author: Daly, J.

text:
    Robert T. Reynolds Associates, Inc. v. John James Asbeck
    (8529)
    Daly, Cretella and Landau, Js.
    Argued June 13
    decision released September 18, 1990

      Eliot Gersten, with whom, on the brief, was Peter H. Lovell, for the appellant (defendant).

      Susan L. Miller, with whom, on the brief, was Robert E. Byron, for the appellee (plaintiff).
   Daly, J.

The plaintiff instituted this contract action against the defendant for the recovery of sums due for advertising services. The defendant pleaded, by way of special defense, that the plaintiff was either estopped from holding him personally liable on the agreement or had waived the right to do so. The trial court rendered judgment for the plaintiff and awarded $31,453.93 in damages, together with statutory interest. On appeal, the defendant claims that the trial court (1) should not have found him personally liable, and (2) should not have granted the plaintiffs motion in limine that precluded evidence of the defendant’s agency relationship with J.S. Sales Corporation International (J.S. Sales Corporation). We affirm the trial court’s judgment.

I

The trial court found the following facts that are relevant to the first claim. In January, 1984, the plaintiff started doing business with Acousticon Electronics (AE), a company that employed between forty-five and fifty people and that was involved in the manufacturing of hearing aids. Although AE was a trade name, there was no certificate of that name filed in Waterbury, its principal place of business. From January through June, 1984, the plaintiff provided advertising services for AE. During this time period, Robert T. Reynolds, the plaintiff’s president, worked directly with Niles Floyd, vice president of AE, and communicated with Robert Teal, AE’s president, on billing matters. Some time in January, 1984, Reynolds was told by either Teal or Floyd that AE was not a corporation. This was stated in connection with a logo that was being made for AE. When the plaintiff first started doing business with AE, the plaintiff did not request, or perform, a credit check, or require personal guarantees. Payment for those services was made.

In July, 1984, the defendant first heard about AE when he met with Teal regarding possible employment. Following this meeting, the defendant went to Birmingham, Alabama, where he met with Charles Speir, whom the defendant understood to be in the process of buying J.S. Sales Corporation. The defendant entered into a verbal three year employment contract with Speir and was paid by J.S. Sales Corporation.

The defendant began his employment as president of AE in August, 1984. He was put in charge of trying to resolve AE’s financial difficulties. Shortly after analyzing the needs of AE, the defendant contacted Reynolds to obtain advertising services, advising Reynolds that he was the president of AE. The defendant authorized, reviewed and approved the advertising services at issue. The plaintiff provided these services and billed the defendant. During the period that the plaintiff provided services at the defendant’s request, the defendant did not inform the plaintiff that he was the agent for any other entity. The defendant made partial payment but when pressed for the rest of the money, he merely made reference to “money” people, but never disclosed their identity or involvement.

The trial court found that there was a meeting of the minds to form a contract, and that the defendant’s special defenses were without merit. In addition, the court found that, even if the defendant had shown that an agency relationship existed with J.S. Sales Corporation, a corporation that sold its assets at public auction under the name J.S. Sales Corporation International d/b/a Acousticon Electronics, the defendant’s failure to disclose a principal to' the plaintiff caused him to remain personally liable.

In this first claim, the defendant asserts three theories as to why he should not be personally liable.

He first argues that the court should not have found that there was mutual assent to form a contract since he never intended to contract on his behalf. We disagree.

“It is true . . . that in order to form a contract, generally there must be a bargain in which there is a manifestation of mutual assent to the exchange between two or more parties; see Restatement (Second), Contracts §§ 1 (c), 15,19 (Tent. Dr. 1964); 1 Williston, Contracts (1957) §§ 18, 22; see also Hoffman v. Fidelity & Casualty Co., 125 Conn. 440, 444, 6 A.2d 357 (1939); Clark v. Diefendorf 109 Conn. 507, 510, 147 A. 33 (1929); and the identities of the contracting parties must be reasonably certain.” Ubysz v. DiPietro, 185 Conn. 47, 51, 440 A.2d 830 (1981).

The defendant essentially argues that the plaintiff, as part of its duty to be reasonably certain of the identity of the party with whom it was contracting, should have been more diligent in ascertaining whether the defendant intended to bind himself or a corporation. The defendant argues that because of evidence that shows that the plaintiff was not diligent in doing this, the plaintiff failed to prove this essential element of a contract and thus no contract existed to bind him. This argument fails for two reasons.

First, to impose such a duty on the plaintiff under the guise of mutual assent would impermissibly shift the burden of proving notice of agency away from the party asserting its existence. The law is clear that the burden of proving agency is on the party asserting its existence. See Botticello v. Stefanovicz, 177 Conn. 22, 26, 411 A.2d 16 (1979); New England Whalers Hockey Club v. Nair, 1 Conn. App. 680, 683, 474 A.2d 810 (1984).

Further, the defendant’s claim that the plaintiff had a duty to discover in what capacity the defendant was acting in order to meet its burden of proving mutual assent is contrary to this court’s statements in New England Whalers Hockey Club: “To avoid personal liability, it is the duty of an agent to disclose both the fact that he is acting in a representative capacity and the identity of his principal, since the party with whom he deals is not required to discover or to make inquiries to discover these facts. . . . Therefore, ‘where the agent contracts as ostensible principal, regardless of his intention and notwithstanding his lack of personal interest in the consideration, he will be personally liable on the contract as if he were the principal.’ 3 C. J.S., Agency § 369.” New England Whalers Hockey Club v. Nair, supra. Accordingly, the defendant’s first theory of avoiding personal liability is without merit.

The defendant next argues that, because the plaintiff had notice that the defendant was acting in the capacity of an agent, he should not be personally liable. Here, the defendant argues that his consistent use of the words “its president” when dealing with the plaintiff and the fact that the name “Acousticon Electronics” appeared on all invoices and correspondence constituted notice that he was not making a personal promise and, therefore, should not be personally liable. The defendant relies on Jacobs v. Williams, 85 Conn. 215, 82 A. 202 (1912), for his assertion that the plaintiff had proper notice that he made a corporate obligation and not a personal obligation. That case is distinguishable from the present case. In Jacobs, the name of the alleged principal, the Glastonbury Power Company, appeared directly above the signatures of the two officers who also signed in their representative capacity. Further, the court in that case relied on the following rule: “[W]here the corporation appears as the primary signer, the almost universally accepted and reasonable rule of construction is that where the signature is that of the corporation, and the name or names of one or more of its officers in their official capacity are appended as subscribing agents . . . the corporation will be regarded as the signer and obligor, and the individuals will not be obligated, unless other language or the general tenor of the writing indicates a contrary intent.” Id., 219.

