference was brought about by error or misunderstanding by the parties, this court can make no finding. The finding by this court concerning the [parties’] liability under that card is clearly articulated in the [court’s April 8, 2009 articulation].” This appeal followed.

We begin by noting what is not in dispute. The trial court concluded that the order pertaining to the Visa debt was a support order. The plaintiff does not challenge that determination on appeal.

In light of that determination, our review is constrained to a consideration of whether the court’s clarification and subsequent articulation regarding that support order was proper. That consideration is guided by the well established standard that “[a]n appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Thus, unless the trial court applied the wrong standard of law, its decision is accorded great deference because the trial court is in an advantageous position to assess the personal factors so significant in domestic relations cases. . . .

“With respect to the factual predicates for modification of [a support order], our standard of review is clear. This court may reject a factual finding if it is clearly erroneous, in that as a matter of law it is unsupported by the record, incorrect, or otherwise mistaken. . . . This court, of course, may not retry a case. . . . The factfinding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us. Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Korsgren v. Jones, 108 Conn. App. 521, 525-26, 948 A.2d 358 (2008).

On appeal, the plaintiff claims that the present matter “involves the review of the parties’ stipulated judgment as interpreted by the trial court on a contempt motion.” As the defendant rightly observes, at no time before the trial court did the plaintiff ever claim that the underlying dissolution judgment was a stipulated judgment. Despite ample opportunity to do so, the plaintiff did not raise that claim in her December 26, 2007 motion for contempt, her March 20, 2008 “motion for articulation and/or clarification,” her April 24, 2009 “motion for further articulation” or at the October 3, 2008 hearing before the court. To review a claim advanced for the first time on appeal and not raised before the trial court amounts to a trial by ambuscade of the trial judge. Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 798, 967 A.2d 1 (2009). We therefore decline to afford review of this unpreserved contention.

Under Connecticut law, the trial court is vested with discretion to modify support orders. See General Statutes § 46b-86. In both its April 8, 2009 memorandum of decision and its May 12, 2009 articulation thereof, the court detailed the factual findings underlying its decision regarding the disputed Visa debt, none of which the plaintiff has challenged as clearly erroneous on appeal. Having carefully considered those findings in the context of the record before us and allowing every reasonable presumption in favor of the correctness of the court’s action as our standard of review requires, we cannot say that the court abused its discretion in the present case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The relevant portion of the judgment file provided: “The [defendant is solely responsible for the [Visa] bill in the amount of $1200.00.”

       Accordingly, we do not pass on the correctness of the court’s determination. We further note that neither party noted the absence of an express finding by the court of a substantial change in circumstances, which we likewise do not address. Rather, we presume that the court properly analyzed that consideration in modifying the order at issue. See DiBella v. Widlitz, 207 Conn. 194, 203-204, 541 A.2d 91 (1988) (“[a]bsent a record that demonstrates that the trial court’s reasoning was in error, we presume that the trial court correctly analyzed the law and the facts in rendering its judgment”).

       In addition, counsel for the plaintiff represented at oral argument that no concrete evidence of a stipulated judgment exists in the record before us. Rather, he maintained that the existence of a stipulated judgment “must be inferred.”


source: Caselaw Access Project

author: GRUENDEL, J. BORDEN, J.,

license: Public Domain

text:
    HARRY KRAIZA, JR. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF HARTLAND
    (AC 30836)
    Gruendel, Beach and Borden, Js.

      Argued December 3, 2009
    officially released June 8, 2010

      Robert J. Reeve, for the appellant (plaintiff).

      Mary E. R. Bartholic, with whom, on the brief, was Thomas W. Witherington, for the appellee (named defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Harry Kraiza, Jr., appeals from the judgment of the trial court dismissing his appeal from the denial of his subdivision application by the defendant planning and zoning commission of the town of Hartland (commission). On appeal, the plaintiff claims that the court improperly (1) affirmed the commission’s determination that the length of Eastwood Drive should be considered when evaluating his application, (2) affirmed the commission’s finding that Eastwood Drive is a dead-end street and (3) rejected his claim that the commission arbitrarily reinterpreted its regulations when considering his application. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. On or about June 11, 2007, the plaintiff filed an application with the commission seeking approval of a proposed eight lot subdivision on his 19.57 acre property, located in the town of Hartland. The east side of the plaintiffs property adjoins Hartland’s boundary with the town of Granby. The south side of the plaintiffs property adjoins the Eastwood subdivision. Access to the lots in the Eastwood subdivision is provided by Eastwood Drive, a permanent dead-end street, which was approved as part of that subdivision plan. Eastwood Drive intersects with Route 20 and extends into the Eastwood subdivision for approximately 850 feet, where it divides into two sections forming a loop. Ten lots are located on the outside of the loop and four lots within it. The total length of Eastwood Drive, including the loop, is approximately 3500 feet. Included on the Eastwood final subdivision plan is a fifty foot wide reserve strip labeled “Reserved For Future Road,” which runs from the loop section of Eastwood Drive to the boundary of the plaintiffs property. The plaintiffs proposal included a dead-end street, Hazel Lane, to provide access to the lots by connecting to Eastwood Drive over the reserve strip. Hazel Lane extends approximately 1100 feet into the subdivision, forming a cul-de-sac.

Section I-6A-2 of Hartland’s subdivision regulations (regulations) provides in relevant part: “Arrangement of streets shall provide for the continuation of the principal streets in adjoining subdivision, or for their proper projection when adjoining property is not subdivided. Permanent dead-end streets shall not exceed 1200 feet in length and shall be equipped with a turn-around roadway with a minimum radius of forty-five (45) feet for the outside curb at the closed end. ...” Hartland Subdivision Regs., § I-6A-2. Additionally, the regulations define a “dead-end street” in § I-1J as “any street described in paragraph D of this section which is used for access to any current lot of record, and which presently provides only one means of ingress or egress.” Id., § I-1J.

The commission hired Martin J. Connor, a planning consultant, to offer his expert opinion as to whether the plaintiffs proposal complied with the regulations. Connor opined that Hazel Lane did comply with the 1200 foot regulatory limitation for permanent dead-end streets because it measured only 1100 feet in length. He further opined that the length of Hazel Lane should not be combined with that of Eastwood Drive when assessing whether the plaintiffs proposal complied with the regulations.

Notwithstanding Connor’s recommendation, and after concluding apublic hearing on November 19,2007, that had extended over multiple evenings, the commission, on January 17, 2008, unanimously voted to deny the plaintiffs application, finding that it was in violation of §§ I-1J and I-6A-2 of the regulations because Eastwood Drive and Hazel Lane combined to form an extended dead-end street with a total length exceeding the 1200 foot regulatory limitation. The plaintiff appealed to the Superior Court, which, on December 17, 2008, affirmed the commission’s denial of his application. This court subsequently granted the plaintiffs petition for certification to appeal. This appeal followed.

I

The plaintiff first claims that the court improperly affirmed the commission’s determination that the length of Eastwood Drive must be added to that of Hazel Lane when considering his application. We disagree.

The following additional facts and procedural history are necessary to our analysis. The plaintiff argued before the court that the commission was prohibited from considering the length of existing streets when determining whether Hazel Lane complied with the 1200 foot regulatory limitation. Instead, according to the plaintiff, the regulations permitted the commission to consider only the length of newly constructed streets. The court rejected the plaintiffs claim, reasoning that it was inconsistent with the plain language and intent of the regulations, and that it would lead to absurd results. Specifically, the court stated that “[t]here is nothing in the [regulations which says that when additions are made to an existing road, each new addition is considered a new road for purposes of the 1200 foot limitation. If this were not so, a developer could avoid the 1200 foot limitation by adding to a dead-end road in sections which never exceed 1200 feet. This could create a dead-end street of great length . . . .’’On appeal, the plaintiff repeats this claim. He further contends that § I-6A is a design and construction standard placed in a section that regulates the building of newly proposed dead-end streets. According to the plaintiff, because Eastwood Drive is an already existing street, the commission improperly considered its length in assessing whether Hazel Lane complied with the regulations. Alternatively, the plaintiff argues that even if we were to conclude that the regulations do not apply only to newly proposed dead-end streets, the regulations are ambiguous and, thus, must be construed in his favor. See Farrior v. Zoning Board of Appeals, 70 Conn. App. 86, 90, 796 A.2d 1262 (2002) (“[w]here more than one interpretation of language is permissible, restrictions upon the use of lands are not to be extended by implication . . . [and] doubtful language will be construed against rather than in favor of a [restriction]” [internal quotation marks omitted]).

