South Windsor v. Lanata

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TOWN OF SOUTH WINDSOR ET AL. v.
KRISTIN LANATA ET AL.
(SC 20587)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
The plaintiffs, the town of South Windsor and its zoning enforcement officer,
O, sought an injunction and the assessment of fines against the defendant
homeowner, who was using her property to store salvage and debris
that she had obtained in connection with a cleaning business that she
operated. O notified the defendant in 2014 that she was in violation of
the town’s blight ordinance and zoning regulations, and ordered her to
remove the debris from her property. In December, 2016, a fire occurred
on the property, and the fire marshal subsequently initiated an arson
investigation. In light of the pending investigation, both the police and
the defendant’s insurance carrier instructed the defendant not to touch
or remove anything from the property. Thereafter, on February 24, 2017,
O issued the defendant a notice of violation, informing her that her
property was in violation of the town’s blight ordinance and directing
her to remove the debris, as well as a cease and desist order, which
identifed the defendant’s creation of a junkyard in a residential zone as
a zoning violation and directed her to stop depositing material on her
property. The defendant did not appeal from either notice or the cease
and desist order, and the plaintiffs commenced the present action in
an effort to compel her compliance, alleging that the defendant had
violated the town’s blight ordinance and zoning regulations. Pointing to
the instructions she received not to touch or remove anything during
the arson investigation, the defendant raised the special defense of
legal impossibility, which the trial court ultimately failed to credit. With
respect to the zoning claim, the trial court found that the defendant had
been wilfully violating the town’s zoning regulations since at least the
date on which the cease and desist order was issued. Accordingly, the
trial court imposed a daily fine pursuant to statute (§ 8-12), commencing
on February 24, 2017. The trial court also issued an injunction, precluding
the defendant from, inter alia, storing salvage on her property. On appeal,
the Appellate Court concluded, inter alia, that the trial court had abused
its discretion in imposing the fines because, although it was undisputed
that the defendant was prohibited from removing items from her prop-
erty for some period of time following February 24, 2017, the trial court,
in assessing the fines, had failed to consider the effect of the arson
investigation on the defendant’s ability to comply with the cease and
desist order. Because the trial court made no finding as to the precise
date the defendant regained control of her property, the Appellate Court
remanded the case for a new trial on the zoning violation claim and
affirmed the trial court’s judgment in all other respects. On the granting
of certification, the plaintiffs appealed to this court. Held that the Appel-
late Court improperly remanded the case for a new trial as to liability,
rather than a proceeding limited to damages, in connection with the
plaintiffs’ zoning violation claim: because there was no dispute remaining
regarding the defendant’s liability for the zoning violation, the only
question pertained to the effect of the defendant’s legal impossibility
defense in relation to the trial court’s assessment of fines under § 8-12,
which was a factual matter within the province of the trial court and
discrete from its underlying finding of liability; accordingly, this court
reversed in part the Appellate Court’s judgment and remanded the case
with direction to reverse the trial court’s judgment only as to its assess-
ment of fines and remedies in connection with the zoning violation
claim, and to remand the case to the trial court for further proceedings
as to damages and remedies.
Submitted on briefs June 21—officially released October 1, 2021*
Procedural History
Action seeking, inter alia, an injunction ordering the
defendants to take certain corrective action to bring
their real property into compliance with town ordi-
nances and zoning regulations, and for other relief,
brought to the Superior Court in the judicial district
of Hartford, where the defendant Michael Lanata was
defaulted for failure to plead; thereafter, the case was
tried to the court, Moukawsher, J.; judgment for the
plaintiffs, from which the named defendant appealed
to the Appellate Court, Alvord, Prescott and DiPentima,
Js., which reversed in part the trial court’s judgment
and remanded the case for a new trial, and the plaintiffs,
on the granting of certification, appealed to this court.
Reversed in part; further proceedings.
Richard D. Carella filed a brief for the appellants
(plaintiffs).
Edward C. Taiman, Jr., filed a brief for the appellee
(named defendant).
Opinion
ROBINSON, C. J. The sole issue in this certified appeal
is whether the Appellate Court properly remanded this
case to the trial court for a new trial, rather than a
proceeding limited to damages, after reversing in part
the judgment of the trial court, which assessed a fine
and imposed injunctive relief for certain zoning viola-
tions pursuant to General Statutes § 8-12.1 The plaintiffs,
the town of South Windsor (town) and its zoning
enforcement officer, Pamela Oliva, appeal, upon our
grant of their petition for certification,2 from the judg-
ment of the Appellate Court reversing in part the judg-
ment of the trial court in their favor and remanding the
case for a new trial on count two of their complaint.
