source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    R AND R POOL AND PATIO, INC., ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF RIDGEFIELD
    (AC 32105)
    Gruendel, Robinson and Bear, Js.

      Argued March 10
    officially released June 7, 2011

      Patricia C. Sullivan, with whom was Barbara M. Schellenberg, for the appellant (defendant).

      Robert A. Fuller, for the appellees (plaintiffs).
   Opinion

BEAR, J.

The defendant, the zoning board of appeals of the town of Ridgefield (board), appeals from the judgment of the Superior Court sustaining in part the appeal of the plaintiffs, R & R Pool & Patio, Inc., Mitchell Ross, David Ross and Philip Ross. On appeal, the board claims that the court improperly rejected its definition of the term “fine furniture,” as that term was set forth in a variance pertaining to the plaintiffs’ property, and improperly substituted its own definition. We conclude that the court properly determined that the board’s definition of that term was arbitrary and illegal; however, we further conclude that the court’s definition of that term also was improper. Accordingly, we affirm in part and reverse in part the judgment of the Superior Court.

The following facts as found by the trial court are relevant to this appeal. “The plaintiffs’ property is located at 975 Ethan Allen Highway in Ridgefield. The property is located in a B-2 zone in which retail uses are not permitted under the Ridgefield zoning regulations. In July, 1990, Richard Amatulli, a tenant of the property at the time, obtained site plan approval to conduct a wholesale oriental rug operation on the property. On November 5,1990, the board granted Amatulli’s application for a variance to conduct retail sales on the property. The variance provided: ‘[T]his action permits wholesale and retail sales to be conducted from the premises, unrestricted as to type of customer or hours of operation, but restricted as to the products to be sold. Such wholesale and retail sales shall be limited to oriental rugs, fine furniture and art.’ . . .

“On July 2, 1993, the owners, on behalf of their new tenant, R&R Pool & Patio, Inc., filed an application for site plan approval with the Ridgefield planning director proposing the use of the property for warehouse, office and retail sale of fine outdoor furniture. This application was denied. One of the reasons given for the denial was that the merchandise that the tenants were planning to sell was not the ‘fine furniture’ contemplated by the board in its decision on the Amatulli variance. The owners and the plaintiffs appealed from the decision to the board, which upheld the planning director’s decision. On February 24, 1994, the owners of the property and the plaintiffs appealed to the Superior Court, alleging that the board’s decision on the site plan application was arbitrary, illegal and an abuse of discretion. The . . . court dismissed the appeal for lack of standing on the ground that the property owners were not the applicants for the site plan approval. The property owners and the plaintiffs then appealed the case to [this court]. While that was pending, the owners conveyed title to the property to the plaintiffs. Upon review, [we] reversed the judgment of the [Superior Court] and remanded the case for a determination on the merits. On remand, the . . . court, Stodolink, J., sustained the appeal and concluded that the record contained no evidence to support the board’s conclusion that the furniture at issue was not the type of ‘fine furniture’ contemplated by the Amatulli variance.

“On July 27, 1995, while the appeal of the first site plan application was pending in the Superior Court, the plaintiffs submitted a second site plan application to the planning director, seeking approval for the retail and wholesale sales of oriental rugs, fine furniture and art. In that application the plaintiffs provided a ‘statement of proposed uses’ for the property, along with numerous letters to the planning director. The plaintiffs stated that the ‘property will be used in accordance with the variance granted by the [board] in App. #90-099 on November 5, 1990,’ the original Amatulli variance. The plaintiffs also stated that the products to be sold on the premises would be limited to ‘[r]etail and wholesale sales of oriental rugs, fine furniture and art. . . . The products will be of high end quality, well styled and up-scaled products .... There will be no plastic furniture, no mass produced assembly line type of furniture, and no athletic equipment such as swing sets. R & R [Pool & Patio, Inc.,] will not be selling the type of furniture which is customarily sold in discount stores. Instead, the furniture will be of the high type and caliber which is customarily sold in high quality furniture stores throughout the United States. A consumer could expect to find the same products in stores on Fifth Avenue or Madison Avenue in New York City and similar states in different parts of the country.’ . . . Based upon these assurances, the planning director approved the plaintiffs’ second site plan application.

“In September, 1995, the plaintiffs began retail sales of furniture on the property. Soon after, the Ridgefield zoning enforcement officer issued a cease and desist order ordering the plaintiffs to remedy or discontinue conducting retail sales in a B-2 zone, retail sales not allowed under the Amatulli variance, retail sales not presented during the site plan process and sales that specifically violate the conditions of the plaintiffs’ site plan approval. On January 5, 1996, the plaintiffs appealed the cease and desist order to the board, which upheld the issuance of the order. The board stated the plaintiffs had ‘applied for site plan approval for one use, and after receiving it . . . put the property to another use.’

“On May 2, 1996, the plaintiffs appealed from the board’s decision on the cease and desist order to the Superior Court. The plaintiffs asserted that the board’s decision was arbitrary and illegal in that the Amatulli variance ran with the land and the board could not modify it, the term fine furniture was vague and involved a matter of personal taste, and the plaintiffs were denied due process because they were not informed which items did not constitute fine furniture. The . . . court, Stodolink, J., upheld the board’s decision, concluding that the board’s reason for sustaining the order was reasonably supported by the record. Judge Stodolink issued his decision on both the site plan appeal and the cease and desist order appeal on the same day, October 20, 1998.

“[We] then granted the plaintiffs’ motion to take judicial notice of the site plan appeal and concluded that the trial court had determined that the Amatulli variance could not be construed to limit the kind of furniture sold on the property. Because the board had failed to appeal from the trial court’s judgment in the [first] site plan appeal, [we] concluded that the board was precluded under the doctrine of collateral estoppel from asserting that ‘fine furniture,’ as it appeared in the Amatulli variance, meant something finer than ordinary furniture. [This court] reversed the . . . judgment [of the Superior Court] on the cease and desist appeal, concluding that the plaintiffs’ use of the property conformed to the Amatulli variance as defined by the [Superior Court].

“The Supreme Court then heard the case and reversed and remanded it back to [this court], stating that [this court] improperly applied the doctrine of collateral estoppel. R & R Pool & Patio, Inc. v. Zoning Board of Appeals, [257 Conn. 456, 475, 778 A.2d 61 (2001)]. The Supreme Court stated that because the meaning of ‘fine furniture’ was neither litigated by the parties nor decided by the [Superior Court] in the site plan case, ‘the [Superior Court] did not render final judgment on an issue that would preclude the board, under the doctrine of collateral estoppel, from ensuring in the cease and desist case that the plaintiffs’ actual use complied with its site plan application to sell fine furniture.’ Id.

“On December 28, 1998, the plaintiffs filed a third application for site plan approval of specific products to be sold and specific areas for outside display. The specific products proposed in the site plan were as follows: T. Furniture and furnishings, including the customary related accessories such as cushions, umbrellas, and tableware related to furniture in stock ... 2. Spas, hot tubs and pool accessories ... 3. Billiard and gaming tables and accessories ... 4. Fireplace equipment and grills ... 5. Works of art ... 6. Christmas and seasonal holiday products.’ ... On February 17, 1999, the planning director denied the application. On February 25, 1999, the plaintiffs filed an appeal to the board, and the board upheld the decision of the planning director. The plaintiffs appealed from the denial to the Superior Court. On August 9, 2002, the court sustained the appeal because there was no substantial evidence indicating that the variance did not include outdoor displays, and because the plaintiffs’ proposed use of the property did not constitute a change from Amatulli’s use, and, thus, they were not required to file a new site plan application. In sustaining the appeal, the court reversed the board’s decision and directed the board to approve the plaintiffs’ application. . . .

“On appeal, [we] reversed the judgment ‘only as to the [Superior Court’s] order directing the board to grant the plaintiffs’ application for site plan approval’ and remanded the case to the [Superior Court] with direction to remand the matter to the board for further proceedings on the issue of whether the sale of the specific items listed in the application is permitted under the Amatulli variance. R & R Pool & Patio, Inc. v. Zoning Board of Appeals, [83 Conn. App. 1, 847 A.2d 1052, cert. denied, 271 Conn. 921, 859 A.2d 580 (2004)]. [We] reasoned that ‘once the [Superior Court] reversed the board’s decision to deny the plaintiffs’ application, there was not, as a matter of law, a single conclusion that the board reasonably could reach as to the plaintiffs’ application. Numerous sale items are incoiporated in the plaintiffs’ most recent site plan application. The board has discretion to determine the specific items that are permitted by the Amatulli variance. Thus, once the court decided to reverse the board’s decision, it should have gone no further than to sustain the plaintiffs’ appeal. The court’s overbroad order directing the board to grant the plaintiffs’ application deprived the board of its discretionary authority.’ Id., 9.

