author: PALMER, J.

text:
    BRUCE WOOD ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF SOMERS ET AL.
    (SC 16426)
    Sullivan, C. J., and Norcott, Katz, Palmer and Vertefeuille, Js.

      Argued February 13
    officially released December 4, 2001

      Duncan J. Forsyth, with whom were Lawrence J. Golden and James W. Sherman, for the appellants (plaintiffs).

      Carl T. Landolina, for the appellees (defendants).
   Opinion

PALMER, J.

The plaintiffs, Bruce Wood, David Gavlak and Hillside Spring Water, Inc. (Hillside), appeal from the judgment of the trial court dismissing their appeal from the decision of the named defendant, the zoning board of appeals of the town of Somers (board), upholding the issuance of a cease and desist order prohibiting the collection, storage and transportation of natural spring water from certain property located at 223 Wood Road (subject property) in Somers. On appeal, the plaintiffs claim that the trial court improperly concluded that Hillside’s use of the subject property to collect, store and transport spring water was not a permitted use under Somers zoning regulations. The plaintiffs also claim that the trial court, which concluded that Hillside’s use of the subject property did not constitute a legal nonconforming use, instead, should have remanded the case to the board for consideration of that issue in light of the board’s failure to address it in the first instance. We reject the plaintiffs’ claim that the trial court improperly concluded that Hillside’s use of the subject property for the collection, storage and transportation of spring water is not a permitted use. With respect to the plaintiffs’ nonconforming use claim, however, we agree that the trial court should not have considered that claim because the board failed to address it in the first instance. Accordingly, we reverse the judgment of the trial court in part and remand the case to that court with direction to remand the case to the board for its consideration of the plaintiffs’ nonconforming use claim.

The record reveals the following relevant facts and procedural history. Wood owns the subject property, which is known as the Wood farm and which is comprised of 200 acres of land. Gavlak owns and operates Hillside. Since 1991, Hillside has leased a thirty-three acre parcel on the subject property, which contains four natural springs. Hillside collects water from the springs with pipes, through which the water flows by force of gravity into tanker trucks. The water then is transported off the subject property to bottling plants and, ultimately, is sold for human consumption.

The subject property is located in an A-l zoning district. Under provision 214-98 of the Somers Town Code, farms are expressly permitted in an A-l zone. Under the Somers Town Code, the term “farm” is defined as “[a] tract of land containing five . . . acres or more, with a minimum of three . . . acres used principally for agricultural purposes”; Somers Town Code 214-4; and the term “agriculture” is defined as “[t]he cultivation of land, including planting and harvesting of crops, tillage, horticulture and forestry, and the raising and management of livestock.” Id. We note, moreover, that Somers Town Code 214-5 provides in relevant part that “[u]ses that are not expressly permitted are prohibited.”

On December 30, 1996, the Somers zoning enforcement officer issued a letter to the plaintiffs: (1) advising them that the collection and storage of spring water on the subject property for transportation off that property is prohibited by Somers zoning regulations; and (2) ordering them to cease and desist from that activity. The plaintiffs appealed to the board pursuant to General Statutes § 8-7, claiming that Hillside’s use of the subject property to collect, store and transport spring water is a permitted use because that “activity falls within the scope of agriculture and/or farming.”

On April 10, 1997, the board held a public hearing on the plaintiffs’ appeal. At the hearing, the plaintiffs maintained that Hillside’s collection of spring water for bottling and sale off the subject property is a permitted agricultural use. The plaintiffs claimed alternatively that Hillside’s use of the subject property to collect spring water constituted a legal nonconforming use inasmuch as water has been collected from the springs for several hundred years, long before any zoning regulations were in place. On May 8, 1997, the board issued its decision upholding the zoning enforcement officer’s issuance of the cease and desist order. The board, however, did not address the plaintiffs’ nonconforming use claim.

The plaintiffs appealed from the board’s decision to the trial court pursuant to General Statutes (Rev. to 1997) § 8-8 (b). After a hearing, the trial court issued a memorandum of decision in which it characterized as “debatable” the issue of whether the collection, storage and transportation of spring water is a permitted agricultural use within the meaning of Somers Town Code 214-4. The trial court upheld the decision of the board, however, concluding that the plaintiffs had not sustained their burden of proving that the board acted illegally, arbitrarily or in abuse of its discretion in resolving that issue as it did. The trial court also concluded that Hillside’s use of the subject property for storing, collecting and transporting spring water did not constitute a legal nonconforming use. Accordingly, the court rendered judgment dismissing the plaintiffs’ appeal.

The plaintiffs filed a petition for certification to appeal to the Appellate Court from the trial court’s judgment pursuant to General Statutes (Rev. to 1999) § 8-8 (o), which the Appellate Court granted. We transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

On appeal, the plaintiffs claim that the trial court improperly concluded that Hillside’s use of the subject property for the collection, storage and transportation of spring water is not a permitted agricultural use under the applicable provisions of the Somers Town Code. Alternatively, the plaintiffs maintain that, in view of the board’s failure to address their nonconforming use claim, the trial court should have remanded the case to the board for its consideration of that claim. We conclude that the trial court properly rejected the plaintiffs’ claim that Hillside’s collection and storage of spring water on the subject property for bottling and sale off that property is a permitted agricultural use. We agree with the plaintiffs, however, that the board was required, in the first instance, to determine whether that use constitutes a legal nonconforming use and, consequently, we conclude that the trial court improperly considered that issue.

I

We first address the plaintiffs’ claim that the trial court improperly concluded that Hillside’s use of the subject property for the collection, storage and transportation of spring water is not a permitted agricultural use under Somers zoning regulations. We are not persuaded by the plaintiffs’ claim.

It is undisputed that the subject property is located in an A-l zone, and that farms are permitted on property that is located in such a zone. As we have indicated, a farm is defined by Somers zoning regulations as a tract of land of five acres or more with a minimum of three acres “used principally for agricultural purposes.” Somers Town Code 214-4. For purposes of this appeal, it is undisputed that the subject property comprises more than five acres and, further, that more than three acres of the subject property are used in connection with the collection, storage and transportation of spring water. Consequently, whether Hillside’s use of the subject property constitutes a permitted agricultural use devolves into the question of whether the collection, storage and transportation of spring water falls within the meaning of “agriculture” as that term is defined in Somers Town Code 214-4.

Before addressing the merits of the plaintiffs’ claim, we set forth the well established standards that govern our review. “Generally, it is the function of a zoning board ... to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. ... In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal.” (Citations omitted; internal quotation marks omitted.) Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988); accord Irwin v. Planning & Zoning Commission, 244 Conn. 619, 627-28, 711 A.2d 675 (1998); Double I Ltd. Partnership v. Plan & Zoning Commission, 218 Conn. 65, 72, 588 A.2d 624 (1991); see also Pascale v. Board of Zoning Appeals, 150 Conn. 113, 117, 186 A.2d 377 (1962) (on appeal from zoning board’s application of regulation to facts of case, trial court must decide whether “the board correctly interpreted the regulation and applied it with reasonable discretion”). Moreover, the plaintiffs bear the burden of establishing that the board acted improperly. E.g., Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995); see Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).

“Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes. . . . [A]n agency’s factual and discretionary determinations are to be accorded considerable weight .... Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . Furthermore, when [an] agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference. . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law.” (Internal quotation marks omitted.) Fullerton v. Dept. of Revenue Services, 245 Conn. 601, 606, 714 A.2d 1203 (1998); accord Connecticut Assn. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 389, 709 A.2d 1116 (1998). These principles apply equally to regulations as well as to statutes. See, e.g., Fullerton v. Dept. of Revenue Services, supra, 606-607; Real Estate Listing Service, Inc. v. Connecticut Real Estate Commission, 179 Conn. 128, 138-39, 425 A.2d 581 (1979); Plastic Distributors, Inc. v. Burns, 5 Conn. App. 219, 224-25, 497 A.2d 1005 (1985). A court that is faced with two equally plausible interpretations of regulatory language, however, properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation. E.g., MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 140, 778 A.2d 7 (2001); Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 110, 653 A.2d 782 (1995); see Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 376, 627 A.2d 1296 (1993). Because the application of the Somers zoning regulations to the undisputed facts of this case presents a question of law, our review is plenary.

Finally, zoning regulations are local legislative enactments; see Spero v. Zoning Board of Appeals, 217 Conn. 435, 441, 586 A.2d 590 (1991); and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes. See, e.g., Smith v. Zoning Board of Appeals, 227 Conn. 71, 89, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994); Double I Ltd. Partnership v. Plan & Zoning Commission, supra, 218 Conn. 73. Thus, in construing regulations, our function is to determine the expressed legislative intent. E.g., McCrann v. Town Plan & Zoning Commission, 161 Conn. 65, 73, 282 A.2d 900 (1971); see Smith v. Zoning Board of Appeals, supra, 87. Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended; E.g., Fullerton v. Dept. of Revenue Services, supra, 245 Conn. 612; and the words employed therein are to be given their commonly approved meaning. E.g., Schwartz v. Planning & Zoning Commission, supra, 208 Conn. 153. With these principles in mind, we now turn to the plaintiffs’ claim that Hillside’s use of the subject property for the collection, storage and transportation of spring water is a permitted use under the Somers zoning regulations.

The plaintiffs contend that the collection, storage and transportation of spring water falls within the definition of the term “agriculture” in Somers Town Code 214-4, which is “[t]he cultivation of land, including [the] planting and harvesting of crops, tillage, horticulture and forestry, and the raising and management of livestock.” Specifically, the plaintiffs maintain that the collection, storage and transportation of spring water on the subject property for sale off the subject property constitutes “[t]he cultivation of land . . . .” Somers Town Code 214-4. We are not persuaded.

We turn first to the commonly accepted meaning of the relevant terms. “Cultivation” is defined as “the act or art of cultivating: as . . . the art or process of agriculture: TILLAGE [especially]: intertillage to destroy weeds and loosen soil . . . .” Webster’s Third New International Dictionary. Because the word “cultivation” is defined by reference to the word “agriculture,” that definition is unhelpful, for the very question that we must answer is whether the collection, storage and transportation of spring water constitutes agriculture under Somers Town Code 214-4. In other words, our determination of the scope of the term “agriculture” under Somers Town Code 214-4 is hampered by a definitional circularity: the definition of the word “cultivate,” which is used in the definition of the word “agriculture,” itself uses the word “agriculture.”

The activities enumerated in the definition of agriculture in Somers Town Code 214-4 that serve to exemplify activities constituting “[t]he cultivation of land,” however, do shed light on the intended meaning of that term. “Tillage” is defined in relevant part as the “operation, practice, or art of tilling land . . . ,” Webster’s Third New International Dictionary. “Till” means “to turn or stir (as by plowing, harrowing, or hoeing) and prepare for seed: sow, dress, and raise crops from . . . .” Id. The collection of spring water differs significantly from tillage in that the latter contemplates the preparation of the soil for the purpose of seeding the land or growing crops. The collection of water from a natural spring requires no such preparation of the soil.

The planting and harvesting of crops also is fundamentally different from the collection of spring water. First, planting denotes putting or setting something in the ground for growth. The collection of spring water, by contrast, does not involve placing something in the ground or removing it therefrom after it has grown. Moreover, “harvest” means “to gather in (a crop): REAP . . . .” Id. “Crop” is defined as “a plant or animal or plant or animal product that can be grown and harvested extensively for profit or subsistence . . . .’’Id. Although the collection of spring water requires that the water be gathered in, in a general sense, crops are grown, whereas water, of course, is not.

Like tillage and the planting and harvesting of crops, horticulture and forestry also involve the preparation and use of the soil for the purpose of growing or nurturing some living thing. Because the collection of spring water entails no such use of the soil, it lacks a fundamental characteristic that the activities enumerated in the definition of “agriculture” in Somers Town Code 214-4 share. This distinction between the collection of spring water, on the one hand, and all of the activities enumerated in the definition of “agriculture” in Somers Town Code 214-4, on the other hand, strongly supports the conclusion that the collection of spring water does not constitute “the cultivation of land” and, therefore, is not agriculture within the meaning of Somers Town Code 214-4.

We find further support for this conclusion in Houston v. Waitsfield, 162 Vt. 476, 479, 648 A.2d 864 (1994) (Waits-field), in which the Vermont Supreme Court held that extracting water from an underground aquifer for bottling and sale off the premises was not an agricultural use under the applicable zoning regulation. As in the present case, the landowner in Waitsfield argued that “the extraction of water [for sale off the property was] similar to a traditional agricultural use because water is a renewable food product that is cultivated and harvested like any other agricultural product . . . ,” Id., 478-79. In rejecting the landowner’s claim, the court in Waits-field stated that the extraction and bottling of natural spring water simply did not “[fall] within the plain meaning of the zoning provision allowing an agricultural use . . . [because the] breadth [of the term agricultural] is not so great as to encompass the capture of natural spring waters.” (Citation omitted; internal quotation marks omitted.) Id., 479. Both the reasoning and the conclusion of the Vermont Supreme Court, with which we agree, are applicable to the present case.

The plaintiffs assert that General Statutes § 1-1 (q) supports their claim that the collection, storage and transportation of spring water comes within the meaning of the term “agriculture” for purposes of Somers Town Code 214-4. Under § 1-1 (q), the terms “agriculture” and “farming” include “harvesting any agricultural . . .commodity. . . The plaintiffs maintain that the collection of spring water satisfies this definition because water is a food and, therefore, an agricultural commodity, and collecting spring water constitutes harvesting. The plaintiffs’ argument is unavailing. Whether the collection of spring water falls within the meaning of “agriculture” and “farming” as defined in § 1-1 (q) is irrelevant for our purposes because the term “agriculture” is expressly defined in Somers Town Code 214-4. We, therefore, must ascertain the meaning of the word “agriculture” on the basis of the definition contained in Somers Town Code 214-4 and not by reference to a statutory definition.

The plaintiffs also contend that the passage of Public Acts, Spec. Sess., June 18, 1997, No. 97-11, § 53 (Spec. Sess. P.A. 97-11), which amended General Statutes (Rev. to 1997) § 19a-341 by creating a new subsection (b), indicates the legislature’s intent to classify the collection of spring water as an agricultural activity. As we have explained, however, the term “agriculture” is defined in Somers Town Code 214-4 and, therefore, the maimer in which that term may be used in the General Statutes has no bearing on our determination of the meaning of the word for purposes of Somers zoning regulations. Moreover, General Statutes § 19a-341 (b) simply provides that an operation to collect spring water that meets certain requirements and complies with all applicable zoning regulations shall not constitute a nuisance. We do not see how such a statutory provision, even if it were pertinent to our interpretation of the Somers zoning regulations, bears any particular relevance to our determination of the meaning of the word “agriculture” in Somers Town Code 214-4.

Thus, we agree with the trial court that Hillside’s use of the subject property for the collection, storage and transportation of spring water does not constitute a permitted agricultural use under Somers zoning regulations. We, therefore, conclude that the trial court properly determined that Hillside’s collection, storage and transportation of spring water is not a permitted agricultural use.