South Windsor v. Lanata, 203 Conn. App. 89, 92, 115,
247 A.3d 626 (2021). On appeal, the plaintiffs claim that,
after concluding that the trial court had improperly
assessed a fine on the named defendant, Kristin Lanata,3
pursuant to § 8-12 for zoning violations for a period of
time that she was under lawful orders not to disturb
her property because of an ongoing fire investigation,
the Appellate Court improperly remanded the case for
a new trial on that count, rather than a proceeding
limited to damages. Because there is no remaining dis-
pute as to the defendant’s liability for the zoning viola-
tions, we reverse the judgment of the Appellate Court
in part.
The record reveals the following facts and procedural
history relevant to this certified appeal, much of which
is set forth in the Appellate Court’s opinion.4 ‘‘The defen-
dant, who operates a business in which she is hired by
lenders to clean personal property out of homes on
which they have foreclosed, is the owner of property
located at 460 Miller Road in South Windsor (property).
For years, the defendant used the property to sort, store,
and dispose of salvage she obtained in her business.’’
South Windsor v. Lanata, supra, 203 Conn. App. 92. In
May, 2014, and October, 2014 respectively, Oliva noti-
fied the defendant that she was in violation of the town’s
blight ordinance and zoning regulations, and ordered
the defendant to remove the accumulated material and
debris from the property. Id., 92–93.
Thereafter, in December, 2016, a fire occurred at the
property that ‘‘reduced [the house] to a burned out
shell, and the back lawn of the property was strewn
with salvage from the inside of the house. The fire
marshal for the town made an accusation that the fire
was the result of arson, which claim, following an inves-
tigation, was ultimately disproven.’’ Id., 94–95.
‘‘By notice of violation dated February 24, 2017, Oliva
informed the defendant that the property was in viola-
tion of the town’s blight ordinance, specifically the sec-
tions defining a blighted structure, dangerous structure,
and nuisance. The notice directed the defendant to
‘[r]emove the debris and unregistered vehicles from the
property and [to] correct all damage to the building,
including but not limited to the roof, exterior walls,
windows and supporting structures . . . .’ ’’ (Footnote
omitted.) Id., 95–96. ‘‘Oliva also issued, and the defen-
dant received, a February 24, 2017 cease and desist
order identifying a zoning violation at the property,’’
namely, the creation of a junkyard in a residential zone.
Id., 96. The defendant did not appeal from Oliva’s
notices of blight and zoning violations. Id., 96–97.
‘‘The plaintiffs instituted this action on October 30,
2017. The plaintiffs filed an amended two count com-
plaint dated January 25, 2019 (operative complaint).
The first count alleges that the defendant violated the
[town’s] blight ordinance . . . . Specifically, the plain-
tiffs allege[d] that the defendant ‘ha[d] not complied
with the town’s notices’ and had ‘continue[d] to accu-
mulate more debris and materials’ at the property. In
the second count, the plaintiffs allege that the defendant
violated [the town’s zoning regulations] by storing ‘dis-
carded or second-hand material creating a junkyard.’
In their request for relief, the plaintiffs sought ‘[a]n
injunction ordering the [defendant] to perform immedi-
ately the corrective action pursuant to the notices of
violation and [the] cease and desist order to bring the
property in compliance with the blight ordinance and
zoning regulations.’ The plaintiffs additionally sought,
inter alia, ‘[a] fine of $100 per day’ as provided for in
the blight ordinance, ‘[a] fine of $100 per day as provided
for in . . . § 8-12,’ relative to violations of zoning regu-
lations, and attorney’s fees and costs. The defendant
filed an answer and special defenses on January 31,
2019. The plaintiffs filed their reply on February 1,
2019.’’ (Footnote omitted.) Id., 97–98.
After a three day court trial, the trial court issued a
memorandum of decision that, with respect to the sec-
ond count of the operative complaint that is at issue
in this certified appeal,5 ‘‘first found that ‘for around five
years [the defendant] has been using her residentially
zoned home . . . to run a junk or salvage business.’ It
stated that, although the defendant takes some personal
property that she cleans out of foreclosed homes to
storage facilities, she also takes material to her property
and sorts it on her lawn. She then ‘sells some, discards
some, and keeps some.’ The court found that, ‘[o]ver
the years, the front and right side[s] of her house have
been regularly strewn with things and parts of things
that appear to come and go.’ The court stated that,
although the defendant no longer lives at the property,
she continues to be there most days and that she stores
equipment and sorts salvage there.
