author: LAVERY, C. J.

text:
    PRESTIGE BUILDERS, LLC v. INLAND WETLANDS COMMISSION OF THE CITY OF ANSONIA ET AL.
    (AC 22718)
    Lavery, C. X, and Schaller and Hennessy, Js.

      Argued March 20
    officially released September 30, 2003

      Ian Angus Cole, for the appellant (plaintiff).

      Ronald F. Bozelko, with whom was Kevin Blake, for the appellee (named defendant).

      Patricia A. Horgan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Kimberly P. Massicotte, assistant attorney general, for the appellee (defendant commissioner of environmental protection).
   Opinion

LAVERY, C. J.

The plaintiff, Prestige Builders, LLC, appeals from the trial court’s dismissal of its appeal from the decision of the defendant inland wetlands commission of the city of Ansonia (commission), denying the plaintiffs application to construct an eight lot residential subdivision. The dispositive issue in this appeal is whether the commission can exercise jurisdiction over activities that do not occur within or make use of an inland wetland or watercourse and where the commission has not promulgated regulations granting it authority to regulate upland review areas. We conclude that the commission cannot do so, and, accordingly, reverse the judgment of the trial court.

The following facts axe necessary for the resolution of the plaintiffs appeal. On May 18, 2000, the plaintiff filed an application for permission to have a subdivision on property in which wetlands or watercourses are located in the city of Ansonia. The plaintiff initially proposed a nine lot residential subdivision on approximately 7.5 acres. Located on the plaintiffs property were several areas of wetlands and watercourses totaling approximately one acre. Pursuant to its regulations, the commission sent the plaintiffs site plan to the New Haven County soil and water conservation district, the valley regional planning agency, and the Ansonia conservation and municipal planning commissions for review and comment. On the basis of the comments received from those agencies, discussions at commission meetings and remarks made at the public hearings, the plaintiff revised its site plan to include only eight lots.

On December 7, 2000, the commission met again to discuss the plaintiffs application. Throughout the entire application process, the plaintiff vehemently denied that there was any “regulated activity” on the property as defined by the commission’s regulations. Section 2.1.7 of the Ansonia inland wetlands regulations defines “regulated activity” as “any operation within or use of a wetland or water course involving removal or deposition of material or any obstruction, constriction, alteration, pollution of, or construction within such wetlands . . . .’’Ansonia Inland Wetlands Regs., § 2.1.7. The regulations also define the terms “watercourses” and “wetlands.” Section 2.1.13 defines “watercourses” as “rivers, streams, brooks, water ways, the water course of a defined stream including banks, beds, and water, lakes, marshes, swamps, bogs, and all other bodies of water, natural or artificial, public or private, which are contained within, flow through, or border on the City of Ansonia or any portion thereof . . . .” Id., § 2.1.13. “Wetlands” are defined in § 2.1.14 as “land, including submerged land . . . which consists of any of the soil types designated as poorly drained, very poorly drained, alluvial, and flood plain . . . .” Id., § 2.1.14. The commission, however, determined that the plaintiffs proposed activity constituted a regulated activity.

During the December 7, 2000 meeting, John Izzo, the chairman of the commission, stated the reasons supporting the commission’s determination that the plaintiffs proposal involved a regulated activity. He pointed out a possible intermittent watercourse that ran through a portion of lot eight that might be affected by any development on that parcel of land. Izzo stated that the commission was responsible for regulating wetlands and watercourses, and that the existence of a possible intermittent watercourse made the proposed activity a regulated activity. Izzo also referred to a report of the New Haven County soil and water conservation district that stated that inland wetlands commissions are charged with protecting wetlands from erosion, turbidity and siltation while maintaining hydrolic stability and deterring the danger of flooding. According to Izzo, because the plaintiffs property contained wetlands and watercourses, any activity in and around those areas constituted a regulated activity. Finally, Izzo noted the site walks conducted by the commission, reports from the various agencies and the comments from members of the public as a basis for the commission’s classification. All of those sources, according to Izzo, indicated the possibility of flooding, erosion, icing and a negative effect on wells that was likely to result from any proposed activity on the plaintiffs land.

Izzo concluded that because the plaintiffs application was classified as having a regulated activity, the commission was required to analyze the environmental impact of the proposed activity. He noted that the plaintiffs properly was extremely steep and wet, had a twenty year history of flooding and contained a high water table, all of which would affect the ability of the wetlands and watercourses to absorb, to store or to purify water and to prevent flooding. The commission offered the plaintiff a permit for a four lot subdivision on the land as an alternative, but the plaintiff declined that offer. The commission then voted to deny the plaintiffs application.

After denying the plaintiffs application, the commission adopted an amendment to its regulations that added language to its definition of “regulated activity” to include an upland review area of 100 feet. The plaintiff was not required to comply with that amendment because it was adopted after the application was filed; General Statutes § 22a-42e; and after the application had been denied. Prior to that amendment, the commission did not have a regulation governing activities in upland review areas. The plaintiff appealed to the court pursuant to General Statutes § 22a-43. The court dismissed the plaintiffs appeal. This appeal followed.

The plaintiff claims that the court improperly concluded that the commission properly denied its application where none of the proposed activity was within a wetland or watercourse and where the commission had not enacted a regulation granting it authority over upland review areas. We agree.

The plaintiff argues that an inland wetlands commission must first enact a regulation governing upland review areas before it in fact may exercise its statutory authority over activities in such areas. The court concluded that the commission properly exercised its authority over activities in upland review areas despite the absence of a regulation governing such areas. Because the issue raised is a question of law, our standard of review is plenary. See Rich-Taubman Associates v. Commissioner of Revenue Services, 236 Conn. 613, 618, 674 A.2d 805 (1996). There are two questions we must address in our analysis of the plaintiffs claim. First, we must determine whether General Statutes § 22a-42a (f) provides the commission with the authority to regulate activities in upland review areas without first enacting a regulation governing activities in such areas. Second, we must address whether our common law provides the commission with such authority.

Resolution of the first question involves our construction of § 22a-42a (f). “[I]n interpreting statutes, we look at all the available evidence, such as the statutory language, the legislative history, the circumstances surrounding its enactment, the purpose and policy of the statute, and its relationship to existing legislation and common law principles.” (Internal quotation marks omitted.) State v. Courchesne, 262 Conn. 537, 561, 816 A.2d 562 (2003) (en banc).

First, we must analyze the language of the statute. Section 22a-42a (f) provides: “If a municipal inland wetlands agency regulates activities within areas around wetlands or watercourses, such regulation shall (1) be in accordance with the provisions of the inland wetlands regulations adopted by such agency related to application for, and approval of, activities to be conducted in wetlands or watercourses and (2) apply only to those activities which are likely to impact or affect wetlands or watercourses.” That statutory subsection becomes applicable to an inland wetlands commission only if that commission regulates activities outside defined wetlands or watercourses. The word “if’ connotes that discretion is given to a commission to enact regulations governing upland review areas if the commission finds that such regulations are necessary to protect wetlands and watercourses. If a commission does not enact such regulations, then it may not exercise its statutory authority to govern activities outside of inland wetlands and watercourses.

Such a conclusion is supported by the relationship between § 22a-42a (f) and the rest of the Inland Wetlands and Watercourses Act. General Statutes §§ 22a-36 through 22a-45. “[I]t is an elementary rule of statutory construction that we must read the legislative scheme as a whole in order to give effect to and harmonize all of the parts.” (Internal quotation marks omitted.) Massad v. Eastern Connecticut Cable Television, Inc., 70 Conn. App. 635, 640, 801 A.2d 813, cert. denied, 261 Conn. 926, 806 A.2d 1060 (2002). Subdivisions (13), (15) and (16) of General Statutes § 22a-38 define “regulated activity,” “wetlands” and “watercourses,” respectively. Those definitions are almost the same, verbatim, as the commission’s definitions in its regulations.