We now identify the applicable standard of review. “Because the interpretation of the regulations presents a question of law, our review is plenary. . . . Additionally, zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes. . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended .... The process of statutory interpretation involves the determination of the meaning of the statutory language [or . . . the relevant zoning regulation] as applied to the facts of the case, including the question of whether the language does so apply. . . .

“[0]rdinarily, this court affords deference to the construction of a [regulation] applied by the administrative agency empowered by law to carry out the [regulation’s] purposes. . . . [A]n agency’s factual and discretionary determinations are to be accorded considerable weight .... Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when [an] agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law. . . .

“Finally, we note that a court that is faced with two equally plausible interpretations of regulatory language . . . properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation. . . . Thus, in construing regulations, our function is to determine the expressed legislative intent. . . . Moreover . . . the words employed therein are to be given their commonly approved meaning.” (Citations omitted; internal quotation marks omitted.) Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn. App. 17, 21-23, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006).

In considering the plaintiffs first argument that the plain language and context of the regulations demonstrate that they apply only to newly proposed streets, preliminarily, we note that the regulations at issue have not previously been subject to judicial scrutiny. Moreover, the commission did not indicate that it had applied a time-tested interpretation of the regulations. As such, we do not defer to the commission and exercise plenary review.

We begin with the text of the regulations. Section I-6A provides in relevant part: “Private streets, meaning streets not already dedicated and accepted for public travel by the State of Connecticut or by the Town of Hartland, shall be constructed according to [certain specifications]. ...” As noted previously, § I-6A-2 provides in relevant part: “Arrangement of streets shall provide for the continuation of the principal streets in adjoining subdivision, or for their proper projection when adjoining property is not subdivided. Permanent dead-end streets shall not exceed 1200 feet in length and shall be equipped with a turn-around roadway with a minimum radius of forty-five (45) feet for the outside curb at the closed end. ...” Hartland Subdivision Regs., § I-6A-2. Additionally, § I-1J defines a “dead-end street” as “any street described in paragraph D of this [s]ection which is used for access to any current lot of record, and which presently provides only one means of ingress or egress.” Id., § I-1J. We note that nowhere in the regulations is there any mention of dead-end streets constructed in stages or additions made to existing dead-end streets. At the same time, the regulations do not expressly state that they apply only to newly proposed streets.

The plaintiff argues that the plain language of the regulations demonstrates that they apply only to newly proposed streets. He also argues that because the regulations neither expressly permit nor prohibit the commission from adding the length of existing streets to proposed streets, the commission cannot construe them as such. See Buttermilk Farms, LLC v. Planning & Zoning Commission, 292 Conn. 317, 327, 973 A.2d 64 (2009) (“because subdivision regulations adopted by a planning and zoning commission are in derogation of common-law property rights, the scope of the enabling statute granting the power to adopt such regulations should not be extended by construction beyond the fair import of its language, or to include by implication that which is not clearly within its express terms”). Even if we were to interpret the regulations as applying only to new streets, we agree with the court that interpreting the regulations in the manner advanced by the plaintiff does not comport with common sense and would lead to absurd and unreasonable results. Under such an interpretation, individual sections measuring less than 1200 feet continuously could be added to an existing dead-end street, comply with the regulations and combine to form a single dead-end street of interminable length. Interpreting the regulations in this maimer would create a loophole rendering meaningless § I-6A-2. See Doyen v. Zoning Board of Appeals, 67 Conn. App. 597, 605, 789 A.2d 478 (language of regulation construed so no clause or provision considered superfluous, void or insignificant), cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002). Moreover, we must presume that a reasonable and rational result was intended by Hartland in enacting § I-6A-2. See Spero v. Zoning Board of Appeals, 217 Conn. 435, 441, 586 A.2d 590 (1991) (must use common sense in construing regulation and assume rational and reasonable result intended by local legislative body); Prioli v. State Library, 64 Conn. App. 301, 308, 780 A.2d 172 (same), cert. denied, 258 Conn. 917, 782 A.2d 1246 (2001); Day v. Middletown, 59 Conn. App. 816, 821-22, 757 A.2d 1267 (same), cert. denied, 254 Conn. 945, 762 A.2d 900 (2000). We, thus, conclude that the plain language and context of § I-6A-2 do not support the plaintiffs interpretation of the regulations.

Alternatively, the plaintiff contends that the regulations are ambiguous. Even if we were to conclude that the regulations are ambiguous, “a court that is faced with two equally plausible interpretations of regulatory language . . . properly may give deference to the construction of that language adopted by the [commission] charged with enforcement of the regulation. . . . Thus, in construing regulations, our function is to determine the expressed legislative intent. . . . Moreover . . . the words employed therein are to be given their commonly approved meaning.” (Internal quotation marks omitted.) Trumbull Falls, LLC v. Planning & Zoning Commission, supra, 97 Conn. App. 23.

We first consider the commission’s construction of the regulations. At the public hearing before the commission, there was some discussion concerning the reserve strip and whether a new street may be added onto an already existing dead-end street. The chairman of the commission indicated that an addition to a 1200 foot road was prohibited unless that addition resulted in the formation of a through street, as opposed to a dead-end street. By connecting Eastwood Drive to another street to create a through street, the chairman added, would declassify Eastwood Drive as a permanent dead-end street. Further, the chairman stated that the possibility that Eastwood Drive may be extended or connected to another street does not prevent its classification as a dead-end. Based on the foregoing, as well as the fact that the commission added the length of Eastwood Drive to that of Hazel Lane, the commission construed the regulations as applying to both already existing and newly proposed dead-end streets.

We also may consider the legislative intent of the regulations. During the public hearing, the commission elucidated some concern for emergency vehicle access to lots connected to dead-end streets in case of an emergency. Presumably, the commission enacted the 1200 foot regulatory limitation, at least in part, to address this safety concern. Construing the regulation as applying only to new streets not only renders meaningless § I-6A-2 but also contradicts legislative intent.

Finally, it must be remembered that “[w]hen two constructions are possible, courts will adopt the one which makes the [regulation] effective and workable, and not one that leads to difficult and possibly bizarre results.” (Internal quotation marks omitted.) Red Hill Coalition, Inc. v. Town Plan & Zoning Commission, 212 Conn. 727, 737-38, 563 A.2d 1347 (1989); see also Day v. Middletown, supra, 59 Conn. App. 832 (“[t]he unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of [a regulation] is a reason for rejecting that interpretation in favor of another which would provide a result that is reasonable” [internal quotation marks omitted]). As already noted, interpreting the regulations in the manner advanced by the plaintiff would permit an applicant to continue to extend a dead-end street by adding sections measuring less than 1200 feet that combine to form a single dead-end street in excess of the length limitation. In order to avoid such problematic results, we conclude that the regulations must apply to both already existing and newly proposed dead-end streets. Accordingly, the defendant’s claim fails.

II

The plaintiff next claims that the court improperly determined that Eastwood Drive is a dead-end street. Specifically, he contends that Eastwood Drive is a loop road that does not fit within the definition of dead-end street as provided in the regulations. We disagree.

The following facts are relevant to our discussion. The court held that “[c]ontrary to the plaintiffs argument, the [c]ommission correctly determined that Eastwood Drive is a dead-end street because it meets the definition of a dead-end street in § I-1J: it provides access to current lots and has only one means of ingress and egress at the intersection with Route 20. . . . The proposed Hazel Lane will also be a dead-end street because it also will have only one means of ingress and egress at its intersection with Eastwood Drive. When its length is added to Eastwood Drive it will create a combined road with only one means of [ingress] and egress at Route 20.”

On appeal, the plaintiff contends, and the dissent agrees, that Eastwood Drive is not a dead-end street pursuant to the regulations. The significance of that contention is that if Eastwood Drive is not classified as a dead-end street, then its length cannot be added to that of Hazel Lane when evaluating the plaintiffs application. In support of his claim, the plaintiff relies on § I-6A-2 of the regulations. Specifically, he posits that Eastwood Drive is not a permanent dead-end street because it exceeds 1200 feet in length and, as a loop road, is without a turn-around roadway with a minimum radius of forty-five feet for the outside curb at the closed end—attributes he deems necessary for a street to constitute a dead-end. By determining that Eastwood Drive is a dead-end street, the plaintiff argues, and the dissent agrees, that the court improperly adopted an expansive interpretation of the regulations in which a loop road is encompassed in the regulation’s definition of a dead-end street. We, therefore, must determine what is meant by dead-end street as that term appears in the regulations, and, secondarily, whether Eastwood Drive so comports.