II

We next address the plaintiffs’ contention that the trial court improperly addressed the issue of whether Hillside’s use of the subject property for the collection, storage and transportation of spring water constitutes a legal nonconforming use. The plaintiffs assert that, because they raised their nonconforming use claim before the board, they were entitled to have the board decide the claim in the first instance. The plaintiffs further assert that the case should be remanded to the board so that it may consider that claim. The defendants concede that the plaintiffs presented their nonconforming use claim to the board and that the board did not address it. The defendants contend, however, that, because the plaintiffs argued the merits of that claim on appeal to the trial court and the trial court decided that claim on the merits, “the plaintiffs are estopped from seeking a remand [of that issue] to the [b]oard.” Alternatively, the defendants contend that the trial court properly rejected the plaintiffs’ nonconforming use claim. We agree with the plaintiffs.

In their brief to the trial court on appeal from the board’s decision, Gavlak and Hillside argued that the board improperly had failed to address the plaintiffs’ claim that Hillside’s use of the subject property constituted a legal nonconforming use. Gavlak and Hillside argued alternatively that, contrary to the determination of the trial court, the plaintiffs had established then-nonconforming use claim as a matter of law. The fact that Gavlak and Hillside addressed the merits of that claim in support of their alternative argument does not constitute a waiver of their primary argument, namely, that the board was required to address the plaintiffs’ nonconforming use claim in the first instance. We, therefore, reject the defendants’ contention that the plaintiffs now are estopped from seeking a remand of the case to the board for its consideration of the plaintiffs’ nonconforming use claim.

With respect to the merits of the plaintiffs’ contention that they are entitled to such a remand, we repeatedly have stated that “[t]he legality of an extension of a nonconforming use is essentially a question of fact. ... It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.” (Citations omitted; emphasis added; internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 744, 626 A.2d 705 (1993). “Upon appeal the function of the court is [limited] to examining] the record of the hearing before the board to determine whether the conclusions reached are supported by the evidence that was before [the board].” (Internal quotation marks omitted.) Farrington v. Zoning Board of Appeals, 177 Conn. 186, 190, 413 A.2d 817 (1979).

In the present case, the board’s decision to uphold the zoning enforcement officer’s issuance of the cease and desist order was predicated solely on the board’s determination that Hillside’s use of the subject property for the collection, storage and transportation of spring water “does not fall within the scope of agriculture and/ or farming as those terms are defined in the Somers [z]oning [Regulations . . . .” Thus, the board made no factual findings concerning the plaintiffs’ nonconforming use claim and rendered no decision on that claim. In the absence of any such action by the board, the record before the trial court was inadequate for its review of the plaintiffs’ nonconforming use claim. Because the board, not the trial court, was required to render a decision with respect to the plaintiffs’ nonconforming use claim in the first instance, the trial court improperly decided that claim on the merits instead of remanding the case to the board for its consideration of that claim.

The judgment is reversed in part and the case is remanded to the trial court with direction to remand the case to the board for a determination limited to the issue of whether Hillside’s use of the subject property for the collection, storage and transportation of spring water constitutes a legal nonconforming use. The judgment is affirmed in all other respects.

In this opinion the other justices concurred.

       After the commencement of this action, Hillside Spring Water, Inc., changed its name to Hillside Springs Farm, Inc.

       James R. Taylor, the Somers zoning enforcement officer that issued the cease and desist order, also is a defendant in this case.

       “A [nonconforming] use is merely an existing use the continuance of which is authorized by the zoning regulations. . . . Such a use is permitted because its existence predates the adoption of the zoning regulations. . . . The plaintiff bears the burden of proving the existence of a nonconforming use.” (Citations omitted; internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 789, 639 A.2d 519 (1994).

       Between 1991 and 1996, the spring water that Hillside collected had been used in swimming pools. Since 1996, however, the water has been used strictly for human consumption.

       Single-family detached dwellings, multifamily dwellings limited to two units per lot, and utility lines also are permitted in an A-l zone. See Somers Town Code 214-98.

       The definition of the term “farm” under Somers Town Code 214-4 also provides that “[a] farm may include premises used for the raising and keeping of livestock and other domestic animals when permitted by these regulations.” (Internal quotation marks omitted.)

       The Somers Town Code also allows other uses upon the procurement of a special use permit. The plaintiffs, however, do not claim that the collection, storage and transportation of spring water constitutes such a special use.

       General Statutes § 8-7 provides in relevant part: “An appeal may be taken to the zoning board of appeals by any person aggrieved or by any officer, department, board or bureau of any municipality aggrieved and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days, by filing with the zoning commission or the officer from whom the appeal has been taken and with said board a notice of appeal specifying the grounds thereof. . ..”

       General Statutes (Rev. to 1997) § 8-8 (b) provides in relevant part: “Except as provided in subsections (c) and (d) of this section and sections 7-147 and 7-147Í, any person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located. ...”
      General Statutes (Rev. to 1997) § 8-8 (a) (2) includes “zoning board of appeals” within its definition of the word “board” in § 8-8 (b).

       In upholding the board’s decision, the trial court stated that the board had come “to a reasonable conclusion” in applying the definition of the term “agriculture” under Somers Town Code 214-4 to the facts of the case.

       As this court previously has noted, the word “including” may be used either as a word of enlargement or of limitation. E.g., State v. DeFrancesco, 235 Conn. 426, 435, 668 A.2d 348 (1995); Maciejewski v. West Hartford, 194 Conn. 139, 147, 480 A.2d 519 (1984). But cf. Mahoney v. Lensink, 213 Conn. 548, 569, 569 A.2d 518 (1990) (“[t]he legislature’s use of the word ‘including’ rather than the commonly utilized expression, ‘shall include,’ evinces an intention to provide an expansive interpretation of the . . . [statute]”). The board concedes, however, that the use of the word “including” after the words “cultivation of land” in the definition of “agriculture” in Somers Town Code 214-4 was intended to extend the meaning of “cultivation of land” beyond those activities enumerated in the definition. For purposes of this appeal, therefore, we assume that the use of the word “including” in the definition of “agriculture” in Somers Town Code 214-4 suggests that the list of activities that follow, namely, “planting and harvesting of crops, tillage, horticulture and forestry,” comprises a sample of the kind of activities that constitute the cultivation of land, and does not necessarily comprise a complete or exhaustive list of those activities.

       We note, preliminarily, that the plaintiffs assert that the trial court improperly afforded deference to the board’s interpretation of the word “agriculture” as defined in Somers Town Code 214-4 and as applied to the undisputed facts of the present case. In support of this claim, the plaintiffs note that, although the trial court acknowledged that the “definitional issue [was] debatable,” it stated that “the board . . . gave the defined terms their natural and plain meaning, and came to a reasonable conclusion.” The trial court thereafter concluded that “the plaintiffs ha[d] not established that the board acted illegally, arbitrarily or in abuse of [its] discretion.” We acknowledge that some of the language contained in the trial court’s memorandum of decision suggests that the court may have afforded deference to the board’s interpretation of Somers Town Code 214-4, even though no such deference was appropriate. See, e.g., Fullerton v. Dept. of Revenue Services, supra, 245 Conn. 606 (when agency’s determination of question of law previously has not been subject to judicial scrutiny, agency not entitled to special deference). We need not decide whether the trial court improperly deferred to the board’s interprei ation of the applicable regulatory provisions, however, because, under the circumstances of the present case, the scope of our review of the trial court’s determination regarding the board’s decision is plenary. See, e.g., Union Carbide Corp. v. Danbury, 257 Conn. 865, 871, 778 A.2d 204 (2001) (scope of appellate review is plenary when trial court draws conclusions of law in dismissing appeal from decision of board of assessment appeals); see also Fullerton v. Dept. of Revenue Services, supra, 606-607.