In this case, the court found that AE was not a corporation. This finding is supported by the evidence. Thus, although the name of the business, “AE,” may have been present in the correspondence between the parties, there was no evidence submitted to show that this business was a corporation. The only evidence indicating the possibility that this was a corporate obligation was that the correspondence was signed by the defendant as president. The proper name of the alleged corporation, however, was J.S. Sales Corporation International d/b/a Acousticon Electronics. The name of that corporation never appeared in any correspondence concerning this contract. Because this was not a corporate obligation, the mere fact that the defendant signed in a representative capacity will not permit him to avoid personal liability.

Last, the defendant argues that the plaintiff had notice of both the fact of his agency and the identity of his principal either (1) because the plaintiff “has not overcome its burden of establishing that insufficient information as to the existence of an agency relationship was provided to [the] plaintiff justifying a reasonable belief that it was dealing with the defendant alone,” or, alternatively, (2) because the plaintiff knew that it was dealing with a certain principal and had previous dealings of the same nature through the agent’s predecessor.

The first part of the argument has no merit. As previously indicated, it was the duty of the agent and not of the third party with whom he was dealing to disclose both the fact that he was acting in a representative capacity and the identity of the principal because the party with whom he deals is not required to discover these facts,. New England Whalers Hockey Club v. Nair, supra; see also Connecticut Limousine Service, Inc. v. Powers, 7 Conn. App. 398, 402, 508 A.2d 836 (1986).

The second part of the defendant’s argument is, essentially, a challenge to the trial court’s factual finding that the defendant failed to disclose the identity of his principal.

While it is true that “[a]n agent, by making a contract only on behalf of a competent disclosed principal whom he has the power to bind, does not thereby become liable for its nonperformance; Behlman v. Universal Travel Agency, Inc., 4 Conn. App. 688, 690, 496 A.2d 962 (1985); whether there was a nondisclosure of a competent principal so that the plaintiff might hold the defendant personally liable on the contract is a ques-

tion of fact for the trial court. Connecticut Limousine Service, Inc. v. Powers, supra.

The evidence showed that neither the defendant nor his alleged predecessors, Teal or Floyd, informed the plaintiff that a corporation existed. See id. “ ‘A reviewing court’s role is to decide whether the decision of the trial court is clearly erroneous in view of the evidence and pleadings in their entirety.’ ” Id., 403. The trial court’s decision was not clearly erroneous.

II

In his second claim, the defendant argues that the trial court abused its discretion when it granted the plaintiff’s motion in limine that precluded evidence of the defendant’s agency relationship with J.S. Sales Corporation.

On January 18,1988, the plaintiff filed its discovery request with the defendant. The defendant responded on April 6, 1988. In response to interrogatory No. 1, which asked whether AE was or is a corporation, the defendant stated, “Defendant does not know; the company existed, was organized and presumably incorporated before my employment as president of the company. The incorporation was done by others who preceded me in the company.” In response to interrogatory No. 2 (a), asking under what name the corporation was incorporated, the defendant responded, “See Answer to Interrogatory No. 1 above.”

On April 14, 1989, a short time before trial was to have begun, the defendant filed supplemental answers to the plaintiff’s discovery request. The supplemental answer to interrogatory No. 1 was “Accousticon Electronics [sic] is a trade name for a corporation.” Under interrogatory No. 2 (a), the name of the corporation that was given was J.S. Sales Corporation International. The defendant also indicated for the first time that the assets of J.S. Sales Corporation were sold at public auction in 1985.

The plaintiff prepared a motion in limine dated April 18,1989. The trial did not, however, begin until August 1,1989. As part of his case the defendant was called to testify. During his cross-examination, the plaintiff filed the motion in limine that was based on Practice Book § 231. The court granted its motion.

The next day, the defendant filed a motion for reconsideration of the motion in limine with the trial court. The trial court permitted the defendant to make further argument. The court, however, did not change its ruling. The court provided several reasons for ruling as it did. It indicated that the defendant’s testimony was that he knew the corporate structure of AE, i.e., that it was not a corporation at the time he entered into his employment agreement, yet his initial response to the discovery request was that he did not know whether AE was a corporation. Further, the court noted that the one year delay in changing his answer resulted in the plaintiff not receiving the new information in a timely fashion.

Practice Book § 231 provides in relevant part: “[I]f any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead . . . the court may, on motion, make such order as the ends of justice require. Such orders may include the following: . . . (d) The entry of an order prohibiting the party who has failed to comply from introducing such matters in evidence . . . .’’The court’s decision on the ordering of such sanctions as the one in issue rests within its sound discretion. See Zaleski v. Zaleski, 21 Conn. App. 185,189, 572 A.2d 76 (1990). “ ‘In reviewing a claim that this discretion has been abused “ ‘ “the unquestioned rule is that ‘great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.’ . . . ” ’ ” ’ (Citations omitted.) Rullo v. General Motors Corporation, [208 Conn. 74, 78, 543 A.2d 279 (1988)]. ‘ “[T]he ultimate issue is whether the court could reasonably conclude as it did. . . ” (Citations omitted.) Zaleski v. Zaleski, supra. In view of the multi-faceted answers given by the defendant and the sound reasons given by the trial court, we conclude that the trial court could reasonably have imposed the sanction in question.

The judgment is affirmed.

In this opinion the other judges concurred.

       In a second count, the plaintiff also asserted that it was entitled to attorney’s fees pursuant to the provisions of the Connecticut Unfair Trade Practices Act; General Statutes § 42-110a et seq.; because the defendant violated General Statutes § 35-1 when it did not register its trade name in the town where it conducted business. The court held that this was a violation but did not award attorney’s fees because it determined that the failure to file was attributed to the principal, not the agent. The plaintiff has not cross appealed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Housatonic Corporate Centre Associates Limited Partnership v. Planning and Zoning Board of the City of Milford et al.
    (8449)
    Dupont, C. J., Daly and Landau, Js.
    Argued May 8
    decision released September 18, 1990

      Stephen W. Studer, with whom, on the brief, was Warren N. Chapman, for the appellant (plaintiff).

      Bruce L. Levin, for the appellees (defendants).
   Per Curiam.

The plaintiff filed this action on September 19, 1988, seeking a writ of mandamus, costs and attorney’s fees. The trial court denied the application. Prior to the mandamus action, the plaintiff had made written demand on the defendant planning and zoning board to grant its applications for amendment of the town zoning regulations, a zone change and certain special permits. The board rejected the demand. Pursuant to General Statutes § 8-8, the plaintiff, on June 1,1988, appealed from the board’s decision to the trial court. That administrative appeal, Housatonic Corporate Centre Associates v. Planning & Zoning Board, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-88-0025621S, was pending at the time the appeal in this court from the denial of the application for a writ of mandamus was filed. On May 31,1990, the trial court, finding that the board properly denied the applications, dismissed the administrative appeal. The plaintiff, on June 19,1990, filed a petition for certification to appeal from that judgment with this court. We denied the petition for certification on July 11, 1990.