At the outset, we set forth our standard of review. “It is axiomatic that a planning commission, in passing on a [subdivision] application, acts in an administrative capacity and is limited to determining whether the plan complies with the applicable regulations. . . . The commission is entrusted with the function of interpreting and applying its [subdivision] regulations. . . . The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts. . . . The plaintiffs have the burden of showing that the commission acted improperly. . . . The trial court can sustain the [plaintiffs] appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal .... It must not substitute its judgment for that of the . . . commission and must not disturb decisions of local commissions as long as honest judgment has been reasonably and fairly exercised. . . . [A]ppellate review excludes the retrial of the facts. . . . The Appellate Court does not determine whether the trier of facts could have reached a conclusion other than the one reached. It looks both at the conclusion reached and the method by which it was reached to determine whether that conclusion is correct and factually supported.” (Internal quotation marks omitted.) 200 Associates, LLC v. Planning & Zoning Commission, 83 Conn. App. 167, 171-72, 851 A.2d 1175, cert. denied, 271 Conn. 906, 859 A.2d 567 (2004).

To the extent that we must interpret the regulations, we are presented with a question of law, and our review is plenary. Trumbull Falls, LLC v. Planning & Zoning Commission, supra, 97 Conn. App. 21. At the same time, our review of the factual findings of the commission is guided by the substantial evidence standard of review. See Brunswick v. Statewide Grievance Committee, 103 Conn. App. 601, 612, 931 A.2d 319, cert. denied, 284 Conn. 929, 934 A.2d 244 (2007); Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn. App. 533, 540, 738 A.2d 1157 (1999).

When examining the regulations, “[w]e . . . are guided by the principle that the [commission] is always presumed to have created a harmonious and consistent body of law .... [T]his tenet of statutory construction . . . requires us to read statutes together when they relate to the same subject matter .... Accordingly; [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction.” (Internal quotation marks omitted.) State v. Fernando A., 294 Conn. 1, 21, 981 A.2d 427 (2009). Moreover, we must presume that a reasonable and rational result was intended by the commission in enacting the regulations. See Spero v. Zoning Board of Appeals, supra, 217 Conn. 441; Prioli v. State Library, supra, 64 Conn. App. 308; Day v. Middletown, supra, 59 Conn. App. 822. As General Statutes § l-2z directs, we first consider the text of the regulation and its relationship to other provisions. See Red 11, LLC v. Conservation Commission, 117 Conn. App. 630, 641, 980 A.2d 917, cert. denied, 294 Conn. 918, 984 A.2d 67 (2009). Only if the text of the regulation is ambiguous may we consider extratextual evidence. Id.

When a term is defined, we need not consider its common and ordinary meaning. See General Statutes § 1-1 (a) (“[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly”); 200 Associates, LLC v. Planning & Zoning Commission, supra, 83 Conn. App. 174 (“[i]f it is not otherwise defined, a word has its usual and customary meaning”). In the present case, it is undisputed that the regulations define dead-end street. As such, we need not consider its common and ordinary meaning and, instead, employ the meaning as set forth in the regulations.

We turn, therefore, to the text of the regulations. Section 1-1 of the regulations is titled “Definitions.” Paragraph J of § 1-1 defines “dead-end street.” It provides: “ ‘Dead-end street’ shall mean any street described in paragraph D of this [s]ection which is used for access to any current lot of record, and which presently provides only one means of ingress or egress.” (Emphasis added.) Hartland Subdivision Regs., § I-1J. Paragraph D of § 1-1 defines “street” as the following: “ ‘Street’ shall mean and include any right-of-way dedicated and accepted for public travel, and any right-of-way recorded in the Land Records of the Town of Hartland, which is used or to be used for public access to (a) any lot of record or (b) any lot sold or set apart in accordance with the Zoning Regulations and amendments thereto.” (Emphasis added.) Id., § I-1D. As evidenced by their plain language, §§ I-1J and I-1D broadly define dead-end street and street. Indeed, these two types of streets are the only ones mentioned in the regulations.

Section 1-6 sets forth certain requirements with which private streets included as part of a subdivision application must abide for that subdivision to be approved. Section I-6A-2 requires in relevant part: “Arrangement of streets shall provide for the continuation of the principal streets in adjoining subdivision, or for their proper projection when adjoining property is not subdivided. Permanent dead-end streets shall not exceed 1200 feet in length and shall be equipped with a turn-around roadway with a minimum radius of forty-five (45) feet for the outside curb at the closed end. Such turn-around roadway shall include a right of way with a minimum width of fifty (50) feet, measured from the outside curb at the closed end and continuing to an adjoining property line. . . .”

The plaintiff and the dissent argue that loop roads are not encompassed within the regulations’ definition of dead-end street. This conclusion is flawed. “In applying [the principles of statutory construction], we are mindful that the [commission] is presumed to have intended a just and rational result.” (Internal quotation marks omitted.) Blum v. Blum, 109 Conn. App. 316, 322, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008). Furthermore, “[w]hen construing a [regulation], [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the [commission].” (Internal quotation marks omitted.) Tayco Corp. v. Planning & Zoning Commission, 294 Conn. 673, 679, 986 A.2d 290 (2010); see also Nizzardo v. State Traffic Commission, 259 Conn. 131, 170, 788 A.2d 1158 (2002) (Borden, J., concurring and dissenting) (“[t]he process of statutory interpretation involves a reasoned search for the intention of the [commission]” [internal quotation marks omitted]). In enacting the regulations, the intent of the commission, at least in part, was to limit the length of dead-end streets in subdivisions. This is undisputed. Equally undisputed, and supported by the record before us, is that the commission viewed Hazel Lane and Eastwood Drive as combining to form a single dead-end street measuring well in excess of the 1200 foot regulatory limitation. The interpretation of the regulations championed by both the plaintiff and the dissent would leave unregulated that which § I-6A-2 seeks to regulate, namely, dead-end streets measuring over 1200 feet formed by combining a loop road and a dead-end street. We conclude that that interpretation is irrational and contrary to the intent of the commission. See Hartland Requirements for the Approval of Subdivision Plans, art. I (“the need for uniform and intelligent subdivision control is apparent” [emphasis added]). We cannot fathom that the commission intended such results.

There is no dispute that Eastwood Drive provides access to current lots. Furthermore, the record indicates that the commission viewed Eastwood Drive as having only one means of ingress or egress. In light of that evidence, as well as the commission’s stated intent and the expansive language of §§ I-1J and I-1D, we conclude that a loop road, such as Eastwood Drive, fits within the regulation’s definition of dead-end street. Accordingly, the defendant’s claim fails.

in

The plaintiff finally asserts that the court improperly rejected his claim that the commission arbitrarily reinterpreted the regulations when considering his application. We disagree.

We note that the plaintiff argued before the court that the commission’s 1988 approval of the Eastwood subdivision represented conclusive proof that Eastwood Drive is not a dead-end street and that it was binding precedent on future subdivision applications. The court held that, limited to the record before it, “there [was] no way to know what the [c]ommission thought in 1988. Furthermore, even if it were possible to conclude that in 1988 the [c]ommission determined that Eastwood Drive was not a dead-end street, the [commission would be entitled to correct an error, particularly one involving the health and safety of future residents of the subdivision.”

“It is well established that an appellate court will not retry the facts. Our review is to determine whether the judgment of the trial court was clearly erroneous or contrary to the law. . . . When . . . the trial court draws conclusions of law, [the scope of our appellate] review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Pinchbeck v. Planning & Zoning Commission, 69 Conn. App. 796, 801, 796 A.2d 1208, cert. denied, 261 Conn. 928, 806 A.2d 1065 (2002).