Nowhere in either the statutory definitions or in the commission’s definitions of those terms is there any mention of upland review areas. The Inland Wetlands and Watercourses Act, therefore, requires only that a municipal commission regulate activity within or that makes use of inland wetlands or watercourses. The authority for a commission to regulate outside of those boundaries is governed by § 22a-42a (f) if the regulations are deemed “necessary to protect [its] wetlands and watercourses . . . .” General Statutes § 22a-42 (c). What constitutes “necessary” is interpreted “as that which is reasonably designed to effectuate the stated purposes of the wetlands statutes.” Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 561, 552 A.2d 796 (1989). That legislative purpose is set forth in great detail in General Statutes § 22a-36. Our Supreme Court has described that purpose as being “that [t]he inland wetlands and watercourses of the state of Connecticut are an indispensable and irreplaceable but fragile natural resource with which the citizens of the state have been endowed, and that [t]he preservation and protection of the wetlands and watercourses from random, unnecessary, undesirable and unregulated uses, disturbance or destruction is in the public interest and is essential to the health, welfare and safety of the citizens of the state.” (Internal quotation marks omitted.) Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 193, 779 A.2d 134 (2001).

The fact that the legislature did not include in its definition of “regulated activity,” “wetland” or “watercourses” any reference to upland review areas demonstrates that the regulation of such areas is not mandatory, but left to the discretion of local commissions if they determine that such regulations are necessary to protect and to preserve inland wetland and watercourses.

The legislative history of the enactment of § 22a-42a (f) further supports the conclusion that a formal regulation governing activities in upland review areas is a necessary prerequisite to a commission’s exercise of its statutory authority over such activities. The thrust of the enactment of § 22a-42a (f) was to codify the authority of local commissions to regulate activities in upland review areas while at the same time limiting which activities could be regulated. See id., 183 (“legislature has amended the [Inland Wetlands and Watercourses Act] to provide express authority for municipal agencies to regulate areas that extended beyond designated wetland boundaries”). The enactment was summarized as follows: “it makes it much more specific for inland wetlands commissions to be able to regulate buffer zones, given the buffer is going to be affected by development that would have an adverse effect on the wetland.” (Emphasis added.) 38 S. Proc., Pt. 11,1995 Sess., p. 3929, remarks of Senator Catherine W. Cook.

Testimony before the legislature’s joint standing committee on the environment also demonstrated the fact that regulation of upland review areas was not mandatory, but rather discretionary if a local commission found it necessary to protect inland wetland and watercourses. See, e.g., Conn. Joint Standing Committee Hearings, Environment, Pt. 4, 1995 Sess., p. 1086, remarks of Robert Smith of the department of environmental protection’s bureau of water management (80 percent as opposed to 100 percent of municipalities have upland review area regulations); id., p. 1138, remarks of Tom Turick of the Connecticut Business and Industry Association; id., p. 1222, written testimony of Michael A. Aurelia, town of Greenwich inland wetlands and watercourses agency director (municipalities have discretion to enact upland review area regulations); id., p. 1236, comments of Rivers Alliance of Connecticut (municipalities “are enabled to set regulatory buffer areas at their own discretion to protect the integrity of the wetlands and watercourses”).

The conclusion that a commission, under § 22a-42a (f), must first enact a formal regulation to exercise its authority over upland review areas is consistent with our case law. Our courts consistently have recognized the authority of an inland wetlands commission to regulate activities in areas adjacent to wetlands and watercourses that would affect or impact such wetlands or watercourses. See Queach Corp. v. Inland Wetlands Commission, supra, 258 Conn. 178; Mario v. Fairfield, 217 Conn. 164, 585 A.2d 87 (1991); Lizotte v. Conservation Commission, 216 Conn. 320, 579 A.2d 1044 (1990); Cioffoletti v. Planning & Zoning Commission, supra, 209 Conn. 544; Aaron v. Conservation Commission, 183 Conn. 532, 441 A.2d 30 (1981). The authority to regulate in upland review areas in each of those cases was viewed as discretionary in nature. In each case, the local inland wetlands commission, pursuant to that discretion, had enacted regulations over upland review areas. Accordingly, we conclude that § 22a-42a (f) grants a commission the authority to regulate upland review areas in its discretion if it finds such regulations necessary to protect wetlands or watercourses from activity that will likely affect those areas. That authority is properly exercised, however, only when the commission acts pursuant to a formal regulation governing such areas.

We next turn to the second question, which is whether our case law grants a commission the authority to regulate upland review areas absent a formal regulation governing such areas. Recently, our Supreme Court noted that § 22a-42a (f) was not designed to overrule case law that provides that a “regulated activity” may include an activity that occurs in nonwetland areas, but that will affect or impact wetland areas. Queach Corp. v. Inland Wetlands Commission, supra, 258 Conn. 198. Rather, the Queach Corp. court stated that § 22a-42a (f) effectively codified the statement made in the seminal case of Aaron v. Conservation Commission, supra, 183 Conn. 542, that “[a]n examination of the [Inland Wetlands and Watercourses Act] reveals that one of its major considerations is the environmental impact of proposed activity on wetlands and water courses, which may, in some instances, come from outside the physical boundaries of a wetland or water course.” (Internal quotation marks omitted.) Queach Corp. v. Inland Wetlands Commission, supra, 197-98.

Our Supreme Court has held that the Inland Wetlands and Watercourses Act grants local commissions the authority to regulate upland review areas. See id., 193; Mario v. Fairfield, supra, 217 Conn. 170; Lizotte v. Conservation Commission, supra, 216 Conn. 331; Cioffoletti v. Planning & Zoning Commission, supra, 209 Conn. 558; Aaron v. Conservation Commission, supra, 183 Conn. 542. An analysis of those cases reveals two important facts. First, a local inland wetlands commission possesses the authority to enact regulations governing upland review areas. Second, the commission must first enact a regulation over upland review areas before it can regulate activities within those areas. In each of those cases, appellate review was based on a regulation that the commission had enacted. We have never held that a commission may exercise its authority over upland review areas absent a regulation governing such areas. “In order to regulate [upland review areas], the [commission] must have regulations for such areas . . . .” (Emphasis added.) R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 11.5, p. 262.

In addition, the department of environmental protection in 1997 published a document entitled “Guidelines for Upland Review Area Regulations Under Connecticut’s Inland Wetlands & Watercourses Act” (1997) (guidelines). The language used in that document demonstrates that municipalities have the discretion to regulate activities in upland review areas. The guidelines provide that “such regulations are optional.” Id., p. 1. They also indicate that “[a]n upland activity which is likely to impact or affect wetlands or watercourses is a regulated activity and should be identified as such in the regulations.” Id., p. 2. Later, the guidelines note that activities located in upland review areas “may be deemed to be a regulated activity . . . .” Id., p. 4. Most importantly, however, the guidelines provide: ‘To be enforceable, the upland review areas must be adopted in the town’s inland wetlands and watercourses regulations . . . .” (Emphasis added.) Id., p. 9. Clearly, the guidelines demonstrate that a commission must first enact a regulation that gives it authority over upland review areas before it may, in fact, regulate within those areas.

We therefore conclude that neither § 22a-42a (f) nor our case law allows a commission to exercise its authority over activities in upland review areas without having first enacted a regulation governing such areas. “Municipal land use agencies have occasionally attempted to regulate land use before passing regulations. Such action has consistently been overturned by the courts.” 9 R. Fuller, supra, § 22.2, p. 487. Once inland wetlands regulations are enacted, they may be amended pursuant to the procedure set forth in § 22a-42a (b). The commission here did not amend its regulations to govern upland review areas until after it had ruled on the plaintiffs application. The commission, therefore, did not properly exercise its authority to regulate upland review areas.

The commission had the authority to regulate activities in upland review areas, but elected not to enact any regulations governing such areas. Rather, its regulations governed only activities that occurred within or that made use of wetlands or watercourses. The definitions of “wetlands,” “watercourses” and “regulated activity” in the commission’s regulations did not encompass upland review areas. The commission, therefore, improperly denied the plaintiffs application because of proposed activities in upland review areas.