The plaintiff claims in this appeal from the trial court’s denial of its application for a writ of mandamus that it is entitled to automatic approval of the zoning applications for which it applied because the mandatory public hearing was not timely commenced in accordance with General Statutes §§ 8-7d (a) and 8-3 (c), and that, therefore, the trial court should not have rendered judgment for the defendants. The defendants argue that the plaintiff waived any untimeliness by its conduct and written consent. The plaintiff also claims that an appeal pending in the trial court from the board’s denial of the requested applications is not an adequate remedy at law.

Mandamus is an extraordinary remedy that lies only where (1) the plaintiff has a clear legal right to performance of a particular duty, (2) the defendant has no discretion in the performance of that duty, and (3) no sufficient remedy at law exists. Vartuli v. Sotire, 192 Conn. 353, 365, 472 A.2d 336 (1984). The trial court refused to grant a writ of mandamus because it found that an adequate remedy existed in the administrative appeal from the board’s decision that was then pending in the trial court.

It is now known that the pending administrative appeal was decided in favor of the board, and, therefore, that the plaintiff can never be entitled to mandamus. See Beninato v. Zoning Board of Appeals, 8 Conn. App. 556, 513 A.2d 201 (1986). No practical relief can ensue from our determination of this appeal, and, therefore, the plaintiff’s appeal is rendered moot. See Chomko v. Patmon, 20 Conn. App. 159, 565 A.2d 250 (1989). We, therefore, must dismiss the appeal.

The appeal is dismissed.


author: Dupont, C. J.

text:
    John Caltabiano et al. v. Roger Phillips et al.
    (8326)
    Dupont, C. J., Daly and Landau, Js.

      Argued May 8
    decision released September 18, 1990

      David A. Scalzi, with whom, on the brief, were Laurence V. Parnoff and Debra L. Arganese, for the appellants (plaintiffs).

      Thomas J. Londregan, for the appellee (named defendant).

      John W. Butts, for the appellees (defendant planning and zoning commission et al.).
   Dupont, C. J.

This appeal involves an action against the municipal defendants claiming that they should have denied a certain special permit issued to the individual defendant, Roger Phillips, and should have enforced the conditions they had imposed on Phillips in issuing the permit. The plaintiffs also claim that their action alleges that Phillips is engaging in activity that constitutes a nuisance, and they seek injunctive and other relief as to him.

This case is a sequel to Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 560 A.2d 975 (1989) (Caltabiano 1), which held that the trial court should not have dismissed the plaintiffs’ administrative appeal because they had standing to appeal from the granting of a special permit to Phillips by the planning and zoning commission of the town of Salem (commission) to excavate a portion of land owned by him. By the time the appeal in the present case was heard, Caltabiano I had been finally resolved by a dismissal by the trial court, Hurley, J., on February 20, 1990, and by a denial, on April 24, 1990, of the plaintiffs’ petition for certification from that judgment to this court.

The trial court in Caltabiano I declined to disturb the commission’s decision to allow the applicant to excavate as long as he did not invade the bedrock. It also found that the evidence was sufficient for the commission to have concluded that the granting of the application would not affect any designated inland wetlands area. Finally, the court found the plaintiffs’ various claims of procedural irregularities to be without merit.

Prior to the dismissal of the administrative appeal of Caltabiano I, the municipal defendants in this case sought a dismissal. That motion was granted by the trial court, R. O’Connell, J., on June 5,1989. In its answer to the plaintiffs’ subsequent motion for rectification, the court stated that it had granted the defendants’ motion to dismiss because, as of the date on which it granted the motion, the administrative appeal from the commission’s decision involving the same parties, issues and causes of action was pending in the Supreme Court (Caltabiano I) and because the plaintiffs had failed to exhaust their administrative remedies. The court also stated that on August 11,1989, it had denied the plaintiffs’ motion to open the judgment of dismissal because the administrative appeal in the Supreme Court had resolved that the plaintiffs had standing to sue and, if they prevailed on remand, they would be able to obtain, in that action, all the relief they had requested. The court again concluded that the plaintiffs had failed to exhaust their administrative remedies before seeking the extraordinary remedies of an injunction and mandamus. The plaintiffs timely filed the present appeal from the court’s denial of the motion to open and, in effect, from the granting of the June 5, 1989 motion to dismiss.-

The individual defendant, Phillips, also filed a motion to dismiss, which was granted by the trial court, Vasington, J., on August 1, 1989. The motion was granted as to one count of the plaintiffs’ complaint on the basis of lack of subject matter jurisdiction because the court determined that the validity of the issuance of the special permit could be appealed only pursuant to administrative procedures set forth in chapter 124 of the General Statutes, i.e., General Statutes § 8-8, and not in a separate action. The motion was granted as to the two remaining counts for failure to exhaust administrative remedies because the plaintiffs had not ■ requested the proper zoning official to issue an order prohibiting Phillips from exceeding the parameters of the special permit. The plaintiffs also appeal from the granting of that motion.

The plaintiffs claim, in essence, that their action should not have been dismissed because their complaint stated a cognizable cause of action distinct from that involved in the administrative appeal and because the doctrine of exhaustion of administrative remedies does not apply.

The case before us is, in part, an appeal of the decision of the commission granting the special permit. Those allegations of the case and the corresponding claims for relief of the plaintiffs’ complaint have already been addressed in the administrative appeal. Because the trial court upheld the commission’s decision in that appeal on remand from our Supreme Court and this court subsequently denied certification, our consideration of the portion of this appeal that relates to the granting of the permit would be merely an academic exercise. Where, during the pendency of an appeal, events have occurred that prevent an appeals court from granting practical relief through a disposition on the merits, the jurisdictional concept of mootness typically applies. State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 181, 527 A.2d 688 (1987); Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 522 A.2d 264 (1987); Housatonic Corporate Centre Associates v. Planning & Zoning Board, 23 Conn. App. 256, 579 A.2d 596 (1990); cf. Butzgy v. Glastonbury, 203 Conn. 109, 523 A.2d 1258 (1987).

The final resolution of Caltabiano I interred the question of whether the special permit was properly granted to Phillips. The plaintiffs, therefore, are not entitled to mandamus or injunctive relief against the municipal defendants for the alleged harm arising from the issuance of the special permit. Cf. Maykut v. Plasko, 170 Conn. 310, 317, 365 A.2d 1114 (1976). “In this case, the dismissal of the plaintiffs zoning appeal, and the subsequent denial of certification to appeal that judgment has removed any basis for a writ of mandamus.” Beninato v. Zoning Board of Appeals, 8 Conn. App. 556, 565, 513 A.2d 201 (1986). Since no practical relief can follow from our consideration of whether the plaintiffs are entitled to relief directing the commission to revoke the permit in this case, the issue is moot and we will refuse to entertain it. See Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985).

We next address the question of whether the granting of the motions to dismiss as to the remaining counts of the complaint was proper. The remaining portions of the action seek a writ of mandamus against the municipal defendants, to require them to enforce the conditions of the special permit, and allege nuisance against the individual defendant, Phillips.