Although the plaintiff correctly asserts that when a commission previously has interpreted a regulation, the commission’s construction is entitled to consideration; see Fedorich v. Zoning Board of Appeals, 178 Conn. 610, 616-18, 424 A.2d 289 (1979); the record in the present case is without a single indicia to ascertain the commission’s reasoning for approving the Eastwood subdivision. Contrary to the plaintiffs assertion, the commission’s approval of the Eastwood subdivision in 1988, we conclude, is not proof that Eastwood Drive is not a dead-end street. Because we do not know why the commission approved the Eastwood subdivision in 1988, the plaintiffs claim that the commission allegedly has departed from such an interpretation of the regulations must fail.

The judgment is affirmed.

In this opinion BEACH, J., concurred.

BORDEN, J.,

dissenting. The majority’s opinion rests on the proposition that Eastwood Drive is a dead-end street within the meaning of the applicable subdivision regulations of the town of Hartland. Because I disagree with the majority’s interpretation of those regulations, I dissent. I conclude that Eastwood Drive does not constitute a dead-end street under the facts of this case.

I begin with a brief restatement of certain undisputed facts. Eastwood Drive is an existing street in an existing subdivision, namely, the Eastwood subdivision, which was approved in 1988 by the defendant planning and zoning commission of the town of Hartland. Eastwood Drive has a particular and peculiar shape, which can be aptly described as looking something like a partially flattened lollipop. That is, it has a stem of 850 feet, which begins at Route 20. The stem leads into a loop that is 2650 feet in length on which there are fourteen existing lots and houses, ten on the outside perimeter and four on the inside perimeter. In sum, Eastwood Drive is approximately two-thirds of a mile long in total, of which the stem constitutes approximately one-sixth of a mile and the loop constitutes approximately one-half of a mile. When one comes to the top end of the stem, one can drive either right or left on the loop to access any of the fourteen lots on it.

Eastwood Drive would, under the new subdivision application filed by the plaintiff, Harry Kraiza, Jr., connect to a new street, namely, Hazel Lane, which would be 1100 feet in length and which is conceded to be a dead-end street because it ends in a cul-de-sac. Under the applicable subdivision regulations, however, only dead-end streets that are more than 1200 feet in length are proscribed. Thus, because Hazel Lane would be less than 1200 feet in length, the plaintiffs application would have to have been approved—unless the length of Eastwood Drive, as a dead-end street, were added to the length of Hazel Lane. That addition is what the defendant did, making, in the defendant’s view, the total of the two connected streets—Eastwood Drive and Hazel Lane—one long, dead-end street proscribed by the regulations. In doing so, the defendant rejected the opinion of the planning consultant that it had hired, Martin J. Connor, who opined that Eastwood Drive was not a dead-end street the length of which should be combined with that of Hazel Lane in assessing whether the plaintiffs proposed subdivision complied with the regulations.

The critical question, therefore, is whether Eastwood Drive—an existing, prior approved street in the existing Eastwood subdivision—is itself a dead-end street. The majority concludes that it is. I conclude otherwise.

I first address the majority’s use of the scope of review. In part I of the majority opinion, the majority correctly determines that the question of whether Eastwood Drive is a dead-end street is a question of statutory interpretation, that it is not a question that had been subject to prior judicial scrutiny or to which the administrative agency had applied a time tested interpretation and, therefore, that the court’s scope of review was plenary. I fully agree with those conclusions.

I turn, therefore, to the question before us in this appeal: is Eastwood Drive a dead-end street within the meaning of the subdivision regulations? The majority, focusing on only part of the applicable language of the subdivision regulations, namely, the language defining a dead-end street as “any street . . . which presently provides only one means of ingress or egress”; Hartland Subdivision Regs., § I-1J; concludes that Eastwood Drive is a dead-end street because it provides only one means of ingress and egress from Route 20. This conclusion is flawed. In my view, the language of the applicable regulations simply does not contemplate a street of the particular and peculiar configuration of Eastwood Drive.

1 begin with the language of the regulations. Section I-1J provides as follows: “ ‘Dead-end Street’ shall mean any street described in paragraph D of this Section which is used for access to any current lot of record, and which presently provides only one means of ingress or egress.” Section I-6A-2 provides: “Arrangement of streets shall provide for the continuation of the principal streets in adjoining subdivision, or for their proper projection when adjoining property is not subdivided. Permanent dead-end streets shall not exceed 1200 feet in length and shall be equipped with a turn-around roadway with a minimum radius of forty-five (45) feet for the outside curb at the closed end. Such turn-around roadway shall include a right of way with a minimum width of fifty (50) feet, measured from the outside curb at the closed end and continuing to an adjoining property line.” These two provisions must be read together. See Hatt v. Burlington Coat Factory, 263 Conn. 279, 310, 819 A.2d 260 (2003) (statutes that relate to same subject matter are to be read together).

It may be true, as the majority posits, that § 1-1J, read literally and in isolation from § I-6A-2, might include Eastwood Drive, because, using Route 20 as the starting point, there is only one means of ingress and egress to it, namely, the 850 foot long stem. Reading the two provisions together, and in light of common sense; see Tayco Corp. v. Planning & Zoning Commission, 294 Conn. 673, 686, 986 A.2d 290 (2010); and the normal usages of the English language, however, leads to a different conclusion.

The references in § 1-6A-2 to “a turn-around roadway with a minimum radius of forty-five (45) feet,” which “shall include a right of way with a minimum width of fifty (50) feet, measured from the outside curb at the closed end,” indicate that the definition of “dead-end street” contemplates something much more limited than any street that has only one means of ingress or egress, no matter how peculiar and particular its configuration. Those references indicate that a dead-end street would have a “turn-around roadway” and a “closed end.” The language “turn-around roadway” strongly suggests that a dead-end street is one in which drivers would have to turn around in order to get out; hence, the minimum radius requirement for the turnaround. The language “closed end” also strongly suggests the same thing, namely, that a dead-end street is one that has an end that is closed to getting out; hence, the requirement that there be a right-of-way with a minimum width at the closed end.

It is impossible to regard the two way, half-mile long loop of Eastwood Drive as either a turn-around roadway or a closed end. It is not a turn-around roadway because no driver, having come to the end of the stem, has to turn around in order to get out; all she has to do is to continue on around the loop in either direction. Similarly, it does not have a closed end because the end is not closed to getting out; all the driver has to do to get out is to keep driving around the loop in either direction. Common sense and the normal usages of our English language indicate that, when the drafters of the regulations drafted both §§ I-1J and I-6A-2, they had in mind the commonly understood meaning of a dead-end street, namely, a street that requires a driver to turn around at its closed end in order to get out. In other words, they had in mind what most people regard as a dead-end street, namely, a street ending in something like a cul-de-sac. See, e.g., Webster’s Third New International Dictionary (1961), giving one definition of “dead end” as “cul-de-sac.” See also 200 Associates, LLC v. Planning & Zoning Commission, 83 Conn. App. 167, 173-74, 851 A.2d 1175 (ordinary meaning of cul-de-sac “is a blind alley or a street open at one end only, or a street closed at one end, usually with a turnaround at the closed end, which does not describe ... a loop road that allows traffic to flow in two directions”), cert. denied, 271 Conn. 906, 859 A.2d 567 (2004).

This is precisely why Connor, the defendant’s planning consultant, advised the defendant that Eastwood Drive is not a dead-end street. See footnote 2 of this opinion. It is also the most likely explanation of why the defendant, in 1988, when it approved the Eastwood subdivision, thereby approved Eastwood Drive: because it was not then, and is not now, a dead-end street within the meaning of those regulations. It is something else, namely, what can most aptly be described as a loop street or, perhaps, a lollipop street.

This leads me to one final comment. The dialogue among the members of the defendant indicates that they put some emphasis on the fact that the regulations do not include any provisions for loop or lollipop streets, and, therefore, Eastwood Drive must be a dead-end street because it has only one means of ingress or egress from Route 20. Simply because the regulations of the town do not include a description of such streets does not mean that they do not exist in the town; and simply because the regulations lack such a description does not mean that a street that does not otherwise come within the meaning of the regulations must therefore be stuffed into a definition that does exist. As our Supreme Court has stated: “[C]alling a bull a cow will [not] change its gender.” State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). Similarly, calling a loop or lollipop street a dead-end street does not make it so.

I, therefore, dissent and would reverse the trial court’s judgment and remand the case with direction to sustain the plaintiffs appeal.