“The board, upon remand from the Superior Court, at a meeting on October 17, 2005, considered the list of six items in the plaintiffs’ site plan application. The transcript of the meeting reveals that the board attempted to derive a workable definition of ‘fine furniture.’ . . . The board had access to photocopies of the original photos submitted with the Amatulli application . . . and made use of them in their deliberations. A board member indicated a desire to understand the ‘legislative history’ of the variance grant, but only in passing, and made no reference to the transcript. . . . A board member acknowledged the existence of the Raymond Ross letter of August 15, 1995 . . . but indicated that it was ‘not theoretically part of the record’ and did not consider it further. The board also had access to a historical, procedural summary prepared by board clerk Marjorie Tippet . . . but no reference to it appears in the transcript of the board’s deliberations. Over the course of the deliberations, the board developed the definition of ‘fine furniture’ to be furniture that is ‘one of a kind, hand-crafted, not mass produced, that may appreciate in value.’ . . . Based on that definition, the board took up each of the six proposed categories of products and rendered the following decision: ‘1. Furniture and furnishings, including the customary related accessories such as cushions, umbrellas, and tableware related to furniture in stock would be permitted only to the extent that each such item was “one of a kind, hand-crafted, not mass produced and capable of appreciating in value”; 2. Spas, hot tubs and pool accessories are not permitted; 3. Billiard and gaming tables and accessories would be permitted only to the extent that each such item was “one of a kind, handcrafted, not mass produced and capable of appreciating in value”; 4. Fireplace equipment and grills are not permitted; 5. Works of art are permitted; 6. Christmas and seasonal holiday products are not permitted.’ . . .

“The plaintiffs appealed from the decision of the board to the Superior Court. On June 19,2007, the court, Mintz, J., after determining that four of the five board members who had voted on the decision had not heard the entire case and had not familiarized themselves with the record prior to voting, remanded the matter back to the board with direction that each board member was to read the entire record, reconsider the matter and render a new decision. Judge Mintz’ remand order was specific. It required the board to ‘review prior proceedings . . . public hearings and meetings that led up to Judge Doherty’s decision of August 9, 2002 .... The remand is only for the purpose of the board reviewing those public hearings . . . and . . . transcripts from meetings or minutes of meetings and rendering a new decision. . . . And no evidence besides what’s in that record ... is to be produced by anybody whether it’s the board or the plaintiffs in this action, and the board has to make a decision pursuant to that.’ . . .

“On September 17,2007, the board reconvened pursuant to the remand order to reconsider the six proposed categories of products on the third site plan application. Each member of the board signified in turn that he had read the entire record. Each of the six categories of products was taken up in turn, discussion on each was minimal, and each of the six items was approved or disapproved in terms identical to the prior decision rendered on October 17,2005, including the application of the definition of ‘fine furniture’ adopted at the prior hearing as being ‘one of a kind, hand-crafted, not mass produced and capable of appreciating in value.’ . . .

“On September 26, 2007, the plaintiffs commenced this present action [in the Superior Court] as an appeal from the decision of the board, claiming that the board acted illegally, arbitrarily and in abuse of its discretion in multiple respects. All of the instances claimed by the plaintiffs essentially fall into three categories, namely, that the board has illegally and arbitrarily redefined ‘fine furniture’ as it is used in the Amatulli variance, that on remand from at least [this court], if not also on remand from the trial court, Mintz, J., the board considered documents and information [that] was not in the return of record, and the board prejudged and predetermined the application. At the start of the trial of this matter on September 3, 2009, the plaintiffs’ counsel formally withdrew the claim of predetermination as a ground for appeal.”

After trial, the court, Maronich, J., in a memorandum of decision, adopted many of the findings set forth by Judge Stodolink in his 1998 site plan decision. It then found, in part, that the board’s definition of “fine furniture” was arbitrary and illegal and that it had “no relation to the use of the premises as originally proposed and approved by the board at the time of the grant of the original variance.” The court then held, in part, that “the meaning of ‘fine furniture’ as used in the Amatulli variance [was] ‘good quality furniture,’ nothing more and nothing less.” The court sustained, in part, the appeal of the plaintiffs and remanded the matter “to the board to reconsider [the relevant] categories of products consistent with the definition of ‘fine furniture’ [that] the court ha[d] set forth in [its] decision.” This appeal followed.

On appeal, the board claims that the court “improperly overturned the board’s definition of fine furniture as set forth in the variance [pertaining to the] plaintiffs’ property by disregarding the conclusions reached by [this] [c]ourt and pertinent evidence in the administrative record, all of which strongly support the board’s definition.” The board next argues that the trial court thereafter improperly substituted its interpretation of the term “fine furniture” for that of the board. The plaintiffs argue that the meaning of “fine furniture” is a question of law and that the court acted properly in construing the term in accordance with the administrative record. Both parties agree that this issue presents a question of law, over which our review is plenary. Somewhat paradoxically, the board also argues in its reply brief that the interpretation of words contained in a variance is unlike the interpretation of a zoning regulation and that it is entitled to deference in its interpretation of the words and terms contained in a certificate of variance that it issued. The issue on appeal presents a unique question in that most appeals concerning the conditional approval of variances implicate the propriety of the conditions attached or the scope of the variance rather than the precise meaning of a word or phrase used in the variance.

Before considering the propriety of the court’s determination that the board’s interpretation of the variance at issue was arbitrary and illegal, we first address the appropriate standard by which we review that determination. That question presents an issue of law over which our review is plenary. Crews v. Crews, 295 Conn. 153, 167, 989 A.2d 1060 (2010). It is axiomatic that conditions attached to a variance are part and parcel of the approved variance. See Reid v. Zoning Board of Appeals, 235 Conn. 850, 858, 670 A.2d 1271 (1996) (“if a zoning board would have refused to grant a variance without a particular condition, the condition is an integral part of the variance”); Burlington v. Jencik, 168 Conn. 506, 509-10, 362 A.2d 1338 (1975) (variance and attached conditions inextricably linked). A fortiori, the interpretation of such conditions must be guided by the same principles governing the interpretation of the variance itself.

As our Supreme Court has explained, “[a]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . 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.” (Internal quotation marks omitted.) Heim v. Zoning Board of Appeals, 289 Conn. 709, 715, 960 A.2d 1018 (2008).

A variance is unique in that, on the one hand, it is a local land use ordinance, insofar as an ordinance is defined as “an authoritative law or decree . . . .” Black’s Law Dictionary (9th Ed. 2009) p. 1208. On the other hand, a variance is an expression of explicit authority to contravene local zoning ordinances. See Burlington v. Jencik, supra, 168 Conn. 508 (variance constitutes “authority extended to the owner to use his property in a manner forbidden by the zoning enactment”); Dupont v. Zoning Board of Appeals, 80 Conn. App. 327, 330, 834 A.2d 801 (2003) (same); see also Black’s Law Dictionary, supra, 1692 (defining variance as “[a] license or official authorization to depart from a zoning law”). Put differently, a variance is a sanctioned exception from local land use regulations. The issuance of a variance is a local land use decree, and the conditions attached thereto are a form of regulation. Accordingly, we see little reason why the interpretation of a variance and its conditions should be guided by an analysis different, from that which governs the interpretation of local land use regulations or statutes. Just as when we employ a plenary standard of review over the Superior Court’s interpretation of local land use regulations; see Raymond v. Zoning Board of Appeals, 76 Conn. App. 222, 229, 820 A.2d 275 (“[b]ecause the court, in interpreting the regulations, made conclusions of law . . . our review is plenary”), cert. denied, 264 Conn. 906, 826 A.2d 177 (2003); we conclude that when a lower court interprets the terms of a variance or its conditions, our review likewise is plenary over that question of law.

More specifically to the point of the appeal at hand, whether a board is entitled to deference in its consideration of the meaning of undefined words or phrases contained in a certificate of variance apparently has not been decided by appellate authority in Connecticut, nor have we found authority appropriately on point from other jurisdictions. After our careful consideration of this question of first impression, we conclude that the undefined terms and phrases contained in a certificate of variance should be inteipreted in a manner consistent with regulatory or statutory construction. See generally Spero v. Zoning Board of Appeals, 217 Conn. 435, 441, 586 A.2d 590 (1991) (zoning regulations are local legislative enactments interpreted under same principles as statutes). If the undefined words or terms are clear and unambiguous on their face, the interpretation of their meaning poses a question of law, which requires nothing more than looking to the certificate itself, and the board’s interpretation in the first instance generally would be accorded no deference. See generally 200 Associates, LLC v. Planning & Zoning Commission, 83 Conn. App. 167, 174, 851 A.2d 1175, cert. denied, 271 Conn. 906, 859 A.2d 567 (2004). At the same time, where the undefined words or phrases are ambiguous or reasonably susceptible to multiple interpretations, a search for the intent of the board at the time it approved the variance is necessary to resolve that question of law properly. See Kraiza v. Planning & Zoning Commission, 121 Conn. App. 478, 494, 997 A2d 583 (“[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]), cert. granted on other grounds 298 Conn. 904, 3 A.3d 70 (2010).