The commission’s reasons for denying the plaintiffs application were based on activity that occurred within upland review areas, including the likelihood of flooding, erosion, icing and a negative effect on local wells. Izzo remarked on several occasions that the reason for denying the plaintiffs application was not that the activity was within or made use of wetlands or watercourses, but that the activity in upland review areas would have an adverse impact on those wetlands and watercourses. Without a regulation governing activity within upland review areas, the commission improperly denied the plaintiffs application. According to the commission’s regulations, the plaintiffs application should have been classified as a class A application and granted without delay. We conclude, therefore, that the court improperly dismissed the plaintiffs appeal because the commission did not properly exercise its authority to regulate activities within upland review areas.

Because we conclude that the court improperly found that the commission had the authority to deny the plaintiffs application, we need not address the plaintiffs second claim that the court improperly found the existence of substantial evidence to support the commission’s conclusion that the proposed activity would likely impact wetlands and watercourses.

The judgment is reversed and the case is remanded with direction to render judgment directing the commission to grant the plaintiffs application.

In this opinion the other judges concurred.

       Pursuant to General Statutes § 22a-43 (a), the commissioner of the department ol' environmental protection was made a defendant in the trial court.

       The reason this is the dispositive issue on appeal is because the plaintiffs plan did not include “any operation within or use of a wetland or water course involving removal or deposition of material or any obstruction, constriction, alteration, pollution of, or construction within such wetlands . . . .” Ansonia Inland Wetlands Regs., § 2.1.7. The commission had only the authority to require a permit for activities that fit within this definition. Although there does exist an intermittent watercourse on the plaintiffs property, the proposed activity is not within nor does it make use of that watercourse by removing or depositing material within it. There also was no obstruction, constriction, alteration, pollution of or constriction within that watercourse by the proposed activity. Rather, the proposed activity would occur outside of any wetland or watercourse. Absent a regulation thatprovides the commission with the authority over areas outside wetlands and watercourses, we must determine whether the commission is given such authority from statute or common law to regulate in those areas without having first extended its authority via a written regulation.

       An upland review area is a nonwetland or nonwatercourse area in which an inland wetland commission may regulate activities that are Ekely to affect or to impact wetlands or watercourses. Those also are known as buffer zones or setback areas. See Department of Environmental Protection, “Guidelines for Upland Review Area Regulations Under Connecticut’s Inland Wetlands & Watercourses Act” (1997).

         Both the plaintiff and the commission hired soE scientists to locate and to map the wetlands and watercourses on the plaintiffs properly- Although there was substantial agreement on the location of the majority of those inland wetlands and watercourses, there still remained some dispute over small areas. The location of those disputed areas, however, is not an issue in this appeal, nor do they have any bearing on the outcome of our resolution of the plaintiffs claim.

       The commission classified the plaintiffs application as a class B application, meaning that the proposed use involved a regulated activity. See Ansonia Inland Wetlands Regs., § 5.2.2. Accordingly, the commission sent the plaintiffs site plans for comment to the various agencies.

       The plaintiff offered to withdraw lot eight from its site plan and proceed only with lots one through seven. No revised site plans, however, were submitted to the commission.

       Section 7.1 of the Ansonia inland wetlands regulations provides in relevant part: “Before taking action on a Class B Application, the Commission shall seek to determine (a) the environmental impact of the proposed activity, (b) the importance of the regulated area affected by the activity, and (c) the alternatives to the proposed activity.”

       The following language was added: “[R]egulated activity shall also include all such of force and activities within ‘100 feet’ around such inland wetlands or watercourses and which activities are likely to impact or effect wetlands or watercourses.”

       Throughout the pendency of the plaintiffs application, the commission claimed that it had an inherent fifty foot upland review area.

       General Statutes § 22a-38 (13) defines “regulated activity” as “any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses . . . .”
      General Statutes § 22a-38 (15) defines “wetlands” in relevant part as “land, including submerged land . . . which consists of any of the soil types designated as poorly drained, very poorly drained, alluvial, and floodplain . . . .”
      General Statutes § 22a-38 (16) defines “watercourses” in relevant part as “rivers, streams, brooks, waterways, lakes, ponds, marshes, swamps, bogs and all other bodies of water, natural or artificial, vernal or intermittent, public or private, which are contained within, flow through or border upon this state or any portion thereof .... Intermittent watercourses shall be delineated by a defined permanent channel and bank and the occurrence of two or more of the following characteristics: (A) Evidence of scour or deposits of recent alluvium or detritus, (B) the presence of standing or flowing water for a duration longer than a particular storm incident, and (C) the presence of hydrophytic vegetation . . . .”

       The major difference between the two sets of definitions is that the commission’s definition of “watercourses” does not include the definition of “intermittent watercourses” that is included in General Statutes § 22a-38 (16).

       The formation of those guidelines was mentioned during the legislative hearings as being a future source of guidance concerning upland review areas. See Conn. Joint Standing Committee Hearings, supra, pp. 1126, 1128, remarks of Tom Maloney of the Connecticut River Watershed Council; id., p. 1221, written testimony of Michael A. Aurelia, town of Greenwich inland wetlands and watercourses agency director; id., pp. 1227-29, C. Youell, “Highlights: Riparian Buffer Zone Conference,” Society of Soil Scientists of Southern New England.
      Our use of those guidelines is meant to be demonstrative evidence of the discretionary authority granted to commissions to regulate in upland review areas and is not meant to be authoritative.

       The defendant commissioner of the department of environmental protection in his brief cites the following passage in the guidelines to support his argument that no enabling regulation is necessary: “While requiring a permit for specified activities within defined upland review area boundaries, these wetland agencies still maintain their authority to regulate proposed activities located in more distant upland review areas if they find that the activities are likely to impact or affect a wetland or watercourse.” Guidelines, supra, p. 1. That passage does nothing more that restate our case law and the statutory language governing upland review areas: A commission may enact regulations over more distant land if activity is likely to affect wetlands and watercourses.

       The guidelines provide three models to assist municipalities in establishing regulations over upland review areas by inserting language defining upland review areas in their definitions of “regulated activity.” Guidelines, supra, pp. 3-4. The commission here did not do so until after the plaintiffs application had been denied.

       Section 5.2.1 of the Ansonia inland wetlands regulations provides: “Class A. Application. This classification shall be given to any application which the Commission determines does not involve a regulated activity. Upon assignment of such classification, a permit shall be granted without delay.”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    NATIONAL LOAN INVESTORS, L.P. v. WORLD PROPERTIES, LLC, ET AL. NATIONAL LOAN INVESTORS, L.P. v. LAN ASSOCIATES XII, L.P., ET AL.
    (AC 23322)
    (AC 23401)
    Lavery, C. J., and Schaller and Peters, Js.

      Argued May 5
    officially released September 30, 2003

      Jeffrey D. Cedarfield, for the appellants (defendants).

      Frederic S. Ury, with whom, on the brief, was Deborah M. Garskof for the appellee (plaintiff).
   Opinion

SCHALLER, J.

In these appeals from the judgments rendered against them in two actions brought by the plaintiff, National Loan Investors, L.P. (National), the defendants, World Properties, LLC (World Properties), World, LLC (World), LAN Associates XII, L.P. (LAN), Antonio Reale and Nella Reale, challenge the trial court’s voiding of several of their transfers of money and real property, and its ruling holding Antonio Reale in contempt and ordering him to pay damages to the plaintiff. On appeal, the defendants claim that the court improperly (1) concluded that their real property in Enfield was an asset under the Uniform Fraudulent Transfer Act (UFTA), General Statutes § 52-552a et seq., (2) held that two counts of the plaintiffs complaint in the second action (AC 23401) were not barred by the statute of limitations and (3) imposed a civil contempt penalty on Antonio Reale. We reverse the trial court’s order of contempt and affirm the judgments in all other respects.