APPENDIX

       Prior to trial, the court granted the motion to intervene as a defendant that was filed by Roy Champagne, an owner of property abutting that of the plaintiff. Because Champagne is not a party to this appeal, we refer in this opinion to the commission as the defendant.

       Section I-1E of the Hartland subdivision regulations provides: “ ‘Reserve Strip’ shall mean and include areas for which future public use is intended for street connections and for street or pedestrian ways giving access to land dedicated to public use.”

       Section I-1D of the regulations provides: “ ‘Street’ shall mean and include any right-of-way dedicated and accepted for public travel, and any right-of-way recorded in the Land Records of the Town of Hartland, which is used or to be used for public access to (a) any lot of record or (b) any lot sold or set apart in accordance with the Zoning Regulations and amendments thereto.”

       A neighboring property owner, Roy Champagne, who was permitted to intervene as a defendant, claimed that the subdivision boundaries extended onto his property and that he should have been included in the application. The court rejected his claim. Those findings are not challenged on appeal.

       The dissent misconstrues this issue as “whether Eastwood Drive is a dead-end street ...”

       Relying on Buttermilk Farms, LLC v. Planning & Zoning Commission, supra, 292 Conn. 317; Pansy Road, LLC v. Town Plan & Zoning Commission, 283 Conn. 369, 926 A.2d 1029 (2007); and Trantolo v. Town Plan & Zoning

        Commission, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-960564967 (August 26, 1998), the plaintiff claims that by adding the length of Eastwood Drive to that of Hazel Lane when evaluating his application, the commission improperly considered off-site conditions and the roadway “system.” Because there is substantial evidence in the record that the commission viewed Hazel Lane as an addition to Eastwood Drive; see footnote 7 of this opinion; we deem the plaintiffs claim unavailing.

       The relevant discussion at the public hearing was as follows:
      “UNIDENTIFIED MALE VOICE: My nerd question is, at the end of the cul-de-sac there is a right-of-way or a proposed road. Why is it there, where does it go and (inaudible)?

        “THE CHAIRMAN: That’s just, at some point say the town gets enough, in say fifty years down the road or something like that, somebody sells his land and somebody buys and wants to continue this road into Homewood or the town suggests continuing into Homewood, we have a space to connect here where you don’t have to go through someone’s land. It’s just something for the future. It may never be used. There are a couple of places in town like that.
      “What I’m saying is, you can only have a dead end so long.
      “UNIDENTIFIED FEMALE VOICE: But you told him that at some future point the town can expand that road.
      “THE CHAIRMAN: Right. Then it wouldn’t be a dead end but, if the town, say in fifty or a hundred years, the town decides they want to connect, let’s say Eastwood and Homewood, and they’re able to buy that strip of land, then it’s not a dead end anymore because you’ve got, you—
      “UNIDENTIFIED FEMALE VOICE: Right, and you’re talking 1200 feet and you can’t put or add onto a 1200 foot road because it’s a dead end.
      “THE CHAIRMAN: If it’s not a dead end, you can add onto it.
      “UNIDENTIFIED FEMALE VOICE: So, you’re saying that this is a temporary dead end (inaudible) until somebody (inaudible)?
      “THE CHAIRMAN: If, if that ends up being someone connected it to another through street, yes.
      “UNIDENTIFIED FEMALE VOICE: So, you would allow the 1200 foot road that’s considered a dead end to be added onto at some point? Then that’s never a dead end.
      “THE CHAIRMAN: Well—
      “UNIDENTIFIED MALE VOICE: No, no, no, no. . . .
      “UNIDENTIFIED MALE VOICE: I think, I think the point is, it would only be useful if you connect it with some other street that doesn’t exist right now but may exist at some time in the future, I guess.
      “UNIDENTIFIED FEMALE VOICE: So, you’re saying that’s just, any dead-end street might not have the option of being (inaudible)?
      “UNIDENTIFIED MALE VOICE: But still needed to be—
      “THE CHAIRMAN: If it’s to, if it’s to another road, yes. . . .
      “UNIDENTIFIED MALE VOICE: (Inaudible) Then it would become a through street, which is a different category from a dead end. . . .
      “THE CHAIRMAN: Right.”

       At the public hearing, the following colloquy concerning safety transpired:
      “THE CHAIRMAN: The same thing with the (inaudible), you have something happen at the end of the street, also you can’t, you don’t have access to any of those lots in the back.
      “UNIDENTIFIED MALE VOICE: That’s right. You get an accident in the one.
      “UNIDENTIFIED MALE VOICE: Egress, ingress.
      “UNIDENTIFIED MALE VOICE: Correct.”

       The plaintiff also claims that the court improperly based its decision on its own public safety concern without finding that the commission had such a concern. We agree with the commission that although the court did address public safety concerns, the true basis of the court’s decision rested on the plain language of the regulations.

       The dissent does not address this tenet of statutory interpretation.

       In 200 Associates, LLC v. Planning & Zoning Commission, supra, 83 Conn. App. 167, relied on by the plaintiff and cited by the dissent, the applicable regulation provided that a cul-de-sac shall not exceed 1000 feet in length. Id., 170. Because the regulations did not define the term cul-desac, the court employed its common and ordinary meaning. Id., 173. In the present case, § I-6A-2 limits the length of dead-end streets to 1200 feet. The term dead-end street is defined in the regulations.

       The dissent argues that the Eastwood subdivision was approved because the commission viewed Eastwood Drive as a loop road unregulated by the regulations. A more plausible explanation, as recognized by the court, is that the Eastwood subdivision was approved because the commission, at least in 1988, did not view Eastwood Drive as a permanent dead-end street. Hence, the existence of the reserve strip.

       At the public hearing before the commission, the following colloquy occurred:
      “THE CHAIRMAN: And I know there were some questions, too, on where it starts, and the road starts at the intersection of which one because I know someone at [one] time said where you start it at the cul-de-sac or you start it at the, you know, (inaudible) junction of the road. Eastwood starts and that’s that new point, so that’s where the 1200 feet would start, and someone else had brought up that they thought [it] was a, I think Scott said a lollipop (inaudible).
      “UNIDENTIFIED MALE VOICE: We don’t have—
      “THE CHAIRMAN: But there’s no, nothing in the Hartland road regulations that says anything about a (inaudible) or a lollipop road. All it says is, is a (inaudible) and dead-end street; [those are] the only two streets we’ve got.

        “UNIDENTIFIED MALE VOICE: (Inaudible) provides only one means of ingress or egress.
      “UNIDENTIFIED MALE VOICE: Eight.
      “UNIDENTIFIED MALE VOICE: And that’s [what] we have here.”

       In his appellate brief, the plaintiff claims that his decision to purchase the property was based, in part, on the reserve strip, which he alleges memorialized the commission’s consent to a future extension. The record, however, contains no evidence to support that position.

       The appendix to this dissenting opinion is a rendering of Eastwood Drive taken from the record of the case.

       Specifically, Connor opined: “Eastwood [Drive] would not be described as a permanent dead-end street according to the [town of Hartland] Regulations. ... It would be better described as a ‘loop’ or ‘lollipop’ road. A permanent dead-end road is usually described as a cul-de-sac.”

       Paragraph D defines “Street” as “any right-of-way dedicated and accepted for public travel, and any right-of-way recorded in the Land Records of the Town of Hartland, which is used or to be used for public access to (a) any lot of record or (b) any lot sold or set apart in accordance with the Zoning Regulations and amendments thereto.” There is no dispute that Eastwood Drive is a “street.”


author: FLYNN, C. J.

text:
    PATRICIA A. BOWEN ET AL. v. ANTHONY J. SERKSNAS ET AL.
    (AC 30707)
    Flynn, C. J., and Robinson and Alvord, Js.

      Argued February 8
    officially released June 8, 2010

      Neil R Marcus, with whom were Barbara M. Schel-lenberg and, on the brief, Austin D. Kim, for the appellant-appellee (named plaintiff).

      Frank C. White,- Jr., for the appellees-appellants (defendants).

       The listing of judges reflects their seniority status on this court as of the date of oral argument

   Opinion

FLYNN, C. J.