In the present case, the phrase “fine furniture” is not defined in the Ridgefield zoning regulations or the certificate of variance at issue; nevertheless, “whether [a term is] defined or not, its meaning is a question of law.” Jeffery v. Planning & Zoning Board of Appeals, 155 Conn. 451, 454, 232 A.2d 497 (1967). Whether the specific items that the plaintiffs sought to sell fit into the legal definition of “fine furniture,” however, presents a question of fact, which is to be determined by the board, subject to a review of the reasonableness of its conclusion. Jeffery v. Planning & Zoning Board of Appeals, supra, 454; see also R & R Pool & Patio, Inc. v. Zoning Board of Appeals, supra, 83 Conn. App. 9. In this appeal, we are called on first to determine whether the court’s legal conclusion that the board’s definition of “fine furniture” was arbitrary and illegal was improper, and, if it was improper, we then must determine whether the court’s legal construction of the term “fine furniture” was improper. Accordingly, we employ a plenary standard of review of these issues.

“A term that is employed in the regulations may not be interpreted to mean whatever the commission chooses it to mean. That would render it impossible for a party to discern the true meaning of the term and, thus, to know whether compliance with the regulation is possible.” 200 Associates, LLC v. Planning & Zoning Commission, supra, 83 Conn. App. 174. When a term is defined, it is not necessary for us to consider its common and ordinary meaning. See General Statutes § 1-1 (a). “If [however] it is not otherwise defined, a word has its usual and customary meaning, and may not be construed to include that which is not clearly within its terms.” 200 Associates, LLC v. Planning & Zoning Commission, supra, 174.

As we explained in Anatra v. Zoning Board of Appeals, 127 Conn. App. 125, 133-34, 14 A.3d 386, cert. granted, 301 Conn. 902, 17 A.3d 1043 (2011): “Clearly, under our law, the board ha[s] the authority to attach reasonable conditions to . . . certificates of variance . . . . Since variances allow uses forbidden by the regulations, the attachment of conditions to the granting of a variance alleviates the harm which might otherwise result. . . . Were it not for the conditions imposed by a board of appeals, variances might not be supportable as being in harmony with the general purpose and intent of the zoning ordinance. . . . Thus the variance and the attached conditions are inextricably linked, the viability of the variance being contingent upon the satisfaction of the conditions.” (Citations omitted; internal quotation marks omitted.)

“A primary purpose for requiring certificates of variance to be recorded in the land records is because a variance runs with the land and is not specific to the individual applying for it. General Statutes § 8-6 (b); Reid v. Zoning Board of Appeals, [supra, 235 Conn. 859]; Horace v. Zoning Board of Appeals, 85 Conn. App. 162, 167-68, 855 A.2d 1044 (2004). Any variance granted by a zoning board of appeals shall run with the land and shall not be personal in nature to the person who applied for and received the variance. A variance shall not be extinguished solely because of the transfer of title to the property or the invalidity of any condition attached to the variance that would affect the transfer of the property from the person who initially applied for and received the variance. General Statutes § 8-6 (b). . . . The board must clearly state any conditions in its decision so that all interested parties are fully aware of the nature and extent of the conditions.” (Internal quotation marks omitted.) Anatra v. Zoning Board of Appeals, supra, 127 Conn. App. 135.

In this case, the board granted a variance for property located at 975 Ethan Allen Highway, which provided in relevant part: “[T]his action permits wholesale and retail sales to be conducted from the premises, unrestricted as to type of customer or hours of operation, but restricted as to the products to be sold. Such wholesale and retail sales shall be limited to oriental rugs, fine furniture and art.” At issue in this appeal is the definition of the term “fine furniture” as used in that certificate of variance. The board, after searching the record, which included, inter alia, the proceedings in which the variance originally was granted, determined that the term meant furniture that is “one of a kind, hand-crafted, not mass produced, and capable of appreciating in value.” On appeal to the Superior Court, the court determined that the meaning of fine furniture was a question of law and that the board’s interpretation was illegal and arbitrary in that it had “no relation to the use of the premises as originally proposed and approved by the board at the time of the grant of the original variance.” Faced with the ambiguity inherent in that terminology, the court then considered the language of the certificate of variance, the variance application, the original transcripts of the hearing on the variance application and the circumstances surrounding the granting of the original certificate of variance, Judge Stodolink’s 1998 site plan decision, among other things, and concluded that the meaning of the term “fine furniture” as used in the certificate of variance meant “good quality furniture, nothing more and nothing less.” (Internal quotation marks omitted.) On our plenary review, we agree with the court that the board’s interpretation of the term “fine furniture” was arbitrary and illegal, having no basis in the record. However, we further conclude that the definition adopted by the court also was arbitrary and illegal. Our own review of the record leads us to conclude, as a matter of law, that the term “fine furniture,” as used in the variance at issue in the case, refers to furniture of a high quality, rather than a good quality.

The relevant record reveals the following. In 1990, Amatulli applied for a variance for 975 Ethan Allen Highway, seeking “to permit retail and wholesale sales of oriental rugs, fine furniture and art to the general public, as a limited use on weekends, holidays, and seasonal warehouse sales (approximately [four] times/ year).” After Amatulli presented his request and the board’s hearing was complete, the board began its deliberation on the application. The board discussed that it did not want to place restrictions on the days or times that Amatulli would be allowed to engage in retail sales because it would present an enforcement issue. Board member Marjorie Tippet stated that she also did not want to adopt a restriction that needed to be interpreted. The board then discussed what the term “art” meant and seemed to agree that its definition was “in the eye of the beholder.” The board members discussed whether the variance should be limited in the types of rugs and furniture to be sold. Board member Robert Mannion stated the board should consider limiting the sales to “individually crafted” items: “Individually crafted, first of all it gets rid of all—contract carpets would not be there because they are mass produced and they would not be an individual thing; and they would be joined together in the field. Individually crafted would have to be a rug or a unique piece of furniture.” (Emphasis added.) Board member Duncan Hume then responded to Mannion, stating: “But [Amatulli] sells all kinds of furniture according to the picture.” Tippet then stated that she thought limiting the retail sales to “oriental rugs, fine furniture and art” was sufficient because the applicant would not “be selling $30,000 rugs and then put in cheap Scandinavian furniture.” The board then agreed that the phrase “fine furniture” would be used to describe the type of furniture that would be permitted under the variance. The motion to approve the variance was passed without opposition. We concur with the court’s determination that this record does not support the board’s subsequent determination that, at the time it approved the variance application, it intended the term fine furniture to mean “one of a kind, hand-crafted, not mass produced, and capable of appreciating in value.”

After the hearing on the 1990 application, the board decided not to restrict the days and hours of the store’s retail operation because such restriction would present an enforcement issue. It also was discussed that restrictions that needed interpretation should be avoided. As previously stated, the board members recognized that the meaning of the word “art” was “in the eye of the beholder.” In the board’s very brief discussion of furniture, members questioned whether the variance should restrict the types of furniture allowed to be sold. They specifically discussed whether sales should be limited to “individually crafted” or “unique” items. That restriction, however, was not pursued because the board recognized that the applicant sought to sell at retail “all kinds of furniture . . . .” Clearly, the board contemplated using the words “individually crafted” or “unique” but opted not to employ such a restriction because the applicant was going to sell at retail “all kinds of furniture.” The board, instead, opted to use the term “fine furniture” as had been requested by the applicant. In light of the foregoing, we conclude that the court properly determined that the board’s subsequent definition of the term “fine furniture” was arbitrary and illegal, wholly unsupported by the record evincing its intent. According, we affirm this aspect of the court’s judgment.

After concluding that the board’s subsequent definition of “fine furniture” was arbitrary and illegal, the court then proceeded to review the record independently and concluded that the record supported a determination that the board, at the time it approved the variance application, intended the term “fine furniture” to mean “ ‘good quality furniture,’ nothing more and nothing less.” That conclusion, however, does not comport with the court’s specific adoption of the findings of Judge Stodolink as set forth in his 1998 site plan decision or with the record.

The court adopted as its own the following relevant findings of Judge Stodolink from R&R Pool & Patio v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. CV-316152 (October 26, 1998): “[D]uring the course of the plaintiffs’ hearings, they presented four witnesses who testified that a definition of ‘fine furniture’ does not exist and that the term is a fairly subjective one. The witnesses also testified that in their opinions, the furniture that the plaintiffs proposed to sell was ‘fine furniture’ because it was quite expensive and of a high quality. Finally, the witnesses stated that the plaintiffs’ furniture could be used both indoors and outdoors and that the indoor/outdoor distinction, standing alone, would not necessarily lower the quality of the furniture. Additionally, the plaintiffs submitted numerous excerpts from dictionaries and other sources demonstrating the lack of any definition of ‘fine furniture.’ They also submitted catalogues and photographs of the furniture proposed to be sold at the property; most of which was expensive and would be appropriate for indoor use. Letters were also submitted, most notably from David Barquist, who is currently employed by Yale University and who has been published in the area of American furniture. These letters indicated that there is no definition of fine furniture, except that the terms when used together generally imply quality. All of the foregoing was made part of the record before the board, and none of the foregoing was refuted by any evidence. Most notably, the plaintiffs’ witnesses’ testimony stood unrefuted.

