author: LAVINE, J.

text:
    CAROL F. HOLT v. ZONING BOARD OF APPEALS OF THE TOWN OF STONINGTON ET AL.
    (AC 29089)
    Lavine, Beach and Mihalakos, Js.

      Argued October 16, 2008
    officially released April 28, 2009

      Eric Knapp, for the appellant (plaintiff).

      Jeffrey T. Londregan, for the appellee (named defendant).

      WilliamH. Hescock, pro se, the appellee (defendant).
   Opinion

LAVINE, J.

This is an appeal by the plaintiff, Carol F. Holt, from the judgment of the trial court dismissing her appeal from the decision of the defendant zoning board of appeals of the town of Stonington (board) that reversed a conclusion by the zoning enforcement officer. The court dismissed the appeal on the grounds that the board lacked subject matter jurisdiction because (1) the appeal to the board from the zoning enforcement officer’s letter was not timely filed and (2) the letter did not constitute an appealable decision. The plaintiff claims that the court improperly concluded that the letter did not constitute a decision for the purposes of General Statutes § 8-7 and article VIII, § 8.10.2 of Stonington zoning regulations (regulations). The defendant William H. Hescock claims that the court improperly concluded that his appeal from the letter was not filed timely. We conclude that under the specific circumstances of the present case, the letter did not in fact constitute an appealable decision. We also conclude, however, that having determined that the letter was not a decision appealable to the board, the trial court should have reversed the board’s decision and ordered a dismissal of the defendant’s appeal, rather than dismissing the plaintiffs appeal to the court.

The following factual findings by the court are relevant to our consideration of the plaintiffs appeal. On May 12,2005, the plaintiff purchased from Carol Rooney a lot at the intersection of Boulder Avenue and Hampton Street in Stonington. The size of the lot was approximately 7000 square feet. At the time of the purchase, the plaintiff was aware of a February 4, 2005 letter to Rooney from Joseph M. Larkin, Stonington’s zoning enforcement officer. The relevant portions of the letter stated:

“Dear Mrs. Rooney,

“On April 28, 2003 I sent you [a] letter regarding the zoning status of the above-mentioned undersized lot. In June 2004 the Planning & Zoning Commission amended its [z]oning [Regulations . . . regarding undersized lots ([article II, § 2.9, of the Stonington zoning regulations]) and you have requested that I review this lot to see how the regulation amendment impacts it. Towards that end I offer the following:

“1. The lot is located in a RM-20 (residential) [z]one that requires conforming lots to have a minimum of 20,000 square feet of area with 100 feet of frontage.

“2. The subject lot’s area is approximately 7000 square feet ....

“3. The newly adopted [§ 2.9 of the regulations] allows undersized lots to comply . . . with the bulk requirements of the RH-10 zone rather than the RM-20 [z]one.

“4. Based on the RH-10 [z]one [b]ulk [Requirements, a single-family residence could be built on this lot if it does not exceed a total floor area of approximately 1750 [square feet].”

In paragraphs six and seven, Larkin explained that the house built on the lot would have to comply with the flood hazard zone and possibly with the coastal area management sections of the regulations. On November 9, 2005, the plaintiff submitted to Larkin building plans for the lot. At or about the same time, she submitted to him requests for a building permit and a certificate of zoning compliance.

The defendant, whose property abuts the lot, learned of Larkin’s letter to Rooney on or before November 15, 2005, and, on November 28, 2005, submitted a letter to Larkin through an attorney. In his letter, the defendant informed Larkin of a conveyance from 1981 that, in the defendant’s opinion, resulted in the lot’s not qualifying for development as an undersized lot under § 2.9 of the regulations. The defendant asked Larkin to reconsider his February 4, 2005 letter before issuing a zoning compliance letter. In response, Larkin sought advice on this issue from a municipal attorney.

On December 15, 2005, the plaintiffs attorney asked Larkin not to take action on the plaintiffs requests for a building permit and a certificate of zoning compliance so that the plaintiff could respond to the defendant’s November 28, 2005 letter. On December 29, 2005, the municipal attorney sent a letter to Larkin, supporting the defendant’s position that the lot did not qualify for construction under § 2.9. In late January or early February, 2006, the plaintiff withdrew her requests for a building permit and a certificate of zoning compliance. On February 15, 2006, she published a copy of Larkin’s February 4, 2005 letter in a local newspaper.

On March 1, 2006, the defendant appealed from Larkin’s February 4, 2005 letter to the board. The board sustained the defendant’s appeal, deciding that Larkin’s conclusion in the letter that the lot qualified as an undersized lot under § 2.9 was incorrect. The plaintiff appealed from the board’s decision to the trial court, and, on May 15, 2007, the court dismissed her appeal, concluding that (1) the board lacked subject matter jurisdiction to consider the defendant’s appeal because he did not file it in a timely manner and (2) the board lacked subject matter jurisdiction to hear the appeal because the February 4, 2005 letter was not a decision pursuant to General Statutes § 8-7 and § 8.10.2 of the regulations.

The crux of the plaintiffs argument on appeal is that Larkin’s letter was an appealable decision because our courts have in the past reviewed decisions of zoning boards reversing or upholding letters issued by zoning enforcement officers. Although, in some instances, conclusions or opinions expressed in letters issued by zoning enforcement officers may be appealable decisions pursuant to General Statutes §§ 8-6 and 8-7 and have been treated as appealable decisions by our courts, we do not agree with the plaintiff that this case presents such an instance.

We first set forth our standard of review. The question of whether a letter written by a zoning enforcement officer is a decision under General Statutes § 8-7 and § 8.10.2 of the regulations is an issue of law, and our review is therefore plenary. See Wiltzius v. Zoning Board of Appeals, 106 Conn. App. 1, 23, 940 A.2d 892 (review of court’s application of § 8-7 is plenary), cert. denied, 287 Conn. 906, 907, 950 A.2d 1283, 1284 (2008); see also Munroe v. Zoning Board of Appeals, 261 Conn. 263, 269, 802 A.2d 55 (review of issue concerning statutory interpretation of § 8-7 is plenary).

Section 8-7 governs appeals to zoning boards and provides that “[t]he concurring vote of four members of the zoning board of appeals shall be necessary to reverse any order, requirement or decision of the official charged with the enforcement of the zoning regulations . . . .” (Emphasis added.) Section 8.10.2 of the regulations also provides that “[a]ny person claiming to be aggrieved by any order, requirement, or decision made by the [z]oning [e]nforcement [o]fficer may appeal to the [zjoning [b]oard of [ajppeals.” The issue before us is, therefore, whether Larkin’s February 4, 2005 letter was a “decision” under General Statutes § 8-7 and § 8.10.2 of the regulations.

We begin our analysis by noting that although our courts have treated actions of zoning enforcement officers as appealable decisions; see, e.g., Munroe v. Zoning Board of Appeals, supra, 261 Conn. 263; Bishop v. Zoning Board of Appeals, 92 Conn. App. 600, 886 A.2d 470 (2005), cert. denied, 277 Conn. 906, 894 A.2d 986 (2006); no Connecticut court, to our knowledge, has addressed the issue of whether all letters issued by zoning enforcement officers automatically are appeal-able to zoning boards of appeals. For example, this court recently concluded in Wiltzius v. Zoning Board of Appeals, supra, 106 Conn. App. 19, that the issuance of the certificate of zoning compliance by the zoning enforcement officer constituted an appealable decision pursuant to General Statutes § 8-6. In reaching this decision, this court relied in part on the fact that the certificate itself contained language stating that it was appealable pursuant to § 8-7. Wiltzius v. Zoning Board of Appeals, supra, 21.

