Randazzo v. Sakon ( 2018 )

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MARY RANDAZZO v. JOHN ALAN SAKON
(AC 39197)
Alvord, Bright and Lavery, Js.
Syllabus
The plaintiff landowner sought to recover damages arising out of the defen-
dant’s breach of an agreement to pay the property taxes on a portion
of the plaintiff’s property that allowed road access to the defendant’s
commercial property development and over which the defendant held
an easement. The matter was tried before an attorney fact finder, who
recommended that judgment be rendered in favor of the plaintiff, includ-
ing an award of statutory interest (§ 37-3a). The trial court rendered
judgment in the plaintiff’s favor, from which the defendant appealed to
this court. Thereafter, the trial court sought clarification from the fact
finder regarding his recommended award of interest and rendered judg-
ment in accordance with the fact finder’s clarification, and the defendant
filed an amended appeal. Held:
1. The trial court properly applied the six year statute of limitations (§ 52-
576 [a]) for breach of contract actions, rather than the three year statute
of limitations (§ 52-598a) for indemnification actions: in his report, the
fact finder determined that the plaintiff sent the defendant annual bills
for the amount of taxes related to the easement portion of her property,
but that the defendant refused to pay, and that she commenced this
action to enforce her rights under a certain global settlement agreement
between the parties, seeking reimbursement for money that the defen-
dant had agreed to pay the plaintiff as set forth in the easement deed,
and not to recover damages for which she was found to be liable to a
third party; moreover, to the extent that the defendant claimed that
because he did not sign the easement before it was recorded on the
land records, he could not be held to the terms of the global agreement,
that claim was unavailing, as the defendant, by accepting the easement,
became contractually bound by its terms, including the payment of the
taxes on the easement.
2. The defendant could not prevail on his claim that the trial court erred in
concluding that the statute of frauds did not bar the plaintiff’s action,
the defendant having been bound by the provisions in the deed of
conveyance once he accepted the conveyance; the defendant had
reviewed the easement, rendered payment for the easement, and signed
an escrow process letter that provided that the easement would be
binding on the parties if the defendant received zoning approval for his
development, which he did, and, therefore, it was clear that a contract
existed between the parties and that the statute of frauds did not bar
the action.
3. The finding that the town imposed taxes on the plaintiff’s property,
including the portion over which the defendant held an easement, and
did not value and tax the easement separately from the remaineder of
the plaintiff’s land was supported by the record: although easements
generally cannot be assessed and taxed separately, the present case did
not involve a tax imposed by a town on an easement but, rather, con-
cerned whether the defendant had breached his agreement with the
plaintiff by failing to reimburse the plaintiff for a portion of the property
tax assessed on the plaintiff’s property, there was nothing in the law
that prohibited the dominant and servient owners of an easement from
entering into a contract setting forth responsibility for the property
taxes on the land on which the easement was located, and there was
ample evidence to support the fact finder’s finding that the town had
taxed the plaintiff’s property and had not separately taxed the easement,
and that pursuant to the parties’ agreement, the defendant was obligated
to reimburse the plaintiff for the taxes on the land under the easement;
moreover, the defendant’s claims that he did not need to reimburse the
plaintiff because the municipality taxed him directly for the easement
and that his commercial tenant, V Co., should share in the tax reimburse-
ment to the plaintiff were unavailing, as the defendant voluntarily had
agreed to reimburse the plaintiff for the taxes assessed on the portion
of the plaintiff’s property over which he held the easement and was not
assessed a tax by the town, and nothing in the parties’ agreement
imposed an obligation on V Co.
Argued January 3—officially released April 17, 2018
Procedural History
Action to recover damages for breach of contract,
brought to the Superior Court in the judicial district of
Hartford, where the matter was referred to James J.
Gadarowski, attorney fact finder, who filed a report
recommending judgment for the plaintiff; thereafter,
the court, Dubay, J., granted the plaintiff’s motion for
judgment and rendered partial judgment for the plaintiff
in accordance with the report, from which the defen-
dant appealed to this court; subsequently, the attorney
fact finder filed a report concerning prejudgment inter-
est; thereafter, the court, Wahla, J., rendered judgment
for the plaintiff in accordance with the report, and the
defendant filed an amended appeal. Appeal dismissed
in part; affirmed.
John A. Sakon, self-represented, the appellant
(defendant).
Thomas P. Moriarty, for the appellee (plaintiff).
Opinion
BRIGHT, J. In this amended appeal, the defendant,
John Alan Sakon, appeals from the judgment of the trial
court, rendered in favor of the plaintiff, Mary Randazzo,
acting as trustee for A&F Foods, a general partnership.1
On appeal, the defendant claims that the trial court
erred in accepting the findings and recommendations
of the attorney fact finder, James J. Gadarowski (fact
finder), and in rendering judgment in accordance with
his recommendations. More specifically, the defendant
claims that the court improperly: (1) concluded that
the plaintiff’s cause of action sounds in contract, rather
than indemnification, and, therefore, applied the incor-
rect statute of limitations; (2) concluded that the statute
of frauds, General Statutes § 52-550, was inapplicable
to this case; and (3) accepted the finding that the town
of Glastonbury (town) had imposed real estate taxes on
the easement area. We dismiss the defendant’s original
appeal and, with respect to his amended appeal, we
disagree with each of the defendant’s claims and, there-
fore, affirm the judgment of the trial court.