Mandamus is an extraordinary remedy that usually exists only where (1) the plaintiff has a clear legal right to performance of a particular duty by a governmental entity or an official, (2) the defendant has no discretion in the performance of that duty, and (3) no other sufficient remedy at law exists. Housatonic Corporate Centre Associates v. Planning & Zoning Board, supra, 257-58.

The record does not indicate that the plaintiffs made a demand on the zoning enforcement officer to enforce the restrictions in the permit and the plaintiffs have made no allegations to that effect in their complaint. In deciding the jurisdictional issue of whether the plaintiffs exhausted their administrative remedies, we are limited to the well pleaded facts of the plaintiffs’ complaint. Butzgy v. Glastonbury, supra, 121. The plaintiffs have not alleged that they exhausted their administrative remedies, or, in the alternative, that they need not have exhausted those remedies because they fit into an exception to the doctrine. See Cummings v. Tripp, 204 Conn. 67, 527 A.2d 1230 (1987). The trial court, therefore, properly dismissed that count of the complaint involving the plaintiffs’ right to enforcement by the municipal defendants of the conditions of the special permit because the plaintiffs failed to allege the necessary jurisdictional facts.

The plaintiffs also argue that they pleaded a cause of action in nuisance against Phillips and that the trial court could not have properly dismissed that claim. In essence, they argue that they made sufficient allegations in their complaint to support a cause of action in nuisance, implying that the motion to dismiss was, therefore, improperly granted against Phillips. If that count had been inadequately pleaded, the proper motion to test it would have been a motion to strike rather than a motion to dismiss. In the event that a motion to strike were granted, the plaintiffs would have been allowed to amend their pleadings, or, alternatively to suffer a judgment against them from which they could take an appeal if they chose.

The basis for dismissal in this case, however, was unrelated to the plaintiffs’ failure to plead nuisance properly, and no claim was made to the trial court by the plaintiffs that dismissal was improper because the plaintiffs had a cause of action in nuisance. The dismissal was granted as to Phillips because of the plaintiffs’ failure to exhaust administrative remedies.

The plaintiffs refer us to Baskin’s Appeal from Probate, 194 Conn. 635, 643, 484 A.2d 934 (1984), apparently implying that they were entitled to an opportunity to amend their pleadings in the event that the motion to dismiss was improperly granted. A motion to dismiss does not test the sufficiency of a cause of action and should not be granted on other than jurisdictional grounds. See id. The Baskin court held that dismissal under some circumstances could not be used to deprive the plaintiff of a cause of action if the plaintiff’s complaint could be amended to state a cause of action. The Supreme Court in that case examined the pleadings to determine if the plaintiff might have a cause of action. In Baskin’s Appeal from Probate, supra, the trial court had considered the sufficiency of the allegations of the complaint to support the plaintiff’s claim for relief in connection with the defendant’s motion to dismiss. The plaintiff in that case opposed the motion to dismiss on the ground that he had stated a cause of action. See also Coollick v. Windham, 7 Conn. App. 142, 508 A.2d 46 (1986). Had he not done so, he would be foreclosed from asserting his argument that he had a cause of action because the granting of a motion to dismiss would have prevented that assertion. Practice Book §§ 112, 113.

In the present case, however, unlike Baskin, the plaintiffs never argued to the trial court that the motion to dismiss was improper because if it was granted they would be deprived of their claimed action in nuisance. The court’s granting of the motion to dismiss was based solely on jurisdictional grounds. The plaintiffs, therefore, cannot now raise those claims for the first time on appeal. See Coollick v. Windham, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       The municipal defendants are the town of Salem; Hugh C. Teel, the town’s first selectman; Robert J. Jakubiel, the zoning enforcement officer of the town; and the inland wetlands commission and the planning and zoning commission of the town.

       It is unclear from the plaintiffs’ complaint and brief whether they seek mandamus against the municipal defendants or solely injunctive relief. The plaintiffs seek orders to enjoin the individual defendant and the municipal defendants from excavating the land of the individual defendant. In essence, therefore, they seek the revocation of the special permit. Ordinarily, mandamus is an action to command the performance of a legal duty, rather than an action to desist from the performance of a legal duty. Ballentine’s Law Dictionary.

       The facts of this case are fully set forth in Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 560 A.2d 975 (1989). The defendant zoning commission granted Phillips a special exception to excavate a 3.8 acre parcel of land located deep within his 110 acre tract. Id., 664. This exception permitted excavation of the soil above the bedrock, but prohibited excavation of the bedrock itself because of community concern that the bedrock contained pyrite, the removal of which would pose environmental and health hazards. Id.

       The court also dismissed the action because the plaintiffs had failed to allege the necessary prerequisites for mandamus, again resulting in lack of jurisdiction. This ground is inapplicable to the individual defendant. Although mandamus actions may occasionally be used to force the performance of an action in private controversies; see Lahiff v. St. Joseph’s Total Abstinence & Benevolent Society, 76 Conn. 648, 57 A. 692 (1904); Bassett v. Atwater, 65 Conn. 355, 32 A. 937 (1895); the present case against the individual defendant is not one of those rare instances.


author: Spallone, J.

text:
    Central Bank for Savings v. Joseph Stan Heggelund et al.
    (8619)
    Spallone, Daly and Nokcott, Js.
    Argued June 14
    decision released September 18, 1990

      Bruce A. Fontanella, with whom, on the brief, was Linda J. Ness, for the appellant (plaintiff).

      Henry D. Marcus, for the appellee (named defendant).
   Spallone, J.

The plaintiff, Central Bank for Savings, appeals from the judgment of the trial court denying its motion for a deficiency judgment and sustaining the defendant Joseph Heggelund’s objection thereto. We reverse the judgment of the trial court.

Central Bank held the first and second mortgages on Heggelund’s condominium apartment in Hartford. The first mortgage was in the principal amount of $96,000; the second, $100,000. Upon Heggelund’s default, the bank commenced its foreclosure action in December, 1988, moving for the strict foreclosure of the second mortgage. A subsequent encumbrancer, however, Hyman Stollman, moved for a foreclosure by sale.

At the foreclosure hearing, the court found the value of the mortgaged premises to be $300,000. Because the total debt encumbrancing the property was approximately $231,000, there seemed to be substantial equity to be realized. The court, therefore, denied Central Bank’s motion for strict foreclosure and granted Stollman’s motion and rendered a judgment of foreclosure by sale. The court appointed appraisers subsequently valued the premises at $235,000.

On July 22,1989, the court appointed committee sold the property to Central Bank, the only bidder at the auction sale, for the sum of $50,000. The bank then sought the court’s approval of the sale. Heggelund objected, protesting that approval of the sale would leave him vulnerable to a deficiency judgment. Thereafter, the court denied Heggelund’s request for another public auction sale and granted the bank’s motion for approval of the sale at $50,000. The property was transferred to the bank subject to its first mortgage of approximately $106,000 in principal and interest.