Conversely, in Pinchbeck v. Zoning Board of Appeals, 58 Conn. App. 74, 76-79, 751 A.2d 849 (2000), this court held that no order, requirement or decision was made before the defendant zoning board’s July 23,1997 hearing on an application for a variance and therefore that a handwritten statement on a variance application dated approximately July 1, 1997, stating that the “[e]nforcement officer indicated that side yard [variance] for height increase [was] not required” was not an order, requirement or decision under §§ 8-6 and 8-7.

We do not think that a bright line rule has been so far established in evaluating this category of cases. We conclude, therefore, that the determination of whether the action of a zoning enforcement officer amounts to a decision appealable under § 8-7 depends on the particular facts and circumstances of each case.

We next turn to article VIII of the regulations, which governs administration and enforcement of the Stoning-ton zoning regulations. Our Supreme Court has stated that “[b]ecause the interpretation of [zoning] regulations presents a question of law, our review is plenary. . . . Additionally, zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes.” (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 416, 920 A.2d 1000 (2007).

Article VIII, §§ 8.2, 8.3 and 8.4 of the Stonington zoning regulations address zoning permits, site plan submissions and approvals and site plan requirements, respectively. Section 8.2 provides that the regulations shall be administered by the planning and zoning commission or its appointed agent. Section 8.2.1 provides that “[a] permit will be issued when all the applicable findings are made for compliance” and grants to a zoning agent the following powers when determining compliance: (1) to inspect buildings, places, premises or uses, (2) to conduct on-site inspections and (3) to seek or to require information needed to determine the facts of any issue under the regulations. Section 8.2.2 provides that “[b]efore undertaking any site improvement work changing the use or adding to the exterior of any structure . . . application shall be made to the appointed agent for ... a zoning permit.” Section 8.2.3 provides that all uses or changes of uses of buildings require a certificate of zoning compliance, which shows that such use is in conformity with the provisions under the regulations. Sections 8.2.2.1 through 8.2.2.6 list the items that must accompany all applications for zoning permits, including the application form, a site plan, other necessary documentation or information and copies of other state, local, or federal applications. Section 8.11 authorizes the planning and zoning commission or the officer to inspect and to examine any building, structure, place or premise, and to order in writing the remedying of any violation of the regulations. The regulations, therefore, do not contain any provision expressly authorizing the zoning enforcement officer, or any other agent of the zoning commission, to decide whether a lot qualifies for construction or to make final determinations on the applicability of the regulatory provisions by issuing letters to the lot’s owner or previous owner.

Our review of the regulations leads us to conclude that the final determination that a single-family residence could be constructed on the plaintiffs lot is made by the issuance of appropriate permits, such as a building permit or a certificate of zoning compliance. We conclude therefore that Larkin’s letter that the plaintiffs lot qualified for construction of a single-family residence was an advisory letter informing Rooney that a single-family residence could be built on it if the necessary permits were obtained.

We stress that we do not conclude that all letters issued by zoning enforcement officers interpreting zoning regulations, and applying them to specific situations, are not appealable pursuant to § 8-7. The plaintiff cites the statement by zoning commentator Robert A. Fuller that the “zoning enforcement officer has initial authority to interpret the zoning regulations, but the interpretation made is subject to review of the zoning board of appeals and on appeal by the Superior Court.” R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 12.5, p. 284. We do not disagree with the plaintiffs argument that zoning enforcement officers often interpret zoning regulations. Appeals are often taken from actions of zoning enforcement officers that involve interpretation of regulations, the issuance of cease and desist orders; see, e.g., Graff v. Zoning Board of Appeals, 277 Conn. 645, 894 A.2d 285 (2006); Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 264 A.2d 552 (1969); Smith Bros. Woodland Management, LLC v. Zoning Board of Appeals, 108 Conn. App. 621, 949 A.2d 1239, cert. granted on other grounds, 289 Conn. 908, 957 A.2d 872 (2008); or the granting or denying of building permits and certificates of zoning compliance. See, e.g., Wnuk v. Zoning Board of Appeals, 225 Conn. 691, 626 A.2d 698 (1993); Bishop v. Zoning Board of Appeals, supra, 92 Conn. App. 600; Sciortino v. Zoning Board of Appeals, 87 Conn. App. 143, 866 A.2d 645 (2005).

Unlike the situation in cases involving cease and desist orders or approvals and denials of applications, however, we are left to speculate what legal effect or consequence, if any, Larkin’s letter has in the present case. The plaintiff does not argue that she can construct a single-family residence on her lot solely on the basis of the letter. She also does not argue that the letter was the equivalent of a building permit or a certificate of zoning compliance. The plaintiff, most importantly, does not even argue that Larkin’s February 4,2005 letter had any binding effect on his power subsequently to approve or to deny her requests for a building permit or a certificate of zoning compliance in accordance with the zoning regulations. The plaintiffs requests for the permit and the certificate were pending before Larkin when she withdrew them, and she does not argue that Larkin was under any obligation to approve those requests in light of his earlier, perhaps erroneous, opinion that § 2.9 of the regulations applied to the plaintiffs lot. The plaintiff merely argues that all letters issued by zoning enforcement officers interpreting regulations automatically are appealable to zoning boards of appeals simply because our courts have entertained such appeals in the past. We are not persuaded. The issue of whether similar letters by zoning enforcement officers constitute appealable decisions under § 8-7 or § 8-6 has never been addressed directly by our appellate courts.

In evaluating whether Larkin’s initial interpretation of the regulations was a decision in this case, we find instructive cases in which our Supreme Court interpreted the term “decision” as found in General Statutes §§ 8-8 and 8-28. In East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 290 A.2d 348 (1971), our Supreme Court held that the trial court acted properly in dismissing for lack of subject matter jurisdiction the plaintiffs appeal from an approval of a site plan by the local planning and zoning commission. The Supreme Court based its holding on the fact that “[t]he action of the planning section [of the Hamden planning and zoning commission] in approving the revised site plans was merely one step to be taken in the scheme of the regulations”; id., 561; and, therefore, the planning section’s action, being preliminary and advisory, was nonbinding. Id., 561-62. The court in East Side Civic Assn. relied on the proposition from Sheridan v. Planning Board, 159 Conn. 1, 10, 266 A.2d 396 (1969), that no appeal lies from a planning board unless its action is “binding without further action by a zoning commission or other municipal agency.” (Internal quotation marks omitted.) East Side Civic Assn. v. Planning & Zoning Commission, supra, 558. We are mindful of the fact that those cases focus on appeals from zoning boards to trial courts while the case before us concerns an appeal from a zoning enforcement officer’s action to a zoning board. We nonetheless find the Supreme Court’s language instructive and note that the plaintiff has not argued that Larkin’s opinion in the letter was binding as to his subsequent approval or denial of necessary permits to build. The resolution of the issue of whether the plaintiff may construct a single-family residence on her property was subject to and contingent on further action by Larkin on her requests for a building permit and a certificate of zoning compliance.

It is significant that Larkin stated in the first paragraph of his February 4, 2005 letter that he was responding to a request that he “review this lot to see how the regulation amendment impacts it” rather than a request that he formally take action of any sort. In the fourth paragraph of the letter, he stated that “a single-family residence could be built on this lot” if it did not exceed a certain total floor area. His language was conditional. Our conclusion is further supported by the portions of the letter informing the plaintiff that her lot was subject to flood hazard zone regulations and possibly to coastal area management review, indicating that more information was needed before the actual permits could be issued.