       Specifically, the definition of “agriculture” in Somers Town Code 214-4 furnishes the following examples of activities constituting the cultivation of land: “[the] planting and harvesting of crops, tillage, horticulture and forestry . . . .”

       Webster’s Third New- International Dictionary also defines “tillage” as “the improving of land for agricultural purposes . . . .” This definition, however, does not aid our analysis inasmuch as it. uses the term “agriculture" and, therefore, gives rise to the same definitional circularity that we encounter with the definition of the term “cultivation.”

       “Plant” means “to put or set in the ground for growth [or] to set or sow with seeds or plants . . . .” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993).

       This court previously has held that “the dominant and distinguishing characteristic of [farming], in both the popular and the legal sense of the term, is the cultivation of the soil for the production of crops therefrom.” Chudnov v. Board of Appeals, 113 Conn. 49, 51-52, 154 A. 161 (1931); cf. Zoning Commission v. Lescynski, 188 Conn. 724, 729, 453 A.2d 1144 (1982) (examining common-law definition of farming). In Chudnov, we construed a zoning regulation that exempted from restriction the use or erection of buildings in a residential zone for, inter alia, “[f]arming, truck gardening, nurseries or greenhouses.” (Internal quotation marks omitted.) Chudnov v. Board of Appeals, supra, 51. The plaintiff in Chudnov applied for a permit to erect a poultry house in a residential zone. Id. The foregoing activities were not defined in the zoning regulations. See generally id., 51-52. After noting that all of these activities, “[to] a degree, involve[d] the tillage of the soil and production of crops and in that respect [were] not inappropriate to farming in the broad sense”; id., 55; we concluded that the plaintiffs proposed use did not constitute farming within the meaning of the applicable regulation. Id., 56.

         Under the applicable zoning ordinance at issue in Waitsfield, agricultural uses were defined as “[t]he growing or harvesting of crops; raising of livestock; operation of orchards, including maple sugar orchards; the sale of farm produce on the premises where raised; processing or storage of products raised on the property.” (Internal quotation marks omitted.) Houston v. Waitsfield, supra, 162 Vt. 478.

       The landowner in Waitsfield, like Hillside, sought to pump water directly from the underground aquifer into trucks for transportation off the property. Houston v. Waitsfield, supra, 162 Vt. 478 n.4.

       General Statutes § 1-1 (q) provides: “Except as otherwise specifically defined, the words ‘agriculture’ and ‘farming’ shall include cultivation of the soil, dairying, forestry, raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, including horses, bees, poultry, fur-bearing animals and wildlife, and the raising or harvesting of oysters, clams, mussels, other molluscan shellfish or fish; the operation, management, conservation, improvement or maintenance of a farm and its buildings, tools and equipment, or salvaging timber or cleared land of brush or other debris left by a storm, as an incident to such farming operations; the production or harvesting of maple syrup or maple sugar, or any agricultural commodity, including lumber, as an incident to ordinary farming operations or the harvesting of mushrooms, the hatching of poultry, or the construction, operation or maintenance of ditches, canals, reservoirs or waterways used exclusively for farming purposes; handling, planting, drying, packing, packaging, processing, freezing, grading, storing or delivering to storage or to market, or to a carrier for transportation to market, or for direct sale any agricultural or horticultural commodity as an incident to ordinary farming operations, or, in the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market or for direct sale. The term ‘farm’ includes farm buildings, and accessory buildings thereto, nurseries, orchards, ranges, greenhouses, hoophouses and other temporary structures or other structures used primarily for the raising and, as an incident to ordinary farming operations, the sale of agricultural or horticultural commodities. The term ‘aquaculture’ means the farming of the waters of the state and tidal wetlands and the production of protein food, including fish, oysters, clams, mussels and other molluscan shellfish, on leased, franchised and public underwater farm lands. Nothing herein shall restrict the power of a local zoning authority under chapter 124.”

       We note, moreover, that General Statutes § 1-1 (q) provides that “[n]othing [tjherein shall restrict the power of a local zoning authority under chapter 124 [of the General Statutes].”

       In Zoning Commission v. Lescynski, 188 Conn. 724, 725, 453 A.2d 1144 (1982), this court considered whether it was permissible, under the zoning regulations of the town of Sherman, to operate a slaughterhouse onpremises located in an area of the town that was zoned for farming and residential purposes. The landowners claimed that the operation of a slaughterhouse was a permitted farming use under the applicable zoning regulations. Id., 728. The term “farming” was not defined in those regulations, and the landowners maintained that they were entitled to rely on the definition of that term contained in § 1-1 (q); id., 729; see footnote 19 of this opinion; rather than the common-law definition. See footnote 16 of this opinion. We assumed arguendo that the statutory definition was applicable, but nevertheless rejected the landowners’ contention that the operation of a slaughterhouse fell within the purview of § 1-1 (q). Zoning Commission v. Lescynski, supra, 730. As we already have indicated, § 1-1 (q) does not apply to the present case because the term “agriculture” is defined in the applicable Somers zoning regulation.

       General Statutes § 19a-341, which incorporates the amendments to General Statutes (Rev. to 1997) § 19a-341 by virtue of Spec. Sess. P.A. 97-11, § 53, provides in relevant part: “(b) Notwithstanding any general statute or municipal ordinance or regulation pertaining to nuisances, no operation to collect spring water or well water, as defined in section 21a-150, shall be deemed to constitute a nuisance, either public or private, due to alleged objectionable noise from equipment used in such operation provided the operation (1) conforms to generally accepted practices for the collection of spring water or well water, (2) has received all approvals or permits required by law, and (3) complies with the local zoning authority’s time, place and manner restrictions on operations to collect spring water or well water. . . .”

       On appeal, the plaintiffs also argue that, even if we conclude that the collection, storage and transportation of spring water is not an agricultural use, that activity takes place on a farm, and, therefore, is permitted. We disagree.
      Somers Town Code 214-4 defines “accessory use” as “[a] use of land . . . which is subordinate or incidental to the principal use of the land,” and Somers Town Code 214-98 authorizes such an accessory use on property located in an A-l zone. Thus, under the Somers zoning regulations, an activity that is not expressly authorized nevertheless is permitted if it is carried on in connection with and incidental and subordinate to apermitted agricultural use. See Somers Town Code 214-4, 214-98; see also Chudnov v. Board of Appeals, 113 Conn. 49, 52, 154 A. 161 (1931) (at common law, “stock-raising, dairying, and kindred activities are legitimately to be considered as a part of and included within farming when carried on in connection with and incidental and subordinate to tillage of the soil”).
      The only agricultural uses expressly permitted by the Somers zoning regulations are the cultivation of land and the raising of livestock. Somers Town Code 214-4. The collection and storage of spring water for the purpose of transporting it off the premises to be bottled and sold for human consumption is not connected with and incident and subordinate to those permitted uses. It is, rather, “a. distinct, and independent business and use.” Chudnov v. Board of Appeals, supra, 113 Conn. 55; see also Zoning Commission v. Lescynski, 188 Conn. 724, 730, 453 A.2d 1144 (1982) (“[n]othing in [the] . . . language [of § 1-1 (q)] norm [that statute’s] legislative history persuades us that the legislature meant to include within the definition of farming the regular, commercially organized slaughtering of livestock having no relationship to the farm itself’ [emphasis added]). Accordingly, the plaintiffs cannot prevail on their claim that Hillside’s use of a portion of the subject property for the collection, storage and transportation of spring water is permitted merely because some or all of the remaining 200 acres that comprise the subject property are used for agricultural purposes.