In his findings of fact and recommended award of
damages, the fact finder set forth the following relevant
background: ‘‘A long trek would best describe the trip
undertaken to develop a large shopping center in Glas-
tonbury . . . by the defendant. The center is to utilize
approximately 13.5 acres of land. The process for the
new center began in the 1980s when [the] defendant
began to acquire properties and easements. In the 1990s
a number of lawsuits concerning various issues related
to the area to be developed were filed both in Connecti-
cut and federal courts by [the] defendant. Finally, an
agreement was reached in February, 1999, called the
‘global settlement’ by the parties. The actual settlement
document was signed on February 5, 1999, by various
parties but was not submitted as evidence at the hear-
ing. Based upon other correspondence and the docu-
ments prepared, signed, and recorded, the settlement,
in general, provided for a ground lease from [the] plain-
tiff to [the] defendant for a parcel of land in the area
to be developed; an easement . . . from [the] plaintiff
to [the] defendant that would allow access from . . .
Main [Street] over [the] plaintiff’s property to [the]
defendant’s development;2 payment of $100,000 by [the]
defendant . . . and the filing of withdrawals by [the]
defendant of four . . . state lawsuits, a federal district
court action, and an appeal to the [United States Court
of Appeals for the Second Circuit].’’ (Footnote added.)
The parties also drafted an escrow process letter,
dated February 9, 1999, signed by the plaintiff’s attorney
and by the defendant, which listed all documents neces-
sary to consummate the global settlement agreement.3
The letter indicated that the defendant would be submit-
ting an application to the town’s Plan and Zoning Com-
mission (commission) for modification of an existing
application involving the plaintiff’s tenant, Valvoline,
and giving the commission information on the ease-
ment, and it provided that if this application was not
approved by the commission at its February 16, 1999
meeting, then the entire global settlement agreement
was null and void, and all documents, including the
easement agreement, would be destroyed and would
not be binding on any party. The letter further provided
that if the commission approved the application at its
February 16, 1999 meeting, then all of the documents
would become ‘‘immediately legally binding and effec-
tive upon the parties . . . [and] the mortgage, ease-
ment agreement and subordination agreement’’ would
be recorded. The fact finder found that the defendant
and his attorney reviewed all of the documents, includ-
ing the easement. Upon receiving the easement, the
defendant submitted the modified application to the
commission, and the commission approved the modi-
fied application at its February 16, 1999 meeting. There-
after, the recordable documents were filed, funds were
disbursed, and the settlement became final in accor-
dance with the parties’ agreement.
Regarding the taxes due to the town for the land over
which the defendant had obtained the easement from
the plaintiff, the defendant, in a letter dated February
6, 2000, wrote to the plaintiff: ‘‘I agree that Randazzo
is not responsible for any of the taxes. Since Valvoline
and I share the easement, we each should be responsi-
ble for [half] its assessment where the easement is in
common. Since Valvoline gains no benefit, I would be
happy to pay the portion in full. I would also pay for
any assessment of the sign easement area.’’ When the
defendant failed to reimburse the plaintiff for the taxes
paid, the plaintiff refused to provide requested docu-
mentation to the defendant in connection with some
financing he was seeking. The plaintiff demanded
$4439.76 from the defendant to cover taxes for the grand
list years of 1998-2001 assessed against the easement
area. The defendant made the payment and sent a letter,
dated May 3, 2001, to the plaintiff providing in relevant
part: ‘‘I honestly believe that I have already paid all
taxes that are my responsibility under the documents.
Accordingly, this payment is made under protest and,
inter alia, I reserve the right to contest the amount or
validity of the imposition by appropriate proceedings
. . . . I offered to assume the payment of taxes for the
easement area solely in exchange for good relations
between the parties. Given our history, I wish only
to deal with the town in regard to property taxes.’’
(Emphasis in original.) The town assessor at that time,
Leon Jendrzejczyk, was asked by the plaintiff to calcu-
late the taxes on the land underlying the easement sepa-
rately, and he agreed to do so, showing his method
of calculation.4 The plaintiff, thereafter, utilized this
method of calculation and sent yearly billings to the
defendant seeking reimbursement of the amount due
for taxes each year for the easement area. The defen-
dant, however, did not pay these amounts.
In 2010, the plaintiff commenced this breach of con-
tract action against the defendant. In her revised com-
plaint, the plaintiff alleged that the defendant failed
to comply with the parties’ agreement that he would
reimburse her for the real estate taxes assessed on
that portion of the plaintiff’s land encumbered by the
easement. The plaintiff sought reimbursement for the
grand list years 2002 through 2010. The court referred
the case to the fact finder, who recommended that
judgment be rendered in favor of the plaintiff in the
amount of $15,529.45 plus ‘‘statutory interest.’’5 The trial
court rendered judgment in accordance with this rec-
ommendation, and the defendant appealed. The plaintiff
then filed a motion for clarification regarding the appli-
cable rate of interest awarded and the date on which
interest began to accrue. The trial court referred the
motion to the fact finder, who clarified that the plaintiff
was entitled to prejudgment interest under General Stat-
utes § 37-3a at a rate of 10 percent per annum from the
date each payment accrued to the date judgment was
rendered.6 The court, thereafter, rendered judgment in
accordance with this clarification, and the defendant
amended his appeal to include the new judgment.7 Addi-
tional facts will be included as necessary.