We also find instructive our Supreme Court’s holding in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), which governs appeals to this court from interlocutory orders and rulings of the trial court. We are mindful of the fact that, although appellate proceedings arising out of administrative appeals are subject to the requirements of Curcio, see Schieffelin & Co. v. Dept. of Liquor Control, 202 Conn. 405, 409, 521 A.2d 566 (1987); our research indicates that its holding has not been extended to appeals from zoning enforcement officers’ actions to zoning boards. We nonetheless find highly germane the fact that Larkin’s action was not appealable under the second prong of Curdo, which states that “[a]n otherwise interlocutory order is appealable . . . (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, supra, 31. Our review of the parties’ briefs and the record leads us to conclude that Larkin’s February 4, 2005 letter did not establish or conclude the plaintiffs right to construct a single-family residence on her property because, regardless of what Larkin stated in the letter, that right is subject to and will be affected by further proceedings of the municipality, namely, its decision either to approve or to deny the plaintiffs requests for a building permit and a certificate of zoning compliance.

A conclusion that Larkin’s letter decided the issue of whether the plaintiff could build a residence on her lot would render the process of applying for a building permit or a certificate of zoning compliance superfluous. It would discourage interested parties from doing what the defendant did in the present case, namely, ask a zoning enforcement officer to reconsider a conclusion in his or her letter prior to issuing a certificate of zoning compliance. It might send a signal to interested parties that all actions by zoning enforcement officials automatically should be appealed to zoning boards, thereby unnecessarily burdening the boards with premature appeals. It would also deter zoning enforcement officers from offering helpful preliminary advice to members of the community.

The plaintiff, in arguing that Larkin’s letter was an appealable decision, relies on cases in which our trial courts reviewed appeals from letters issued by zoning enforcement officers, although none of those cases directly addressed the issue of zoning boards’ jurisdiction over the actions of zoning enforcement officers. In Cross Street, LLC v. Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-03-0198302-S (December 20, 2004) (38 Conn. L. Rptr. 391), the trial court dismissed an appeal from a zoning board’s decision sustaining a decision by the local zoning enforcement officer. The zoning enforcement officer in that case had advised the plaintiff that the provisions of General Statutes § 8-26a (b) did not apply to his application to locate a synagogue on certain property and that the synagogue would have to comply with applicable zoning regulations. Id. In Macher v. Willington, Superior Court, judicial district of Tolland, Docket No. CV-98-67453-S (June 22, 1999), the trial court reviewed a zoning board’s dismissal of the plaintiffs’ appeal from a zoning enforcement officer’s letter advising them that they required a special permit to serve alcohol on their premises. Id.; see also Ross v. Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk, Docket Nos. CV-03-0198198S and CV-04-4001747-S (March 20, 2006) (plaintiffs appealed from zoning enforcement officer’s letter determining that their lots merged into one lot by “ ‘common law merger’ ”); Rich v. Zoning Board of Appeals, Superior Court, judicial district of Stamford Norwalk, Docket No. CV-04-0200065-S (October 20, 2005) (40 Conn. L. Rptr. 189) (plaintiffs appeal from decision of zoning enforcement officer to issue permit).

In addition to the fact that the trial courts in those cases did not directly address the issue of whether the conclusions of the zoning enforcement officers were appealable under § 8-7, the present case is factually distinguishable from those cases because Larkin never reached a final determination of an issue. He did not have an opportunity to act on the plaintiffs request for a building permit and a certificate of zoning compliance, and even told the plaintiff that he was reconsidering his letter and waiting for advice from the municipal attorney.

By contrast, in the cases cited by the plaintiff, a zoning enforcement officer’s conclusion was a final determination of a particular issue, and his or her involvement in the matter was over. In Macher, for example, the zoning enforcement officer’s determination that the plaintiffs required a special permit to seive alcohol effectively determined that they could not serve alcohol without a special permit, and the plaintiffs’ only recourse was an appeal to the zoning board. See Macher v. Willington, supra, Superior Court, Docket No.CV-98-67453-S. In Rich, the zoning enforcement officer clearly stated that he would issue a building permit and actually issued the permit, circumstances not present in the case before us. See Rich v. Zoning Board of Appeals, supra, 40 Conn. L. Rptr. 189. In Ross, the plaintiffs appealed to the zoning board from a zoning enforcement officer’s final determination that they were not entitled to a separate use of their two lots. See Ross v. Zoning Board of Appeals, supra, Superior Court, Docket Nos. CV-03-0198198-S and CV-04-4001747-S. Our reading of Ross indicates that the zoning enforcement officer’s determination did not require any additional steps from, and was not subject to any further consideration by, the zoning enforcement officer. See id.

We additionally note that although some trial courts have reviewed decisions of zoning boards upholding or dismissing appeals from zoning enforcement officers’ actions similar to that in the present case, trial courts in other cases have treated conclusions reached by zoning enforcement officers as preliminary or advisory opinions. In ASL Associates v. Proch, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 370080 (December 21, 1990) (3 Conn. L. Rptr. 28), the trial court decided that a letter from a zoning enforcement officer stating that submitted plans conformed to the special permit was an opinion of the zoning enforcement officer communicated to the building inspector rather than an appealable action. Similarly, in Boris v. Garbo Lobster, Superior Court, judicial district of New London, Docket No. 547637 (April 6, 1999), the trial court decided that a conclusion by the zoning enforcement officer that the application submitted by the defendant met the requirements for a special permit was simply a preliminary interpretation of the zoning regulations and not an appealable decision. The court based its conclusion partly on the fact that the application was subject to secondary review by the planning and zoning commission, as evidenced by the fact that the zoning commission ultimately granted the subject permit on the basis of its evaluation. Id. Larkin’s preliminary interpretation of the regulations in the present case was likewise subject to his secondary review triggered by the plaintiffs request for a building permit and certificate of zoning compliance.

We understand that zoning enforcement officers, like other town officials, frequently provide informal advice, counsel and expertise to local citizens. We understand as well that such assistance provides a valuable service as individuals make decisions relating to their property. The issue in this case, however, is a narrow one concerning whether Larkin’s February 4, 2005 letter enunciated an appealable decision. We conclude that in light of the zoning regulations involved and the language used in the letter, and under the specific facts and circumstances of the present case, the court correctly concluded that the letter was a preliminary, advisory opinion and not a decision subject to appeal under General Statutes § 8-7 and § 8.10.2 of the regulations. In an administrative appeal, the court has jurisdiction to determine whether the administrative body had jurisdiction to issue its ruling. See Stickney v. Sunlight Construction Co., 248 Conn. 754, 756, 730 A.2d 630 (1999) (where workers’ compensation commissioner lacked jurisdiction to open and modify voluntary agreement, Appellate Court properly reversed improper ruling). The court properly concluded that the board lacked subject matter jurisdiction to consider an appeal from Larkin’s letter. That determination, however, did not deprive the trial court of jurisdiction to consider the plaintiffs challenge to the board’s decision, and the court was not required to dismiss the plaintiffs appeal. Instead, the court should have reversed the decision that the board had issued without jurisdiction and directed a dismissal of the defendant’s appeal to the board.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment directing the board to dismiss the defendant’s appeal.

In this opinion the other judges concurred.

       Although the board also was a defendant at trial, in this opinion, we refer to Hescock as the defendant.

       We therefore do not reach the issue of whether the court properly concluded that the appeal was not timely filed. We note, however, that the defendant as an ‘‘appellee . . . aggrieved by the judgment . . . from which the appellant has appealed”; see Practice Book § 61-8; see also Practice Book § 60-4; should have raised his challenge to the trial court’s judgment by way of cross appeal.

       Section 2.9 of article two of the Stonington zoning regulations provides in relevant part: “Lots owned separately from adjoining tracts and existing prior to July 19, 1960, with area or frontage less than required by these [regulations may be used for a single-family residence by complying with the following . . .