* * *

“[T]he board did not define the term ‘fine furniture’ when it granted Amatulli’s variance application. In fact, the transcript from the hearing in which Amatulli requested the variance sheds little light on the board’s interpretation of the term ‘fine furniture.’ The record reflects that the board was almost exclusively concerned with Amatulli’s request for the limited retail sale of oriental rugs.”

After specifically adopting these findings, and in consideration of the record and the plain dictionary meaning of the words “fine” and “furniture,” the court stated that “the meaning of ‘fine furniture’ as used in the Amatulli variance [is] ‘good quality furniture,’ nothing more and nothing less.” We disagree and conclude that the term “fine furniture,” as it is used in the variance, means high quality furniture, rather than good quality furniture. As credited by Judge Stodolink, and adopted by Judge Maronich in the present case, “the furniture that the plaintiffs proposed to sell was ‘fine furniture’ because it was quite expensive and of a high quality. . . . [T]he terms [fine and furniture] when used together generally imply quality.” (Emphasis added.) This testimony was unrefuted in the first site plan appeal. Additionally, the Random House Webster’s Unabridged Dictionary (2d Ed. 1993) p. 719, defines “fine” in relevant part as “1. of superior or best quality; of high or highest grade . . . 2. choice, excellent, or admirable . . . .” It defines the word “furniture” in relevant part as: “1. the movable articles, as tables, chairs, desks or cabinets, required for use or ornament in a house, office, or the like. 2. fittings, apparatus, or necessary accessories for something. . . .” Id., p. 777. Similarly, the Merriam-Webster Collegiate Dictionary (10th Ed. 1993) p. 436, defines “fine” in relevant part as: “superior in kind, quality, or appearance . . . .” It defines the word “furniture” in relevant part as: “equipment that is necessary, useful, or desirable: as ... (b) movable articles used in readying an area (as a room or patio) for occupancy or use.” Id., p. 474.

The findings of Judge Stodolink, from which no appeal was taken, and which were adopted by Judge Maronich in the present case, combined with the common usage of the words “fine” and “furniture” and with our own review of the relevant transcripts and documents in this case, which further support the earner findings of Judge Stodolink, demonstrate that the meaning of the term “fine furniture,” as used in the 1990 certificate of variance issued for the property located at 975 Ethan Allen Highway, is furniture of a high quality. A review of the relevant record in this case demonstrates that the board, at the time it approved the 1990 variance, wanted to restrict the retail furniture items to be sold at the plaintiffs’ property to furniture of a high quality. It is evident from the record that this did not equate solely to furniture that was “one of a kind, hand-crafted, not mass produced, and capable of appreciating in value.” Rather, we conclude on the basis of the record that the board intended “fine furniture” to mean high quality furniture.

The judgment is reversed only as to the court’s determination of the meaning of the term “fine furniture” as set forth in the certificate of variance and the case is remanded to that court with direction to remand the case to the board for further proceedings. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       For more detailed background information on the history of this case, see R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 102 Conn. App. 351, 925 A.2d 417, cert. denied, 284 Conn. 908, 931 A.2d 265 (2007); R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 83 Conn. App. 1, 847 A.2d 1052, cert. denied, 271 Conn. 921, 859 A.2d 580 (2004); see also R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 778 A.2d 61 (2001).

       The board contends that its argument is supported by Simko v. Ervin, 234 Conn. 498, 504-507, 661 A.2d 1018 (1995), in which our Supreme Court explained that variances are different from zoning regulations and that the board, and not the court, initially should be permitted to determine what the boardmeantbytheterm" ‘footprint’ ’’when it attached a certain condition to a variance. Simko, however, concerned whether a plaintiff was required to appeal the issuance of a cease and desist order to the board before appealing to the Superior Court; id., 499; it dealt exclusively with the exhaustion doctrine. Id., 504-508. We are not persuaded that it has any relevance to the case at hand.

       In 2005, the board thus defined “fine furniture” to mean “one of a kind, hand-crafted, not mass produced, and capable of appreciating in value.” A similarly restrictive definition had been rejected by the board in 1990 before it granted the variance for the plaintiffs predecessor to sell “oriental rugs, fine furniture and art.” The effect of the board’s 2005 definition was to contract the scope of the 1990 variance and the meaning of “fine furniture” as used therein. The board did not have the authority to modify the variance in this manner. See Anatra v. Zoning Board of Appeals, supra, 127 Conn. App. 135-38; Dodson Boatyard, LLC v. Planning & Zoning Commission, 77 Conn. App. 334, 337-39, 823 A.2d 371, cert. denied, 265 Conn. 908, 831 A.2d 248 (2003).

       The record does not appear to contain original photographs submitted to the board. There are some poor quality black and white copies of photographs attached to the transcript of the board’s deliberation, however. These photographs depict oriental rugs, works of art hung on the walls and many pieces of furniture, including straight backed chairs, sofas, dining room tables and lamps.

       Although our Supreme Court in R & R Pool & Patio, Inc. v. Zoning Board, of Appeals, supra, 257 Conn. 475, found that Judge Stodolink had not defined the term “fine furniture” in the site plan decision, it is clear that Judge Stodolink credited the expert testimony that opined that the plaintiffs’ furniture was “fine furniture” because it was expensive and of a high quality.


author: SCHALLER, J. BEACH, J., ALVORD, J.,

text:
    TOTAL RECYCLING SERVICES OF CONNECTICUT, INC., ET AL. v. CONNECTICUT OIL RECYCLING SERVICES, LLC
    (AC 32243)
    Beach, Alvord and Schaller, Js.

      Argued February 3
    officially released June 7, 2011

      William J. Sweeney, for the appellant (defendant).

      Jonathan J. Klein, for the appellees (plaintiffs).
   Opinion

SCHALLER, J.

The defendant, Connecticut Oil Recycling Services, LLC, appeals from the judgment of the trial court denying its motion for attorney’s fees, rendered on remand following the decision of this court in Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 114 Conn. App. 671, 970 A.2d 807 (2009). On appeal, the defendant claims that the court abused its discretion by (1) requiring it to itemize attorney’s fees incurred for the litigation on three contracts and (2) denying appellate attorney’s fees for its prior appeal. We affirm the judgment of the trial court.

The following relevant facts and procedural history were described by this court in Total Recycling Services of Connecticut, Inc. “In a four count complaint filed on October 19, 2006, the plaintiffs, Total Recycling Services of Connecticut, Inc. (Total Recycling), and White-wing Environmental Corp. (Whitewing), brought an action to enforce their alleged rights under three contracts relating to the sale of an oil recycling business to the defendant .... The plaintiffs sought damages either for breach of contract by the defendant or for unjust enrichment of the defendant, claiming nonpayment of amounts due. The defendant denied any liability to the plaintiffs and filed a five part counterclaim for damages resulting from the plaintiffs’ alleged failure to honor their contractual and statutory obligations to the defendant. The defendant also sought attorney’s fees in accordance with the provisions of two of the contracts between the parties.” Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, supra, 114 Conn. App. 673.

“In the defendant’s motion for attorney’s fees, it relied on the terms of the agreement to transfer Total Recycling’s customer list and Whitewing’s agreement not to compete. Each of these agreements entitled the defendant to recover ‘costs or damages, including reasonable attorney fees resulting from any breach of any representation, warranty or covenant contained in this Agreement.’ The trial court concluded that these provisions were inapplicable because the jury had awarded damages to the defendant only with respect to Total Recycling’s breach of the agreement to convey equipment, which did not contain such a clause.” Id., 679-80. This court disagreed and, noting that the plaintiffs had “not challenged the jury’s findings that Total Recycling breached the agreement to transfer its customer list and that Whitewing breached the agreement not to compete”; id., 680; held that “[t]he attorney’s fee clauses in these contracts did not require the defendant to prove more than breach.” Id., 680-81.

This court remanded the case for further proceedings on the defendant’s claim for attorney’s fees, holding that “[t]he parties have not had the opportunity, to date, to address the proper construction of the clause, in both contracts, that permits the defendant, on a showing of the plaintiffs’ breach, to recover ‘costs or damages, including reasonable attorney fees . . . .’ It is, for example, not clear whether the phrase ‘including attorney fees’ modifies both ‘costs’ and ‘damages.’ . . . The parties similarly have not had the opportunity to present evidence on the reasonableness of the fees accrued by the defendant during the course of this litigation. A remand will provide an opportunity for the resolution of these issues and other related questions that the parties may want to present.” Id., 681.