On appeal, the defendant challenges the factual con-
clusions reached by the fact finder, as well as the legal
conclusions reached by the trial court. Our standard of
review, therefore, is as follows. ‘‘Attorney fact finders
are empowered to hear and decide issues of fact on
contract actions pending in the Superior Court . . . .
On appeal, [o]ur function . . . is not to examine the
record to see if the trier of fact could have reached a
contrary conclusion. . . . Rather, it is the function of
this court to determine whether the decision of the trial
court is clearly erroneous. . . . This involves a two
part function: where the legal conclusions of the court
are challenged, we must determine whether they are
legally and logically correct and whether they find sup-
port in the facts set out in the memorandum of decision;
where the factual basis of the court’s decision is chal-
lenged we must determine whether the facts set out
in the memorandum of decision are supported by the
evidence or whether, in light of the evidence and the
pleadings in the whole record, those facts are clearly
erroneous. . . . 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. . . .
‘‘Finally, we note that, because the attorney [fact
finder] does not have the powers of a court and is
simply a fact finder, [a]ny legal conclusions reached by
an attorney [fact finder] have no conclusive effect. . . .
The reviewing court is the effective arbiter of the law
and the legal opinions of [a fact finder], like those of
the parties, though they may be helpful, carry no weight
not justified by their soundness as viewed by the court
that renders judgment.’’ (Citation omitted; internal quo-
tation marks omitted.) Walpole Woodworkers, Inc. v.
Manning, 126 Conn. App. 94, 98–99, 11 A.3d 165 (2011),
aff’d, 307 Conn. 582, 57 A.3d 730 (2012). With this stan-
dard of review in mind, we now consider the defen-
dant’s claims.
I
The defendant claims that the court erred when it
concluded that the plaintiff’s cause of action sounds in
contract, rather than indemnification, and that the
court, therefore, applied the incorrect statute of limita-
tions. The defendant argues that the court should have
applied the three year statute of limitations set forth
in General Statutes § 52-598a,8 concerning actions for
indemnification, rather than the six year statute of limi-
tations set forth in General Statutes § 52-576 (a),9 con-
cerning actions on simple or implied contracts.10 We
disagree.
‘‘The determination of which statute of limitations
applies to a given action is a question of law over which
our review is plenary.’’ Vaccaro v. Shell Beach Condo.,
Inc., 169 Conn. App. 21, 29, 148 A.3d 1123 (2016), cert.
denied, 324 Conn. 917, 154 A.3d 1008 (2017).
In his decision, the fact finder found that the plaintiff
sent the defendant yearly bills for the amount of taxes
related to the easement portion of her property, but
the defendant refused to pay. In his supplemental deci-
sion, the fact finder stated that ‘‘it is clear that upon
the facts, including that the plaintiff has not sought
. . . indemnification by either judgment or settlement
. . . § 52-598a would not apply to this situation. This,
instead, is a claim under a contractual obligation and
is governed by the six (6) year limit under the terms
of . . . § 52-576 (a).’’ The defendant objected to this
finding, and the trial court overruled the objection.
On appeal, the defendant first contends that there is
no enforceable contract between the parties. This claim
is without merit. The fact finder specifically found that
there was a global agreement between the parties that
involved many documents, including the easement
agreement. He further found that the defendant and
his attorney reviewed these documents, including the
easement agreement. Furthermore, the fact finder
found that there was no evidence that the defendant
had disputed the wording of the easement, had sought
the return of the $100,000 that he had paid for the
easement, or ever offered to return the easement to the
plaintiff. The fact finder also specifically credited the
testimony of the defendant that the easement was of
great value to him. The defendant challenges none of
these findings on appeal.
Furthermore, the defendant does not contest the
validity of the easement agreement. Rather, his claim,
although not developed, appears to include the con-
tention that because he did not sign the easement before
it was recorded on the land records, he cannot be held
to the terms of the global agreement on a contract
theory. For over 100 years, however, the law has been
to the contrary.
For example, in Elting v. Clinton Mills Co., 36 Conn.
296, 299 (1869), the plaintiff’s predecessor in title,
Amasa L. Hyde, conveyed by deed an easement to the
defendants, which contained a clause requiring the
defendants to remove a river wall from the easement
area and to rebuild it at their own cost. Id., 301. The deed
was executed by Hyde only. Id., 297. The defendants
accepted the deed and recorded it. Id., 301. Following
Hyde’s sale of his property, he executed and delivered
to the plaintiff, the new owner, a written assignment
of all his interest in the agreement with the defendants
regarding the river wall. Id., 302. The plaintiff then
demanded that the defendants remove the existing wall
and rebuild it in a different location. Id., 301–302. When
the defendants refused, the plaintiff commenced suit.