       Both General Statutes §§ 8-6 and 8-7 provide that a board may hear appeals from an “order, requirement or decision” of the official charged with the enforcement of zoning regulations. The plaintiff claims that the letter was a decision and does not claim that it constituted an order or a requirement.

       General Statutes § 8-6 (a) similarly provides in relevant part: “The zoning board of appeals shall have the following powers and duties: (1) [t]o hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter . . . .” (Emphasis added.)

       We therefore disagree with the plaintiffs argument that this court held in Pinchbeck that a letter issued by the zoning enforcement officer on July 23, 1997, advising the plaintiffs that there was no need for a side yard variance, was an appealable decision. Pinchbeck v. Zoning Board of Appeals, supra, 58 Conn. App. 76. The court in Pinchbeck concluded that “no evidence was offered to establish that 1he zoning enforcement officer has issued an order, requirement or decision with regard to the need for a side yard variance at or before the July 23, 1997 hearing.” Id., 78. We decline the plaintiffs invitation to construe the Pinchbeck holding to imply that a separate letter by the zoning enforcement officer, also issued on July 23, 1997, was therefore an appealable decision.

       Zoning enforcement officers are agents of zoning commissions. Caserta v. Zoning Board of Appeals, 23 Conn. App. 232, 235, 580 A.2d 528 (1990), rev’d on other grounds, 219 Conn. 352, 593 A.2d 118 (1991).

       We do not agree, therefore, with the defendant’s argument that we have no actual controversy to decide because the determination of whether the lot qualified for construction was not within Larkin’s powers. See Helbig v. Zoning Commission, 185 Conn. 294, 320, 440 A.2d 940 (1981). We conclude that Larkin was authorized to determine that a single-family residence could be constructed on the lot by granting the requested building permit and certificate of zoning compliance, events which did not occur in this case.

       General Statutes § 8-8 (b) governs appeals from actions of zoning boards to courts and provides in relevant part that “any person aggrieved by any decision of a board . . . may take an appeal to the superior court . . . (Emphasis added.)

       General Statutes § 8-28 provides in relevant part: “Notice of all official actions or decisions of a planning commission . . . shall be published .... Any appeal from an action or decision of a planning commission shall be taken pursuant to the provisions of section 8-8.”

        East Side Civic Assn. v. Planning & Zoning Commission, supra, 161 Conn. 558, is a case from 1971 that addresses, among other things, § 8-28. We note that § 8-28 was amended to address § 8-8. That amendment took effect on October 1,1989, and it is unclear whether that amendment overrules the holding in East Side Civic Assn. See R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 36.3, p. 229.

         State v. Curcio, supra, 191 Conn. 31, provides that “[a]n otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.”

       The dispositions in certain Appellate Cotut opinions seem inconsistent with the Supreme Court’s decision in Stickney. See Monroe v. Zoning Board of Appeals, 63 Conn. App. 748, 760-61, 778 A.2d 1007 (2001) (ordering dismissal of appeal to trial court from decision of zoning board of appeals issued without jurisdiction), rev’d on other grounds, 261 Conn. 263, 802 A.2d 55 (2002); Bosley v. Zoning Board of Appeals, 30 Conn. App. 797, 800, 622 A.2d 1020 (1993) (affirming dismissal of appeal to trial court from decision of zoning board of appeals issued without jurisdiction); but see Koepke v. Zoning Board of Appeals, 30 Conn. App. 395, 396, 620 A.2d 811 (1993) (affirming trial court judgment sustaining appeal from decision of zoning board of appeals issued without jurisdiction), rev’d on other grounds, 230 Conn. 452, 645 A.2d 983 (1994). It is clear from Stickney v. Sunlight Construction Co., supra, 248 Conn. 756, that where an administrative body lacked jurisdiction to issue the ruling being appealed, the proper disposition on appeal is to reverse the improper ruling.


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    LORI BAGG v. TOWN OF THOMPSON ET AL.
    (AC 29152)
    Flynn, C. J., and DiPentima and Lavine, Js.

      Argued December 1, 2008
    officially released April 28, 2009

      William F. Gallagher, with whom were David McCarry and Leonard B. Bren, for the appellant (plaintiff).

      Ralph G. Eddy, for the appellee (named defendant).
   Opinion

FLYNN, C. J.

The common-law principle of sovereign immunity, which holds that the state may not be sued without its consent, is well established in our jurisprudence. Lagassey v. State, 268 Conn. 723, 732, 846 A.2d 831 (2004). This immunity from suit implicates subject matter jurisdiction and, therefore, provides a basis for a court to grant a motion to dismiss. Id., 736. The immunity enjoyed by municipalities of the state, governmental immunity, differs from sovereign immunity in historical origin, scope and application. Vejseli v. Pasha, 282 Conn. 561, 573, 923 A.2d 688 (2007). Under the principle of governmental immunity, a municipality, in certain circumstances, possesses immunity from liability, but not from suit. Id. Accordingly, municipalities are capable of suing and being sued, similar to any natural person, corporation or other entity. Gianetti v. Stamford, 25 Conn. App. 67, 79, 593 A.2d 140, cert. denied, 218 Conn. 918, 597 A.2d 333 (1991). The doctrine of governmental immunity does not implicate subject matter jurisdiction and is not a basis for granting a motion to dismiss. Vejseli v. Pasha, supra, 572.

The plaintiff, Lori Bagg, appeals from the judgment of the trial court dismissing her complaint brought against the defendant town of Thompson pursuant to General Statutes § 13a-149, the municipal highway defect statute. On appeal, the plaintiff claims that the court improperly concluded that it was without subject matter jurisdiction on the basis of its incorrect determination that the defendant municipality possessed sovereign, rather than governmental, immunity. We agree with the plaintiff that the defendant did not possess sovereign immunity, and therefore the court’s granting of the motion to dismiss for lack of subject matter jurisdiction was improper. We reverse the judgment of the trial court.

The plaintiffs complaint alleged that on September 1, 2003, she climbed a cement stairway located on the east side of Route 12 in Thompson. The stairway provided access from the homes located on Riverside Drive, adjacent to and below the elevation of Route 12, to the sidewalk bordering the state highway. As the plaintiff reached the top of the stairs, she leaned on the stairway’s handrail, only to have the handrail give way, causing her to fall to the ground below and sustain injuries.

In count one of her complaint, the plaintiff alleged that the defendant had a statutory duty to maintain the sidewalk bordering Route 12 and that the stairway was a part of the defendant’s sidewalks. The plaintiff claimed that her injuries were the result of the defendant’s negligent failure to install and to maintain the handrail properly, which had been anchored in an empty soda can and inadequately embedded in the cement of the stairs. Count one also indicated that the plaintiff had provided notice of her injuries to the defendant pursuant to § 13a-149. The complaint’s two remaining counts alleged negligence against Thomas J. Revet, Jr., and Vickie K. Revet, and John Narducci and Gertrude Narducci, respectively, alternatively claiming that, at all relevant times, the stairway and the land on which it was located was owned, possessed, maintained and controlled by the Revets and by the Narduccis. The plaintiff alleged that her injuries were a result of the negligence of the Revets and the Narduccis in that they caused or permitted the handrail to be installed defectively and that they subsequently maintained the handrail but failed to remedy its defective condition.