‘‘The court found that the defendant had been using
her property for years to operate her business in viola-
tion of [the town’s zoning] regulations, which identifies
the permitted uses of a residential property. The court
stated that whether one considered her use of the prop-
erty as running a junkyard or a salvage operation, nei-
ther use is permitted in a residential zone.’’ Id., 98–99.
‘‘The court . . . impose[d] fines for the defendant’s
violation of the zoning regulations. It declined to impose
fines dating back to the [October, 2014] notice, given
[certain] evidence suggesting that the defendant had not
received that notice. The court found that the defendant
wilfully had violated the town’s zoning regulations since
at least February 24, 2017, the date of the cease and
desist order. The court credited testimony of neighbors
that the defendant continued to deposit and sort mate-
rial at the property even up to the date of trial, and it
found not credible the testimony of the defendant that
she had not brought any new material to the property
since the 2016 fire.
‘‘Pursuant to § 8-12, the court ‘[chose] a per diem fine
of $175 per day, running from February 24, 2017, to [the]
date [of its memorandum of decision] and round[ed] the
total to an even $125,000.’ . . . In setting the amount
of the daily fine, the court considered . . . the defen-
dant’s ‘lack of candor and the length of time since 2017
in which she has violated the peace of this residential
neighborhood,’ the loss of the defendant’s home and
her claims of financial hardship, the defendant’s claim
‘that she has been financially handicapped by the town’s
claim against her insurance proceeds and what proved
to be baseless accusations by the fire marshal of arson
on her property.’ The court found that the hardship
faced by the defendant in cleaning up the property did
not justify her continuing to operate part of her business
on the property.
‘‘The court also enjoined the defendant from ‘parking
overnight or storing for any period of time, commercial
vehicles, machinery, tools or other equipment she uses
for business purposes . . . unloading, sorting, storing,
or disposing of any salvage or other personal property
except that she may store there personal property that is
currently being used for the sole purpose of maintaining
that property . . . [and] maintaining on the lawns of
the property any personal property not currently being
used for its intended purpose.’ The court indicated that
it would ‘separately entertain a motion for attorney’s
fees as provided by the statute for wilful violations.’ It
stated that it would not [render] judgment until the
resolution of any attorney’s fees motion.’’ (Footnotes
omitted.) Id., 99–101. Subsequently, the trial court granted
the plaintiffs’ motion for attorney’s fees and costs.
Id., 101.
The defendant appealed from the judgment of the
trial court to the Appellate Court. With respect to the
claims relevant to this certified appeal, the defendant
argued that the trial court improperly ‘‘fail[ed] to con-
clude that she was justified in not cleaning the property
following her receipt of the February 24, 2017 cease and
desist order on the basis that she ‘had been instructed
by both the Connecticut State Police and her insurance
carrier not to touch or remove any of the personal
property located in the backyard,’ ’’ or the structures
themselves, given the pending arson investigation into
the December, 2016 fire. Id., 108–109; see id., 110. The
Appellate Court described this claim, raised under the
special defense of ‘‘ ‘legal impossibility,’ ’’ as one that
‘‘essentially challenges the trial court’s imposition of
fines for the time period during which she was under
orders not to disturb the property.’’ Id., 109–10. The
Appellate Court concluded that the trial court had
abused its discretion by imposing fines because,
although it ‘‘acknowledged and considered the defen-
dant’s ‘claim that she has been financially handicapped
by the town’s claim against her insurance proceeds
and what proved to be baseless accusations by the fire
marshal of arson on her property,’ ’’ it ‘‘did not . . .
factor into its penalties assessment the effect of the
arson investigation on the defendant’s ability to comply
with the February 24, 2017 cease and desist order. By
way of that order, the defendant was directed to ‘cease
the deposition of discarded and/or second-hand mate-
rial on the property.’ Because the record contains undis-
puted evidence, and the plaintiffs’ counsel acknowl-
edges that the defendant was prohibited for some
period of time following February 24, 2017, by her
insurer and the police from removing items from the
property, [the Appellate Court] conclude[d] that the
[trial] court [had] abused its discretion in imposing fines
beginning on February 24, 2017.’’ Id., 112. Given that,
‘‘as an appellate tribunal, [it] cannot find facts,’’ the
Appellate Court determined that it was ‘‘not at liberty
to resolve the question of precisely what date the defen-
dant regained control of her property following the
conclusion of the police and insurance investigations.