Following the remand, the defendant filed a motion for attorney’s fees with the trial court. The defendant attached to the motion an affidavit and itemized fist of attorney’s fees incurred in the course of the litigation. The list did not distinguish the items of work on the separate contracts with respect to which the defendant successfully counterclaimed. By memorandum of decision filed November 30, 2009, the court, Jones, J., refused to award any fees to the defendant because it concluded that it was “necessary for the defendant to identify which reasonable attorney’s fees were incurred in prosecuting its breach of contract counterclaim with regard to the contracts that specifically provide for attorney’s fees.” The court allowed the defendant the opportunity to make the requisite showing at a future hearing.

The defendant filed a renewed motion for attorney’s fees, attaching the same affidavit and list of attorney’s fees incurred. On March 29, 2010, the court, Bear, J., held an evidentiary hearing, during which the defendant presented the testimony of an expert witness, William Gallagher, a trial attorney with many years of experience. Gallagher testified that it would be “extremely difficult” to sort out the attorney’s fees based on the billing in the file because “no one itemized, and that’s not the custom to itemize in that great detail.” Gallagher also testified that he believed that a decision of this court, Heller v. D. W. Fish Realty Co., 93 Conn. App. 727, 890 A.2d 113 (2006), allows for fees in any case where “services are intertwined in such a way that it’s not possible to sort them out . . . .”

Gallagher’s testimony was the only testimony heard by the court, but the attorneys for both parties made arguments to the court. The defendant’s attorney argued that he could not parse out his time spent on the three contracts and he does not keep track of his time in that manner. The plaintiffs argued that the defendant failed to satisfy the November 30, 2009 order.

On April 19, 2010, the court denied the defendant’s motion for attorney’s fees. The court held that the order requiring the defendant to identify the fees associated with the litigation of the two contracts providing for fees was the law of the case. The court also held that Jacques All Trades Corp. v. Brown, 57 Conn. App. 189, 200, 752 A.2d 1098 (2000), governed in the present case, preventing the defendant from recovering all fees. The defendant has appealed.

“[W]e review an award of attorney’s fees under the abuse of discretion standard of review. This standard applies to the amount of fees awarded . . . and also to the trial court’s determination of the factual predicate justifying the award. . . . Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Moasser v. Becker, 121 Conn. App. 593, 595, 996 A.2d 1200 (2010).

I

The defendant first claims that the court improperly refused to grant the defendant’s motion for attorney’s fees on the basis that it had not identified which attorney’s fees were incurred in litigation of the contracts that allowed for such fees. The defendant argues that the court should not have applied the law of the case doctrine and that Heller, rather than Jacques All Trades Corp., governs the outcome of this case. We disagree.

“The general rule of law known as the American rule is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. . . . This rule is generally followed throughout the country. . . . Connecticut adheres to the American rule. . . . There are few exceptions. For example, a specific contractual term may provide for the recovery of attorney’s fees and costs ... or a statute may confer such rights.” (Internal quotation marks omitted.) ACMAT Corp. v. Greater New York Mutual Ins. Co., 282 Conn. 576, 582, 923 A.2d 697 (2007).

In Jacques All Trades Corp. v. Brown, supra, 57 Conn. App. 192, the plaintiff brought breach of contract claims based on two separate and distinct transactions. The defendant successfully brought a counterclaim for breach under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., arising out of one of the contracts. Id., 193. The defendant argued that she was entitled to “all attorney’s fees incurred in the defense of [the plaintiffs] action and the prosecution of her counterclaim, relying on [General Statutes] § 42-110g (d) . . . .” (Emphasis in original.) Id., 200. This court upheld the trial court’s ruling that the defendant was entitled to recover only the fees incurred for the prosecution of her CUTPA claim because § 42-1 lOg (d) allows for the court to award attorney’s fees “only for those expenses that were related to the prosecution of a CUTPA claim.” Id.

In Heller v. D. W. Fish Realty Co., supra, 93 Conn. App. 727, the plaintiffs brought claims of breach of contract, negligence and violation of CUTPA for damages arising out of a real estate transaction. The plaintiffs were successful on all claims. Id., 730. Subsequently, “[t]he [trial] court ordered the plaintiffs to submit evidence as to the portion of the fees requested specifically related to the CUTPA [claim] .... The plaintiffs, however, could not distinguish the amount of attorney’s fees related to their CUTPA claim from the amounts related to their breach of contract and negligence claims.” (Internal quotation marks omitted.) Id., 735. The court denied the plaintiffs’ motion for attorney’s fees brought under § 42-110g (d). This court, relying on the decision in Jacques All Trades Corp. v. Brown, supra, 57 Conn. App. 200, reversed the judgment of the trial court because “the plaintiffs’ breach of contract and negligence claims were related to their CUTPA claim because they depended on the same facts. As we stated in Jacques All Trades Corp., § 42-110g (d) encompasses ‘claims related to the prosecution of a CUTPA claim’; id.; not only one claim explicitly labeled as a CUTPA claim.” Heller v. D. W. Fish Realty Co., supra, 735.

The defendant in the present case reasons that under Heller, all related claims become eligible for attorney’s fees where a statutory or contractual provision provides for such fees. The defendant argues that where litigation arises out of the same transaction and the same set of facts, it is not practical to distinguish the fees incurred for such related claims. We do not read Heller so broadly. The holding in Heller relies on the court’s conclusion in Jacques All Trades Corp. that only claims related to a CUTPA claim could be eligible for attorney’s fees under § 42-110g (d). Id. Neither Heller nor Jacques All Trades Corp. stands for the general proposition that where a party is entitled to attorney’s fees, whether by statute or by contract, fees incurred for litigating any and all related claims may be recoverable by the litigant.

The defendant also argues that the pleadings do not distinguish between the separate contracts. We note, however, that despite the form of the pleadings, the interrogatories to the jury enabled the jury to find in favor of the defendant on one or more of the breach of contract claims, but find in favor of the plaintiffs on one or more of the others. Following the defendant’s logic, it would appear that the court could award attorney’s fees for all of the contracts, even if the defendant had been unsuccessful on one or more of its claims. Our case law cannot be read to suggest that it would be reasonable for a court to award attorney’s fees to a losing party, even if the claims were related to a separate successful claim that did provide for attorney’s fees.

Finally, the defendant argues that the court improperly followed the law of the case doctrine. “The law of the case doctrine provides that [w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance. ... A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision. . . . [0]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law. . . . Because application of the law of the case doctrine involves a question of law, our review is plenary.” (Citation omitted; internal quotation marks omitted.) General Electric Capital Corp. of Puerto Rico v. Rizvi, 113 Conn. App. 673, 681, 971 A.2d 41 (2009).

The defendant argues that the court abused its discretion by relying on the law of the case doctrine to decide a legal issue. Our case law is clear, however, that while the court might subsequently change an interlocutory legal conclusion, it is not required to rule anew upon legal issues that have already been decided. In the present case, because we conclude that the legal issue in question was decided correctly, we cannot conclude that the court abused its discretion in relying on the law of the case.

II

The defendant next claims that the court abused its discretion in failing to award appellate attorney’s fees. Based on our resolution of the first claim in part I of this opinion, we need not reach the question of whether appellate fees would properly have been awarded, because we affirm the judgment that attorney’s fees were properly denied. Although the defendant did provide a breakdown between trial and appellate fees, this breakdown also did not identify, as ordered by the court, which fees were incurred with respect to the contracts that provided for such fees.

The judgment is affirmed.

In this opinion BEACH, J., concurred in the result.

BEACH, J.,

concurring in the result. I respectfully concur in the result reached in the majority opinion. I believe that although the cases of Heller v. D. W. Fish Realty Co., 93 Conn. App. 727, 890 A.2d 113 (2006), and Jacques All Trades Corp. v. Brown, 57 Conn. App. 189, 752 A.2d 1098 (2000), arose in the context of claims for attorney’s fees pursuant to the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., their reasoning applies with equal force to claims for attorney’s fees pursuant to contractual provisions. If an attorney’s time and effort practicably can be allocated between two contracts, one which is subject to contractual attorney’s fees and one which is not, then the time should be so allocated. If no allocation is practicable under the circumstances of the case, then a reasonable attorney’s fee should be awarded without division between the contracts. The principle is sensible and no authority to the contrary has been presented.

The issue of practicable allocation is one of fact for the trial court. In light of its orders, the trial court in this case presumably decided that the total time could be allocated between the contracts. The record is silent on the precise matter, but the ruling clearly reflects such an understanding. When the record is silent, we do not presume error. The court was not bound to credit any particular testimony, expert or otherwise. Because the record does not show that the trial court could not reasonably have reached its result, I agree with the majority that the judgment of the trial court should be affirmed.

ALVORD, J.,

dissenting. Although the majority acknowledges that the defendant, Connecticut Oil Recycling Services, LLC, is contractually entitled to recover attorney’s fees in this action, it affirms the trial court’s judgment that did not award any of the requested fees. Because I believe that Heller v. D. W. Fish Realty Co., 93 Conn. App. 727, 890 A.2d 113 (2006), is applicable to the facts of this case, I respectfully dissent.