Subsequent discovery revealed the following additional factual background. The defendant previously had sought and received state approval to make improvements to the sidewalk bordering Route 12 within the state’s right-of-way. The defendant received funding for the project through the state’s community development block grant fund, after the defendant learned that the state department of transportation did not intend to make any such improvements itself. The defendant hired an engineering firm, GM2 Associates, Inc. (GM2), as well as a contractor, M & M Construction, Inc. (M & M), to carry out the work, which was done between August and October, 1997. Madan Gupta, president of GM2, stated in an affidavit that the firm provided design, construction plans, specifications and full-time inspection services for the defendant’s reconstruction of the sidewalk. He further stated that the defendant did not own the land covered by the project and that the sidewalk was fully within the state’s right-of-way. Gupta also indicated that the stairs involved in the plaintiffs fall were not within the original scope of the project.

As a result of the defendant’s improvements to the sidewalk, the elevation of the sidewalk created a gap of approximately eight to twelve inches between the stairway’s top stair and the sidewalk. Mark Manuel, a representative of M & M, testified in a deposition that because of this gap, the contractor reformed the stairs by pouring concrete over the existing stairs and installed the handrails. Manuel did not recall who specifically ordered M & M to complete the reformation but testified that it could not have been anyone other than GM2 or a representative of the defendant. The Revets acknowledged via affidavit, and Vickie Revet testified in a deposition that, although they had not been aware of the fact prior to May, 2004, the stairway was located within the bounds of their property. Prior to May, 2004, they believed that the stairway was part of the defendant’s property. Thus, they stated that they neither requested nor consented to the reformation of the stairs.

On March 29, 2006, the defendant filed the motion to dismiss at issue in the present appeal, arguing that the court lacked subject matter jurisdiction because the plaintiff could not demonstrate the two elements of a cause of action under § 13a-149: (1) that she sustained her injuries on a defective road or bridge; and (2) that the defendant was the party bound to keep the road or bridge in repair. Citing Novicki v. New Haven, 47 Conn. App. 734, 738, 709 A.2d 2 (1998), the defendant further contended that, as a municipality, it possessed sovereign immunity and thus was immune from suit absent legislation waiving such immunity. In opposition, the plaintiff conceded that the stairway was on private property but argued that the defendant reformed the stairs for public use. The plaintiff further argued that the defendant’s assertions that it was not the party bound to maintain the stairs were an insufficient basis for the court to find that it lacked jurisdiction. In a supplemental brief in opposition to the defendant’s motion to dismiss, the plaintiff contended that the defendant’s motion was properly a motion to strike, as the substance of its claim was that the plaintiff had not stated a sufficient claim of liability under § 13a-149, not that the plaintiff could not state such a claim.

On February 13, 2007, while the defendant’s motion to dismiss was still pending, the plaintiff filed a request for leave to file an amended complaint. The plaintiff sought to amend her complaint by, inter alia, adding an allegation that the defendant, through the acts and omissions of its employees, was negligent pursuant to General Statutes § 52-557n The plaintiff also sought to add an allegation that, by the acts alleged in the original complaint, the defendant had created and maintained a nuisance.

By memorandum of decision filed August 14, 2007, the court granted the defendant’s motion to dismiss. The court stated that the defendant, as a municipality, was immune from suit under the doctrine of sovereign immunity. The court further stated that § 13a-149 was an exception to such immunity and that its provisions were to be strictly construed. The court concluded that the plaintiffs failure to demonstrate that the stairway was a defective road or bridge for the purposes of the statute, coupled with her failure to show that the defendant was responsible for maintaining the stairs, deprived the court of subject matter jurisdiction. In a footnote at the end of its decision, the court stated that, given the allegations of the complaint, § 13a-149 provided the plaintiffs exclusive remedy and that she could not, therefore, maintain an action under § 52-557n.

I

In her principal argument on appeal, the plaintiff claims that the court improperly determined that the defendant possessed sovereign immunity rather than governmental immunity. Because governmental immunity does not implicate subject matter jurisdiction, as does sovereign immunity, the plaintiff argues that it was not a proper basis for granting the defendant’s motion to dismiss. We agree with the plaintiff.

Our consideration of this case is guided by the following standard of review and principles of law. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). “When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). “Where, however . . . the motion [to dismiss] is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.” (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).

“Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. ... A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Citations omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999).

A recent Supreme Court case discussed the difference between the forms of immunity possessed by governmental entities. “Governmental immunity, which applies to municipalities, is different in historical origin, scope and application from the sovereign immunity enjoyed by the state. A suit against a municipality is not a suit against a sovereign. Towns have no sovereign immunity, and are capable of suing and being sued ... in any action. . . . Municipalities do, in certain circumstances, have a governmental immunity from liability. . . . But that is entirely different from the state’s sovereign immunity from suit . . . .” (Emphasis in original; internal quotation marks omitted.) Vejseli v. Pasha, supra, 282 Conn. 573.

“[W]hereas [t]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss . . . Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006); the doctrine of governmental immunity implicates no such interest.” (Internal quotation marks omitted.) Vejseli v. Pasha, supra, 282 Conn. 572. “[U]nlike the state, municipalities have no sovereign immunity from suit. . . . Rather, municipal governments have a limited immunity from liability.” (Internal quotation marks omitted.) Id., quoting Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 26, 664 A.2d 719 (1995).

The importance of the distinction between sovereign immunity and governmental immunity is borne out in the present case. After determining that the defendant municipality possessed sovereign immunity from suit, the court analyzed the case in terms of whether it had jurisdiction to hear the case. The defendant possessed governmental immunity, however, and it was not immune from suit. The defendant’s argument in support of its motion to dismiss focused on the locus of the injury, the stairway. It maintained that because the stairway was not a “defective road or bridge” for the purposes of § 13a-149, the court could not maintain jurisdiction over the matter. Given the nature of governmental immunity, the defendant’s assertion that the stairway was not a “defective road or bridge” for the purposes of the statute did not implicate the court’s jurisdiction over the matter but, rather, whether the plaintiff ultimately would be able to prove the elements of her claimed cause of action.

The defendant, however, argues that a motion to dismiss is the proper procedural vehicle to challenge a complaint whose allegations do not come within the scope of § 13a-149. For this proposition, the defendant relies on our Supreme Court’s decision in Ferreira v. Pringle, supra, 255 Conn. 330. There, the plaintiff, who had been injured when he tripped on a broken signpost on the shoulder of a road, brought an action against the defendants, alleging that they had been negligent in maintaining the grassy embankment where the accident had taken place. Id., 332-36. The plaintiff brought this claim, citing § 52-557n (a) (1) (A). Id., 335-36. The defendants filed a motion to dismiss, arguing that allegations of the complaint, together with other uncontroverted evidence, implicated § 13a-149, which would therefore be the plaintiffs exclusive remedy. Id., 336. The defendants argued that the court lacked subject matter jurisdiction due to the plaintiffs failure to provide the notice required by § 13a-149. Id. The court agreed that the complaint necessarily invoked § 13a-149 and dismissed the complaint for lack of subject matter jurisdiction due to the plaintiffs failure to comply with the notice provisions of the statute. Id., 338.

On appeal, our Supreme Court affirmed the judgment of the trial court. Id., 357. The court held that the trial court properly had determined that the allegations of the complaint, together with the additional facts proffered in affidavits filed by the defendants, demonstrated that the alleged defect was in the highway right-of-way, thus necessarily invoking § 13a-149. Id., 354. The court concluded: “As a condition precedent to maintaining an action under § 13a-149, a plaintiff must provide a municipality with notice within ninety days of the accident. ... In this case, it is undisputed that the plaintiff did not provide any written notice to the defendants within the requisite time period. Because he failed to comply with the notice requirements of § 13a-149, the trial court lacked subject matter jurisdiction over the action.” (Citations omitted.) Id.