The plaintiff Patricia A. Bowen, (Patricia) appeals from the judgment of the trial court finding that she and her brother, Walter V. Bowen (Walter) did not establish their claim of adverse possession against the defendants, Anthony J. Serksnas and Mamie L. Serk-snas. The defendants filed a cross appeal claiming several missteps by the court. Because we conclude that the court properly found that the facts did not demonstrate that Patricia and Walter successfully had proven their claim of adverse possession, we need not address the merits of the defendants’ cross appeal or whether a cross appeal was proper under Practice Book § 61-8 when the defendants were successful at trial. Accordingly, we affirm the judgment of the trial court.

The following facts, as found by the court, are relevant to our resolution of this appeal. “The dispute is over portions of adjoining lots 36 and 37. These properties are located at 8 DeRenne Road and 10 DeRenne Road, respectively, in Old Saybrook. The defendants acquired the lots by warranty deed from Elinor [DeRenne] and Charles DeRenne. The transfer occurred on April 19, 2006. . . . The Serksnas [es] also own lot 35. Patricia and Walter Bowen own the neighboring property, lot 38. Their property is located at 5 Elinor Road in Old Saybrook. These lots are part of a common subdivision for seasonal use.

“The Bowens jointly claimed that they have used certain portions of lots 36 and 37 since 1965 without consent. They contend that their conduct has been open, visible and continuous for over fifteen years. Thus, they asked [the] court to quiet title in their favor. Patricia Bowen testified at trial about her adverse use of the property. Walter Bowen did not testify. [The Bowens’] other evidence included photographs and expense records showing that Patricia Bowen paid to maintain portions of lots 36 and 37.

“The Serksnas [es] also testified at trial and provided photographs and other documents to challenge [the Bowens’] claim. Their central rebuttal was that [the Bowens] have failed to make a clear and positive claim over any part of the disputed lots. Alternatively, they argued that the Bowens had permission, consent or license to use the properties while they were maintained.” (Citation omitted.)

On the basis of the evidence presented and the credibility of the witnesses, the court found that the Bowens had not proven open and visible use of a positively identified area of the lots, notorious and hostile possession or that they had acted under a claim of right. Accordingly, the court found that the Bowens had not proven their adverse possession claim and rendered judgment in favor of the defendants. Patricia now appeals. Additional facts will be set forth where necessary.

Patricia claims that the court improperly concluded that she and Walter failed to establish the facts necessary to support their claim of adverse possession. Specifically, she argues that the court improperly found that they had failed to prove open and visible use, hostility, and exclusive use without shared dominion and that they possessed the subject lots under a claim of right. The defendants argue that the court properly found that the Bowens had failed to prove their claim of adverse possession. We agree with the defendants.

“[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 own and without the consent of the owner. ... A finding of adverse possession is to be made out by clear and positive proof. . . . The burden of proof is on the party claiming adverse possession. . . . Despite that exacting standard, our scope of review is limited.” (Internal quotation marks omitted.) Woodhouse v. McKee, 90 Conn. App. 662, 669, 879 A.2d 486 (2005). “Because adverse possession is a question of fact for the trier . . . the court’s findings . . . are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed .... A trial court’s findings in an adverse possession case, if supported by sufficient evidence, are binding on a reviewing court . . . .” (Internal quotation marks omitted.) Eberhart v. Meadow Haven, Inc., 111 Conn. App. 636, 641, 960 A.2d 1083 (2008).

In this case, the court found that the Bowens had failed to establish a prima facie case of adverse possession. In fact, the court found that the Bowens had failed to establish any of the elements of an adverse possession claim. On appeal, Patricia claims that the court’s findings were clearly erroneous and that she and Walter had established a prima facie case. We do not agree.

Rather than analyze every element of the plaintiffs adverse possession claim as did the trial court, we will focus our analysis on what we consider to be the most fatal flaws in Patricia’s claim on appeal, namely, the court’s finding that the Bowens did not use these lots exclusively without shared dominion and the acknowledgment of superior title in letters written by Walter.

The court specifically found: “The question of exclusive use deals another damaging blow to the Bowens’ claim because innumerable others shared dominion over the lots. ... It is clear from the testimonies that the DeRennes used their lots infrequently. Yet, the court must note that essentially these lands are for seasonal use. As such, any seasonal use by the DeRennes or others would negate the Bowens’ exclusive possession.

“The DeRennes’ generosity may have instigated the plaintiffs’ adverse intentions. But that same virtue invited several users to the property to prevent the Bowens’ adverse possession. For example, Maxine Byrnes testified that she cleared brush and trimmed rose bushes to maintain parking space on lot 37. Others in her family kept the horseshoe pit that the Bowens enjoyed on their picnics. [Byrnes’] family used the lots from the 1960s and well into the 1980s. [The defendants] gave similar testimonies.

“More importantly, the DeRennes entered the properties at their pleasure. Charles DeRenne testified that he visited the lots on several occasions in the 1970s. He met Walter . . . during some of these visits, but he was never asked to leave the properties. Elinor DeRenne also testified that she consistently went to the lots. She even permitted Yale students to conduct research at the marsh on lot 36. As a true owner, Elinor DeRenne paid the property taxes until title passed on to the [defendants] in April, 2006.” (Citations omitted.)

As explained by our Supreme Court in Roche v. Fairfield, 186 Conn. 490, 502-503, 442 A.2d 911 (1982): “In general, exclusive possession can be established by acts, which at the time, considering the state of the land, comport with ownership; viz., such acts as would ordinarily be exercised by an owner in appropriating land to his own use and the exclusion of others. . . . Thus, the claimant’s possession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner’s use. ... It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question.” (Citations omitted; internal quotation marks omitted.) “The use is not exclusive if the adverse user merely shares dominion over the property with other users.” (Internal quotation marks omitted.) Id., 498; see also Arcari v. Dellaripa, 164 Conn. 532, 536, 325 A.2d 280 (1973) (“[t]he requisite of exclusive possession for the statutory period is not met if the adverse user merely shares dominion over the property with other users”); Lisiewski v. Seidel, 95 Conn. App. 696, 702, 899 A.2d 59 (2006) (“[i]f dominion is shared, then the exclusivity element of adverse possession is absent”).

In Short Beach Cottage Owners Improvement Assn. v. Stratford, 154 Conn. 194, 199, 224 A.2d 532 (1966), the plaintiff claimed, inter aha, that it had acquired an area of beach front property by adverse possession. The trial court found, however, that the plaintiff had not maintained exclusive use of the property. Id. The Supreme Court agreed with the trial court, explaining: “One of the requisites to acquiring property by adverse possession is that the claimant maintain an exclusive possession of the disputed area during the running of the fifteen-year period. . . . This condition is not met if the adverse user merely shares dominion over the property with other users. . . . Since the referee found as a fact that the [plaintiffs predecessors in title] never maintained an exclusive possession over the beach area, in that others occupied cottages on the property without the [predecessors’] permission, the conclusion that the plaintiffs failed to establish title by adverse possession was required. In addition, the [predecessors] did not collect rents for the cottages established on or moved to the subject property. This is inconsistent with a claim of title by adverse possession.” (Citation omitted.) Id.

In the present case, the court found that the DeRennes had given broad privilege to many of their neighbors to use the lots in question as long as the neighbors kept the lots well maintained. The court specifically pointed to the testimony of Byrnes that she and her family used and maintained areas of these lots from the 1960s to the 1980s. The defendants also testified that they, too, had similar experience with the use of the lots. Patricia makes much ado about receipts that she kept that allegedly showed how much she spent toward the maintenance of lots 36 and 37. The fact that she may have paid a service company to maintain the lots, rather than maintain them herself in exchange for being able to use them, does not demonstrate exclusive dominion. In fact, our own review of the record shows no evidence that the Bowens used the lots in any manner inconsistent with the use afforded to and accepted by other neighbors.

The court also made other relevant findings of fact: “The Bowens made no . . . affirmative showing of hostility. They used the lots in the manner permitted by the DeRennes, not as notorious adverse possessors. Indeed, Walter Bowen’s actions are especially telling on this point. He offered to purchase the lots, not only for himself, but also as his sister’s agent, albeit without her authorization. It is well established that ‘an attempt to purchase legal title ... is recognition of that title.’ Allen v. Johnson, 79 Conn. App. 740, 746, 831 A.2d 282, cert. denied, 266 Conn. 929, 837 A.2d 802 (2003). So, in attempting to purchase the properties from the true owners, Walter Bowen acknowledged the DeRennes’ superior title. This contributes substantially toward negating the Bowens’ adverse disposition and claim of right.”