On October 6,1989, the bank moved for a deficiency judgment in the amount of $72,746.22, representing the difference between the sale price and Heggelund’s obligation, including the debt principal, interest, committee and appraisal fees and sales expenses. Heggelund objected, arguing that the motion for a deficiency judgment was untimely and inequitable. The trial court found the bank’s motion to have been timely filed but, nevertheless, denied the bank’s motion for a deficiency judgment and sustained Heggelund’s objection thereto. This appeal followed.

The court stated two grounds for its refusal to grant a deficiency judgment: (1) that no deficiency existed because, pursuant to General Statutes § 49-28, Heggelund was entitled to a credit on his debt equal to one half of the estimated property value unrealized in the sale, and (2) that the bank received the equitable equivalent of a strict foreclosure after which no deficiency judgment may be awarded. Central Bank claims on appeal that neither ground is appropriate in these circumstances, and we agree.

General Statutes § 49-28 provides the criteria for determining when a deficiency judgment may be obtained after a foreclosure by sale and for calculating the amount of such judgment. If the property has been sold for less than the appraised value, the unpaid portion of the debt must be reduced by one half of the difference between the appraised value and the sales price before any deficiency may be obtained. “It is just and equitable that the party who asks and obtains an order of sale in place of a decree of strict foreclosure ... if he seeks a deficiency judgment should bear a part of the value sacrificed by the forced sale.” Cronin v. Gager-Crawford Co., 128 Conn. 688, 691-92, 25 A.2d 652 (1942). The burden sharing formula applies, however, only to those parties who moved for the foreclosure by sale. Id., 691.

After the property sale brought unexpectedly low proceeds, the bank’s only option for satisfying the debt was to move for a deficiency judgment. By reducing the debt by the statutory credit formula, the court here overlooked the express words of § 49-28 limiting this provision to “the party or parties upon whose motion the sale was ordered.” The bank here was not the party who moved for the foreclosure by sale. Central Bank, rather, moved for a strict foreclosure and the court denied this motion in favor of Stollman’s motion for foreclosure by sale. As a nonmoving party, the bank may not be forced “to bear a moiety of any shrinkage in the appraised value resulting from such a sale.” North End Bank & Trust Co. v. Mandell, 113 Conn. 241, 244-45, 155 A. 80 (1931). The court, therefore, incorrectly held the bank to be a party subject to the statutory penalty and incorrectly determined that no deficiency was due.

The court also refused to render a deficiency judgment on equitable grounds. In fairness to Heggelund, the court determined that the bank should not both acquire the property for a nominal amount plus its own prior encumbrance and also secure satisfaction of the debt. The court decided that because, after the public auction, the bank was in the same position in which it would have been following a strict foreclosure, no deficiency was owed.

The court’s solicitude for Heggelund is understandable but inappropriate at this stage in the proceedings. The court itself valued the property at $300,000 yet approved the sale price of $50,000 over Heggelund’s objections. If the court wanted to protect Heggelund from a future deficiency liability, it had the equitable power at the hearing on the bank’s motion for approval of the sale to disapprove the sale and instead to order a strict foreclosure. See Fidelity Trust Co. v. Irick, 206 Conn. 484, 490, 538 A.2d 1027 (1988); Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 184, 491 A.2d 1084, cert. denied, 474 U.S. 920,106 S. Ct. 250, 88 L. Ed. 2d 258 (1985).

Heggelund, who expressed his concerns on the record about his vulnerability to a deficiency judgment, neither appealed the approval of the sale nor sought to reach an agreement with the bank to forestall a motion for deficiency. The confirmation of a foreclosure sale is a final determination that the mortgaged property was sold at a fair price. Cronin v. GagerCrawford Co., supra, 693. Having chosen to approve the foreclosure by sale, the court cannot later, in effect, change its judgment to a strict foreclosure when the consequences of the judgment of sale become manifest.

In summary, the proceeding before the court was a motion for a deficiency judgment following a foreclosure by sale, not a strict foreclosure, and the bank is entitled to the satisfaction of the debt. The mortgagee is entitled to recover the difference between the property’s actual value as determined by the sale price and the amount of the debt. Id., 695. Because the bank did not move for the foreclosure by sale from which it suffered, the deficiency is not to be reduced by the statutory formula.

The judgment is reversed and the case is remanded for a hearing to determine the debt and the deficiency due thereon.

In this opinion the other judges concurred.

       In Ms brief, Heggelund again raises, as an alternate ground for affirming the trial court’s decision, the claim that Central Bank’s motion for deficiency judgment was untimely filed. We agree with the court that the bank’s motion of October 10,1989, was timely. The thirty day time limit for moving for a deficiency judgment pursuant to General Statutes § 49-14 begins to run from the day the title transfer becomes absolute, which in this case was on September 19,1989, the day the court approved the sale of the property to the mortgagee. See Maresca v. DeMatteo, 6 Conn. App. 691, 694, 506 A.2d 1096 (1986).

       General Statutes § 49-28 provides: “If the proceeds of the sale are not sufficient to pay in full the amount secured by any mortgage or lien thereby foreclosed, the deficiency shall be determined, and thereupon judgment may be rendered in the cause for the deficiency against any party liable to pay the same who is a party to the cause and has been served with process or has appeared therein, and all persons liable to pay the debt secured by the mortgage or lien may be made parties; but all other proceedings for the collection of the debt shall be stayed during the pendency of the foreclosure suit, and, if a deficiency judgment is finally rendered therein, the other proceedings shall forthwith abate. If the property has sold for less than the appraisal provided for in section 49-25, no judgment shall be rendered in the suit or in any other for the unpaid portion of the debt or debts of the party or parties upon whose motion the sale was ordered, nor shall the same be collected by any other means than from the proceeds of such sale until one-half of the difference between the appraised value and the selling price has been credited upon the debt or debts as of the date of sale; and, when there are two or more debts to which it is to be applied, it shall be apportioned between them.”

       The defendant Heggelund suggests that the court approved the auction sale and that he did not appeal from that judgment in reliance on the bank’s waiver of its right to seek a deficiency judgment. After reviewing the transcript of the hearing on the bank’s motion to approve the sale, we find that the bank made no such representation to the court.


text:
    State of Connecticut v. Thomas Lang
    (8559)
    Spallone, Lavery and Cretella, Js.
    Argued April 30
    decision released September 18, 1990

      Conrad 0. Seifert, for the appellant (defendant).