The defendant’s reliance on Ferreira is misplaced. The case stands for the proposition that, when the allegations of a complaint and other properly considered evidence bring a plaintiffs cause of action within the purview of § 13a-149, the failure to provide the notice required by the statute deprives the court of subject matter jurisdiction over the action. The rationale behind Ferreira is that without the required notice, the plaintiff could not state a cause of action. The present case, however, is factually and procedurally distinguishable. Here, the plaintiff brought an action alleging injury due to a highway defect under § 13a-149 and provided the required notice. The court, upon considering the factual allegations and other evidence submitted, concluded that the stairway was not a defective road pursuant to § 13a-149 and, further, that the defendant was not the party bound to keep the stairway in repair under the statute. As we have discussed previously, the jurisdiction of the court was not implicated.

II

Citing Considine v. Waterbury, 279 Conn. 830, 905 A.2d 70 (2006), the defendant also argues that it possessed sovereign immunity for its acts here as an agent of the state. Considine concerned a plaintiffs claim against a municipality for injuries the plaintiff suffered when he fell against a window panel that shattered in a clubhouse building on a golf course owned and operated by the municipality. Id., 833-34. The defendant leased a portion of the clubhouse building to a private entity that operated it as a restaurant. Id., 833. The trial court rejected the defendant’s asserted special defense of governmental immunity, determining that the fact that the defendant derived a special corporate profit or pecuniary benefit from its receipt of rental income rendered it liable under § 52-557n (a) (1) (B). Id., 834. Our Supreme Court affirmed the trial court’s judgment, holding, inter alia, that the defendant’s leasing of a portion of the clubhouse to the private entity and its receipt of rental income therefrom constituted a proprietary, not a governmental, function. Id., 850.

In the course of distinguishing between governmental and proprietary acts, the court stated: “This court explained in Hourigan v. Norwich [77 Conn. 358, 364, 59 A. 487 (1904)], that when the state performs its governmental function through an agent, ‘the agent cannot be sued for injuries resulting from a strict performance of the agency. In such case the act is regarded as the act of the [s]tate and not that of the agent, who is the mere instrument of the [s]tate and nothing more . . . .’ Similarly, a municipality is the agent of the state ‘in the exercise of certain governmental powers . . . [and when] the [s]tate imposes upon an incorporated city the absolute duty of performing some act which the [s]tate may lawfully perform and pertaining to the administration of government, the city in the performance of that duty may be clothed with the immunities belonging to the mere agent of the [s]tate ....’” Considine v. Waterbury, supra, 279 Conn. 841.

The defendant states that “[i]t is beyond question that the defendant was acting as an agent of the state in the activities at issue here and [was] thus cloaked in the same immunity from suit as the would be sovereign.” The factual record, however, does not support this assertion. The record reflects that the defendant sought to repair the sidewalks at some point after learning that the department of transportation did not intend to do so. The defendant further applied for and was granted funds for the project from the state’s community development block grant program. These facts standing alone do not demonstrate that the state in this case imposed upon the defendant the absolute duty of performing the sidewalk repairs. See Considine v. Waterbury, supra, 279 Conn. 841. Neither has the defendant provided any authority, statutoiy or otherwise, for the proposition that such an agency relationship is created necessarily when a municipality is granted funding for such a project under circumstances similar to those here present. We cannot conclude that the defendant’s actions were taken as the agent of the state and, therefore, reject this proposed alternate ground for affirmance.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiff brought her complaint in three counts. Count one stated a claim against the town of Thompson; count two was brought against Thomas J. Revet, Jr., and Vickie K. Revet; and count three was brought against John Narducci and Gertrude Narducci. The plaintiff withdrew her complaint as to the Narduccis on January 19, 2007. The plaintiff withdrew the action as against the Revets on October 22, 2007, after the present appeal was filed. The appeal concerns only the town, to which we refer in this opinion as the defendant.

       The plaintiff also claims that, construed in a manner most favorable to her, the pleader, the allegations of the complaint constituted a legally sufficient claim under § 13a-149. Because we find the plaintiffs first claim to be dispositive of the matter, we do not reach this claim.

       General Statutes § 13a-149 provides: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       General Statutes § 52-557n (a) (1) provides: “Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149.”

       In its memorandum of decision granting the defendant’s motion to dismiss, the court indicated that, because the defendant’s motion challenged the court’s jurisdiction, it was unable to consider the plaintiffs request to amend her complaint. See Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991) (“as soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made”). The court, therefore, never ruled on the plaintiffs request.

       We recognize that the guidance of appellate decisions has not been entirely consistent in distinguishing between sovereign and governmental immunity. See Martinez v. Dept. of Public Safety, 258 Conn. 680, 689 n.11, 784 A.2d 347 (2001) (reviewing inconsistent use of terms “sovereign” and “governmental” immunity and noting that “sovereign immunity” always has referred to sovereignty of state while “governmental immunity” has been used to refer to municipal immunity and immunity of state).


author: HARPER, J.

text:
    GAIL R.
      v. WILLIAM M. BUBBICO
    (AC 29948)
    DiPentima, Harper and Hennessy, Js.

      Argued February 2
    officially released April 28, 2009

      Eric Hard, for the appellant (defendant).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names'of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

HARPER, J.

The defendant, William M. Bubbico, appeals from the judgment of the trial court granting the application for a restraining order filed by the plaintiff, Gail R., pursuant to General Statutes § 46b-15, for the protection of the plaintiff and her sons. On appeal, the defendant claims that the court’s order constituted an abuse of discretion because there was insufficient evidence before the court to find that he presented a continuous threat of present physical pain or physical injury, within the meaning of the statute, to the plaintiff or her to sons. We agree with the defendant and reverse the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of the defendant’s appeal. The parties were dating and financially shared a home together. The plaintiffs two minor sons resided with the parties. On April 10, 2008, a dispute arose between the parties when the plaintiff arrived home, with her sons, to find the defendant intoxicated in her bedroom and with another man. The defendant left the home he shared with the plaintiff immediately thereafter.

On April 21, 2008, the plaintiff filed an application on behalf of herself and her two sons for an ex parte restraining order, pursuant to § 46b-15, on the basis of the April 10,2008 incident. The same day, in accordance with the dictates of § 46b-15, the court scheduled a hearing on the plaintiffs application for May 2, 2008. At the hearing, both parties appeared without counsel. Neither party testified with regard to the April 10, 2008 incident. Instead, the hearing focused on severing the financial liability of the parties in the home that they shared. The plaintiff provided the court with photographs of damage to the home allegedly caused by the defendant when he had been intoxicated. The court thereafter granted the plaintiffs application. It ordered the defendant to stay away from the home and prohibited him from having further contact with the plaintiff for a period of six months.

The defendant thereafter filed this appeal. On the same day, the defendant filed a motion for articulation, requesting, inter alia, that the court explain its reasoning behind granting the plaintiffs application. The court articulated that the plaintiff “was placed under oath and testified that she was concerned about [the defendant’s] dangerous behavior when under the influence of alcohol. She introduced photographs of damage done by [the defendant] at the joint residence. [The defendant] in reply raised his concern over [the plaintiffs] abilities to meet her financial obligations. He also stated that she had struck him, and he had not harmed her.” The court further articulated that it had “concluded that [the plaintiff] had sufficiently satisfied the requirements of § 46b-15 and entered the requested order excluding [the defendant] from the parties’ residence [and] that there shall be no contact between the parties.” Additional facts will be set forth as necessary.

At the outset, “[t]he standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . Likewise, [a] prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion. . . .

“In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. ... 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.” (Citations omitted; internal quotation marks omitted.) Putman v. Kennedy, 104 Conn. App. 26, 31, 932 A.2d 434 (2007), cert. denied, 285 Conn. 909, 940 A.2d 809 (2008).