The plaintiff brought its first action (AC 23322) against Antonio Reale, LAN and World Properties, alleging five counts of fraudulent transfer under the common law and the UFTA. The plaintiff then brought the second action against Antonio Reale, his wife, Nella Reale, LAN and World. The complaint in the second action alleged nine counts of fraudulent transfer.

The court found the following facts. Antonio Reale was a successful contractor and land developer. He has been married to Nella Reale for more than thirty-five years. Nella Reale has never worked outside the home, nor has she had an independent source of income aside from the money given to her by her husband or from the companies her husband controls. Nella Reale does not, in any way, control any of the family finances. Despite that, all of the bank accounts associated with both Antonio Reale and Nella Reale are in Nella Reale’s name. Antonio Reale himself selected the bank in which the accounts were opened, opened the accounts, is able to sign checks drawn on the accounts and controls the checking accounts.

To facilitate Antonio Reale’s land developments, he “formed a number of companies, including corporations, general partnerships and limited liability companies to hold assets, operate business and funnel moneys.” Three of those companies are the other three defendants: World Properties, World and LAN.

World “has no assets and does no business, but is used to funnel money between [Antonio] Reale’s other entities and [Nella Reale]. [Nella Reale] allegedly makes loans to [World] despite having no income of her own.” World is mostly owned by the Reale family, with Antonio Reale managing the company but owning only 1 percent, Nella Reale owning 51 percent, Joseph Reale, the Reales’ son, owning 30 percent and Seraphina Capobianco, the Reales’ daughter, owning 18 percent.

In contrast to the ownership of World, Antonio Reale owns 54 percent of LAN, Joseph Reale and Seraphina Capobianco own 18 percent each, and the remaining 10 percent is owned by a business partner. “All three companies . . . have the same employees, operate out of the same office space and have the same bookkeeper. The entities do not maintain separate payrolls.” To protect themselves from creditors, all of the companies “transfer[ed] their income to Nella Reale, who had no creditors. Then, when any of the companies needed funds, they would arrange to have funds transferred from Nella Reale’s accounts back into the businesses.”

LAN borrowed money from Chase Manhattan Bank (Chase) to purchase real property in Enfield and to construct a building on the property. Antonio Reale constructed a 113,000 square foot building and left vacant 135 acres. Chase later filed a foreclosure action against Antonio Reale and LAN for the Enfield property. Chase obtained a $17 million judgment in 1995.

Antonio Reale and LAN also owned property in New Jersey. Unfortunately for Antonio Reale, the “[Federal Deposit Insurance Corporation (FDIC)], as receiver for Central Bank, obtained a judgment of foreclosure against [Antonio] Reale and LAN on August 2, 1994, arising out of default of a mortgage on [the] property in New Jersey. The foreclosure did not satisfy the debt, and the FDIC obtained a revised final deficiency judgment” of approximately $7 million against LAN. The FDIC assigned the $7 million judgment against LAN to National. Thus, by 1995, Antonio Reale, with and through his various companies, owed Chase and National considerable sums of money.

In 1995, LAN managed to lease the previously vacant building on the Enfield property to First National Supermarkets. With the lease, the Enfield Property was valued at $14.5 million. At the time of the lease, Antonio Reale “also reached a settlement with the successor in interest to Chase’s judgment, WLL [Real Estate Limited Partnership (WLL)].” “WLL would compromise the $17 million judgment and accept $5.2 million in full satisfaction of the debt.”

To pay for the settlement, Antonio Reale and LAN obtained a mortgage loan from People’s Bank. Antonio Reale and LAN did not receive the money from that loan directly, however, because Antonio Reale formed the company World Properties, which actually received the money from the People’s Bank loan. “People’s Bank loaned World Properties . . . $4.9 million against the Enfield Property building and $750,000 against the vacant land.” World Properties then paid $5.2 million to WLL and, in return, received WLL’s judgment against LAN and the Enfield property. World Properties foreclosed on both the Enfield property and the building, and LAN transferred title to the Enfield property to World Properties. LAN also assigned the First National Supermarkets lease to World Properties. “[N]o consideration for the assignment of lease was given to [LAN] from World Properties . . . .”

National, however, still held a $7 million judgment “at the time that the First National [Supermarkets] lease was executed and assigned, and the [previously] described foreclosure and financing transactions took place.” As a result of the actions of Antonio Reale, LAN and World Properties, LAN had no assets to pay the National judgment, despite the fact that National had obtained its judgment one year before the People’s Bank mortgage and transfers.

After a trial to the court, the court found, inter alia, that the Enfield property had been fraudulently transferred by LAN to World at the behest of Antonio Reale and ordered the Enfield property to be transferred back to LAN. Additional facts will be set forth as necessary.

I

The defendants’ first claim is that the court improperly determined that the Enfield property was an asset capable of being fraudulently transferred as defined by the UFTA and the common law. Specifically, the defendants’ argue that the court improperly determined that the Enfield property’s value exceeded the value of its valid liens and, therefore, was an asset. We are not persuaded.

“The question of whether a fraudulent conveyance took place is solely a question of fact to be determined by the trier. . . . We will not disturb the trial court’s factual findings unless they are clearly erroneous and unsupported by the record. . . . Whether the plaintiff [is] entitled to set aside the conveyances, however, involves a mixed question of law and fact, and our review is plenary.” (Citations omitted.) Davenport v. Quinn, 53 Conn. App. 282, 303, 730 A.2d 1184 (1999).

General Statutes § 52-552e (a) sets forth the test to determine whether a transfer is fraudulent: “A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, if the creditor’s claim arose before the transfer was made or the obligation was incurred and if the debtor made the transfer or incurred the obligation: (1) With actual intent to hinder, delay or defraud any creditor of the debtor; or (2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor (A) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction, or (B) intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due.”

The term transfer is defined by General Statutes § 52-552b (12) to mean “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, or disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease and creation of a lien or other encumbrance.” An asset is, among other things, “property of a debtor, but the term does not include . . . (A) Property to the extent it is encumbered by a valid lien . . . .” General Statutes § 52-552b (2). Property is “anything that may be the subject of ownership.” General Statutes § 52-552b (10). A valid hen is “a hen that is effective against the holder of a judicial hen subsequently obtained by legal or equitable process or proceedings.” General Statutes § 52-552b (13). Thus, a transfer cannot be considered fraudulent if, at the time of the transfer, the transferred property is encumbered by valid hens exceeding the property’s value because the property would no longer be considered an asset under § 52-552 (b) (2), and only assets may be transferred fraudulently. See generally Dietter v. Dietter, 54 Conn. App. 481, 494, 737 A.2d 926, cert. denied, 252 Conn. 906, 743 A.2d 617 (1999).

The defendants argue that the court should have considered the Enfield property to be encumbered by the $17 million hen, which would have exceeded the $14.5 million value the court assigned to the Enfield property. Under the defendants’ argument, the transfer of the Enfield property could not be fraudulent because it was not an asset. That argument fails, however, because the defendants, in reaching their settlement with WLL, fully discharged the $17 million lien and substituted the $5.2 million lien in its stead. That settlement occurred prior to the transfer between LAN and World. Therefore, when IAN transferred the Enfield property to World, the Enfield property was an asset under § 52-552b (2) because its value, $14.5 million, exceeded the valid lien of $5.2 million. Cf. Kellstrom Bros. Painting v. Carriage Works, Inc., 117 Or. App. 276, 844 P.2d 221 (1992) (under UFTA, when value of liens against property exceeds property’s value, property not an asset because it has no equity), cert. denied, 316 Or. 162, 856 P.2d 317 (1993).

The court’s factual determination that the Enfield property was an asset was not clearly erroneous. The court’s legal conclusion that the transfer should be set aside was not improper.

II

The defendants’ second claim is that the court improperly determined that two counts of the plaintiffs complaint in the second action were not barred by the statute of limitations. We are not persuaded.