      JuliaDiCocco Dewey, assistant state’s attorney, with whom, on the brief, were John Redway, state’s attorney, and John Cashmon, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, rendered after a trial to the court, of the crime of lobstering while his commercial fishing license was under suspension, in violation of General Statutes § 26-61 (d). The defendant argued at trial that the terms of General Statutes § 26-142a (a) permitted him, without license, to assist a licensed fisherman. He claims on appeal that the trial court (1) failed to reconcile the ambiguous terms of §§ 26-61 and 26-142a, (2) failed to accord proper weight to the enforcement agency’s interpretation of § 26-142a, and (3) should have found that he was lawfully assisting in another’s fishing operation. He also claims that § 26-61 (d) is unconstitutionally vague as applied in these circumstances. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. The defendant is a commercial fisherman with a retail lobster business supplied from his 500 registered pots in Long Island Sound. On April 17, 1989, the defendant was convicted of forty-five counts of the crime of taking undersized lobsters, and his fishing license was suspended for a period of two years.

On May 13, 1989, two state conservation officers were patrolling the harbor area in the town of West-brook when they saw the defendant’s lobster boat sail into the sound with the defendant and Robert Lefebvre aboard. During the next thirty-five to forty minutes, the officers observed the men engage in lobstering activities, taking live lobsters from marked pots, baiting and then returning the pots to the water. On closer approach, the officers noted that the pots bore the defendant’s registration number and were located in an area marked with the defendant’s buoy colors.

On being asked for identification, Lefebvre produced a valid commerical fishing license. The defendant admitted that his license had been suspended but claimed that he was merely assisting Lefebvre. The defendant was charged with one count of lobster fishing with a suspended license, seven counts of stealing lobsters and two counts of fishing with lobster pots lacking biodegradeable escape vents.

The defendant acknowledged at trial that at the time of his arrest he was engaged in lobstering activities although his license was under suspension. He maintained, however, that his activities were lawful as authorized by § 26-142a (a) in that he was accompanying and assisting a licensed fisherman. In support of this claim, he offered evidence that, after his license was suspended, he had sought the advice of the state agency charged with enforcing the fishing laws. His wife and mother-in-law testified that they had asked an official of the department of environmental protection to explain the provisions of § 26-142a. A deputy chief law enforcement officer of the department testified that in response to this telephone request, he had quoted the statute and had explained that an assistant on a lobster boat need not secure a license.

The defendant testified that, on the basis of this information, he attempted to meet the statutory qualification of an assistant. He offered a handwritten note to the effect that he had assigned his interest in his boat and equipment to his former assistant, Lefebvre, in exchange for a share of the profits of the operation. He and Lefebvre both testified that, on the day of arrest, Lefebvre was in control of the boat and the lobstering operation while the defendant assisted him. The trial court found that the defendant was not acting as a mere assistant, but was in joint control of the boat and gear with Lefebvre. The defendant was convicted of the charge of lobstering with a suspended license and found not guilty of all other charges. This appeal followed.

The defendant’s first three claims on appeal challenge the trial court’s conclusion that he was not entitled to the statutory exemption of being an unlicensed assistant to a licensed fisherman. In essence, he claims that the court wrongly concluded from the evidence that he was not lawfully acting as an assistant. These claims of insufficient evidence are the “evidentiary flip side” of a claim that a statute is void for vagueness. State v. Schriver, 207 Conn. 456, 458 n.3, 542 A.2d 686 (1988). The defendant’s last claim asks us to review the constitutionality of § 26-61 on this ground as well.

Although they were not specifically raised at trial, we will address the merits of the defendant’s claims of unconstitutional vagueness because they implicate the fundamental due process right to fair warning and the record is adequate for review. See State v. Schriver, supra, 459. The statutes at issue here present us with a blank judicial slate; this is the first opportunity our courts have had to consider the terms of §§ 26-61 and 26-142a individually and as part of the general statutory scheme.

The defendant argues that because § 26-142a (a) allows an unlicensed assistant to accompany a licensed fisherman and § 26-61 (d) penalizes a fisherman with a suspended license for so assisting, the statutes conflict, are ambiguous and fail to provide definite guidelines for interpretation and enforcement. The allegations of unreconcilable statutory terms and vague language run as a thread through all of the defendant’s claims on appeal and implicate both statutes, singly and together. Because the claims and statutes are so intertwined, we will consider the defendant’s challenge to the constitutionality of his conviction under § 26-61 (d) as allegations (1) that the court was without adequate guidance in deciding that the defendant was not an assistant under the terms of § 26-142a (a), and (2) that § 26-61 (d) fails to provide fair notice that the defendant could not qualify as an unlicensed fisherman under § 26-142a (a).

I

The court had before it ample evidence from which to conclude that the defendant was not merely assisting Lefebvre but was himself in control of the lobstering activities. The arresting conservation officers testified to observing the defendant steer the vessel and operate the trawler and throttle. The defendant alone opened all the lobster traps, removed and gauged the lobsters, and determined whether each met minimum weight standards. Lefebvre remained at the stern, baiting pots and returning them to the water. Although the defendant asserted that he was acting as Lefebvre’s assistant, it is evident that the court chose not to believe him. See State v. Plaskonka, 22 Conn. App. 207, 210, 577 A.2d 729 (1990). The court, therefore, reached a reasonable conclusion that the defendant was not merely assisting and accompanying Lefebvre, but “was engaged as a principal in a joint venture of commercial lobster fishing.”

Further, the defendant failed to demonstrate that this conclusion was contrary to the statutory interpretation of § 26-142a made by the department of environmental protection. It is true that courts ordinarily give great deference to the construction of a statute adopted by the agency charged with its enforcement. Southington v. State Board of Labor Relations, 210 Conn. 549, 558-61, 556 A.2d 166 (1989); State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 717-18, 546 A.2d 830 (1988). The application of this principle depends, however, on a finding that the administrative agency had in fact interpreted the statute. No such finding exists here.

There was conflicting testimony at trial as to whether the department of environmental protection had offered its opinion that the defendant qualified as an unlicensed assistant under the terms of § 26-142a (a). The agency official who testified stated only that he had cited the text of the statute in response to a request. He did not state that he had authorized or approved the defendant’s activities. The resolution of this conflict is within the exclusive province of the trier of fact. State v. Martin, 189 Conn. 1, 9, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983). The court here, having failed to find an agency interpretation of the statute, was not bound to adopt the defendant’s view that he relied on agency advice and received agency permission to fish as an assistant.

The defendant further claims that the court’s express finding of a joint venture does not preclude a conclusion that he, nevertheless, was lawfully acting as an assistant. A central precept of the void for vagueness doctrine proscribes ad hoc subjective determinations of what conduct is permitted and what is prohibited. State v. White, 204 Conn. 410, 415, 528 A.2d 811 (1987); State v. Schriver, supra, 460. A statute need not precisely list all affected conduct but a reasonable degree of certainty is required. State v. White, supra. We must decide whether, when applied to the particular facts at issue, the statute’s definition of an assistant was vague and without standards for enforcement. See State v. Schriver, supra, 461.