The majority opinion sets forth the facts and procedural history of this action. The following additional facts and procedural history, however, also are relevant to the issues on appeal. To simplify, the plaintiffs, Total Recycling Services of Connecticut, Inc. (Total Recycling), and WMtewing Environmental Corp. (WMtewing), alleged in their complaint: (1) breach of the asset purchase agreement with respect to eqmpment, (2) breach of the asset purchase agreement with respect to goodwill and (3) breach of the noncompetition agreement. Of the tMee contracts, only the asset purchase agreement with respect to eqmpment did not contain a provision for the recovery of attorney’s fees. The tMee contracts all related to the sale of a recycling business by Total Recycling to the defendant. Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 114 Conn. App. 671, 673, 970 A.2d 807 (2009).

In the plaintiffs’ complaint, they treated the first two contracts, oMy one of which provided for attorney’s fees, as inseparable by combining the allegations of the defendant’s breach of those contracts in one count. The complaint alleged that Total Recycling “performed its obligations under the two asset purchase agreements” and that the defendant “breached the asset purchase agreements . . . .” There is a separate count alleging that the defendant breached the noncompetition agreement with the parent company plaintiff, WMtewing, wMch agreement likewise had a clause providing for attorney’s fees. The plaintiffs never amended their original complaint.

In addition to the plaintiffs treating the contracts as parts of a single transaction, the defendant consistently referred to the agreements as being related in its answer to the plaintiffs’ complaint and in its five count counterclaim. In its counterclaim, the defendant alleged: “The tMee agreements referenced above (collectively the ‘Agreements’) m combmation, constituted a smgle transaction pursuant to wMch [the defendant] purchased the used oil collection and delivery busmess from Total [Recycling] and WMtewing.”

After this court reversed the trial court on the issue of attorney’s fees; Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, supra, 114 Conn. App. 681; the defendant filed its motion for attorney’s fees with the trial court. The court, Jones, J., issued a memorandum of decision on November 30, 2009, in which it stated that “it is necessary for the defendant to identify which reasonable attorney’s fees were incurred in prosecuting its breach of contract counterclaim with regard to the contracts that specifically provide for attorney’s fees.” A hearing eventually was scheduled for March 29, 2010. More than two months prior to the scheduled hearing, in direct response to Judge Jones’ directive, the defendant filed a renewed motion for attorney’s fees and a supporting memorandum. In the supporting memorandum, the defendant claimed that all of the attorney’s fees in the affidavit and itemized statement were incurred in prosecuting its breach of contract counterclaim with regard to the contracts that specifically provide for attorney’s fees. It cited Heller v. D. W. Fish Realty Co., supra, 93 Conn. App. 735-36, in support of its argument that all reasonable fees were recoverable because the legal services provided could not be allocated among the three contracts under the factual circumstances of this case. The plaintiffs filed a brief in opposition to the defendant’s request for attorney’s fees.

At the hearing on March 29, 2010, William Gallagher testified as an expert witness for the defendant. Gallagher, an attorney for forty-seven years with extensive experience in this state’s trial and appellate courts, testified that he had reviewed the materials relating to this action, including the defendant’s motion for attorney’s fees and the time records attached to counsel’s affidavit. According to Gallagher, who has been involved in similar commercial cases claiming breach of contract, there was no way to separate the fees relating to the plaintiffs’ claimed breach of the agreements from those fees incurred in connection with the prosecution of the defendant’s counterclaim involving the same breach.

Gallagher testified: “The fact is that where you’re basically in the defense of the case proving your cause of action or claim for attorney’s fees because all three contracts were breached and there only two of them had attorney’s fees provisions, but to sort it out, I find it that you can’t.

“Then I think there’s authority for that supported in the Heller case, which was a CUTPA [Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.] case. This was a common problem and especially in CUTPA, but basically Heller held that where the services are intertwined in such a way that it’s not possible to sort them out, that the court ought to allow all of them. In that case, the trial court didn’t and the Appellate Court reversed. That’s the case closest to this circumstance that I found.” He also testified that it is not customary for attorneys to itemize their services in the detail that would have been required to allocate the fees incurred among the three separate contracts, particularly when those contracts were tied to one transaction involving the sale of a business.

After Gallagher’s testimony, counsel presented oral argument. Counsel for the defendant, who also was counsel during the trial proceedings, stated: “With respect to the issue about being able to keep time records or to allocate time in a case of this nature where we have a business transaction, one business transaction, that within that business transaction had three separate contracts, one for assets, one for goodwill, and then from the parent company, the customer list.

“It’s impossible to try to quantify time spent between each part, it was all part of one transaction, it was all— there were parts to it, no question about it, there were certain witnesses that testified about parts of this and parts of that. But to somehow separate it all out is next to impossible.

“But more importantly, I think that given the language in Heller, which talks in terms of that ... if the claim is personal, or essentially the same transaction or where facts are inextricably connected or intertwined, I mean, this is a classic case for that.”

I agree that the holding in Heller v. D. W. Fish Realty Co., supra, 93 Conn. App. 727, is applicable to the facts of this case. In Heller, the plaintiffs could not distinguish the amount of attorney’s fees related to their CUTPA claim from the amounts related to their breach of contract and negligence claims. We concluded that the plaintiffs were not required to apportion their attorney’s fees among their claims because “they depended on the same facts.” Id., 735. In the present case, there was expert testimony that the claims were interrelated and the contracts were all part of one transaction. There was no expert testimony to the contrary.

I also would conclude that the defendant is entitled to reasonable appellate attorney’s fees. There is no appellate case law addressing the award of appellate counsel fees when the entitlement to those fees is contractual rather than statutory. Nevertheless, the rationale in Gagne v. Vaccaro, 118 Conn. App. 367, 984 A.2d 1084 (2009), persuades me that the recovery of appellate attorney’s fees would be permitted in the discretion of the court if the language in the contract provides for their recovery.

“The general rule of law known as the American rule is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. . . . This rule is generally followed throughout the country. . . . Connecticut adheres to the American rule. . . . There are few exceptions. For example, a specific contractual term may provide for the recovery of attorney’s fees and costs ... or a statute may confer such rights.” (Internal quotation marks omitted.) ACMAT Corp. v. Greater New York Mutual Ins. Co., 282 Conn. 576, 582, 923 A.2d 697 (2007).

In the present case, the authority for an award of attorney’s fees is found in the two contracts at issue. It is, therefore, necessary to inteipret the language in the contracts. “The standard of review for the issue of contract interpretation is well established. When, as here, there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . Accordingly, our review is plenary.” (Internal quotation marks omitted.) Genua v. Logan, 118 Conn. App. 270, 273, 982 A.2d 1125 (2009).

Paragraph 14.2 of the asset purchase agreement with respect to goodwill provides: “Seller agrees to indemnify and hold Buyer harmless from any costs or damages, including reasonable attorney fees, resulting from any breach of any representation, warranty or covenant contained in this Agreement.” Paragraph 1.2 of the non-competition agreement provides: “[Whitewing] agree[s] to indemnify and hold [the defendant] harmless for any costs or damages, including reasonable attorney fees, resulting from any breach of any representation, warranty or covenant contained in this Agreement.” It is clear from the language in the contracts that the fees are not limited to trial proceedings.

In Gagne v. Vaccaro, supra, 118 Conn. App. 371, this court concluded that appellate attorney’s fees were allowed by General Statutes § 52-249 even though the statute did not specifically provide for their recovery. The statutory language clearly provided for the recovery of attorney’s fees in actions for the foreclosure of mortgages and liens, and we held that the provision extended to attorney’s fees incurred on appeal as well as at the trial level. Id. I would conclude that the contractual language in the present case, which provides the basis for the recovery of attorney’s fees and does not limit that recovery to proceedings at the trial level, extends to the recovery of reasonable attorney’s fees incurred on appeal.

For those reasons, I conclude that the court abused its discretion in failing to award reasonable attorney’s fees because it did not correctly apply the law; Heller v. D. W. Fish Realty Co., supra, 93 Conn. App. 727; and could not reasonably have reached the conclusion that it did. See Moasser v. Becker, 121 Conn. App. 593, 595, 996 A.2d 1200 (2010). Accordingly, I would reverse the judgment and remand the case for a hearing regarding the appropriate amount of attorney’s fees.

       The defendant also claims that the court improperly failed to consider the reasonableness of the defendant’s requested attorney’s fees and did not apply the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). We do not reach these issues because we affirm the court’s denial of an award of attorney’s fees.

       The court also addressed the first issue on remand, concluding that the phrase “including reasonable attorney’s fee(s)” in the relevant contracts modified both costs and damages.

       At the March 29, 2010 hearing, the defendant also argued that it was not required to distinguish between fees incurred prosecuting the successful breach of contract claims and defending the plaintiffs’ unsuccessful breach of contract claims. In its brief to this court, the defendant cites case law supporting that argument, but we do not reach this issue because the trial court did not address it.