“[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 own and without consent of the owner.” (Emphasis added; internal quotation marks omitted.) Chuckta v. Asija, 97 Conn. App. 232, 235, 903 A.2d 243 (2006). Furthermore, “[a]n adverse possessor may interrupt his or her continuous possession by acting in a way that acknowledges the superiority of the real owner’s title. . . . [T]he possession of one who recognizes or admits title in another, either by declaration or conduct, is not adverse to the title of such other. . . . Occupation must not only be hostile in its inception, but it must continue hostile, and at all times during the required period of fifteen years challenge the right of the true owner, in order to found title by adverse use upon it. . . . Such an acknowledgment of the owner’s title terminates the running of the statutory period, and any subsequent adverse use starts the clock anew. (Citations omitted; internal quotation marks omitted.) Allen v. Johnson, supra, 79 Conn. App. 746-47.

Prior to 1965, Eudora DeRenne owned several lots in Old Saybrook, including lots 36,37 and 38. In January, 1965, she conveyed lot 38 to Ellen Bowen, the mother of Walter and Patricia, expressly telling Ellen Bowen that the Bowens could use lots 36 and 37 if they maintained those lots. Walter was present at the closing and expressly heard Eudora DeRenne tell his mother, Ellen Bowen, that “if you people maintain the land, you can use the land.” Nevertheless, in a March 24, 1980 affidavit, filed on the land records just fifteen years after the January, 1965 closing, Walter averred that he exclusively had adversely possessed these lots for the requisite fifteen year period. Another affidavit filed by Patricia on May 23, 1980, expressly stated that she exclusively had adversely possessed these lots for the requisite fifteen year period. Elinor DeRenne never saw the affidavits filed by Walter and Patricia, and Charles DeRenne did not see them until 2005. Both of these affidavits purportedly were filed pursuant to General Statutes § 47-12a. In accordance with the averments in these affidavits, the alleged adverse possession of lots 36 and 37 by Patricia and Walter would have begun at or near the time their mother purchased that lot from Eudora DeRenne and received express permission from Eudora DeRenne to use neighboring lots 36 and 37 on the condition that the family maintain those lots. Both Walter and Patricia acknowledged that they knew that their mother had been given permission to use lots 36 and 37 at the time she had purchased lot 38.

In their amended complaint, Walter and Patricia alleged that they jointly had adversely possessed lots 36 and 37 for the requisite fifteen year period. The alleged starting point of their adverse possession of these lots is somewhat unclear, however. The complaint references the 1980 affidavits, which indicates that the possession would have started in or before 1965, at the time they both acknowledge that their mother, the then owner of lot 38, had been given express permission to use lots 36 and 37 if she and her family maintained those lots, but the plaintiff also indicates in her appellate brief that the adverse possession may have started in the early 1970s after the deaths of Ellen Bowen and Eudora DeRenne; on January 14, 1980, when Elinor DeRenne filed a notice on the land records to prevent a claim of easement; or “from 1990 onward [when] Maxine Byrnes and her family were not participating in any significant activity on lots 36 and 37. ”

Nevertheless, in a September 17, 2005 handwritten letter, which Walter sent to Charles DeRenne in response to a letter that Charles DeRenne had written to the Bowens concerning the parking of vehicles on a portion of lot 37 and a statement that Walter allegedly had made to a neighbor, J. Kevin Kinsella, that he owned lot 37, Walter stated: “When your [mjother closed on this property in 1965, she stated to my [m] other, with me present, ‘[i]f you people maintain the land, you can use the land.’ My [m]other was unaware until that day of the closing that this strip of land was not included in the sale, especially, since the leach fields, however long they are, extended into that strip of land from the septic tank system. However, your [m]om stated she wanted the land so she [and] family members could picnic and use the beach which she did twice. On each occasion, my [m]om offered your [m]om and companions use of the bathrooms, and outside showers which they gladly accepted.

“For forty years now, my [m]other who is deceased thirty years, Patricia and I have maintained this strip of land, which has our leach fields on it, with the help of Parker Lawn Service . . . who cleans, prunes, rakes and mows [in the] spring, summer and fall with all expenses being paid by us. Presently, we’re under contract with Bombaci Tree Care ... to remove two dangerous large thick split limbs that are hanging from two trees on that land. The cost that Patricia and I are paying is coming to $550.00, and because we maintain [and] use the land we have no problem assuming the expense, and not bothering Elinor [DeRenne].

“The Duggans and their extended family have always used that land for parking for years, and as recently as last week without any problems. Mr. Kinsella’s [modus operandi] is, he doesn’t want anyone parking there because ... it interferes with his view of the marsh. Did Mr. Kinsella (the man with the camera), mention to you he had mature trees cut down ... to enhance his view? I had told him I had no authority to give the [okay] when he asked. He had it done in the winter when no one was around. The man wants what he wants, and he’ll leave no stone unturned.

“Many years ago, your sister Elinor [DeRenne] called me . . . and offered a package deal of two roads, Elinor [and] DeRenne, and along with [two] lots. One lot was in the marsh, protected by the Wetlands Act. The only lot we would have been interested in was the strip of land where our leach fields are [and] it was land we were already maintaining.

“To be honest, at that time we didn’t have the money to purchase other real estate. We have had forty wonderful years here, along with the usual sadnesses that all families experience. My goal in retirement is to remove as much stress as possible in my life, and the man with the camera, who had nothing better to do but make waves, will not interfer[e] with that goal.

“The land has not been abused, and it looks good, as it always does. The next time you’re in [Connecticut] stop by, [and] hopefully, I will be here.

“I’m sorry you [and] Elinor [DeRenne] had to be bothered with this nonsense, since we have co-existed very nicely for a long, long time, along with our neighbors on this lane. I hope you are in a safe location from this Ophelia. Walt Bowen—[telephone number] Patricia Bowen—[telephone number].”

On September 27, 2005, Charles DeRenne sent another letter, addressed to Walter and Patricia, advising them that the DeRennes had offers to purchase lots 36 and 37, to which Walter sent the following handwritten response: “I sincerely hope that these communications are not bothersome to you [and] your family. I only recently looked at the field cards at [t]own [h]all in Old Saybrook, and I can see why Mr. Serksnas would be interested in purchasing lot 36 since his property and yours abut each other, and that is why Patricia and I would also be interested in purchasing lot 37 that abuts our property as well.

“If you, Elinor [DeRenne] and family decide in the future to sell the property, I would only hope you would consider us first since we have a history on the land. Since retirement, I winter in Florida from December 1st to mid June ....

“Hopefully, everything can be resolved in the positive for you, Elinor [DeRenne and] family, as well as for Mr. Serksnas, and of course, the Bowens.”

Although Walter is not a party to this appeal, the adverse possession claim he and Patricia brought was a joint claim of possession. In their complaint, they alleged that they performed all the actions necessary to establish a prima facie case of adverse possession, and they asked the court to quiet and settle title in them. They also presented as evidence the two separate affidavits, one sworn to by Walter and one sworn to by Patricia, each of which was filed separately on the land records between March 24 and May 23, 1980. Walter’s affidavit stated that he, exclusively, had adversely possessed the relevant lots for the requisite fifteen years, and Patricia’s affidavit stated that she, exclusively, had adversely possessed the relevant lots for the requisite fifteen years. Neither affidavit mentioned the other. In their complaint, however, the Bowens alleged that they adversely possessed the lots together. Nevertheless, Walter’s letters to Charles DeRenne, with which Patricia had no disagreement, recognized the superior title of the DeRennes and clearly admitted that the use of these lots had been permissive since 1965. Therefore, the Bowens’ joint claim of adverse possession necessarily fails, especially when the court credited these admissions and accorded them such significant weight. On appeal, we do not discount the weight afforded such admissions by the trial court simply because Walter, who made the admissions, is not a party to the appeal.

Clearly, each of the letters written by Walter expressed his recognition that the Bowens’ use of these lots was permissive since 1965 and that the DeRennes owned the lots at least as of the date of the letter, September 27, 2005, thus defeating any claim that he had adversely possessed these lots, either jointly or severally, prior to his filing of the adverse possession affidavit on the land records or at any time thereafter. Although Patricia argues that “even if Walter Bowen could not prevail on his adverse possession claim because of his actions, those actions should not prevent Patricia Bowen from prevailing on her claim,” the fact is Patricia and Walter brought a complaint alleging that they had jointly possessed these lots. Although Walter is not a party to this appeal, he was a plaintiff at trial and, therefore, a party capable of making admissions. The complaint alleged joint adverse possession, which, clearly, was not proven, the court finding quite significant Walter’s admissions in the two letters that he wrote to Charles DeRenne. Furthermore, Patricia stated on more than one occasion at trial that she did not disagree with the letters or their content.