Id., 302. The Superior Court reserved for the advice of
the Supreme Court the question of whether the plaintiff
was entitled to judgment. Id., 304.
Our Supreme Court explained that it was ‘‘unques-
tionable’’ that there had been a valid and binding con-
tract between the defendants and the original grantor,
Hyde, because the defendants had accepted the deeded
easement. Id. The question with which the court grap-
pled was whether the conveyance by Hyde to another,
without reference to the provision contained in the
easement to the defendants, discharged the defendants
from their obligations. Id. Although the court declined
to determine whether the contract ran with the land or
was personal in nature, it held that the contract was
binding on the defendants because they had accepted
the deeded easement, and, therefore, they were not
relieved of their obligation regarding the river wall. Id.
Additionally, in Foster v. Atwater, 42 Conn. 244, 250
(1875), our Supreme Court explained: ‘‘The principle is
well settled, that where one by deed poll11 grants land,
and conveys any right, title or interest in real estate to
another, and where there is any money to be paid by
the grantee to the grantor, or any other debt or duty
to be performed by the grantee to the grantor, or for
his use and benefit, and the grantee accepts the deed
and enters on the estate, the grantee becomes bound
to make such payment or perform such duty, and not
having sealed the instrument he is not bound by it as
a deed; but it being a duty, the law implies a promise
to perform it, upon which promise, in case of failure,
assumpsit will lie.’’12 (Emphasis added; footnote added;
internal quotation marks omitted.) In this case, the
defendant, by accepting the easement, became contrac-
tually bound by its terms, including the payment of
taxes.
Alternatively, the defendant argues that, even if there
is an enforceable contract, ‘‘the language in the
agreement demonstrates that it is an indemnification.’’
Accordingly, he argues, ‘‘the Superior Court ought to
have found that the statute of limitations applicable is
three (3) year[s] as [the parties’] contract language
states that it is an indemnification agreement.’’ The
plaintiff argues that ‘‘the plaintiff is not seeking indemni-
fication for losses it has incurred pursuant to either a
judgment or settlement in a third party action. Rather,
the plaintiff is seeking its right to indemnification or
reimbursement in accordance with its easement
agreement with the defendant. Thus . . . § 52-576 (a)
is the correct statute of limitations . . . .’’ We agree
with the plaintiff.
Our Supreme Court addressed this issue in Amoco
Oil Co. v. Liberty Auto & Electric Co., 262 Conn. 142,
810 A.2d 259 (2002). In Amoco Oil Co., the plaintiff oil
company commenced an action against the defendant
contractor claiming, in part, that it was entitled to
indemnification because the defendant was negligent
when it installed underground tanks on the plaintiff’s
property. Id., 145–46. On appeal, our Supreme Court
agreed, in relevant part, with the trial court’s holding
that the plaintiff’s claim sounded in breach of contract,
rather than indemnification. Id., 148.
Our Supreme Court explained: ‘‘Our analysis begins
with the contract provision on which [the plaintiff]
relies in asserting its claim in count one of its complaint.
Among other things, that provision purports to require
[the defendant] to reimburse [the plaintiff] for and
indemnify [the plaintiff] against loss, costs, damage,
expense, claims and liability arising out of work per-
formed by [the defendant] under the contract. Count
one of [the plaintiff’s] complaint is based solely on
damage to [the plaintiff’s] property allegedly caused by
[the defendant’s] negligent and improper installation of
the tank, not from losses that arise from [the defen-
dant’s] liability to a third party. . . . Count one, there-
fore, is improperly characterized as a claim for
indemnification; it is, rather, a claim for damages for
[the plaintiff’s] own losses. Although [the plaintiff]
maintains that its claim arises under a provision of
its contract with [the defendant] entitled ‘Liability and
Indemnity,’ a claim for indemnity and a claim for one’s
first party losses are not one and the same.’’ (Citation
omitted.) Id., 148.
‘‘Notwithstanding our conclusion that [the plaintiff’s]
claim is not an indemnification claim, there is another
reason why [the plaintiff’s] reliance on § 52-598a is mis-
placed. [Section] 52-598a provides that a party seeking
indemnification may bring an indemnification action
within three years from the date an action against it,
by a third party, has been determined ‘by either judg-
ment or settlement.’ . . . [The plaintiff] did not allege
in count one of its complaint that it sought indemnifica-
tion for losses it had incurred pursuant to either a judg-
ment or settlement in a third party action. Rather, [it]
alleged that it had ‘a right to indemnification in accor-
dance with the terms and provisions of its contract with
[the defendant] for all damages . . . incurred as a
result of [the leaking tank]. Thus, we agree with the
trial court that § 52-576 (a) rather than § 52-598a applies
to [the plaintiff’s] claim.’’ (Emphasis in original; foot-
note omitted.) Id., 152.
Similarly, ‘‘the common-law doctrine of indemnifica-
tion permits a tortfeasor to assert a claim only against
another liable tortfeasor.’’ (Emphasis in original.)