       Under the reasoning in the concurrence, the defendant would have been allowed to recover fees for all related claims if it could prove that it was not practicable to separate the fees. The reasoning in Heller, however, does not require proof that the fees were not separable, nor does it require such a finding by the trial court; rather, Heller allows for fees to be recovered based on the interrelatedness of the claims. The language in Heller also provides no test for determining whether claims are so intertwined as to allow fees. Although the practicability test suggested in the concurrence could be a limiting factor, applying Heller to contractual fee awards could greatly expand the number of cases where fees could be awarded.

       Although the plaintiffs claimed that the defendant ignored Judge Jones’ directive and simply waited until the hearing to challenge that directive, the record belies that argument. Months before the hearing, the defendant argued the applicability of Heller v. D. W. Fish Realty Co., supra, 93 Conn. App. 727, to its claim for attorney’s fees in its memorandum. Judge Jones “invited” the defendant to identify which fees could be claimed with respect to the two contracts that provided for attorney’s fees, and the defendant responded that all of the fees were incurred in the defense of the breach of contract claims relating to those two contracts. As the defendant’s counsel stated at the hearing on March 29, 2010: “I thought Judge Jones’ opinion pretty much left things wide open for me to put on whatever evidence I thought was appropriate in order to support this. So, please don’t consider anything we’ve done here as an intention to disagree with the court in the sense of, I think it was left pretty wide open and I’m just putting on the evidence I think is appropriate.”

       The majority notes that “the interrogatories to the jury enabled the jury to find in favor of the defendant on one or more of the breach of contract claims, but find in favor of the plaintiffs on one or more of the others.” The fact is, however, that the jury found that the plaintiffs had breached all three contracts, lending further support to the claim that the three contracts were inextricably connected or intertwined.

       The majority did not need to reach this issue in light of its conclusion that the court properly denied the attorney’s fees incurred in connection with the trial proceedings in this case.


author: BEACH, J.

text:
    HOUSING AUTHORITY OF THE CITY OF NORWALK v. GLORIA BROWN ET AL.
    (AC 31214)
    Bishop, Beach and Borden, Js.

      Argued February 14
    officially released June 7, 2011

      Abram Heisler, for the appellant (named defendant).

      Donna M. Lattarulo, for the appellee (plaintiff).
   Opinion

BEACH, J.

In this summary process action, the defendant, Gloria Brown, appeals from the judgment of the trial court awarding possession of certain premises to the plaintiff, the housing authority of the city of Nor-walk. On appeal, the defendant claims that the court erred by (1) concluding that she was in violation of the terms of her lease agreement and (2) failing to sustain her special defense. We affirm the judgment of the trial court.

The following facts and procedural history, as set forth by the court in its memorandum of decision, are relevant to our resolution of the defendant’s appeal. The plaintiff is the owner of federally subsidized housing premises located on 261 Ely Avenue in Norwalk (premises). On April 1, 2008, the defendant entered into a lease agreement with the plaintiff for the use and occupancy of an apartment on the premises. The lease commenced on the same date, for a one month period, and was renewed automatically in successive terms of one month following the expiration of the initial term. Pursuant to the lease, George Kalu was an authorized occupant of the apartment.

On or about July 26, 2008, Kalu was arrested for drug related activity that had occurred at the Washington Village housing authority complex in Norwalk, which also is owned by the plaintiff. Kalu was convicted of illegal possession of narcotics, interfering with an officer and violation of probation. Kalu was sentenced to a total effective term of four years incarceration followed by six years of special parole.

As a result of Kalu’s conviction, the plaintiff issued to the defendant a pretermination notice on August 5, 2008, informing her that her lease was to be terminated in thirty days because of Kalu’s drug related criminal conduct. On September 17, 2008, the plaintiff served on the defendant a notice to quit possession and to vacate the premises on or before September 24, 2008. The defendant failed to vacate the premises by the date specified in the notice to quit possession, and, as a result, the plaintiff initiated the current summary process action. The plaintiffs complaint alleged that the defendant was in violation of her lease agreement because of Kalu’s drug related criminal activity. The defendant filed an answer and set forth various special defenses.

In its memorandum of decision, the court found that “the defendant . . . had knowledge of [Kalu’s] 2006 drug arrest. . . . She made no effort to have Kalu removed from the premises after the 2006 arrest and never informed [the plaintiff] of his 2008 arrest and incarceration. Since the 2006 arrest, [the] defendant . . . knew of [Kalu’s] involvement with drugs and that he would continue such activities on the plaintiffs premises.” The court concluded that the defendant had breached her lease and, thus, rendered a judgment of possession in favor of the plaintiff. This appeal followed.

I

The defendant first claims that the court erred in concluding that she was in breach of her lease agreement. We disagree.

We begin by setting forth our standard of review and relevant legal principles. “Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial 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. . . . The court, as the sole arbiter of credibility, is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) Shelton v. Olowosoyo, 125 Conn. App. 286, 291, 10 A.3d 45 (2010).

“Summary process is a special statutory procedure designed to provide an expeditious remedy. ... It enable [s] landlords to obtain possession of leased premises without suffering the delay, loss and expense to which, under the common-law actions, they might be subjected by tenants wrongfully holding over their terms.” (Internal quotation marks omitted.) Housing Authority v. DeRoche, 112 Conn. App. 355, 361, 962 A.2d 904 (2009). “Our Supreme Court has stated that [a]s a condition precedent to a summary process action, proper notice to quit is a jurisdictional necessity. . . . Simply put, before a landlord may pursue its statutory remedy of summary process, the landlord must prove compliance with all of the applicable preconditions set by state and federal law for the termination of the lease. ” (Citations omitted; internal quotation marks omitted.) Id.

In the present case, the record clearly establishes that the plaintiff served the defendant with a notice to quit possession on September 17, 2008, more than thirty days after she properly was served with a pretermination notice. Having established that the notice to quit possession was properly served on the defendant, we note that she does not challenge the plaintiffs compliance with any of the applicable preconditions set by state and federal law required to terminate her lease. Rather, the defendant argues that the court erred in concluding that she violated her lease because it erroneously found that Kalu’s 2008 drug related activity for which he was arrested occurred on the premises. We disagree.

The court did not conclude that Kalu’s 2008 drug related activity had occurred on the premises. The court merely stated that “both arrests involving Kalu occurred on housing authority property.” It is uncontested that Kalu’s drug related arrest in 2008 occurred at the Washington Village housing authority complex, which is owned by the plaintiff. Thus, contrary to the defendant’s contention, the court never held that Kalu’s drug related activity occurred on the leased premises; rather, it only concluded that it occurred on property owned by the plaintiff. Moreover, the location at which Kalu’s drug related activity occurred is irrelevant in the circumstances of this case. The defendant’s lease specifically states: “Management shall not terminate or refuse to renew the Lease for other than failure to pay rent . . . or for other good cause. ‘Good cause’ includes but is not limited to . . . illegal drug-use or drug-related criminal activity on or off the premises . . . .” (Emphasis added.) The unambiguous language of the lease provides for termination of the lease for drug related activity even if it does not occur on the premises. Accordingly, because the record clearly establishes that Kalu engaged in drug related criminal activity, we conclude that the court did not err in determining that the defendant breached her lease agreement.

II

The defendant also claims that the court erred by failing to sustain her fifth special defense. We are not persuaded.

The defendant argues that the court erred in concluding that Kalu’s incarceration did not constitute a cure of her breach of lease pursuant to General Statutes § 47a-15 because “ [a]ny violation of [her] lease is highly unlikely to recur due to the incarceration of [Kalu].” The plaintiff, on the other hand, argues that when the ground for a breach of lease is drug related criminal activity, such a breach is incapable of being cured pursuant to § 47a-15. Therefore, the issue to resolve on appeal is whether § 47a-15 contemplates the ability of a tenant to cure a breach of lease and, thus, avoid eviction when the conduct constituting the breach is drug related criminal activity. We conclude that § 47a-15 does not permit the defense in such circumstances.

“Well settled principles of statutory interpretation govern our review. . . . Because statutory interpretation is a question of law, our review is de novo. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . [We] first . . . consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation. . . . When a statute is not plain and unambiguous, we also look for inteipretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) McCoy v. Commissioner of Public Safety, 300 Conn. 144, 150-51, 12 A.3d 948 (2011).

We begin our analysis by examining the text of § 47a-15. Section 47a-15 provides in relevant part: “Prior to the commencement of a summary process action . . . if there is a material noncompliance by the tenant with the rental agreement . . . and the landlord chooses to evict based on such noncompliance, the landlord shall deliver a written notice to the tenant specifying the acts or omissions constituting the breach and that the rental agreement shall terminate upon a date not less than fifteen days after receipt of the notice. If such breach can be remedied by repair by the tenant or payment of damages by the tenant to the landlord, and such breach is not so remedied within such fifteen-day period, the rental agreement shall terminate . . . .” (Emphasis added.)