The sole issue on appeal is whether there was sufficient evidence before the court to make a factual finding pursuant to § 46b-15 that the defendant was a “continuous threat of present physical pain or physical injury . . . .” General Statutes § 46b-15 (a). The defendant argues that the record does not reflect a factual basis to support the court’s decision. We agree with the defendant.

Section 46b-15 (a) provides in. relevant part: “Any family or household member . . . who has been subjected to a continuous threat of present physical pain or physical injury by another family or household member or person in, or has recently been in, a dating relationship who has been subjected to a continuous threat of present physical pain or physical injury by the other person in such relationship may make an application to the Superior Court for relief under this section.” (Emphasis added.)

Our analysis is governed by this court’s decision in Putman v. Kennedy, 104 Conn. App. 20, 932 A.2d 439 (2007). In Putman, the trial court granted an application for a restraining order enjoining the defendant father from having contact with his daughters. Id., 22-23. The plaintiff mother had testified that “she feared the daughters were in physical danger on the basis of the [defendant father’s] prior physical altercation with the son, and her belief that the defendant [father] is unstable . . . .” Id., 23. This court reversed the judgment of the trial court because “there was no evidence to support a conclusion that the daughters were subjected to a continuous threat of present physical pain or physical injury.” Id., 26. This court noted that the trial court “had a reasonable concern that the [defendant father’s] actions may have endangered the daughters . . . .’’Id., 25. Nonetheless, this court found that the trial court’s concern did not fall within the statute and that there was no basis “to determine that the daughters were in present physical danger . . . .” Id., 26.

The court’s decision in the present case mirrors that at issue in Putman. In the present case, the plaintiffs application was filed after a dispute arose on April 10, 2008, and neither party alleged that there was a physical altercation. In addition, the defendant had left the home immediately after the April 10, 2008 incident, and no further allegations were made to show that he was a continuous threat thereafter to the plaintiff or to her sons. Further, the plaintiff did not provide any testimony to the court that she or her sons were in imminent danger of present harm by the defendant. Compare id., 34 (court properly found defendant father to be continuous threat of present physical pain or physical injury to son after physical altercation occurred because defendant father believed physical force to be good parenting). Last, although the plaintiff made allegations that the defendant had a tendency to be violent when he is intoxicated and had previously caused harm, those allegations do not constitute allegations of a present threat of violence from the defendant. The plaintiff failed to provide testimony of a present, as opposed to a former, physical danger from the defendant, such that an order for immediate restraint of the defendant from the plaintiff and her sons was necessary.

The plaintiffs sole evidence before the court of potential violence came from photographs of damage purportedly caused by the defendant to the home. Rather than inquiring into the cause or timing of the damage, the court contemporaneously granted the plaintiffs application for a restraining order. It is this lack of inquiry that provides additional support for the defendant’s argument of insufficient evidence because the photographs could have been taken at any time prior to April 10, 2008, or while the defendant was away from the home thereafter. Accordingly, we conclude that although the defendant’s behavior was cause for concern, there was insufficient evidence before the court to prove that the defendant’s behavior was a continuous threat of present physical pain or physical injury to the plaintiff or to her sons.

The judgment is reversed and the case is remanded with direction to deny the plaintiffs application for a restraining order.

In this opinion the other judges concurred.

       We point out that the plaintiff has not responded to the defendant’s claim on appeal, having failed to file a brief with this court. We, therefore, have considered the appeal on the basis of the record and the defendant’s brief and oral argument. See Schettino v. Labarba, 82 Conn. App. 445, 446 n.2, 844 A.2d 923 (2004).

       The plaintiff filed an affidavit along with her application. In her affidavit, the plaintiff attested, in relevant part: “[The defendant] has aserious drinking problem. This weekend after leaving on April 10, 2008, he was drinking, yelling, and [swearing] at [myself] and boys. Every time he was asked to leave, he left for a short time and then came back. And he decide[d] to not [leave, then] slept in his camper in the yard. On April 10, 2008, the boys and I came home from the baseball field to find him with a man .... I took the boys to a [friend’s] and returned to the house to tell him to leave and not to come around my boys and myself. Over the previous [four] to [six] month[s] the drinking has been out of control. He has called the boy[s] and myself all kinds of swears, has pushfed], grabbed [and] thrown things at us. Has punched holes in walls and doors. Punched and dented my truck. About [ten] months ago he completed a substance abuse class ordered by [the department of children and families], from my youngest son about a year ago accusing [the defendant] of slapping him in the face.”

       An ex parte restraining order was not issued prior to the court’s hearing on the merits of the plaintiffs application.

       The court did not resolve the financial and personal property issues of the parties. Rather, it referred the parties to family relations counsel services.

       We note that the defendant’s appeal is “rescued from mootness by the ‘collateral consequences’ doctrine articulated in State v. McElveen, 261 Conn. 198, 205, 802 A.2d 74 (2002) . . . .” Putman v. Kennedy, 279 Conn. 162, 169-72, 167, 900 A.2d 1256 (2006) (harm to reputation and dissemination of restraining order to multiple law enforcement agencies considered collateral consequences of domestic restraining order).


author: BEACH, J.

text:
    JAMES C. LESTORTI v. RALPH J. DELEO ET AL.
    (AC 29578)
    Bishop, Harper and Beach, Js.
    Submitted on briefs September 12, 2008
    officially released April 28, 2009

      David S. Hardy and Anthony M. Fitzgerald filed a brief for the appellant (defendant Louis A. Lestorti, Jr.).

      Edward C. Taiman, Jr., filed a brief for the appellee (plaintiff).
   Opinion

BEACH, J.

The defendant Louis A. Lestorti, Jr., appeals from the judgment of the trial court rendered following its granting of the motion of the plaintiff, James C. Lestorti, to strike the defendant’s counterclaim for equitable contribution. The defendant claims that the court improperly granted the plaintiffs motion to strike. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. In April, 2006, the plaintiff instituted an action in multiple counts alleging, inter alia, fraud against the defendant, among others. That action subsequently was transferred to the complex litigation docket in the judicial district of Hartford. On February 23,2007, the defendant filed a counterclaim, alleging a cause of action for equitable contribution.

In his counterclaim, the defendant alleged the following facts. In a guaranty agreement dated June 11, 2001, which was attached to the counterclaim, the plaintiff, the defendant and two others each agreed jointly and severally to guaranty the Lability of Pond Place Development II, LLC (Pond Place), to First Union National Bank under a note in the amount of $7,875,000. The note was secured by a mortgage. On or about August 31, 2004, Wachovia Bank, N.A. (Wachovia), the successor to First Union National Bank, commenced a foreclosure action against, inter alia, Pond Place, the principal obligor, and the plaintiff and the defendant, secondary obligors, under the terms of the guaranty agreement. This foreclosure action arose out of a default on the promissory note. Although both the plaintiff and the defendant were initially named as defendants in the foreclosure action by virtue of their joint and several liability on the guaranty, the action was dismissed on May 3, 2006, as to the plaintiff because Wachovia failed to make proper service on him. The defendant was found to be hable for the amount of the deficiency judgment.

When the court rendered judgment of strict foreclosure, it found that the debt owing to Wachovia, not including fees and costs, was $2,400,834.96 and that the value of the property being foreclosed was $295,000. To avoid the substantial risk of liability for a much larger deficiency judgment, the defendant negotiated and settled Wachovia’s deficiency claim for $275,000 by virtue of a stipulated deficiency judgment. Subsequently, the defendant paid Wachovia $275,000 and obtained a satisfaction of judgment. In his counterclaim, the defendant alleged that, as a joint obligor under the guaranty of the promissory note, the plaintiff was liable to him for $137,500, the plaintiffs proportionate and equitable share of the defendant’s payment to satisfy the deficiency judgment.