Crotta v. Home Depot, Inc., 249 Conn. 634, 642, 732
A.2d 767 (1999). ‘‘In an action for indemnity . . . one
tortfeasor seeks to impose total liability upon another
[tortfeasor].’’ (Internal quotation marks omitted.) Bris-
tol v. Dickau Bus Co., 63 Conn. App. 770, 773, 779 A.2d
152 (2001).
In the present case, the easement provision specifi-
cally provides in relevant part that the defendant
‘‘agrees to indemnify . . . [the plaintiff] from . . . any
and all real estate taxes imposed upon the Easement
Area, provided that [the defendant] is not separately
taxed therefor.’’ The defendant paid for the easement,
reviewed the terms of the easement deed, and signed a
document that provided that the ‘‘easement agreement’’
would be binding at the moment the commission
approved the revised application. The fact finder found
that the plaintiff sent the defendant yearly bills for the
amount of taxes related to the easement portion of her
property, but he refused to pay. The reimbursement
sought by the plaintiff in this case is not for damages
for which the plaintiff was found liable to a third party;
rather, this reimbursement is for money that the plain-
tiff and the defendant agreed would be an ongoing obli-
gation of the defendant as set forth in the easement
deed itself. The plaintiff is not seeking indemnity from
the defendant for a third party tort action for which
the plaintiff owed damages as a result of a judgment
or a settlement. See General Statutes § 52-598a. The
plaintiff is seeking to enforce an ongoing financial obli-
gation for which the defendant had contracted when
he accepted the deeded easement. See Elting v. Clinton
Mills Co., supra, 36 Conn. 304; Foster v. Atwater, supra,
42 Conn. 250.
Accordingly, the trial court properly applied the six
year statute of limitations for breach of contract
actions, rather than the three year statute of limitations
for indemnification actions.
II
The defendant next claims that the court erred in
concluding that the statute of frauds did not bar the
plaintiff’s cause of action. The defendant contends, in
relevant part, that because he did not sign the easement,
it does not comply with the statute of frauds, and, there-
fore, the provision in the easement requiring him to pay
the taxes is not binding on him. He also argues that
there was no evidence of part performance that would
support a finding that he agreed to the payment of taxes,
and that there is nothing to support an application of
equitable estoppel. The plaintiff argues that, ‘‘in light
of the settlement agreement [that the defendant] signed,
in which he acknowledged the easement would be bind-
ing on him, his argument is without merit.’’ The plaintiff
further argues that ‘‘it is settled law that if a grantee
accepts a deed of conveyance, he is bound by its cove-
nants even though the grantee did not sign the docu-
ment.’’ Furthermore, the plaintiff argues, ‘‘equitable
estoppel removed the easement agreement from the
operation of the statute of frauds.’’ We conclude that
a grantee is bound by the provisions in a deed of convey-
ance once he accepts the conveyance. Accordingly, we
conclude that the court properly determined that the
statute of frauds did not bar the plaintiff’s cause of
action.13
Whether the statute of frauds applies in any given
case involves an issue of statutory interpretation, which
is a question of law, and therefore appellate review of
the issue is plenary. See Kalas v. Cook, 70 Conn. App.
477, 482–83, 800 A.2d 553 (2002).
As we set forth in part I of this opinion, ‘‘[t]he princi-
ple is well settled, that where one by deed poll grants
land, and conveys any right, title or interest in real
estate to another, and where there is any money to be
paid by the grantee to the grantor, or any other debt
or duty to be performed by the grantee to the grantor,
or for his use and benefit, and the grantee accepts the
deed and enters on the estate, the grantee becomes
bound to make such payment or perform such duty,
and not having sealed the instrument he is not bound
by it as a deed; but it being a duty, the law implies a
promise to perform it, upon which promise, in case of
failure, assumpsit will lie.’’ (Emphasis added; internal
quotation marks omitted.) Foster v. Atwater, supra, 42
Conn. 250.
In Foster, the defendant had assumed and promised
the grantor, via language contained in a deed, to pay
the mortgages on the property. Id., 251. He asserted
several defenses in the action, including the statute of
frauds on the ground that he had not signed the deed.
Id. As to the statute of frauds defense, our Supreme
Court explained: ‘‘[T]he contract in this case was in
writing, although it was not formally signed by the
defendant. It has all the certainty of being his contract
that it would have had if it had been so signed. The
terms of the contract are in writing, and the defendant’s
acceptance of the deed, in which the contract exists,
and of which it forms a part of the consideration, is
equivalent to the signature of the defendant to the con-
tract, for it can as easily, and with equal certainty, be
shown to be his contract. A contract of this character
is obviously not within the object of the statute. That
statute was intended to do away with the temptation
to commit fraud and perjury in attempting to make one
party answer for the debt, default or miscarriage of
another. In cases of this character no such temptation
can by possibility exist, for the case is as much beyond
the reach of fraud as it would be if the contract was
formally executed by the defendant. Furthermore, all
the cases hold that the contract stated in a deed poll
is binding between the parties. The statute of frauds
makes void all contracts within its provisions; hence,
contracts stated in deed polls cannot be within the
statute.’’ Id., 254; see also Elting v. Clinton Mills Co.,
supra, 36 Conn. 304 (holding it was ‘‘unquestionable’’
that there had been valid and binding contract between
defendants and grantor because defendants had
accepted deeded easement).