Accordingly, a remand to the trial court for a new trial
on the zoning violation [was] necessary.’’ (Emphasis
added; internal quotation marks omitted.) Id. The
Appellate Court further determined that it was neces-
sary to reverse the attorney’s fees award and injunction
that ‘‘flow from the judgment in favor of the [plaintiffs]’’
in connection with that count.6 Id., 112–13.
The Appellate Court, therefore, rendered judgment
reversing in part the judgment of the trial court and
remanding the case for a new trial ‘‘as to count two
alleging a zoning violation’’ and affirming the judgment
of the trial court in all other respects. Id., 115. This
certified appeal followed.7
On appeal, the plaintiffs claim that the Appellate Court
improperly ordered a new trial, given the trial court’s
unchallenged finding that the defendant had violated
§ 8-12. Asserting that the ‘‘only issue [that] remains is
damages,’’ the plaintiffs argue that they ‘‘should not be
forced to retry the entirety of their case when they have
proven both [the defendant’s] liability and the time for
which fines should be assessed [in the absence of] proof
of [the defendant’s] special defense’’ of legal impossibil-
ity. They emphasize that proof of the special defense
remains with the defendant. Relying on this court’s deci-
sion in Gelinas v. West Hartford, 225 Conn. 575, 626
A.2d 259 (1993), for the proposition that the scope of
penalties and injunctive relief to be imposed under § 8-
12 are discretionary matters that are severable from
liability, the plaintiffs further contend that, under Chan-
ning Real Estate, LLC v. Gates, 326 Conn. 123, 161 A.3d
1227 (2017), the ‘‘only issues on remand should be the
amount of the judgment in light of the defendant’s legal
justification defense and limitation on the amount of
the fine set forth in . . . § 8-12.’’ Citing no case or statu-
tory law or otherwise challenging the authorities relied
on by the plaintiffs, the defendant argues in response
that the Appellate Court properly ordered a new trial
‘‘because there is no evidence in the record’’ with
respect to when she was notified that she could reenter
and clean up her property given the conclusions of the
state police and insurance investigations. We agree with
the plaintiffs and conclude that the Appellate Court
improperly ordered a new trial as to liability on the
zoning violation count, and we further conclude that the
proceedings on remand are limited to a determination
of fines and remedies in light of the legal justification
special defense.
We begin with the standard of review. ‘‘Whether the
Appellate Court [correctly] determined the scope of a
remand order is a question of law over which this court’s
review is plenary.’’ Channing Real Estate, LLC v. Gates,
supra, 326 Conn. 132.
‘‘As a rule the issues [at trial] are interwoven, and
may not be separated without injustice to one of the
parties, and [a]n order restricting the issues [of a new
trial] is the exception, not the rule. . . . Nevertheless,
a retrial may be limited to a specific issue or issues,
[when] the error as to one issue or issues is separable
from the general issues . . . [and] such . . . limita-
tion does not work injustice to the other issues or the
case as a whole.’’8 (Citation omitted; internal quotation
marks omitted.) Bruno v. Whipple, 162 Conn. App. 186,
208, 130 A.3d 899 (2015), cert. denied, 321 Conn. 901,
138 A.3d 280 (2016), quoting Fazio v. Brown, 209 Conn.
450, 455–56, 551 A.2d 1227 (1988). It is well settled that
the retrial may be limited to ‘‘the issue of damages
[when] the facts found compel judgment for the plaintiff
but were insufficient to show the amount of damages.’’
Jennings v. Reale Construction Co., 175 Conn. 16, 24,
392 A.2d 962 (1978). The new trial may also be limited
to a special defense. See Haynes v. Middletown, 314
Conn. 303, 330–31, 101 A.3d 249 (2014) (remanding case
to trial court for new trial as to defendant’s special
defense of governmental immunity and imminent harm
to identifiable persons exception to that defense, rather
than reinstating verdict in favor of plaintiff, given that
governmental immunity issue was never submitted to
jury).
As the plaintiffs point out, our decision in Channing
Real Estate, LLC v. Gates, supra, 326 Conn. 123, is
instructive with respect to whether the remand to the
trial court should direct a completely new trial on count
two of the complaint, alleging zoning violations or,
instead, be limited to a hearing as to fines and remedies.