We are not persuaded, under the circumstances of this case, that the defendant was without fair notice that his activities would not qualify as assisting under § 26-142a (a). Although the statute does exempt assistants from general licensing requirements without defining the term, the legislative history of the provision and the general purpose of the state’s environmental statutes evince the legislature’s clear desire strictly to limit this exception. See Conn. Joint Standing Committee Hearings, Environment, 1987 Sess., Pt. 2, February 11, 1987, pp. 375-83 (remarks of Senator Michael P. Meotti and Dennis DeCarli, deputy commissioner, department of environmental protection), and p. 384 (remarks of Senator George L. Gunther). The license exemption was intended to allow a licensed fisherman to take aboard unlicensed pick-up crews, relatives or weekend guests; that is, persons who, for sport or expediency, fish occasionally at the invitation of licensed fishermen. The specific and rigorous license requirements still apply to those who fish regularly and commercially, including those, like the defendant, who are in “joint ventures” with licensed fishermen.

The defendant, whose license had been suspended for numerous serious violations of state fishing laws, sought to take advantage of what he perceived to be a loophole in another fishing law. For this purpose, the defendant’s wife and mother-in-law obtained a commercial fishing license for Lefebvre. The defendant then purportedly assigned his interest in his boat and equipment to Lefebvre, although there was no evidence that Lefebvre had paid any consideration for their use. The agreement to share in the operation’s revenue, with the defendant paying operational expenses, implies that the men contemplated not a day’s outing, but rather a long-term, ongoing arrangement. The defendant was a professional lobsterman for many years and was operating the vessel and the fishing gear on the day of his arrest. He cannot claim, under these facts, that § 26-142a (a) is so broad and vague as to encompass his activities as “assisting,” or so without judicial enforcement standards that the court’s refusal to find that he was assisting was arbitrary or discriminatory.

II

We next consider the defendant’s claim that § 26-61 (d) is unconstitutionally vague because it neither references the license exemption of § 26-142a (a) nor clearly specifies the distinction between the prohibited conduct of fishing with a suspended license and the permitted conduct of unlicensed fishing as an assistant. A law is not constitutionally infirm if innocent acts can objectively and foreseeably be distinguished from conduct that violates the statute. State v. Schriver, supra, 462. We do not agree with the defendant that these statutes are in conflict or that they subject innocent fishermen to criminal penalties.

As a principle of statutory construction, the component parts of a statutory scheme should be harmoniously construed. State v. Dolphin, 203 Conn. 506, 521, 525 A.2d 509 (1987). We should apply common sense in reading statutes to reach a reasonable result without thwarting their purpose. State v. Chiarizio, 8 Conn. App. 673, 682-83, 514 A.2d 370, cert. denied, 201 Conn. 809, 515 A.2d 379 (1986). In interpreting the language of § 26-142a (a), we must leave room for the meaningful operation of the sanction provided for in § 26-61. Pursuant to § 26-61 (b), a fishing license shall be suspended as penalty for the violation of state or federal fishing regulations. Pursuant to § 26-61 (d), the penalty for fishing with a suspended license is a fine.

These sanctions would be meaningless and of no deterrent value where a fisherman with a suspended license, by merely changing hats from principal to assistant, could carry on in the same manner as if no suspension had occurred. Such an interpretation is unacceptable and would serve only to frustrate the purpose of the sanction. Accordingly, we conclude that one who has had his fishing license suspended can never, during the period of suspension, be classified as one “not licensed” for the purposes of the assistant exception in § 26-142a (a).

The suspension of a fishing license for violation of state law does not place the violator in the same position as if he had never obtained a license and never violated state law. The violation exists and the sanction imposed suspends the violator’s fishing privileges. The violator is not an unlicensed person; he is a person with a suspended license and does not, therefore, come within the exemption of § 26-142a (a). That exemption, as discussed above, was intended to protect unlicensed people who may occasionally assist and accompany a licensed fisherman. The exemption was not intended to protect fishermen convicted of violating the terms of their licenses or intended to offer violators an alternative way to obtain fishing privileges. Accordingly, we find no unconstitutional vagueness in the provisions of §§ 26-61 (d) or 26-142a (a), and find no unconstitutional conflict in the statutory scheme.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 26-61 provides in pertinent part: “(d) Any person who . . . engages in fishing, hunting or trapping during the period when his permit, license or registration is voided or suspended shall be fined

       General Statutes § 26-142a provides in pertinent part: “(a) No person shall use or assist in using commercial fishing gear in any water of the state unless such person has been licensed by the commissioner of environmental protection to use such commercial fishing gear; except that holders of . . . a resident commerical fishing license . . . may be accompanied and assisted by persons not so licensed.”

       During the hearings on whether to amend General Statutes § 26-142a (a) to include gill net fishermen among those required to obtain licenses, the term “assistant” was discussed. The word was determined to encompass “just someone who comes along with the person who owns the boat.” On days of good fishing, a licensed fisherman may be assisted by a “buddy off the beach . . . somebody standing at the town dock — there is always an elderly gentleman there willing to help you or maybe your kids or a relative that’s in for the weekend or the holiday . . . and they’re allowed on the lobster boat. ...” Conn. Joint Standing Committee Hearings, Environment, 1987 Sess., Pt. 2, February 11,1987, p. 393 (remarks of Senator Michael P. Meotti and Nick DeGenaro, Connecticut commercial fishermen’s association). The licensing exemption was not intended to encompass the owner or operator of the fishing venture. “I just want to call to your attention that the bill calls for exempting the assisting individual. It does not stop . . . the requirement that the gill netter himself that is operating the boat net be exempted from the licensure.” Id., p. 377 (remarks of Senator George L. Gunther).

       General Statutes § 26-61 provides in pertinent part: “(b) Upon the conviction of any person for any violation of any provision of this chapter, any regulation issued by the commissioner or any regulation issued by the United States Fish and Wildlife Service ... a license, registration or permit issued pursuant to this chapter . . . shall ... be suspended by the commissioner [for a period to be determined in relation to the number of repeat violations].”


author: Landau, J.

text:
    Country Life Properties v. Town of Essex et al.
    (8725)
    Dupont, C. J., Lavery and Landau, Js.
    Argued June 5
    decision released September 18, 1990

      Charles J. Irving, for the appellant (plaintiff).

      David M. Royston, for the appellees (defendants).
   Landau, J.

The plaintiff appeals from the judgment in favor of the municipal defendants on their counterclaim. The sole issue on appeal is whether the trial court incorrectly concluded that the entire length of a road in the plaintiffs subdivision became part of the Essex public highway system by dedication. We affirm the trial court’s judgment.

The defendant Essex planning commission approved the plaintiff’s application for a subdivision located on Mares Hill Road. The final subdivision plan included a proposed roadway named Old Dobbin Lane. The portion of this road the dedication of which is not in dispute leads north from Mares Hill Road and ends in a temporary cul-de-sac. The plaintiff delivered a deed to the town for this portion of Old Dobbin Lane, and completed construction of this segment of the road in the latter part of 1987. The subdivision plan also included a strip of land extending from the cul-de-sac to the abutting property line. This segment of Old Dobbin Lane is unimproved, and the plaintiff has no obligation to improve it unless and until the abutting land is subdivided. It is this unimproved extension of Old Dobbin Lane that is the subject of this appeal.