       Of course, either party may obtain Superior Court review of an adverse decision by the board. See General Statutes § 8-8 (b).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DONALD D. BOWERS v. FLORENCE IRENE BOWERS
    (SC 16473)
    Sullivan, C. J., and Norcott, Katz, Vertefeuille and Ronan, Js.
    Argued October 24
    officially released December 11, 2001

      Brian M. Silver, for the appellant (plaintiff).

      Robert H. Weinstein, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Donald D. Bowers, appeals, following our grant of certification, from the judgment of the Appellate Court, which affirmed the trial court’s judgment holding the plaintiff in contempt of court for wilfully violating the court’s order regarding a child support arrearage. Bowers v. Bowers, 61 Conn. App. 75, 762 A.2d 515 (2000). We granted the plaintiffs petition for certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that the trial court had properly concluded that the plaintiff had wilfully violated an order of the court?” Bowers v. Bowers, 255 Conn. 939, 767 A.2d 1121 (2001).

After examining the entire record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was improvidently granted.

The appeal is dismissed.


text:
    GLORIA TRIMEL v. LAWRENCE AND MEMORIAL HOSPITAL REHABILITATION CENTER ET AL.
    (SC 16493)
    Norcott, Katz, Palmer, Zarella and Cutsumpas, Js.
    Argued November 2
    officially released December 11, 2001

      William F. Gallagher, with whom, on the brief, was Thomas J. Airone, for the appellant (plaintiff).

      Michael E. Driscoll, with whom, on the brief, was Jeffrey F. Buebendorf, for the appellees (defendants).
   Opinion

PER CURIAM.

In this medical malpractice action, we granted the petition of the plaintiff, Gloria Trimel, for certification to appeal from the judgment of the Appellate Court affirming the trial court’s granting of the motion for summary judgment filed by the defendants, Lawrence and Memorial Hospital Rehabilitation Center and Flanders Health Center. Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn. App. 353, 364, 764 A.2d 203 (2001). At issue is whether the trial court properly concluded that the allegations concerning the plaintiffs fall from a wheelchair during a physical therapy session conducted on the defendants’ premises asserted a claim of medical malpractice, rather than ordinary negligence, thereby requiring the filing of a certificate of good faith pursuant to General Statutes § 52-lOOa. We granted certification limited to the following issue: “Did the trial court, in holding that all the plaintiffs claims sounded in medical malpractice rather than in ordinary negligence, usurp the function of a jury by deciding a question of fact in a summary judgment motion?” Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 255 Conn. 948, 769 A.2d 64 (2001).

Having reviewed the record on appeal and having considered the briefs and oral arguments of the parties, we conclude that the appeal in this case should be dismissed on the ground that certification was improvidently granted.

The appeal is dismissed.

       General Statutes § 52-190a (a) provides in relevant part: “No civil action shall be filed to recover damages resulting from personal injury ... in which it is alleged that such injury . . . resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. . .


author: BORDEN, J.

text:
    ALICE SABLOSKY v. MICHAEL SABLOSKY
    (SC 16472)
    Sullivan, C. J., and Borden, Norcott, Katz and Palmer, Js.
    Argued September 12
    officially released December 11, 2001

      William R. Moller, with whom were Benjamin T. Staskiewicz and, on the brief, Michael Ruben Peck, for the appellant (plaintiff).

      Henry B. Hurvitz, with whom, on the brief, was Paula Gates, for the appellee (defendant).
   Opinion

BORDEN, J.

The dispositive issue in this certified appeal is whether, as a matter of law, a party may be found in contempt of court for not complying with the ambiguous terms of a support agreement incorporated into a judgment of dissolution. Following our grant of certification, the plaintiff, Alice Sablosky, appeals from the judgment of the Appellate Court reversing the judgment of the trial court. Sablosky v. Sablosky, 61 Conn. App. 66, 73, 762 A.2d 922 (2000). The trial court had held the defendant, Michael Sablosky, in contempt of court for wilfully failing to comply with certain provisions of the dissolution judgment regarding payment of the college expenses for the parties’ children. The Appellate Court held that: (1) the defendant could not be held in contempt because the terms of the judgment were ambiguous; id., 72; and (2) the trial court’s order of damages, attorney’s fees and costs must be vacated because they flowed from the finding of contempt. Id., 72-73. We conclude that an ambiguity in the terms of a judgment does not, as a matter of law, preclude a finding of contempt for the wilful failure to comply with the judgment. Accordingly, we reverse the judgment of the Appellate Court to the contrary.

The plaintiff moved for contempt against the defendant, alleging that the defendant had failed to comply with certain terms of the judgment dissolving the marriage of the parties. The trial court found the defendant in contempt of court, and ordered him to pay the arrearages and the plaintiffs attorney’s fees and costs. The defendant appealed to the Appellate Court, which reversed the judgment of the trial court and directed it to render judgment for the defendant. Id., 73. This certified appeal followed.

The following facts and procedural history are relevant to this appeal. The marriage of the parties, who had two children, Shannon and Michael, was dissolved on July 12, 1993. Incorporated into the judgment of dissolution was a written postmajority support provision, which previously had been agreed to by the parties. One of the orders contained in the judgment, entitled “Child Support/Education/Transportation,” required the defendant to contribute to the children’s postsecondary education as follows: “The defendant husband shall be responsible for payment of college tuition and books for Shannon and Michael, Jr., at a cost equivalent to the University of Connecticut at Storrs. . . . The defendant husband and plaintiff wife shall divide equally the cost of college room and board for Shannon and Michael, Jr., at an expense not to exceed the cost of the University of Connecticut at Storrs. . . . The defendant husband shall provide Shannon with transportation, or reimbursement for the cost thereof, while she is an undergraduate college student. . . . The defendant husband and plaintiff wife shall divide equally the cost of automobile insurance for both Shannon and Michael, Jr., while they are undergraduate college students.”

On June 15, 1998, the plaintiff moved to hold the defendant in contempt of court, alleging that the defendant had failed to fulfill all of his obligations regarding the children’s college expenses. At the hearing on the motion, the parties offered different interpretations concerning the scope and duration of the provisions. The plaintiff argued that the defendant was financially responsible, without limitation, for as long as the children remained in college. The defendant urged the trial court to limit his obligation to “when the children are attending a 4-year institution of higher learning, pursuing a full-time course of study leading to a Bachelor’s degree” or, alternatively, to “an amount directly proportional to the course load successfully undertaken by the children, during those semesters when they are enrolled in school.”

The trial court determined that the phrase in the support provision, “undergraduate college student,” was ambiguous, and then interpreted it to mean “a student attending a postsecondary school for four years . . . .” Based on that interpretation, the court concluded that the defendant was responsible for “college tuition, one half of living expenses, car insurance, and Shannon’s transportation so long as each was enrolled in school. However . . . the intention of the parties did not extend to enrollment beyond eight semesters, whether those were full-time or part-time semesters.” The trial court found the defendant in contempt “for his wilful failure to comply with the orders contained in the [dissolution] judgment,” and ordered the defendant to pay arrearages, attorney’s fees and costs.

The Appellate Court reversed the trial court’s judgment of contempt, concluding that because the term, “undergraduate college student,” was ambiguous, there could be no finding of wilfulness, which is a prerequisite for a finding of contempt. Sablosky v. Sablosky, supra, 61 Conn. App. 72. The Appellate Court then vacated the award of arrearages, costs and attorney’s fees because, in its view, they flowed solely from the finding of contempt. Id., 72-73.

I

The plaintiff first claims that the Appellate Court improperly reversed the trial court’s judgment of contempt. The Appellate Court concluded that, as a matter of law, the defendant could not be held in contempt for failing to comply with ambiguous terms of a judgment because such an ambiguity prevented a finding of wilfulness. Id., 72. We conclude to the contrary.