In Channing Real Estate, LLC, we considered whether
the Appellate Court properly remanded the case to the
trial court for a new trial of a contract dispute, rather
than directing judgment and ordering a hearing in dam-
ages, in light of its ‘‘correct conclusion that the parol
evidence rule precluded consideration of the extrinsic
evidence relied on by the defendant . . . .’’ Id., 132.
Citing authorities holding that a remand for a decision
as to liability is unnecessary when the elements are
undisputed or can be determined as a matter of law
from the record,9 we observed that, ‘‘[w]hen no question
of liability remains, given the undisputed facts in the
record, the appropriate scope of the remand is limited
to a hearing in damages.’’ Id. We concluded that ‘‘a
remand to the trial court for a new trial is unnecessary
because there is no question as to the defendant’s liabil-
ity under the notes’’ insofar as ‘‘there is no dispute that
each of the six notes contains the language that . . .
bars the introduction of extrinsic evidence under the
. . . parol evidence rule.’’ Id., 133–34. In so concluding,
we disagreed with the Appellate Court’s conclusion
‘‘that the trial court’s misapplication of the law so per-
meated the trial court’s findings that a new trial was
necessary.’’ Id., 134. We observed that the affected fac-
tual findings were limited to those that pertained to
extrinsic evidence that was inadmissible as a matter
of law under the parol evidence rule, rendering them
‘‘irrelevant. What remain unaffected . . . are the trial
court’s findings of fact that govern the disposition of
the present case as a matter of law. The only matter that
remains to be litigated between the parties, therefore,
is the amount of the plaintiff’s damages.’’ Id., 134–35; see
id., 134–36 (rejecting claim that new trial was required
because of special defense of equitable estoppel insofar
as that claim was not preserved before trial court and
observing that ruling rejecting special defense of fraud,
which would have been exception to parol evidence
rule, was unchallenged).
This court’s decision in Gelinas v. West Hartford,
supra, 225 Conn. 575, provides additional guidance as
to the scope of the appropriate remand. In that case,
this court concluded that the trial court had improperly
imposed daily fines of $100 for wilful offenses under
§ 8-12 and reversed the judgment of the trial court with
direction to vacate that fine ‘‘and to impose such civil
penalties pursuant to § 8-12 as the trial court may deem
appropriate in the proper exercise of its discretion.’’
Id., 593. This court also concluded that the trial court
had improperly failed to enjoin a property owner from
the unauthorized business use of his basement, observ-
ing that the ‘‘review of the record discloses that the
equities . . . patently lie with the town [of West Hart-
ford]. The record clearly reveals that [the property
owner] installed commercial ventures in the basement
of the subject building knowing full well that he was
flagrantly violating the West Hartford zoning ordi-
nances.’’ Id., 596. Although this court held that ‘‘the trial
court [had] abused its discretion by refusing to render
judgment entitling [West Hartford] to injunctive relief
from the unauthorized business use of the basement’’
and remanded the case ‘‘to the trial court with direction
to render judgment for [West Hartford] consistent with
[its] opinion,’’ it nevertheless ‘‘[left] it to the discretion
of the trial court to fashion the scope of the injunctive
relief to which [West Hartford was] entitled.’’ Id.
Having reviewed the record in the present case, we
observe that no dispute remains as to the defendant’s
liability for the zoning violations alleged in count two
of the plaintiffs’ complaint. The only question concerns
the effect of the legal impossibility special defense as
it affects the calculation of the fines under § 8-12, with
the application of that defense being limited to a certain
time period between the December, 2016 fire and the
conclusion of the ensuing arson investigations, the
determination of which is a factual question within the
province of the trial court, as the Appellate Court aptly
noted. See South Windsor v. Lanata, supra, 203 Conn.
App. 112. This is a discrete matter that does not affect
the underlying liability finding. See, e.g., Channing Real
Estate, LLC v. Gates, supra, 326 Conn. 134–35. Insofar
as the plaintiffs do not seek any relief from this court
pursuant to Practice Book § 84-1110 with respect to the
injunction that the Appellate Court criticized and
vacated in connection with reversing the judgment as
to count two in its entirety; see footnote 6 of this opinion
and accompanying text; we leave it to the trial court
on remand to fashion appropriate injunctive relief in
connection with a proper calculation of the fines consis-
tent with the defense of legal impossibility.