The following additional facts, found by the court, are necessary for the resolution of the defendants’ claim. Antonio Reale, through one of his companies, owned a building in Vernon that housed a Howard Johnson’s motel. In 1988, Antonio Reale sold the building to the tenant, Shri Nathji Associates (Shri Nathji), and received a $250,000 mortgage. Antonio Reale received payment on the mortgage from 1988 to 1995, when he then sent Shri Nathji a letter instructing Shri Nathji to make future payments to Nella Reale. Notably, the payments were still to be sent to Antonio Reale, who would then give the payments to Nella Reale. Despite the letter, the court found that “the mortgage was never assigned to Nella Reale and, therefore, there was nothing on the land records reflecting such an assignment.” Nella Reale did not handle the banking and did not personally handle any of the money from the Shri Nathji mortgage.

In 1998, Shri Nathji inquired of Antonio Reale about the possibility of a payoff of the mortgage. Shri Nathji did not speak with Nella Reale about the potential payoff. Antonio Reale agreed to a payoff, and Shri Nathji gave Antonio Reale a $156,845.29 check; Antonio Reale received the check and transferred it to Nella Reale by depositing it into her account.

The plaintiff filed an amended complaint on December 9, 1999. Counts eight and nine of the complaint alleged that Antonio Reale’s transfer of $156,845.29 into Nella Reale’s account was fraudulent, and the plaintiff sought to set aside the transfer. The defendants asserted a statute of limitations defense. The court rejected the defendants’ statute of limitations defense, held that Antonio Reale fraudulently transferred the $156,845.29 and voided the transfer.

“As an initial matter, we set forth the applicable standard of review. The question of whether a party’s claim is barred by the statute of limitations is a question of law, which this court reviews de novo.” (Internal quotation marks omitted.) John H. Kolb & Sons, Inc. v. G & L Excavating, Inc., 76 Conn. App. 599, 609, 821 A.2d 774, cert. denied, 264 Conn. 919, 828 A.2d 617 (2003). The court’s determination of the facts, however, will not be disturbed unless it is clearly erroneous. See Giulietti v. Giulietti, 65 Conn. App. 813, 833, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

“The UFTA sets forth three limitation periods in [General Statutes] § 52-552j. The first limitation of action of four years applies to transfers made with actual intent under § 52-552e (a) (1). The second statute of limitations of four years contained in § 52-552j (2) applies to transfers made with constructive fraudulent intent under § 52-552e (a) (2). Section 52-552j (3) contains the third and final limitation and provides for a one year statute of limitations for constructive fraudulent conveyances to an insider for an antecedent debt.” Connecticut National Bank v. D’Onofrio, 46 Conn. App. 199, 209, 699 A.2d 237, cert. denied, 243 Conn. 926, 701 A.2d 657 (1997). Because the court found that the defendants had actual intent to defraud, the relevant statute of limitations is four years.

The defendants argue that Antonio Reale’s letter to Shri Nathji instructing future payments to be made to Nella Reale, which was sent four years and ten months prior to the plaintiffs amended complaint, constituted the transfer and that the plaintiffs claims were barred by the statute of limitations. The defendants reason that Antonio Reale had no legal right to the money after the letter and that he could not have possibly committed fraud in subsequently giving the money to Nella Reale.

“Courts have demonstrated a ready willingness to look beyond the form of a transaction to its substance. . . . It is the effect of the transaction which courts scrutinize. A ‘conveyance’ is likely to be found whenever the effect of a given action is to place a debtor’s property beyond the reach of creditors.” 5 Debtor-Creditor Law (T. Eisenberg ed., 2002) § 22.04 (A) (2) (h). “Because we refrain from exalting form over substance, we look to the essence of the transaction.” Starr v. Commissioner of Environmental Protection, 236 Conn. 722, 742-43, 675 A.2d 430 (1996); see also In re Haley B., 262 Conn. 406, 415, 815 A.2d 113 (2002); Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 422, 797 A.2d 494 (2002).

The court was not required to accept the defendants’ argument that the letter was the relevant and dispositive transfer. Further, the court was not required to credit the defendants’ testimony that the letter was not a sham. See Burse v. American International Airways, Inc., 262 Conn. 31, 42, 808 A.2d 672 (2002) (determination of credibility is province of trier of fact). In the letter, Antonio Reale specifically instructed Shri Nathji to continue to send the payment checks to Antonio Reale’s business office. In addition, Antonio Reale and his companies continued to receive the proceeds of the mortgage after they were funneled into his wife’s account, through World, and then back to the other companies. Further, even though the checks were made payable to Nella Reale, Antonio Reale continued to be in charge of all of Nella Reale’s finances. Moreover, Antonio Reale personally received the $156,845.29 payoff for the mortgage in 1998, only one year before the plaintiffs amended complaint was filed. The court, examining the substance of the transaction, reasonably could have found that the letter to Shri Nathji was a failed attempt at sham formality.

Those facts indicate that when Antonio Reale took the mortgage payoff money and placed it into his wife’s account, he transferred the money. The court’s finding that the transfer took place in 1998 was not clearly erroneous. We agree, therefore, with the court’s legal conclusion that the plaintiffs claims were not barred by the statute of limitations.

Ill

The defendants’ final claim is that the court improperly imposed a civil contempt penalty on Antonio Reale. The defendants specifically argue that the civil contempt penalty was improper because the amount of the penalty was incorrect, and the court did not make a determination of whether Antonio Reale had the ability to purge himself of the contempt. We agree.

The following additional facts are necessaxy for the resolution of the defendants’ claim. On January 24,2000, the court granted a preliminary injunction against Antonio Reale, his companies and his agents. The court stated that Antonio “Reale was barred from transferring any assets personally or in his capacity as an officer of any entity except in the ordinary course of business.” Nevextheless, he “transferred his entire ownership interest in the company T.M.A. (Techologia Medica Avanzata DRL) to his daughter, Seraphina Reale Capobianco, on July 11, 2000 . . . [when] he was aware that he was under court order to refrain from doing so.” Antonio Reale attempted to explain away the transfer, but the court found his explanation for the transfer to be “incredible to the point of perjury.”

The court imposed “a fine ... in the amount of $440,000 payable to the plaintiff to compensate the plaintiff for the loss of assets which would have been otherwise available to satisfy the plaintiffs judgment . . . .” The court based its $440,000 figure on Antonio Reale’s testimony; he had previously testified that in 1996, the shares of stock were worth $440,000. Further, the court ordered that if Antonio Reale failed to pay the $440,000, he would be taken into custody until the amount was paid. After the judgment of contempt, the defendants filed a motion for reconsideration and specifically requested that the $440,000 sum be reduced to $100,000. The court denied the defendants’ motion for reconsideration.

“A contempt adjudication may be reviewed to determine . . . whether the punishment inflicted was authorized.” Mays v. Mays, 193 Conn. 261, 265, 476 A.2d 562 (1984). We review the trial court’s order of contempt and penalty imposed on an abuse of discretion basis. In re Brianna B., 66 Conn. App. 695, 706, 785 A.2d 1189 (2001); Lord v. Mansfield, 50 Conn. App. 21, 34, 717 A.2d 267, cert. denied, 247 Conn. 943, 723 A.2d 321 (1998).

“In Connecticut, the court has the authority in civil contempt to impose on the contemnor either incarceration or a fine or both.” Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737-38, 444 A.2d 196 (1982). “[A] fine may be remedial or it may be the means of coercing compliance with the court’s order and compensating the complainant for losses sustained. . . . The fine imposed for a civil contempt may be payable to the complainant as compensation for his loss.” (Internal quotation marks omitted.) Lord v. Mansfield, supra, 50 Conn. App. 34. “[I]n civil contempt proceedings, the contemnor must be in a position to purge himself. . . . Otherwise the sanction imposed would cease to be remedial and coercive but would become wholly punitive in actual operation.” (Citation omitted; internal quotation marks omitted.) Mays v. Mays, supra, 193 Conn. 266.