In the present case, the defendant reviewed the ease-
ment, rendered payment for the easement, and signed
an escrow process letter that provided that the ease-
ment would be binding on the parties if the commission
approved the revised application, which the defendant
himself submitted; the defendant does not question that
the commission approved the revised application. Con-
sidering these facts, it is clear that a contract existed
between the parties and that the statute of frauds does
not bar the plaintiff’s cause of action.
III
The defendant also claims that the court erred in
accepting the finding that the town had imposed real
estate taxes on the easement area, without recognizing
that the state does not allow taxes to be assessed on
easements. Specifically, he argues: ‘‘No tax can be
imposed upon the easement area as easements are not
separately assessed for taxation. Any tax imposed upon
the easement area arises out of Valvoline’s [the other
user of the easement] use of the easement area for its
driveways and [the] plaintiff’s remaining property rights
in the servient estate. The defendant has already [borne]
his burden for taxes by paying the increased assessment
of the lands . . . serviced by the easement. To allocate
additional tax burden on [the] defendant for lands in
the easement area would result in double taxation. . . .
That is why long held Connecticut law holds easements
are not taxable.’’ The defendant also argues that the
fact finder ‘‘has ignored the fact that the easement area
is shared by other tenant(s) of the plaintiff, and the
plaintiff reserved the easement area for future use to
[herself] not inconsistent with the grant of the ease-
ment.’’ We conclude that the defendant’s claim is with-
out merit.
‘‘[W]here the legal conclusions of the court are chal-
lenged, we must determine whether they are legally and
logically correct and whether they find support in the
facts . . . . [W]here the factual basis of the court’s
decision is challenged we must determine whether the
facts . . . are supported by the evidence or whether,
in light of the evidence and the pleadings in the whole
record, those facts are clearly erroneous.’’ (Internal quo-
tation marks omitted.) Walpole Woodworkers, Inc. v.
Manning, supra, 126 Conn. App. 99.
We address first the defendant’s claim that the fact
finder’s award amounted to an impermissible tax on an
easement. The defendant relies principally on Breezy
Knoll Assn., Inc. v. Morris, 286 Conn. 766, 946 A.2d
215 (2008), and General Statutes § 12-64 (a) for the
proposition that ‘‘[a]s easements are incapable of exis-
tence separate and apart from the particular land, they
are not assessed separately for the real estate taxa-
tion.’’14 We agree that easements generally cannot be
assessed and taxed separately; this case, however, does
not involve a tax imposed by a town on an easement.
The issue in this case is whether the defendant has
breached his agreement with the plaintiff by failing to
reimburse the plaintiff for a portion of the property tax
on the plaintiff’s property. We are aware of nothing in
the law that prohibits the dominant and servient owners
of an easement from entering into a contract setting
forth responsibility for the property taxes on the land
upon which the easement lies, and the defendant has
not provided a citation to any authority that would
support such a prohibition. The fact finder resolved the
parties’ dispute over this issue by finding that the town
had taxed the plaintiff’s property and had not separately
taxed the easement. Consequently, the defendant, pur-
suant to the parties’ agreement, was obligated to reim-
burse the plaintiff for the taxes on the land under the
easement. This finding was supported by ample
evidence.
In particular, the testimony of Nicole Lintereur, the
town assessor, provided a sufficient factual basis for
the fact finder to conclude that the town did not value
and tax the easement separately from the remainder of
the plaintiff’s land. There also was considerable testi-
mony from Lintereur that supports the finding that the
town assessed taxes on the plaintiff’s property, upon
a portion of which the defendant holds an easement.
Specifically, Lintereur testified that the plaintiff’s prop-
erty was .79 acres, and that the town billed the plaintiff
directly for taxes on that property. She testified that
the easement runs through the .79 acres of land, and
it measures .32 acres in size. When asked whether that
.32 acres of land is assessed by the town to the plaintiff,
Lintereur affirmed that it is assessed to the plaintiff.
When specifically asked if the town ever assessed the
defendant for taxes on the easement area, Lintereur
said no. Lintereur also responded affirmatively when
asked whether the plaintiff is ‘‘assessed for the .79 acres,
which includes the easement area . . . .’’ Additionally,
when asked, ‘‘[w]hen an easement is recorded on the
land records, how do you deal with that from an assess-
ment standpoint; do you tax the easement?’’ Lintereur
responded, ‘‘[n]o . . . . It’s not its own separate par-
cel.’’ Accordingly, the finding that the town imposed
taxes on the plaintiff’s property, including the portion
over which the defendant held an easement, and did
not separately tax the defendant for the easement, is
supported by the record.
We find similarly unpersuasive the defendant’s argu-
ment that he was taxed directly by the town for the
increase in value of his property by virtue of having the
easement, and, therefore, any payment to the plaintiff
for her taxes for that area amounts to double taxation.