Additionally, the court made further relevant findings: “The Bowens’ claim of right issue relates invariably to whether the DeRennes acquiesced, consented or gave permission [to use the lots]. It is abundantly clear . . . that the DeRennes gave all three forms of privilege to their neighbors liberally. Patricia Bowen was granted permissive use of lots 36 and 37 as long as she maintained the properties. This inter-familiar use extended back to 1965. [Patricia and Walter] never paid taxes, the association assessment, nor insurance for lots 36 and 37. Elinor DeRenne paid the taxes and the [association dues on the lots from 1965 until she sold the lots to [the] Serksnas[es] on April 19, 2006. Patricia Bowen acknowledged that the Bowens were granted broad privileges over lots 36 and 37. Her state of mind obviates an adverse possession analysis.” Our own review of the record in this case leads us to the conclusion that the court’s findings have evidentiary support and, therefore, are not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Walter was also a plaintiff at trial. He has not appealed from the judgment of the court, however. Therefore, Patricia is the sole plaintiff in this appeal.

       Elinor DeRenne testified that between 1965 and 2006 she occasionally went to lots 36 and 37. She took people from the town offices there to show them the property when she was appealing an increase in her property taxes. She filed tax appeals on the lots three or four times. She also went there with her sister to go swimming and with her brother when he was visiting the area. She never saw anyone using the lots when she went there, not even for parking. She estimated that she went there once per year. Elinor DeRenne also testified that she gave J. Kevin Kinsella, a neighbor at Chalker Beach, permission to enter the land to trim or cut down some trees. Anthony Serksnas also had permission to trim and cut trees.

       The record reveals that Byrnes testified that she and her husband, Jack Duggan, owned the property at 7 DeRenne Road, lot 35, which previously had been owned by Jack Duggan’s parents, who had purchased it from Charles DeRenne, and that the property is now owned by their daughter, Mamie Serksnas, formerly Mamie Duggan, and her husband, Anthony Serksnas, the defendants in this case. Lot 35 is across the street from lots 36 and 37. Byrnes testified that she spent every summer at lot 35 and that she still frequents the property and still parks on lot 37. Byrnes stated that she has been going to these properties since 1964, and lot 37 has been used by her family and friends for overflow parking since that time. In the 1970s, Duggan and his father reconstructed the horseshoe pit on lot 37, and they then used lot 37 for horseshoes and lots 36 and 37 for family picnics nearly every weekend. Byrnes testified that other neighbors also used the horseshoe pit regularly and that some of them also picnicked there. These picnics lasted well into the 1980s, and the children also played ball on these lots. Byrnes testified that she never saw Walter or Patricia at these picnics and that she never saw them park their vehicles on either lot 36 or 37, although she did see them on their own property, lot 38, where they also parked their vehicles. Byrnes further testified that she performed maintenance on lots 36 and 37, trimming and cutting back the rambling roses.

       Mamie Serksnas testified that she grew up at lot 35 and that her grandfather, John Duggan, owned the property before she was bom. She played on lots 36 and 37 throughout her childhood, playing football, baseball and horseshoes, and her family and the neighbors also picnicked there. She remembered her family parking on lot 37 all the time, and other neighbors parked there as well. Neighbors entered the marsh on lot 36 to crab or to kayak, and she took her brother crabbing in the marshland. Mamie Serksnas also testified that she never saw Walter or Patricia on lots 36 or 37 but that she did see Walter park on lot 37 occasionally.
      Anthony Serksnas testified that he began going to lots 35, 36 and 37 in the summer of 1987 when he began dating Mamie and that he continued going there with her in the summers. He stated that he parked on lot 37 and that “[t]hose lots were used by everybody at the end of the streets for overflow parking primarily.” Additionally, Anthony Serksnas testified that in 2000 or 2001, he began constructing a new porch on lot 35 and that he contacted Elinor DeRenne for permission to partially clear some portions of lots 36 and 37 to enhance his view and to provide better access to the marshlands, and that she gave him such permission. The Kinsellas then contacted the DeRennes to get permission for further clearing, and he and the Kinsellas split the cost of the continued maintenance of the enhanced views. He also testified that neighbors then crossed the lots to get to the marshlands to kayak.

       Furthermore, Patricia testified that other neighborhood residents also used lots 37 and 38 since 1964.

       Eudora DeRenne was Charles DeRenne’s wife and died in 1971.

       Both of these affidavits were filed in response to a notice to prevent claim of easement, pursuant to General Statutes §§ 47-38 and 47-39, filed by Elinor DeRenne on January 14, 1980. The court, however, determined that this notice was not served in accordance with the statutes and that it, therefore, was ineffective. We need not discuss the propriety of this ruling in this appeal.

       Patricia testified at trial that although she was not present at the closing when her mother purchased lot 38 from Eudora DeRenne, she was told that her mother was given permission to use lots 36 and 37, provided she maintained those properties. She also answered, “Oh, yes,” when asked whether she “maintained lot 37 . . . after [she] had heard that [Eudora] DeRenne had provided permission to [her] mother and the Bowens to use lot 36 and 37 if they maintained it.”
      Walter did not testify at trial, but he did admit via a September 17, 2005 letter, which we will discuss, that he was present at the closing when Eudora DeRenne gave permission to his mother to use the properties. Patricia admitted during cross-examination that although she did not authorize Walter to send this letter on her behalf, she did not disagree with the contents of the letter.

       Patricia testified, however, that prior to 1980, when she received the notice to prevent a claim of easement, she had not thought about using lots 36 and 37 as her own or about acquiring ownership of them:
      “[The Defendants’ Counsel]: Ma’am, when you were using lots 36 and 37, did you intend to use them with the goal of acquiring them and owning them?
      “[Patricia]: We were just using them.
      “[The Defendants’ Counsel]: You never thought about it? I’m only speaking about you because you’re the only one who’s testifying. When you were using those lots, were you thinking about using them and acquiring ownership of them?
      “[Patricia]: Not until 1980 . . . [when] [w]e received the notice of easement . . . .”

       Patricia testified that she did not authorize Walter to send this letter on her behalf but that she did not disagree with the letter.

       Patricia testified that she did not authorize Walter to send this letter on her behalf, nor did she see any need to confront him after he had sent the letter and that she did not disagree with the content of the letter. She also stated that in October, 2005, she and Walter were interested in purchasing the properties and that “[ijntermittently over the years, there have been conversations about purchasing the land.”

       We need not determine for purposes of this appeal whether these were judicial admissions or evidentiary admissions, the court having credited them with significant weight. “Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney occurring during judicial proceedings. . . . They excuse the other party from the necessity of presenting evidence on the fact admitted and are conclusive on the party making them. . . . The statement relied on as a binding admission [however] must be clear, deliberate and unequivocal. . . . Whether a party’s statement is a judicial admission or an evidentiary admission is a factual determination to be made by the trial court. . . . The distinction between judicial admissions and mere evidentiary admissions is a significant one that should not be blurred by imprecise usage. . . . While both types are admissible, their legal effect is markedly different; judicial admissions are conclusive on the trier of fact, whereas evidentiary admissions are only evidence to be accepted or rejected by the trier. ... In contrast with a judicial admission, which prohibits any further dispute of a party’s factual allegation contained in its pleadings on which the case is tried, [a]n evidential admission is subject to explanation by the party making it so that the trier may properly evaluate it. . . . Thus, an evidential admission, while relevant as proof of the matter stated . . . [is] not conclusive. . . . Because the probative value of an admission depends on the surrounding circumstances, it raises a question for the trier of fact. . . . The trier of fact is free to give as much weight to such an admission as, in the trier’s judgment, it merits, and need not believe the arguments made regarding the statement by one side or the other.” (Citations omitted; internal quotation marks omitted.) O & G Industries, Inc. v. All Phase Enterprises, Inc., 112 Conn. App. 511, 523 n.5, 963 A.2d 676 (2009).