The obvious meaning of “repair” would seem to refer to physical items that are capable of being fixed. The hazard of the drug culture would not appear to be susceptible to “repair.” Although “repair by the tenant” does not, at first glance, then seem to refer to the amelioration of criminal activity, it is possible to construe the word “repair” expansively to include “restoration to a state of . . . health . . . .” Webster’s Third New International Dictionary (1996) p. 1923. Because the term “repair by the tenant” is susceptible to more than one reasonable interpretation, we conclude that the cure provision of § 47a-15 is ambiguous as applied to the facts of this case.

We now turn to the legislative history of § 47a-15. Section 47a-15 provides that a landlord can evict a tenant “based on . . . conduct by the tenant which constitutes a serious nuisance.” In 1997, § 47a-15 was amended to include a provision expanding the definition of serious nuisance to include the following: “in the case of a housing authority, using any area within fifteen hundred feet of any housing authority property in which the tenant resides for the illegal sale of drugs.” Public Acts 1997, No. 97-231, § 2. The discussion in the House of Representatives addressed the issue of the effect that this amendment, would have on so-called “innocent or unknowing” tenants. For example, Representative Evelyn C. Mantilla inquired as to “the effect [of this amendment] on the family who may be living [in] a unit of public housing . . . should a member of that family, be it a son or a daughter, be the one who is found to have been selling or dealing drugs . . . .” H.R. Proc., Pt. 12, 1997 Sess., p. 4307. Representative Paul R. Doyle responded that “it does in fact mean that if a family member does sell drugs within 1500 feet of the premises, the entire apartment could be vacated. All of the family could be removed there. It’s a way that the housing authorities want to try to . . . you know, ‘clean up’ the housing authorities. And they’re trying to rid the housing authorities of drugs.” Id., pp. 4307-4308. Representative Doyle further stated that “[i]t may sound unfair to certain people, but this is what the housing authorities encourage because you have to remember, there are people living in apartments right next to this apartment where drugs are being sold. And this amendment and the expansion of [it is] really directed toward other people living in housing authorities because drug dealing is a problem in certain housing authorities. So ... it may feel harsh to you, to that mother, but then you look at the neighbors who are trying to live there in peace and quiet when there’s drug dealing and other problems there. It’s a way to try to clean it out.” Id., pp. 4310-11. On the basis of this legislative history, and the absence of any contrary suggestion, we conclude that the legislature did not intend to create an ability to “repair” drug related criminal activity pursuant to § 47a-15.

Our conclusion is bolstered by consideration of the United States Supreme Court’s decision in Dept. of Housing & Urban Development v. Rucker, 535 U.S. 125, 122 S. Ct. 1230, 152 L. Ed. 2d 258 (2002). In that case, the Supreme Court held that “42 U.S.C. § 1437d (Q (6) unambiguously requires lease terms that vest local public housing authorities with the discretion to evict tenants for the drug-related activity of household members and guests whether or not the tenant knew, or should have known, about the activity.” Id., 130. The court reasoned that 42 U.S.C. § 1437d (Í) (6) permits “local public housing authorities to conduct no-fault evictions . . . [because] [rjegardless of knowledge, a tenant who cannot control drug crime, or other criminal activities by a household member which threaten health or safety of other residents, is a threat to other residents and the project. . . . With drugs leading to murders, muggings, and other forms of violence against tenants, and to the deterioration of the physical environment that requires substantial government expenditures ... it was reasonable for Congress to permit no-fault evictions in order to provide public and other federally assisted low-income housing that is decent, safe, and free from illegal drugs . . . .” (Citations omitted; internal quotation marks omitted.) Id., 134.

Additionally, we believe that the decision of the District of Columbia Court of Appeals in Scarborough v. Winn Residential, LLP, 890 A.2d 249 (D.C. 2006), is directly on point and thus further supports our conclusion. In Scarborough, the Court of Appeals considered the question of whether, as a matter of law, a breach of lease is curable pursuant to D.C. Code § 42-3505.01 (b) (2001) when the conduct constituting the breach is “discrete criminal acts or ongoing criminal activity.” (Internal quotation marks omitted.) Id., 254. The court held that, as a matter of law, such breaches cannot be cured because otherwise it would “stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Internal quotation marks omitted.) Id., 255. Congress declared that those purposes and objectives are “to provide public and other federally assisted low-income housing that is decent, safe, and free from illegal drugs.” (Emphasis added; internal quotation marks omitted.) Id., 256. The court acknowledged that, to effectuate these purposes, Congress intended “to prevent crime in federally-assisted housing by permitting the eviction of tenants when they or persons they have allowed access to their premises commit crimes threatening the health or safety of other residents.” Id., 257. Congress, in effect, intended to establish a “ ‘One-Strike Policy’ ” regarding criminal activity involving residents of federally subsidized housing. Id., 257 n.7. As such, the court stated that allowing a tenant to “correct” a breach stemming from criminal activity and, thus, to avoid eviction, would be inconsistent with the essence and strict mandate of 42 U.S.C. § 1437d © (6). Id., 257. The court reasoned that “[t]he only way to make sense of the idea of correct[ing] criminal activity would be to require the tenant not to engage in such activity again. . . . [T]his interpretation, [however] quickly renders the eviction provision a virtual nullity, because the grounds for eviction—the criminal act—would be washed away by á simple promise not to commit another crime. The very ease of thwarting the landlord’s right to evict for commission of such a crime would frustrate the purpose of an anticrime provision that permits eviction for any criminal activity . . . .” (Emphasis added; internal quotation marks omitted.) Id.

We also note that our conclusion is consistent with this court’s decision in Housing Authority v. Martin, 95 Conn. App. 802, 898 A.2d 245, cert. denied, 280 Conn. 904, 907 A.2d 90 (2006). In that case, this court stated that not all breaches are capable of being cured pursuant to § 47a-15. Id., 813. In so stating, this court reasoned that “[t]he statutory language [of § 47a-15] clearly and unambiguously anticipates a situation in which a violation cannot be cured by the tenant. Otherwise, the statute simply would have stated that a lease will not terminate if the tenant remedies the designated breach within the fifteen day cure period.” Id. Accordingly, we conclude that the defendant cannot “cure” her breach of lease and, thus, avoid eviction when the conduct constituting the breach is drug related criminal activity.

The judgment is affirmed.

In this opinion the other judges concurred.

       Both Gloria Brown and her son, George Kalu, were defendants at trial. Because only Gloria Brown participated in this appeal, we refer to her in this opinion as the defendant.

       The lease pertained specifically to Roodner Court, building 16, apartment 3F.

       Kalu allegedly was in possession of seventeen bags of cocaine.

       The conviction for violation of probation stemmed from robbery and narcotics charges that had occurred in 2006. At the time of his arrest in 2006, Kalu was a minor and was residing with the defendant at the same premises at issue in this case.

       The plaintiffs complaint also alleged three other counts. During the trial, however, the plaintiff informed the court that it was proceeding only on the breach of lease claim.

       See footnote 4 of this opinion.

       Our conclusion is limited to the particular facts of this case. We make no determinations as to whether the term would be ambiguous as applied to other circumstances.

       We note that in the present case, the defendant was evicted because she breached the terms of her lease, not because a serious nuisance had occurred. Nevertheless, the legislative history regarding serious nuisance is relevant because it addresses whether a tenant can “repair” drug related criminal activity, which is the very activity that constituted the defendant’s breach of lease. Accordingly, the legislative history regarding serious nuisance directly addresses the issue of whether § 47a-15 contemplates the ability of a tenant to cure a breach of lease when the conduct constituting the breach is drug related criminal activity.

       It should be noted that § 47a-15 specifically excludes from the “repair” provision evictions based on serious nuisance, where the nuisance is the illegal sale of drugs on the premises.

       Title 42 of the United States Code, § 1437d (Í), provides in relevant part: “Each public housing agency shall utilize leases which ... (6) provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or oj^such premises, engaged in by a public housing tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control, shall be cause for termination of tenancy . . . .” (Emphasis added.) Federal authority on this issue is, then, persuasive.

       We note that although the United States Supreme Court determined that 42 U.S.C. § 1437d (Q (6) permits local public housing authorities to conduct no-fault evictions, the court also stated that § 1437d (1) (6) “does not require the eviction of any tenant who violated the lease provision. Instead, it entrusts that decision to the local public housing authorities, who are in the best position to take account of, among other things, the degree to which the housing project suffers from rampant drug-related or violent crime . . . the seriousness of the offending action . . . and the extent to which the leaseholder has . . . taken all reasonable steps to prevent or mitigate the offending action . . . .” (Citations omitted; internal quotation marks omitted.) Dept. of Housing & Urban Development v. Rucker, supra, 535 U.S. 133-34.

       Section 42-3505.01 (b) of the District of Columbia Code provides: “A housing provider may recover possession of a rental unit where the tenant is violating an obligation of tenancy and fails to correct the violation within 30 days after receiving from the housing provider a notice to correct the violation or vacate.”