“In order to constitute contempt, a party’s conduct must be wilful. Connolly v. Connolly, 191 Conn. 468, 483, 464 A.2d 837 (1983). The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court. . . . One cannot be placed in contempt for failure to read the court’s mind.... Blaydes v. Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982). A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor’s nonpayment was wilful. This does not mean, however, that such a dispute or misunderstanding will preclude a finding of wilfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within the trial court’s discretion. [Also, it] is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court’s order. Marcil v. Marcil, 4 Conn. App. 403, 405, 494 A.2d 620 (1985).” (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998).

The reasoning of Eldridge is instructive in the present case. In Eldridge, the couple’s marriage was dissolved in November, 1983. As part of the dissolution, the plaintiff was ordered to make monthly alimony payments, the amount of which was to be reduced if the defendant began earning more than $25,000 per year. Id., 525. The Appellate Court affirmed the judgment of the trial court, noting that once the defendant’s income exceeded $25,000, “the initial award would be subject to modification upon motion by the plaintiff.” (Emphasis added.) Eldridge v. Eldridge, 4 Conn. App. 489, 494, 495 A.2d 283 (1985).

In 1987, the defendant began to earn in excess of $25,000, but did not notify the plaintiff until July, 1994. Eldridge v. Eldridge, supra, 244 Conn. 525. The plaintiff, believing that he was owed a credit for seven years of excess payments, unilaterally decided to withhold further payments, and filed a motion for an order to determine the extent of the credit. Id., 526. Subsequently, the defendant moved to hold the plaintiff in contempt for failing to comply with the current support order. Id. The trial court concluded that, although the plaintiff was owed a credit, he should be held in contempt because he had “wilfully . . . failed to pay alimony . . . .’’Id.

On the plaintiff’s subsequent appeal to this court from the judgment of contempt, we stated: “In rejecting the plaintiff’s claim that this constituted a legitimate basis upon which to justify his behavior, the trial court stated: ‘The short answer to that claim is that he was required to file a motion for modification before he would be entitled to any credit.’ Relying on the Appellate Court’s opinion in the plaintiffs appeal from the judgment of dissolution; Eldridge v. Eldridge, supra, 4 Conn. App. 494; the trial court determined that ‘[t]he plaintiff knew or should have known that he was not entitled to terminate the order unilaterally himself.’ ” Eldridge v. Eldridge, supra, 244 Conn. 529-30.

In affirming the judgment of contempt, we reiterated the rule that “[a]n order of the court must be obeyed until it has been modified or successfully challenged.” (Internal quotation marks omitted.) Id., 530; Mulholland v. Mulholland,, 229 Conn. 643, 649, 643 A.2d 246 (1994) (“a party has a duty to obey a court order however erroneous the action of the court may be” [internal quotation marks omitted]). We also stated that “[t]he fact that the plaintiff exercised self-help when he was not entitled to do so ... by disobeying the court’s order without first seeking a modification was a sufficient basis for the trial court’s contrary exercise of discretion. The court was entitled to determine that to exonerate the plaintiff would be an undue inducement to litigants’ exercise of self-help.” (Emphasis added.) Eldridge v. Eldridge, supra, 244 Conn. 532.

Although in Eldridge, the plaintiff previously had been put on formal notice by the intervening decision of the Appellate Court of the need to use the judicial process to seek a modification and thereby avoid self-help; Eldridge v. Eldridge, supra, 4 Conn. App. 494; and although that notice was a significant factor in our resolution of the case, in our view Eldridge did not turn on that fact. In pointing to the availability of a motion for modification based on a change in circumstances, the Appellate Court was merely articulating what the law.required. Thus, the intervening language of the Appellate Court in Eldridge merely reaffirmed the plaintiffs legal obligation, namely, to move for modification, rather than to seek self-help.

Similarly, in the present case, we conclude that where there is an ambiguous term in a judgment, a party must seek a clarification upon motion rather than resort to self-help. The appropriate remedy for doubt about the meaning of a judgment is to seek a judicial resolution of any ambiguity; it is not to resort to self-help. We note that, despite any ambiguities in the dissolution judgment, the defendant acknowledged in the trial court that he was in violation of the court order regarding payment of his children’s college tuition. Furthermore, at oral argument before this court he conceded that, regarding the tuition, he was in contempt of court and should have been ordered to comply. These concessions seriously undermine any contention that the ambiguity entitled the defendant to eschew seeking the court’s advice and, instead, to resort to self-help.

Just as a “good faith belief that [the plaintiff] was justified in suspending periodic alimony payments”; Eldridge v. Eldridge, supra, 244 Conn. 528; did not automatically preclude a finding of wilfulness in Eldridge, neither does an ambiguous order in the present case. As previously stated, although there may be circumstances in which an ambiguity in an order may preclude a finding of contempt, “[w]hether it will preclude such a finding is ultimately within the trial court’s discretion. It is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court’s order.” (Internal quotation marks omitted.) Id., 529.

This holding is especially important in the context of child support orders. “ ‘Both state and national policy has been, and continues to be, to ensure that all parents support their children and that children who do not live with their parents benefit from adequate and enforceable orders of child support. Turner v. Turner, 219 Conn. 703, 713-20, 595 A.2d 297 (1991); 42 U.S.C. § 651 et seq. (Part D of Title IV of the Social Security Act). Child support is now widely recognized as an essential component of an effective and comprehensive family income security strategy. See generally A. Houseman, “Poverty Law Developments and Options for the 1990s,” 24 Clearinghouse Review 2, 5-7 (1990); P. Roberts, “Child Support and Beyond: Mapping a Future for America’s Low-Income Children,” 22 Clearinghouse Review 594 (1988). As with any income source, the effectiveness of child support in meeting the needs of children is, of necessity, increased when payments are made regularly and without interruption.’ Mulholland [v. Mulholland, 31 Conn. App. 214, 224, 624 A.2d 379 (1993)].” Mulholland v. Mulholland, supra, 229 Conn. 651-52.

A different conclusion would not only “ ‘frustrate clearly defined public policy regarding the parental obligation to support minor children’ id., 651; but it also would encourage parties to refrain from seeking clarifications of ambiguous court orders. The doors of the courthouse are always open; it is incumbent upon the parties to seek judicial resolution of any ambiguity in the language of judgments.

The present situation is similar to that in which a party makes a motion for modification of a support order on the ground of a substantial change in circumstances. Although one party may believe that his or her situation satisfies this standard, until a motion is brought to and is granted by the court, that party may be held in contempt in the discretion of the trial court if, in the interim, the complaining party fails to abide by the support order. See, e.g., Mallory v. Mallory, 207 Conn. 48, 57, 539 A.2d 995 (1988) (trial court did not abuse discretion in holding defendant in contempt for not making child support payments on grounds of inability to pay where defendant did not seek modification of support order until after plaintiff instituted contempt proceedings); Bozzi v. Bozzi, 177 Conn. 232, 238, 413 A.2d 834 (1979) (finding of contempt proper where defendant ceased making child support payments due to erroneous belief that plaintiffs failure to allow visitation suspended or terminated obligation, where defendant did not first seek and have granted modification of order).