The plaintiff, claiming that it was under no obligation to convey the unimproved segment of Old Dobbin Lane, did not include that portion of the roadway in the deed that it delivered to the town. Apparently in response to this partial conveyance, the defendants made demand on the plaintiffs surety. The surety paid the town. The plaintiff then sued the defendants for reimbursement of money paid by the surety. The defendants counterclaimed, alleging that the town had acquired the roadway by dedication, and sought to have the plaintiff convey to them the entire length of Old Dobbin Lane. Subsequent to the filing of the counterclaim, the plaintiff withdrew its complaint. The court, concluding that the entire length of Old Dobbin Lane had been dedicated to the town, rendered a rectified judgment on the counterclaim in favor of the defendants.

On appeal, the plaintiff challenges the court’s finding in its memorandum of decision that “acceptance by the defendants occurred on August 13, 1981, the date of approval by the commission or [on February 3, 1982,] the date of filing with the town clerk.” It contends that the court found that the town had expressly accepted the entire roadway because no finding was made of implied acceptance by either the town or the general public. It then contends that there was not an express acceptance because the town failed to comply with the requirements of General Statutes § 13a-48, which sets forth the exclusive method for the express acceptance of a highway by a municipality. The plaintiff also argues that, under the facts of this case, there was no implied acceptance.

The plaintiff’s claim that the court found that there was.an express acceptance is without merit. The plaintiff assumes that because the court made no finding of an implied acceptance, it necessarily found that there was an express acceptance. Then, relying primarily on Thompson v. Portland, 159 Conn. 107, 266 A.2d 893 (1970), the plaintiff devotes the majority of its brief to discussing why there was no express acceptance by the town. The plaintiff is incorrect in its initial assumption. The court simply found that there was an acceptance; it made no finding as to whether that acceptance was express or implied. One could have argued just as easily, and incorrectly, that because the court made no finding of an express acceptance, it necessarily found that there was an implied acceptance. If there was any lack of clarity as to whether the court found that there was an express or implied acceptance, the plaintiff should have sought further articulation. Practice Book § 4051; see Hadgkiss v. Bowe, 21 Conn. App. 619, 621, 574 A.2d 1303 (1990). The plaintiff not having done so, we will not disturb the trial court’s judgment as long as the record supports either an express or implied acceptance. See id.

The two prerequisites for a valid dedication are a manifest intent by the owner to dedicate the land involved for use by the public and an acceptance by the proper authorities or by the general public. Katz v. West Hartford, 191 Conn. 594, 596, 469 A.2d 410 (1983). Here, the plaintiff faults the court for concluding that there had been a valid acceptance.

A municipality may accept a roadway either expressly, pursuant to formal proceedings; see General Statutes § 13a-48; or impliedly, through its conduct. Id. See also A&H Corporation v. Bridgeport, 180 Conn. 435, 439, 430 A.2d 25 (1980). Because acceptance is a question of fact, our standard of review is to determine whether the judgment of the trial court was clearly erroneous or contrary to law. Goodrich v. Dwyer, 17 Conn. App. 111, 113, 550 A.2d 318 (1988).

The types of actions by a municipality that would permit a court reasonably to conclude that there had been an implied acceptance are varied. For example, in Whippoorwill Crest Co. v. Stratford, 145 Conn. 268, 270-71,141 A.2d 241 (1958), acceptance was based on the town council’s adoption of a resolution approving the expenditure of public funds for sewer construction, and the subsequent expenditure of those funds. In upholding the trial court’s determination that the evidence supported an acceptance, our Supreme Court reaffirmed that a municipality’s acceptance can be established in ways other than the original construction or the subsequent repair and maintenance of a street. Id., 272. While it is true that the filing of a subdivision map with the town does not in itself constitute an implied acceptance; Katz v. West Hartford, supra, 597; Ruggiero v. East Hartford, 2 Conn. App. 89, 94, 477 A.2d 668 (1984); a municipality can engage in affirmative acts establishing acceptance that fall short of actual work performed on the street, such as grading, paving, snow removal or installation of lighting or sidewalks. Katz v. West Hartford, supra. In Katz, the town council adopted resolutions extending an existing dead-end street and assessing abutting property owners for the necessary construction. Id., 596. These actions were considered sufficient to constitute an acceptance by implication as a matter of law. Id., 598.

We conclude that here, as in Katz, the record supports a finding of an implied acceptance notwithstanding that there was no actual usage of the disputed portion of Old Dobbin Lane by the town. Further, in addition to the town’s approval of the plaintiff’s subdivision plan, we conclude that, as in Katz, there were other affirmative acts by the town sufficient to support such a finding.

The following acts by the town cumulatively support a finding that it had accepted the portion of Old Dobbin Lane that is in dispute. At its December 18, 1980 meeting, the Essex planning commission, in its review of the plaintiffs preliminary plan, asked for, and received, assurances that a strip of land at the end of the cul-de-sac would be reserved for access to the adjoining property. At the March 12, 1981 planning commission meeting, there were additional discussions concerning the extension of the roadway for access to the abutting property.

The approval of a subdivision plan does not in itself constitute an implied acceptance. This does not mean, however, that it cannot be considered as a factor where, as here, the roadway layout and map notations are probative in the determination of whether there had been an acceptance. Here, the approved subdivision map not only showed Old Dobbin Lane extending beyond the cul-de-sac to the abutting property line, but it also indicated “10 foot sloping rights in favor of the town of Essex” on both sides of the disputed portion of the roadway. Moreover, the map had a notation that “the subdivision regulations of the Essex Planning Commission are a part of this plan, and approval of this plan is contingent upon compliance with all of the requirements of said subdivision regulations.” Because the subdivision regulations of the town of Essex prohibit privately owned reserve strips, the town was required to accept the disputed portion of the roadway in order for it to not violate its own regulations. We presume that the town did not intend to act illegally by declining to accept the Old Dobbin Lane extension. See Katz v. West Hartford, supra.

Further, the town advised the plaintiff, in a letter dated January 9, 1987, that the planning commission made demand upon the plaintiff for a deed of transfer of the entire right-of-way of Old Dobbin Lane, noting that this conveyance was necessary in order to comply with the subdivision regulations prohibiting reserve strips.

The actions by the Essex planning commission as reflected in its minutes, the subdivision map road layout and notations, and the unequivocal demand that Old Dobbin Lane be conveyed in its entirety are more than adequate to sustain the court’s finding that there was an acceptance.

The judgment is affirmed.

In this opinion the other judges concurred.

         The defendants are the town of Essex and the Essex planning commission.

       General Statutes § 13a-48 provides that “[a]ny municipality whose duty it is to maintain the highways within its limits may, except as otherwise provided in its charter, at any annual or special meeting held for that purpose, accept as a public highway any proposed highway situated in such municipality.”