The court exceeded its discretion in imposing the $440,000 fine without determining whether Antonio Reale actually possessed the assets to purge himself of the contempt by paying the fine. The plaintiff argues that the court’s lack of inquiiy into Antonio Reale’s ability to pay the fine was mitigated by the fact that the court heard Antonio Reale’s testimony, which, according to the plaintiff, enabled the court to determine that he could pay $440,000. Although the court had heard testimony regarding Antonio Reale’s assets, the testimony primarily focused on the transfer of assets and their value at the time of transfer. The testimony did not focus on what assets Antonio Reale currently held or the current value of his assets. Given those circumstances, the court exceeded its discretion in relying on the trial testimony and not making a separate inquiiy into Antonio Reale’s ability to pay the fine because the trial testimony did not address Antonio Reale’s current assets.

The court also exceeded its discretion when it used Antonio Reale’s statement that the Techologia Medica Avanzata DRL stock was worth $440,000 to determine the value of the stock and, thus, the civil contempt fine. Antonio Reale’s statement that the stock was worth $440,000 was made in 1996, six years prior to the court’s civil contempt judgment. It is common knowledge that stock prices tend to fluctuate, especially in our present global economy. Thus, the present value of any stock may have been quite different six years prior to the civil contempt judgment. The court, therefore, exceeded its discretion because in using the value from six years ago, it based the amount of the fine on irrelevant information.

We conclude that the court exceeded its discretion in its determination of the value of the stock on which it based its fine, and in its failure to determine whether Antonio Reale was capable of paying the fine and, therefore, purging himself of the contempt.

The judgment in the first case is reversed only as to the finding of contempt as against Antonio Reale and the case is remanded for further proceedings to determine the value of the Techologia Medica Avanzata DRL stock when it was transferred and whether Antonio Reale has the ability to pay any fine that the trial court may impose. The judgments are affirmed in all other respects.

In this opinion the other judges concurred.

       The defendants in AC 23322 appeal only from the judgment that they fraudulently transferred property from LAN to World and fraudulently transferred funds from Antonio Reale to Nella Reale, and from the finding of civil contempt against Antonio Reale. Although only Antonio Reale was held in contempt, all of the defendants appeal from the judgment of contempt and the penalty imposed on Antonio Reale.

       The complaint in the first action primarily concerns the transfer of property in Enfield by LAN to World.

       The second count alleges various fraudulent transfers, but only counts six and seven, which concern Antonio Reale’s transfer of mortgage proceeds to Nella Reale, are at issue here.

       Both appeals involve substantially the same individuals and share many common facts; thus, we set forth the facts for both appeals together.

       The First National Supermarkets lease is considered to be very valuable because it is a triple net lease. “First National [Supermarkets] pays, in addition to rent, real estate taxes, maintenance and all other costs of the building’s operation. Based on the fact that this is a triple net lease and was guaranteed by [Koninklijke Ahold N.B.], the lease ... at its inception had a present value to the lessor estimated to be between $11,934,183 and $14,245,406.”

       The ownership of World Properties is similar to that of World; Nella Reale owns 63 percent, Seraphina Capobianco and Joseph Reale each own 18 percent, and Reale owns 1 percent. The court stated that “[although Nella Reale does not perform any work for this or any other company, she sometimes receives a monetary distribution, whether salary or draw, from [World Properties]. Neither Antonio Reale, Joseph Reale nor Seraphina Capobianco . . . receives any such distribution.”

       World Properties also received money from two other mortgages. World Properties received a $1 million loan from First National Supermarkets in exchange for a second mortgage on the Enfield property and a $75,000 loan from WLL in exchange for a third mortgage on the Enfield property.

       Our analysis proceeds under the UFTA, but a common-law analysis would reach the same result. As our Supreme Court stated in Molitor v. Molitor, 184 Conn. 530, 535, 440 A.2d 215 (1981), the “similarities between [the uniform act] and our law are strong, since the uniform act ... is largely an adoption and clarification of the standards of the common law.” Flirther, neither party argues that the common law would produce a different result from the UFTA.

       The letter from Antonio Reale stated in relevant part: “This letter is your notice that the Mortgage Note on the [Howard Johnson property] has been assigned to my wife, Nella Reale. Commencing with the March payment, please make the check payable to Nella Reale. The check should continue to come to this office.”

       Nella Reale’s account was, presumably, the only personal account in which the money could be placed because Antonio Reale did not maintain any personal accounts.

       It is important to note what the defendants do not claim. The defendants do not claim that the contempt order itself is invalid; rattier, the defendants request only that this court review the amount of the fine and remand the case to the trial court for a determination of whether Antonio Reale has the ability to pay the fine and to satisfy the contempt order.

       Antonio Reale explained that if he failed to transfer the shares to his daughter, another member of the company would have transferred the shares to her. Antonio Reale also explained that the shares were transferred to Seraphina Capobianco to repay her for a $100,000 loan she made to one of his companies, although he was unable to identify the company to which she had made the loan.

       Both the plaintiff and the defendants cite the proposition that “[t]he inability of the defendant to obey an order of the court, without fault on his part, is a good defense to a charge of contempt.” (Internal quotation marks omitted.) Mays v. Mays, supra, 193 Conn. 264. That proposition, however, is inapplicable. Antonio Reale had the ability to obey the order of contempt; he did not need to transfer the Techologia Medica Avanzata DRL stock to Seraphina Capobianco. He could have avoided the civil contempt but chose not to do so.

       The plaintiff’s counsel conceded at oral argument that the trial court should have made an inquiry, but argued that the court’s opportunity to listen to the testimony obviated the need for the inquiry.


text:
    LAURIE J. ALLEN v. RICHARD E. JOHNSON ET AL.
    (AC 22901)
    Lavery, C. J., and Schaller and West, Js.

      Argued February 13
    officially released September 30, 2003

      David M. Sheridan, with whom, on the brief, was Monique G. Rubb, legal intern, for the appellants (defendants).

      Anthony F. DiPentima, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendants, Richard E. Johnson and Joanette Wright Johnson, appeal from the judgment, rendered after a trial to the court, determining that the plaintiff, Laurie J. Allen, had gained title to a portion of their property through adverse possession. The dispositive issue on appeal is whether the purchase by the plaintiff’s predecessor in title of lot 10A from the defendants’ predecessor in title and the circumstances surrounding that conveyance constituted an acknowledgment by the plaintiffs predecessor in title that the defendants’ predecessor in title held superior title to the portion of the defendants’ property at issue, thereby interrupting the fifteen year statutory requirement for adverse possession. We conclude that it did constitute an acknowledgment, and, accordingly, reverse in part the judgment of the trial court.

The following facts are not disputed and are relevant to our resolution of the defendants’ appeal. The parties are the owners of adjoining parcels of land on Steeples Road in Washington. The plaintiff is the record owner of the parcel at 26 Steeples Road (lot 12). The plaintiffs father, Robert J. Allen, acquired title to lot 12 by warranty deed from Paerce Kearney on September 22,1970. In 1972, the Allens planted a line of white pine trees along what they considered to be the western boundary of their property. On January 16, 1979, Robert Allen quitclaimed his interest in lot 12 to his wife, Jeanette L. Allen, who, on January 15, 1993, conveyed it to her daughter, the plaintiff.

The defendants are the record owners of the parcel at 24 Steeples Road (lot 10), which adjoins the western boundary of lot 12. They acquired title to lot 10 by warranty deed from Massasoit Corporation (Massasoit) on March 23, 2000. Massasoit had acquired title to the parcel in September, 1984, by warranty deed from William Allan. At that time, Massasoit had lot 10 surveyed, which revealed that Robert Allen had constructed a tool shed on the eastern boundary of lot 10. In November, 1984, Robert Allen arranged a meeting with Robert Shea, the president of Massasoit, because he was concerned about the location of the boundary line between lot 10 and lot 12. On November 20, 1984, Robert Allen met with Shea at the surveyed boundary line between the two lots. At that meeting, Robert Allen reiterated his concern about the location of the boundary line and its close proximity to his driveway. He requested that the boundary line be adjusted westward. After further negotiations, Massasoit agreed to sell to Robert Allen a small piece of lot 10 located in the area between the Allens’ driveway and the line of white pines, which the Allens had thought was the western boundary of their property. As a condition of the purchase, Robert Allen was required to pay all legal fees and other expenses associated with the transfer. He also was required to apply for and to obtain zoning approval for the proposed conveyance on Massasoit’s behalf because the conveyance of lot 10A would alter a filed subdivision.