The facts of this case demonstrate that the defendant
contracted to reimburse the plaintiff for the taxes
assessed on the portion of the plaintiff’s property over
which the defendant held the easement. This was a
voluntary agreement that the defendant made with the
plaintiff and was not a tax assessed to the defendant
by the town. Accordingly, it does not amount to double
taxation but, rather, is part of a contractual agreement
between two private parties.
As to the defendant’s claim that Valvoline should
share in the tax reimbursement to the plaintiff for the
easement area because it also makes use of the ease-
ment, we are not persuaded. The defendant voluntarily
assumed the responsibility to reimburse the plaintiff
for the taxes assessed. He agreed to be bound by the
provisions in the easement, one of which included the
obligation to reimburse the plaintiff for the taxes paid
on that portion of her property. There is nothing in
the agreement that imposes an obligation on Valvoline.
Accordingly, the contention that Valvoline should be
held responsible for a portion of the burden that the
defendant voluntarily assumed is without merit.15
The defendant’s original appeal is dismissed; the judg-
ment is affirmed with respect to the defendant’s
amended appeal.
In this opinion the other judges concurred.
1
The complaint in this matter very clearly sets forth that this case is
brought by Mary Randazzo in her capacity as trustee for A&F Foods. The
summons, however, erroneously lists the plaintiff only as Mary Randazzo.
The case caption in the Superior Court followed the summons. Because
there is no question that Randazzo is acting only in her capacity as trustee,
we conclude that this merely is a scrivener’s error. See Birkhamshaw v.
Socha, 156 Conn. App 453, 465, 115 A.3d 1 (‘‘[a]lthough the writ of summons
need not be technically perfect . . . the plaintiff’s complaint must contain
the basic information and direction normally included in a writ of summons’’
[internal quotation marks omitted]), cert. denied, 317 Conn. 913, 116 A.3d
812 (2015); General Statutes § 52-123 (‘‘[n]o writ, pleading, judgment or any
kind of proceeding in court or course of justice shall be abated, suspended,
set aside or reversed for any kind of circumstantial errors, mistakes or
defects, if the person and the cause may be rightly understood and intended
by the court’’). Accordingly, all references to the plaintiff in this opinion
are to Randazzo, acting as trustee for A&F Foods, and references to the
plaintiff’s property are to the property of the trust.
2
The easement provides in relevant part: ‘‘KNOW ALL MEN BY THESE
PRESENTS That MARY RANDAZZO, Trustee . . . (‘Grantor’), for the con-
sideration of One Dollar ($1.00) and other valuable considerations received
to its full satisfaction of JOHN ALAN SAKON . . . (‘Grantee’), does give,
grant, bargain, sell and confirm unto said Grantee, his heirs, successors and
assigns forever, WITH WARRANTY COVENANTS, the following easements:
‘‘(a) a permanent easement and right of way, in common with others, to
lay, maintain, operate, construct, use, alter, repair and replace an access
road and electrical lines and other utilities and appurtenances thereto, in,
through, on and over a certain piece or parcel of land . . . more particularly
described in Schedule A attached hereto (‘Easement Area’) . . . .
‘‘Within the easement area, and subject to the terms of this Easement,
the Grantee shall have the right to construct maintain, inspect, use, operate,
repair and replace an access road for vehicular and pedestrian traffic to and
from the Benefited Property and electrical lines, lighting facilities, drainage,
storm and sanitary sewer lines and other utilities and appurtenances neces-
sary or convenient for development and use of the Benefited Property, and
to enter in and upon said Easement Area and to pass over the same and
excavate therein for said purposes . . . .
‘‘Grantee shall construct and, for long as Grantee is making use of the
Easement Area, shall maintain and repair the access road and appurtenances
with the Easement Area in good condition and repair . . . at Grantee’s sole
costs and expense. Grantee hereby agrees to indemnify and hold harmless
Grantor from any claims, judgments, suits, obligations, costs and expenses
(a) arising out of Grantee’s failure to pay, when due, any and all costs
relating to the Grantee’s construction and maintenance of said access road
or appurtenances . . . and (b) in any way arising out of the use, construc-
tion or maintenance of said access road or appurtenances . . . and (c) any
and all real estate taxes imposed upon the Easement Area, provided that
Grantee is not separately taxed therefor. . . .’’
3
The letter provided that all parties would sign the ‘‘documents necessary
to consummate settlement of all appeals and withdrawal of all actions and
releases of all parties, to be held in escrow . . . including . . . the ground
lease . . . the easement agreement . . . the mortgage . . . the promis-
sory note . . . the release agreements . . . withdrawal of the deferral
appeal . . . stipulation and withdrawal of the two state court appeals . . .
[and the] subordination agreement.’’
4
The fact finder stated that Jendrzejczyk testified before him and opined
that these types of requests were not unusual. We note that the defendant
has not furnished a transcript of Jendrzejczyk’s testimony. In fact, although
the hearing before the fact finder was conducted over seven separates dates,
with several witnesses, the defendant has provided us with excerpts of
transcripts from only three of those dates. Nevertheless, we conclude that
these transcripts are sufficient for us to address the defendant’s claims
on appeal.