The judgment of the Appellate Court is reversed in
part and the case is remanded to that court with direc-
tion to reverse the judgment of the trial court as to
count two of the complaint only as to its determination
of fines and remedies, and to remand the case to the
trial court for further proceedings as to damages and
remedies.
In this opinion the other justices concurred.
* October 1, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
General Statutes § 8-12 provides in relevant part: ‘‘If . . . any building,
structure or land has been used, in violation of any provision of this chapter
or of any bylaw, ordinance, rule or regulation made under authority con-
ferred hereby, any official having jurisdiction, in addition to other remedies,
may institute an action or proceeding to prevent such unlawful . . . use
or to restrain, correct or abate such violation or to prevent the occupancy
of such building, structure or land or to prevent any illegal act, conduct,
business or use in or about such premises. Such regulations shall be enforced
by the officer or official board or authority designated therein, who shall
be authorized to cause any building, structure, place or premises to be
inspected and examined and to order in writing the remedying of any condi-
tion found to exist therein or thereon in violation of any provision of the
regulations made under authority of the provisions of this chapter . . . .
The owner or agent of any building or premises where a violation of any
provision of such regulations has been committed or exists . . . shall be
fined not less than ten dollars or more than one hundred dollars for each
day that such violation continues; but, if the offense is wilful, the person
convicted thereof shall be fined not less than one hundred dollars or more
than two hundred fifty dollars for each day that such violation continues,
or imprisoned not more than ten days for each day such violation continues
not to exceed a maximum of thirty days for such violation, or both; and
the Superior Court shall have jurisdiction of all such offenses, subject to
appeal as in other cases. . . . If the court renders judgment for such munici-
pality and finds that the violation was wilful, the court shall allow such
municipality its costs, together with reasonable attorney’s fees to be taxed
by the court. . . .’’
2
We granted the plaintiffs’ petition for certification, limited to the follow-
ing issue: ‘‘Did the Appellate Court improperly reverse the trial court’s
judgment and remand for an entirely new trial when it determined only that
the trial court erred in awarding (1) fines for a period of time for which
the named defendant had provided evidence in support of her special defense
of ‘legal impossibility,’ and (2) statutory fines in excess of those authorized
by statute?’’ South Windsor v. Lanata, 336 Conn. 945, 250 A.3d 694 (2021).
3
‘‘Michael Lanata was also named as a defendant in this action. On Febru-
ary 11, 2019, Michael Lanata was defaulted for failure to plead. He is not
participating in this appeal,’’ and, like the Appellate Court, ‘‘we therefore
refer to Kristin Lanata as the defendant.’’ South Windsor v. Lanata, supra,
203 Conn. App. 91 n.1.
4
For a more detailed rendition of the facts and procedural history of this
case, along with the text of the applicable ordinances and regulations, see
South Windsor v. Lanata, supra, 203 Conn. App. 92–101 and nn. 9 and 10.
5
With respect to the first count of the complaint, the trial court found
that the defendant’s property violated the town’s blight ordinance. See South
Windsor v. Lanata, supra, 203 Conn. App. 99. The trial court declined,
however, to impose any fines for the blight violation, deeming that ordi-
nance’s fine provision to be sufficiently unclear as to constitute a potential
due process violation. Id.
6Addressing an issue that it considered likely to arise on remand, the
Appellate Court also agreed with the defendant’s claim that the trial court
‘‘improperly assessed a fine [in the amount of $175 per day] for the wilful
violation of zoning regulations pursuant to § 8-12.’’ South Windsor v. Lanata,
supra, 203 Conn. App. 114. The Appellate Court observed that there was
no evidence ‘‘that the defendant had been convicted of any offense in a
criminal proceeding’’; id., 115; as required by this court’s decision in Gelinas
v. West Hartford, 225 Conn. 575, 593, 626 A.2d 259 (1993), and its decision
in Gelinas v. West Hartford, 65 Conn. App. 265, 280, 782 A.2d 679, cert.
denied, 258 Conn. 926, 783 A.2d 1028 (2001), which held that a criminal
conviction was a predicate to the finding of wilfulness necessary to allow
the imposition of fines of more than $100 per day pursuant to § 8-12. See
South Windsor v. Lanata, supra, 114–15.