Robert Allen hired a surveyor, George P. Bumham, who prepared a revised survey that showed a small triangular parcel of land, designated as lot 10A, which, when conveyed to the Allens, would move the boundary line between lot 10 and lot 12 six feet westward at the street line and approximately twenty feet westward in the area of the tool shed. Thereafter, the Allens, on behalf of Massasoit, obtained zoning approval for the proposed conveyance from the Washington planning commission. On April 2,1985, Jeanette Allen purchased lot 10A from Massasoit for $651. Subsequent to the transfer of lot 10A, the Allens continued to use and to maintain the land up to the line of white pine trees, including a portion of lot 10 lying to the west of lot 10A. In January, 1986, Shea, on behalf of Massasoit, sent a letter to Robert Allen, requesting that he remove a woodpile that the Allens had “maintained on the side of Massasoit’s lot which immediately adjoins [the Allens’] property.” Robert Allen did not respond to Shea’s letter and did not remove the woodpile from lot 10.

By complaint dated October 13, 2000, the plaintiff commenced this action to quiet title based on a claim of adverse possession. The disputed property consisted of a two pieces of land located on the eastern boundary of the defendants’ property: A triangular piece west of lot 10A (first parcel) and another piece that runs along the boundary line between lot 10 and lot 12 (second parcel). After a trial to the court, the court rendered judgment in favor of the plaintiff on her claim with respect to the first parcel and in favor of the defendants on the plaintiffs claim with respect to the second parcel. This appeal followed. Additional facts will be provided as necessary.

As a preliminary matter, we set forth our well established standard of review. “[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner.” (Internal quotation marks omitted.) Top of the Town, LLC v. Somers Sportsmen’s Assn., Inc., 69 Conn. App. 839, 842, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002).

A finding of adverse possession is to be made out “by clear and positive proof. . . . [C]lear and convincing proof . . . denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. . . . The burden of proof is on the party claiming adverse possession. . . .

“Despite that exacting standard, our scope of review is limited. Adverse possession is a question of fact, and when found by the trial court will not be reviewed by this court as a conclusion from evidential facts, unless it appears that these facts, or some of them, are legally or logically necessarily inconsistent with that conclusion.” (Citations omitted; internal quotation marks omitted.) Id., 844. With that standard in mind, we address the defendants’ appeal.

The defendants claim that the court improperly determined that Jeanette Allen’s purchase of lot 10A from Massasoit did not constitute an acknowledgment of Massasoit’s superior title to the first parcel and, thus, was not an interruption of the fifteen year statutory period. See General Statutes § 52-575. We agree with the defendants.

The defendants’ claim requires us to review a finding of fact. “The standard of review with respect to a court’s findings of fact is the clearly erroneous standard. 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 . . . .” (Internal quotation marks omitted.) Blitz v. Subklew, 74 Conn. App. 183, 186, 810 A.2d 841 (2002).

An adverse possessor may interrupt his or her continuous possession by acting in a way that acknowledges the superiority of the real owner’s title. See Lazoff v. Padgett, 2 Conn. App. 246, 250, 477 A.2d 155, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984). “[TJhe possession of one who recognizes or admits title in another, either by declaration or conduct, is not adverse to the title of such other. . . . Occupation must not only be hostile in its inception, but it must continue hostile, and at all times during the required period of fifteen years challenge the right of the true owner, in order to found title by adverse use upon it. . . . Shch an acknowledgment of the owner’s title terminates the running of the statutory period, and any subsequent adverse use starts the clock anew.” (Internal quotation marks omitted.) Kramer v. Petisi, 53 Conn. App. 62, 71, 728 A.2d 1097, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999); see also Top of the Town, LLC v. Somers Sportsmen’s Assn., Inc., supra, 69 Conn. App. 843-44.

“[A]n offer to purchase the legal title, or an acceptance of a conveyance of title, as distinguished from a mere outstanding claim or interest, is a recognition of that title. Although efforts to obtain deeds from other claimants to the property do not disprove the hostile character of a possession, efforts to buy the property from the record owner constitute an acknowledgment of the record owner’s superior title, and thus disprove the adverse holding, because there has been no claim of right.” 3 Am. Jur. 2d, Adverse Possession § 104 (2002); see Tidwell v. Strickler, 457 So. 2d 365, 368 (Ala. 1984); Kerlin v. Tensaw Land & Timber Co., 390 So. 2d 616, 619 (Ala. 1980); Manhattan School of Music v. Solow, 175 App. Div. 2d 106, 107, 571 N.Y.S.2d 958 (“offer made by one in possession without title to purchase from the record owner during the statutory period is a recognition of the owner’s title and prevents adverse possession from accruing”), leave to appeal denied, 79 N.Y.S.2d 820, 588 N.E.2d 89, 580 N.Y.S.2d 191 (1991); Albright v. Beesimer, 288 App. Div. 2d 577, 579-80, 733 N.Y.S.2d 251 (2001) (same); Palumbo v. Heumann, 295 App. Div. 2d 935, 935-36, 743 N.Y.S.2d 640 (2002) (same); Shanks v. Collins, 782 P.2d 1352, 1355 (Okla. 1989) (recognition by adverse possessor that title was in another as evidenced by adverse possessor’s offer to purchase property negated requisite hostility); Eddy v. Clayton, 44 So. 2d 395, 397 (Miss. 1950) (same); Chicago Mill & Lumber Co. v. Matthews, 260 S.W. 963, 964 (Ark. 1924) (same); Myers v. Beam, 713 A.2d 61, 62-63 (Pa. 1998); 2 C.J.S., Adverse Possession §§ 185 and 186, pp. 905-906 (1972); 4 H. Tiffany, Real Property (3d Ed. 1975) § 1164, p. 869. Moreover, an adverse claimant’s purchase from the true owner of a part of the land adversely occupied may constitute an acknowledgment of the owner’s superior title to the remainder, depending on the facts and circumstances of the particular case. See 2 C.J.S., supra, § 186.

It is undisputed that Jeanette Allen purchased lot 10A from Massasoit in April, 1985, and that subsequent to that transfer, the Allens continued to use and to maintain the first parcel, which is immediately to the west of lot 10A, in the same way as they had prior to the transfer. On the basis of those facts and the court’s apparent assumption that the conveyance of lot 10A was a means of settling a dispute over rightful ownership of that property, the court concluded: “[N] either the plaintiff nor her predecessors in interest acknowledged or admitted that the record owner has title to the first parcel. Here, there was one meeting in which [Robert] Allen and Shea discussed [Robert] Allen’s concern over the location of a boundary. The transfer of lot 10A by deed on April 2,1985 [did] not interrupt [the] plaintiff’s possession of the first parcel because that portion of the property was not part of the transfer .... Since more than fifteen years have passed from September 22, 1970, to March 23, 2000, the plaintiff has met the statutory fifteen year requirement. The first parcel has been uninterruptedly used by the plaintiff and her predecessors in interest exclusively and to the exclusion of others from 1970 to 2000.”

Our review of the record persuades us that the court improperly found that Jeanette Allen’s purchase of lot 10A from Massasoit did not constitute an acknowledgment of Massasoit’s superior title to the first parcel. There are several pieces of evidence that indicate that the court’s finding is clearly erroneous.