The defendant, as did the Appellate Court, points to our language in Eldridge wherein we reaffirmed that “[o]ne cannot be placed in contempt for failure to read the court’s mind”; (internal quotation marks omitted) Eldridge v. Eldridge, supra, 244 Conn. 529; as support for the proposition that an ambiguous order precludes a finding of contempt. Sablosky v. Sablosky, supra, 61 Conn. App. 72. We do not agree with the expansive meaning attributed to that language by the defendant. The language in Eldridge merely suggests that, if a reviewing court determines that an order lacks such clarity as to make compliance impossible, giving due consideration to the action, or lack thereof, of the parties, a subsequent contempt finding would be improper. See Eldridge v. Eldridge, supra, 244 Conn. 529-32. The burden, however, remains on “[t]he contemnor [to] establish that he cannot comply, or was unable to do so.” (Internal quotation marks omitted.) Id., 532. This is consistent with earlier decisions, where we have reversed contempt judgments where the contemnor has adequately demonstrated why such a judgment should not lie. See, e.g., Issler v. Issler, 250 Conn. 226, 241, 737 A.2d 383 (1999) (“[b]ecause the defendant’s actions comported with the only sensible interpretation of the agreement, the trial court improperly found him in contempt of court”); Baldwin v. Miles, 58 Conn. 496, 502, 20 A. 618 (1890) (“we think the language of the injunction is too vague and indefinite to be the foundation of proceedings in contempt”).

We emphasize that we hold only that a finding of wilfulness as a predicate to a judgment of contempt of court is not barred, as a matter of law, by the fact that the terms of the judgment involved are ambiguous. Such ambiguity is merely one of the factors for the trial court to take into consideration in exercising its discretion regarding a finding of wilfulness. Cf. Eldridge v. Eldridge, supra, 244 Conn. 529. Similarly, such ambiguity is one of the factors for a reviewing court to take into account in determining whether the trial court abused its discretion. We emphasize also that, even if the court determines that because of such an ambiguity contempt would not be warranted, it may nonetheless enter an appropriate order of payment based on its interpretation of the judgment.

II

With respect to the second certified question, the plaintiff claims that the Appellate Court improperly vacated the trial court’s award of damages, costs and attorney’s fees. The Appellate Court vacated the award solely because it stemmed from what the Appellate Court regarded as the legally flawed contempt finding. Sablosky v. Sablosky, supra, 61 Conn. App. 73 n.3. Consequently, the Appellate Court did not consider the defendant’s other challenges to the trial court’s judgment. See footnote 2 of this opinion. It would be imprudent, therefore, for us to address the second certified question now. We leave that question to be considered by the Appellate Court in conjunction with the defendant’s remaining appellate claims. Because we reverse the Appellate Court’s judgment on the issue of contempt, we need not consider, therefore, whether the financial award was in error.

The judgment of the Appellate Court is reversed and the case is remanded to that court to consider the defendant’s remaining claims on appeal.

In this opinion the other justices concurred.

       We granted the plaintiffs petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly conclude that: (1) the trial court’s judgment of contempt must be reversed; and (2) the trial court’s award of damages, attorney’s fees and costs must be vacated?” Sablosky v. Sablosky, 255 Conn. 938, 767 A.2d 1213 (2001).

       Because the Appellate Court reversed the finding of contempt based on a lack of wilfulness on the defendant’s pari, to violate the order contained in the dissolution judgment, the Appellate Court did not consider the defendant's other grounds for reversing the contempt judgment, namely, that the defendant could not wilfully have failed to make the required payments because the plaintiff never had made him aware of the amount allegedly due, and that the defendant did not have the financial means to obey the order of the court. Sablosky v. Sablosky, Conn. Appellate Court, Records & Briefs, September Term, 2000, Defendant’s Brief pp. 21-28. Additionally, the Appellate Court did not address the defendant’s remaining claims that “the [trial] court improperly calculated the damages awarded to the plaintiff, abused its discretion by awarding the plaintiff attorney’s fees and costs, and improperly found that the plaintiffs claim was not barred by the doctrines of waiver, laches and equitable estoppel.” Sablosky v. Sablosky, supra, 61 Conn. App. 72. Because we reverse the judgment of the Appellate Court on the limited certified issue of whether, as a matter of law, an ambiguity in a dissolution judgment precludes a finding of wilfulness, we leave these claims to be considered by the Appellate Court on our remand.

       The defendant argues that we should not consider the first certified question: see footnote 1 of this opinion; because the plaintiff has not adequately briefed it. Although the plaintiff’s brief pays scant, if any, attention to the legal question of whether an ambiguity in the terms of a dissolution judgment precludes a subsequent finding of wilfulness for the failure to comply with it, the defendant has briefed this question, it, is the question that we certified, and it raises an important question of law, the answer to which would give guidance to our trial courts. See George v. Ericson, 250 Conn. 312, 319, 736 A.2d 889 (1999). We therefore choose to address it.


author: VERTEFEUILLE, J.

text:
    ANN DIAZ v. HOUSING AUTHORITY OF THE CITY OF STAMFORD ET AL.
    (SC 16324)
    Borden, Norcott, Katz, Palmer and Vertefeuille, Js.

      Argued September 25
    officially released December 18, 2001

      James T. Baldwin, with whom, on the brief, was Gregory F. Lisowski, for the appellants (substitute plaintiffs).

      James L. Sullivan, for the appellee (named defendant).
   Opinion

VERTEFEUILLE, J.

The sole question in this certified appeal is whether an employer violates General Statutes § 31-290a when it discharges an employee solely on the basis that the employee, who claims a continued inability to work, fails to return to work following a compensable injury despite having been cleared to do so by his or her treating physician. We conclude that discharging an employee under such circumstances does not constitute a violation of § 31-290a. Accordingly, we affirm the judgment of the Appellate Court.

Pursuant to § 31-290a, the plaintiff, Ann Diaz, filed a complaint with the workers’ compensation commission alleging that the named defendant, the housing authority of the city of Stamford (defendant), had terminated her employment in violation of § 31-290a because she had exercised the rights afforded her under the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. A workers’ compensation commissioner (commissioner) dismissed the plaintiffs claim, finding that her discharge, although “patently unfair,” was not a violation of § 31-290a. The plaintiff appealed from the commissioner’s decision to the Appellate Court. The Appellate Court affirmed the decision of the commissioner in a per curiam opinion without discussion. Diaz v. Housing Authority, 56 Conn. App. 913, 747 A.2d 59 (2000). We thereafter granted the plaintiffs petition for certification to appeal to this court. This appeal followed.

The record reveals the following facts, which guide our resolution of this appeal. The plaintiff was employed as a housekeeper for the defendant from November, 1993, until April, 1996. On April 22, 1996, during the course of her employment, the plaintiff suffered a compensable injury to her right thumb. At the defendant’s direction, the plaintiff sought treatment from Robert Sterling, a physician, the following day. Despite the plaintiffs complaints of persistent pain in the injured thumb, Sterling released the plaintiff to return to light duty work effective April 24, 1996, and to full duty the following Monday, April 29. On April 23, the same day that she was treated by Sterling, the plaintiff called her supervisor to inform her that, notwithstanding Sterling’s release, she would not be returning to work on April 24, but rather would return on Monday, April 29. The plaintiff did not report to work on April 24 because of the continued pain and discomfort in her right thumb. On April 24, the defendant terminated the plaintiffs employment effective April 26, 1996. The commissioner found that the sole reason for the plaintiffs discharge was her failure to return to work on April 24, in accordance with Sterling’s instructions.

In the administrative proceedings before the commissioner, the plaintiff claimed that she had been discharged from her job with the defendant because she had exercised her rights under the act. Specifically, the plaintiff argued that her claim of incapacity to work, although contrary to Sterling’s opinion, was “the purest form of an injured employee exercising her rights afforded to her pursuant to [the act].” The plaintiff alleged, in effect, that she had been acting within the rights afforded her by the act when she did not report to work on April 24,1996. Since the plaintiffs discharge was due solely to her absence from work on that date, she claimed that her discharge violated § 31-290a because, under the burden-shifting analysis adopted by this court in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54, 578 A.2d 1054 (1990), she had presented a prima facie case of unlawful employment discrimination, which the defendant had failed to rebut.