5
At the hearing before the fact finder, the plaintiff also introduced evi-
dence that the defendant owed moneys for grand list years 2011 through
2013. The plaintiff, thereafter, filed a revised complaint to include these
years, and the defendant filed an objection, which the court sustained.
6
Pursuant to General Statutes § 37-3a (a), ‘‘interest at the rate of ten per
cent a year, and no more, may be recovered and allowed in civil actions
. . . as damages for the detention of money after it becomes payable.’’
7
Because the defendant’s original appeal was taken before the rate of
statutory prejudgment interest was determined, the appeal is subject to
dismissal pursuant to Gianetti v. Meszoros, 268 Conn. 424, 426, 844 A.2d
851 (2004), for lack of a final judgment. In Gianetti, our Supreme Court
explained that, because the 10 percent interest rate set forth in § 37-3a is
not a fixed rate of interest but, rather, is the maximum rate of interest that
may be awarded under its provisions, a judgment awarding prejudgment
interest under the statute must set forth the rate awarded in order to be a
final judgment. Id.; see also Morgan v. Morgan, 136 Conn. App. 371, 372,
46 A.3d 255 (2012) (no appealable final judgment if court renders judgment
awarding prejudgment interest pursuant to § 37-3a but does not determine
rate of such interest).
Although we conclude, sua sponte, that the defendant’s original appeal
was not taken from a final judgment and, therefore, must be dismissed, his
amended appeal is jurisdictionally proper. See Practice Book § 61-9 (‘‘[i]f
the original appeal is dismissed for lack of jurisdiction, the amended appeal
shall remain pending if it was filed from a judgment or order from which
an original appeal properly could have been filed’’). Accordingly, this court
has jurisdiction to consider the defendant’s claims in the context of his
amended appeal, which was taken from a final judgment, despite the jurisdic-
tional defect in his original appeal. See, e.g., Rosa v. Lawrence & Memorial
Hospital, 145 Conn. App. 275, 282 n.9, 74 A.3d 534 (2013) (dismissing original
appeal for lack of final judgment but reviewing claims under amended appeal
pursuant to § 61-9); Midland Funding, LLC v. Tripp, 134 Conn. App. 195, 196
n.1, 38 A.3d 221 (2012) (dismissing original appeal sua sponte but reviewing
claims under amended appeal pursuant to § 61-9).
8
General Statutes § 52-598a provides: ‘‘Notwithstanding any provision of
this chapter, an action for indemnification may be brought within three
years from the date of the determination of the action against the party
which is seeking indemnification by either judgment or settlement.’’
9
General Statutes § 52-576 (a) provides: ‘‘No action for an account, or on
any simple or implied contract, or on any contract in writing, shall be brought
but within six years after the right of action accrues, except as provided in
subsection (b) of this section.’’
10
A review of the record in this case reveals that the defendant specially
pleaded in his first special defense that the plaintiff’s action was ‘‘barred
by the applicable statute of limitations . . . § 52-576 (a).’’ The defendant
did not specially plead the applicability of § 52-598a in his special defenses,
although he did raise this statute in his posttrial brief to the fact finder,
attempting to change his original position.
11
‘‘In bi-partite conveyances an acceptance is shown by the grantees’
signature to it. In deeds poll his acceptance will ordinarily be presumed, if
he has knowledge of the deed and expresses no dissent.’’ Greene v. A. &
W. Sprague Mfg. Co., 52 Conn. 330, 372 (1885). According to Black’s Law
Dictionary (7th Ed. 1999), ‘‘deed poll’’ is defined as: ‘‘A deed made by and
binding on only one party, or on two or more parties having similar
interests.’’
12
According to Black’s Law Dictionary (7th Ed. 1999), ‘‘assumpsit’’ is
defined as: ‘‘An express or implied promise, not under seal, by which one
person undertakes to do some act or pay something to another . . . . A
common-law action for breach of such a promise or for breach of a contract.’’
‘‘[I]t is elementary law that where a sum certain is due on a simple contract,
indebitatus assumpsit will lie to recover it.’’ Packer v. Benton, 35 Conn. 343,
348 (1868). Furthermore, ‘‘[a]n action on an ‘implied contract’ still includes
actions which at common law would have taken the form of assumpsit upon
such a contract.’’ Anderson v. Bridgeport, 134 Conn. 260, 266, 56 A.2d
650 (1947).
13
Because we conclude that the defendant was bound by the agreement
to pay the taxes by his acceptance of the deed of conveyance, we need not
address the other arguments regarding the statute of frauds.
14
Although not cited in his appellate brief, during oral argument, the
defendant argued that Hartford Electric Light Co. v. Wethersfield, 165 Conn.
211, 332 A.2d 83 (1973), concluded, as a matter of law, that easements could
not be taxed. We disagree with the defendant’s reading of this case. In
Hartford Electric Light Co., our Supreme Court held that public utility
easements are not taxable separately to the public utility, but generally are
taxable to the record owner of the freehold estate. Id., 219.
15
Any claim that the plaintiff has some responsibility for the taxes on the
land covered by the easement because she reserved the right to use the
easement in the future is rejected for the same reasons.