First, as a condition of the conveyance of lot 10A, the Allens were required to pay all legal fees and other expenses associated with the transfer, and to apply for and to obtain zoning approval for the proposed conveyance on Massasoit’s behalf. As part of the process of obtaining zoning approval, the Allens commissioned a survey in Massasoit’s name. The survey, entitled “Map Prepared For Massasoit Corporation,” clearly and unequivocally shows the division of lot 10 into lots 10 and 10A; however, it makes no reference to the “disputed” first parcel, which is shown to be within the adjusted lot 10. Thus, the survey shows that Massasoit held title to lot 10, and that both lot 10A and the first parcel were part of lot 10. The Allens never objected to or questioned the validity of the survey. In fact, on February 5,1985, Robert Allen appeared before the Washington planning commission and used that survey to obtain the commission’s approval of the proposed subdivision and new boundary lines.

Second, the warranty deed by which Jeanette Allen acquired title to lot 10A from Massasoit specifically refers to the survey. The deed, which was prepared by the Allens’ attorney, states that lot 10A is described in the attached schedule A. Schedule A describes lot 10A in relevant part as “[a]ll that certain piece or parcel of land . . . being shown as Parcel 10A on a survey entitled ‘Map Prepared For Massasoit Corporation Four Steeples Road Washington, Connecticut . . . October 6, 1984’ by George P. Burnham . . . .” Schedule A further describes lot A as “a portion of the premises conveyed to the Massasoit Corporation by William Allen and Christine C. Allen by Warranty Deed dated September 24, 1984 . . . ,” Thus, that deed expressly states that prior to the transfer, Massasoit held title to lot 10 as shown on the survey and that lot 10A was part of lot 10. The Allens never disputed that language and, therefore, they acquiesced, via their silence, to Massasoit’s claim of superior title.

Third, at trial, Shea testified that there was no dispute between Robert Allen and himself concerning the true location of the boundary line between lot 10 and lot 12, and that Robert Allen had “accepted the boundary” as surveyed by Massasoit. He also stated that Massasoit conveyed the property as “an accommodation” to its neighbor. Shea’s-testimony is supported by the testimony of the plaintiff, who, when asked on cross-examination what precipitated the purchase of lot 10A, stated: “[A] survey was made that showed that the property line was closer to my mailbox . . . than we had understood it to be since 1970. And a tin garden house that was in the backyard then turned out to be on the lot next door. So, they purchased the land to include the tin house.” There is absolutely nothing in the record that contradicts that testimony.

Finally, the location of the first parcel supports the finding that the purchase of lot 10A by the plaintiffs predecessor in title constituted an acknowledgment of Massasoit’s superior title to the first parcel. As previously noted, the first parcel is located immediately to the west of lot 10A. See prior map.

On the basis of those facts, we are left with the firm and definite conviction that the court improperly found that the purchase of lot 10A from Massasoit did not constitute an acknowledgment of Massasoit’s superior title to the first parcel. We conclude therefore that the purchase of lot 10A by the plaintiffs predecessor in title and the circumstances surrounding that conveyance constituted an acknowledgment that the defendants’ predecessor in title held superior title to all of lot 10, including the first parcel, and, therefore, interrupted the running of the statutory period. See Kramer v. Petisi, supra, 53 Conn. App. 71. Because the running of the statutory period was interrupted in April, 1985, at no time has the plaintiff or her predecessors in title maintained fifteen years of continued, uninterrupted adverse possession under a claim of right of the property at issue. Accordingly, the court improperly rendered judgment in favor of the plaintiff on her claim of adverse possession with respect to the first parcel.

The judgment is reversed only as to the plaintiffs claim of adverse possession with respect to the first parcel and the case is remanded with direction to render judgment in the defendants’ favor as to that claim. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendants also claim on appeal that the court improperly determined that the plaintiffs possession of the subject property was exclusive and “open and visible.” Because we conclude that the defendants’ first claim is dispositive, we need not address the remaining issues.

       The plaintiff has not appealed from the court’s judgment in favor of the defendants on the plaintiffs claim with respect to the second parcel.

       On the basis of those legal principles, clearly, the plaintiffs predecessor in interest acknowledged the superior title of the defendants’ predecessor with respect to lot 10A.

       Although the court did not expressly find that the conveyance of lot 10A .was a means of settling a dispute over rightful ownership of that property, the legal principles applied by the court in the case relate only to situations in which such a dispute exists. For instance, in its memorandum of decision, the court sets forth the following legal principles: “A recognition by the adverse claimant of title in the owner will arrest the running of the period of limitations. . . . Negotiations or offers to purchase property from the owner as a means of settling a dispute over rightful ownership do not constitute an admittance that the record owner has title and, therefore, do not interrupt possession. . . . Generally, possession is interrupted where the adverse possessor accepts a deed from the record owner. . . . However, if the deed includes only aportion of the property so possessed, or otherwise fails to settle the controversy, it . . . should not be conclusive.” (Citations omitted; emphasis added; internal quotation marks omitted.)

       In a February 7, 1985 letter addressed to Shea, the Allens’ attorney, Reginald W. H. Fairbairn, stated in relevant part: “In connection with the . . . transaction, I am enclosing the following documents: 1. Warranty Deed; 2. Closing Statement; 3. Department of Revenue Services conveyance tax form; [and] 4. Photocopy of survey. ... It is my understanding that [Robert] Allen is to absorb all the costs of conveying this property, including paying both conveyance taxes and recording fees.” See also footnote 6.

       In a February 20, 1985 letter addressed to Shea, the Allens’ attorney, Reginald W. H. Fairbairn, stated: “Pursuant to your request of February 15th, I am enclosing a copy of the minutes of the Washington Planning Commission meeting of February 5,1985. Please note that this resubdivision application was approved by the Planning Commission.”
      The minutes of the February 5, 1985 meeting indicate that Robert Allen was present at that meeting.

       The resubdivision was approved without comment.
      In Esposito v. Stackler, 160 App. Div. 2d 1154, 1155, 554 N.Y.S.2d 361 (1990), the appellate division of the New York Supreme Court held that the adverse possessors’ acknowledgment of the location of their boundary line, when applying to the town for a building permit, was a factor mitigating against their claim of adverse possession.

       We note that there appears to be a minor typographical error in schedule A with respect to the spelling of the name of Massasoit’s predecessors in title. They spell their last name Allan not Allen.

       At trial, Shea further testified in relevant part: “I asked Mr. Allen what his concern was, and he said his concern was primarily the fact that the stake was so close — the boundary marker was so close to his property and it raised questions. He was afraid it might affect the marketability of his title, whether it was a proper zoning setback or whatever. And I asked him what he wanted, what was he requesting? And he said he’d like a six foot adjustment to move the property line westerly by six feet.
      “And at the same time we talked about the tool shed that was encroaching on Massasoit’s property, and I suggested to him that at the same time — if we acceded to the six foot movement, which we were not enthusiastic about doing because the frontage of the property is very valuable . . . but I said if we acceded to it, shouldn’t we also clear up this thing about the tool shed, and I said, if you have a — if you want your attorney to prepare a deed and have the survey done to accomplish moving the line six feet at the road area, and then going back and jogging around the tool shed, making a sort of a right angle jog around the tool shed, that that way his tool — he wouldn’t have to move the tool shed, and he would have the six feet that he asked for at the front.
      "The — I said I’d leave it up to them to suggest a fair consideration for the conveyance. And it was left to him that his attorney would take the matter up.”

       Our reading of the record indicates that in November, 1984, Robert Allen arranged a meeting with Shea because he was concerned about the location of the boundary line between lot 10 and lot 12. Massasoit’s survey made the Allens aware for the first time that they were mistaken concerning the true location of the boundary line between their lot and lot 10 and that they had encroached upon a portion of Massasoit’s property. The Allens never challenged the validity of Massasoit’s survey nor the placement of the survey markers next to their driveway. Robert Allen requested Massasoit to convey a portion of its property to him, which Massasoit did as “an accommodation” to benefit its neighbor. There is nothing in the record to indicate otherwise.

       The court expressly found that the statutory period ran from September 22, 1970, to March 23, 2000. Moreover, the record indicates that the parties agreed to maintain the “status quo” as of March 23,2000, pending the present litigation. We note that March 23, 2000, is the date that the defendants acquired title to lot 10 from Massasoit.