After two formal hearings and the submission of briefs by the parties, the commissioner concluded that the defendant’s termination of the plaintiffs employment did not violate § 31-290a. The commissioner found that the sole reason for the plaintiffs discharge had been her failure to return to work on April 24, in accordance with Sterling’s instructions, and determined that her discharge on that ground did not constitute a violation of the statute. The commissioner concluded: “The evidence presented at the formal hearings does not lead me to conclude that the [defendant] discharged, or in any manner discriminated against the [plaintiff] because the [plaintiff] had filed a claim of [workers’ [compensation benefits, or otherwise exercised the rights afforded to her pursuant to the provisions of [the act].” The commissioner did not apply expressly the Ford burden-shifting analysis in reaching this conclusion.

On appeal to this court, the plaintiff claims that the commissioner improperly failed to apply the burden-shifting analysis delineated in Ford. Had the Ford standard been applied, the plaintiff contends, it would have been apparent that she had established a prima facie case of discrimination pursuant to § 31-290a, which the defendant failed to rebut. The defendant responds that the plaintiff failed to establish a prima facie case of discrimination in violation of § 31-290a. Specifically, the defendant argues that the plaintiff failed to demonstrate that she had been exercising rights afforded her under the act, a necessary element of establishing a prima facie case. The defendant asserts that nothing in the act gave the plaintiff the right to refuse to return to work and to disregard unilaterally the medical opinion of her treating physician, who had cleared the plaintiff for light duty. The plaintiffs failure to report to work on April 24, the defendant contends, was, therefore, not an exercise of any right under the act, and, accordingly, the plaintiff failed to offer any evidence that would support a prima facie case of unlawful discrimination.

We conclude that the commissioner’s failure to follow the Ford burden-shifting analysis was improper. We also conclude, however, that the impropriety was harmless because the facts of this case, as found by the commissioner, clearly demonstrate that, as a matter of law, the plaintiff failed to establish a prima facie case of discrimination under § 31-290a.

“In setting forth the burden of proof requirements in a § 31-290a action, we look to federal law for guidance.” Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 216 Conn. 53. “In McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the United States Supreme Court set forth the basic allocation of burdens and order of presentation of proof in cases involving claims of employment discrimination. The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. ... In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination. ... If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions. ... If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. . . . The plaintiff then must satisfy her burden of persuading the factfinder that she was the victim of discrimination either directly by persuading the court. . . that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” (Citations omitted; internal quotation marks omitted.) Ford v. Blue Cross & Blue Shield of Connecticut, Inc., supra, 53-54.

Section 31-290a (a) provides: “No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.” It is undisputed that the plaintiff had not filed a claim for workers’ compensation benefits prior to her discharge. The only question in this case, therefore, is whether the defendant discriminated against the plaintiff because she had “otherwise exercised the rights afforded” her under the act.

To establish a prima facie case of discrimination under § 31-290a, the plaintiff must show that she was exercising a right afforded her under the act and that the defendant discriminated against her for exercising that right. The commissioner in this case found that “the evidence clearly shows that the sole reason for the termination of the [plaintiffs] employment was for her failure to return to work as per [Sterling’s] instructions . . . .” The plaintiff, therefore, must establish that the act gave her the right to decline to return to work because of her claimed inability to do so, notwithstanding Sterling’s opinion to the contrary. We are unable to find any provision of the act that grants a plaintiff the right to disregard the opinion of his or her treating physician—the only medical opinion obtained in the present case—and to decide unilaterally that he or she is unable to return to work. Nothing in the act grants an employee the discretion to make such a medical determination. In the present case, since the plaintiffs failure to return to work was the sole reason for her discharge, the facts unequivocally demonstrate that the plaintiff has failed to produce any evidence of unlawful discrimination in violation of § 31-290a. The plaintiff, therefore, has failed, as a matter of law, to establish a prima facie case of discrimination. Accordingly, the commissioner’s failure to apply the Ford burden-shifting analysis to the facts of the case was harmless error. See Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 112, 671 A.2d 349 (1996) (hearing officer’s use of incorrect burden-shifting analysis was harmless error because “factual findings, which the hearing officer reached irrespective of any particular mode of legal analysis employed, necessarily require[d]” same result); see also Adriani v. Commission on Human Rights & Opportunities, 220 Conn. 307, 329 n.21, 596 A.2d 426 (1991) (if evidence supports only one conclusion as matter of law, result should be affirmed notwithstanding error of hearing officer).

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 31-290a provides in relevant part: “Discharge or discrimination prohibited. Right of action, (a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.
      “(b) Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge. The court may also award punitive damages. Any employee who prevails in such a civil action shall be awarded reasonable attorney’s fees and costs to be taxed by the court; or (2) file a complaint with the chairman of the Workers’ Compensation Commission alleging violation of the provisions of subsection (a) of this section. . . . The commissioner may award the employee the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he otherwise would have been eligible if he had not been discriminated against or discharged. Any employee who prevails in such a complaint shall be awarded reasonable attorney’s fees. Any party aggrieved by the decision of the commissioner may appeal the decision to the Appellate Court.”

       The plaintiff died during the pendency of this appeal. A motion to substitute the joint administrators of her estate as the plaintiffs was granted on June 25, 2001. For convenience, we will refer to Diaz as the plaintiff.

       The insurer for the Stamford housing authority also was named as a defendant in this case but is not involved in this appeal. References herein to the defendant are to the housing authority.

       The certified issue in this appeal is: “Whether an employee’s discharge lor not returning to work, while claiming she was unable to do so because of a compensable injury within two days of her discharge, constitutes a prima facie violation of General Statutes § 31-290a, requiring the employer to show a legitimate, nondiscriminatory reason for the discharge pursuant to Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 578 A.2d 1054 (1990)?” Diaz v. Housing Authority, 253 Conn. 917, 755 A.2d 214 (2000).

       When Sterling released the plaintiff to return to light duty work, he specifically instructed her to avoid grasping with her right hand. The plaintiffs normal duties as a housekeeper included vacuuming, sweeping and mopping floors, as well as scrubbing toilets, showers and bathroom walls, all of which involved grasping with the right hand.

       The plaintiffs regular workdays were Monday, Tuesday and Wednesday.

       “It is the commissioner who has the power and the duty to determine the facts . . . .” (Citation omitted.) Besade v. Interstate Security Services, 212 Conn. 441, 448, 562 A.2d 1086 (1989). Neither party in this case has challenged the commissioner’s findings of fact on appeal.


text:
    SCOTT JOHNSON v. VICTORIA DE TOLEDO ET AL.
    (SC 16475)
    Sullivan, C. J., and Norcott, Katz, Palmer and Zarella, Js.
    Argued October 24
    officially released December 18, 2001

      Anthony M. Modugno, with whom, on the brief, was Frank Modugno, for the appellant (plaintiff).

      JohnM. Gasidlo, for the appellees (named defendant et al.).
   Opinion

PER CURIAM.

The plaintiff, Scott Johnson, doing business as Viking Painting, appeals, following our grant of certification, from the judgment of the Appellate Court, which affirmed the trial court’s judgment granting the application of the defendant homeowners, Victoria de Toledo and Stewart M. Casper, to discharge the mechanic’s hen filed by the plaintiff against their property. Johnson v. de Toledo, 61 Conn. App. 156, 763 A.2d 28 (2000). We granted the plaintiffs petition for certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that the trial court had used the proper standard of proof in discharging the plaintiffs mechanic’s lien?” Johnson v. de Toledo, 255 Conn. 938, 767 A.2d 1212 (2001).

After examining the entire record on appeal and considering the briefs and oral arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was improvidently granted.

The appeal is dismissed.