On April 13, 2007, the plaintiff filed a motion to strike the defendant’s counterclaim. The plaintiff argued that, as a matter of law, the defendant had no right of contribution against him because the deficiency judgment rendered in the foreclosure action, for which the defendant sought contribution, was not a joint obligation. The defendant subsequently filed an objection to the motion to strike.

On October 10, 2007, the court granted the plaintiffs motion to strike the defendant’s counterclaim. The court noted that the plaintiff and the defendant had been jointly liable on the guaranty of the note underlying the Wachovia mortgage but that liability was extinguished by the foreclosure obtained by Wachovia. The court concluded that because only the defendant was liable for the deficiency judgment, and the plaintiff was not, the defendant had no equitable right to contribution from the plaintiff for a portion of that deficiency judgment. This appeal followed.

On appeal, the defendant claims that the court improperly granted the plaintiffs motion to strike his counterclaim for equitable contribution. He argues that the court improperly concluded that he had no right to equitable contribution from the plaintiff because the plaintiff had no liability for the deficiency judgment. We disagree.

We first set forth the applicable standard of review. “The standard of review in an appeal challenging a trial court’s granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) JP Morgan Chase Bank v. Rodrigues, 109 Conn. App. 125, 128-29, 952 A.2d 56 (2008).

“The right of action for contribution, which is equitable in origin, arises when, as between multiple parties jointly bound to pay a sum of money, one party is compelled to pay the entire sum. That party may then assert a right of contribution against the others for their proportionate share of the common obligation.” (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 714, 826 A.2d 107 (2003).

The Restatement (Third) of Suretyship and Guaranty sets forth useful principles. In a simple suretyship arrangement, A lends B a sum of money. C guaranties payment. In the parlance of the Restatement, A is the obligee, B the principal obligor and C the secondary obligor. In the simplest case, and with the understanding that exceptions abound, if C discharges B’s debt to A, then C has a cause of action against B for reimbursement. Restatement (Third), Suretyship and Guaranty § 22, pp. 93-96 (1996).

If A releases B from the obligation to repay the debt, however, and does not preserve C’s right of recourse against B, ordinarily A may not then seek to enforce C’s guaranty, because A has impaired the ability of C ultimately to seek reimbursement from B. Id., §§ 37 through 39, pp. 157-76. If, with knowledge of the circumstances, C nonetheless pays to A some or all of B’s former debt after B has been released by A, then C has no right of recourse against B. C has in effect acted as a volunteer in paying A after A has impaired C’s ability to gain reimbursement from B. Id., § 39, comment (f), p. 172.

If A allows the statute of limitations as to B to expire, then the secondary obligation also expires and the secondary obligation is discharged. If C nonetheless pays A, C is not able to obtain reimbursement from B because C’s payment was gratuitous. Id., § 43, comment (c), pp. 196-97. B would not in such circumstances be unjustly enriched, and C therefore entitled to restitution, because B did not owe anything at the time of C’s payment to A. Id.

The same analysis applies in situations in which there are cosureties. As between cosureties, each cosurety is a principal obligor to the extent of its contributive share and a secondary obligor to the extent of its remaining obligation. Id., § 55, pp. 236-40. The rights of contribution and defenses are then the same as between secondary obligors and principal obligors. Id., §§ 55-56, pp. 236-42. If there is no other operative principle applicable, a cosurety’s contributive share is the aggregate liability divided by the number of cosureties. Id., § 57, pp. 243-48.

The application of the principles set forth in the Restatement to the facts of this case, as alleged by the defendant in his counterclaim, is quite straightforward. At least by May, 2006, Wachovia was unable to pursue the plaintiff for the deficiency judgment by virtue of General Statutes §§ 49-1 and 49-14. Functionally, Wachovia allowed a limitations period to expire against the plaintiff so that it could no longer pursue him directly. No right of recourse is applicable. Wachovia then was not entitled to collect from the defendant an amount greater than the defendant’s contributive share of the guaranty, in this case, half. The defendant is not entitled to reimbursement from the plaintiff for any amount: to the extent, if any, that the defendant’s settlement with Wachovia reflected any payment of the plaintiffs obligation to Wachovia, the payment was gratuitous. Further, the defendant’s contributive share was presumptively half of the obligation, which, at the time of the deficiency judgment, was more than $1,050,000. His payment of $275,000 would not appear in the circumstances to be anything other than a portion of his own contributive share. Under either rationale, the defendant is not entitled to reimbursement from the plaintiff. Furthermore, as suggested previously, the defendant is not entitled to restitution on a theory of unjust enrichment because the plaintiff, being effectively discharged from his obligation to the bank, owed nothing at the time of the defendant’s payment and thus was not enriched, justly or otherwise, by the defendant’s payment.

Our Supreme Court is likely to follow the Restatement, at least in the absence of authority to the contrary. See, e.g., Cadle Co. of Connecticut, Inc. v. C.F.D. Development Corp., 243 Conn. 667, 706 A.2d 975 (1998); see also Southington v. Commercial Union Ins. Co., 71 Conn. App. 715, 805 A.2d 76 (2002). Our case law, moreover, suggests that although the concept of equitable contribution has been endorsed; see Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., supra, 264 Conn. 714; the application of the principles of equitable contribution does not help the defendant in the context of this case. In Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., supra, 714, for example, our Supreme Court held, in the context of asbestos litigation, that where one insurer has paid the entire obligation of a number of obligors, it may assert a right of contribution against other obligors for their proportionate share of the entire obligation. See also Federal Deposit Ins. Corp. v. Mutual Communications Associates, Inc., 66 Conn. App. 397, 408, 784 A.2d 970 (2001) (Lavery, C. J., dissenting), appeal dismissed, 262 Conn. 358, 814 A.2d 377 (2003). More venerable authority such as North v. Brace, 30 Conn. 60 (1861), and Security Ins. Co. v. St. Paul Fire & Marine Ins. Co., 50 Conn. 233 (1882), support the proposition that where one of several cosureties pays the obligations of all the cosureties, the paying cosurety has a right of contribution as to the others. The right of equitable contribution from any particular cosurety is limited, however, to the share of the total owed by that cosurety. Security Ins. Co. v. St. Paul Fire & Marine Ins. Co., supra, 244-46.

There is no theory, then, under the facts alleged in the counterclaim, by which the defendant could recover from the plaintiff. Under the law of surety, Wachovia’s failure to obtain personal jurisdiction over the plaintiff in the foreclosure matter terminated the ability of Wachovia to recover from the plaintiff. The defendant’s subsequent payment to Wachovia, in settlement of the surety obligation, did not pay on behalf of the plaintiff an obligation that the plaintiff owed; thus, there is no recovery available for equitable contribution. Finally, even if the defendant’s payment is considered to be a payment on behalf of all the sureties, the payment was less than the defendant’s own proportionate share of the obligation.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff filed a complaint in multiple counts against numerous defendants. At issue in this appeal is the plaintiffs motion to strike the counterclaim of Louis A. Lestorti, Jr. We therefore refer in this opinion to Louis A. Lestorti, Jr., as the defendant.

       The court, in its memorandum of decision, referred to “Wachovia’s successor in interest.” The plaintiff noted in his memorandum of law in support of his motion to strike that shortly before the judgment of strict foreclosure was rendered, Wachovia assigned its interest to another entity. Because there is no issue before us regarding the identity of the foreclosing party, for simplicity, we will refer to the foreclosing party as “Wachovia,” with the understanding that there may be a successor in interest.

       It should be noted that the analysis of the Restatement is not comprehensive and is only in outline form. It does not address various exceptions and qualifications.