In a footnote, the Appellate Court briefly addressed the defendant’s claim
that the ‘‘injunction exceeded the scope of the relief sought by the plaintiffs’’
insofar as it enjoined ‘‘her from using her property to ‘[park] overnight or
[store] for any period of time, commercial vehicles, machinery, tools or
other equipment she uses for business purposes.’ ’’ South Windsor v. Lanata,
supra, 203 Conn. App. 113 n.22. Deeming it unnecessary to address this
claim given its remand for a new trial, the Appellate Court nevertheless
described the defendant’s concerns about ‘‘the scope of the injunction’’ as
‘‘serious,’’ insofar as the injunction was specific to the zoning violation, and
the cease and desist order imposed by the town and enforced by the injunc-
tion did not address the overnight parking of commercial vehicles. Id.We note that the plaintiffs do not challenge the Appellate Court’s (1)
conclusion that the trial court improperly assessed fines at a daily rate of
$175, or (2) concerns about the scope of the injunction ordered by the trial
court. Accordingly, we need not address these issues further.
7
After we granted the plaintiff’s unopposed petition for certification to
appeal; see footnote 2 of this opinion; we sua sponte ordered the parties
‘‘to file simultaneous briefs of no more than ten pages . . . addressing the
following’’: (1) ‘‘Did the Appellate Court improperly reverse the trial court’s
judgment and remand for an entirely new trial when it determined only that
the trial court erred in awarding . . . fines for a period of time for which
the named defendant had provided evidence in support of her special defense
of legal impossibility, and . . . statutory fines in excess of those authorized
by statute?’’ And (2) ‘‘Whether . . . this matter can be decided without oral
argument?’’ (Internal quotation marks omitted.)
In their simultaneous briefs, both parties indicated that this matter is
suitable for decision without oral argument. See Practice Book § 70-2. More-
over, neither party’s simultaneous brief indicated that further briefing was
necessary, and both filings were well under the ten page limit of our order.
Having reviewed these briefs, along with the record and Appellate Court
decision in this case, we have determined that the ordinary course of full
briefing and oral argument is not necessary for the decision of this certified
appeal. In the interest of judicial economy, we issue this opinion modifying
the relief granted by the Appellate Court with respect to its new trial order.
8
We note that, under this court’s seminal decision in Murray v. Krenz,
94 Conn. 503, 507–508, 109 A. 859 (1920), reviewing courts should be even
more reticent to order a new trial limited to a specific issue when a jury
verdict is involved. ‘‘Ordinarily the reversal of a jury verdict requires a new
trial of all the issues in the case. . . . In other words, [a]n order restricting
the issues [of a new trial] is the exception, not the rule. . . . When, however,
the error as to one issue . . . is separable from the general issues, the new
trial may be limited to the error found, provided that such qualification or
limitation does not work injustice to the other issues or the case as a whole.
. . . But [when] the retrial of the single issue may affect the other issues
to the prejudice of either party, the court will not exercise its discretion in
limiting the new trial but will grant it de novo. . . . Thus, [t]he decision to
retain the jury verdict on the issue of liability and order a rehearing to
determine only the issue of damages should never be made unless the court
can clearly see that this is the way of doing justice in [a] case. . . . As a
rule the issues are interwoven, and may not be separated without injustice
to one of the parties.’’ (Citations omitted; internal quotation marks omitted.)
Carlson v. Waterbury Hospital, 280 Conn. 125, 151–52, 905 A.2d 654 (2006);
see, e.g., Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 660, 935 A.2d
1004 (2007) (The court declined to limit the retrial resulting from erroneous
jury instructions on the special defense of comparative negligence to that
issue because it had ‘‘no way of knowing whether the jury [returned] a
compromise verdict, with some of the jurors agreeing to a finding of liability
only because other jurors were willing to compromise on the amount of
damages. If the verdict was the product of such a compromise, the compara-
tive negligence finding and award may have been a component of the jurors’
agreement.’’); George v. Ericson, 250 Conn. 312, 332–33, 736 A.2d 889 (1999)
(not limiting issue on remand to damages because jury verdict declining to
award noneconomic damages might have been compromise); cf. Bruno v.
Whipple, 162 Conn. App. 186, 207–208, 130 A.3d 899 (2015) (remanding case
for hearing in damages on breach of contract claim without retrial as to
liability after reversing jury verdict on special defense of waiver that trial
court had improperly permitted defendant to raise), cert. denied, 321 Conn.
901, 138 A.3d 280 (2016); Musorofiti v. Vlcek, 65 Conn. App. 365, 381, 783
A.2d 36 (retrial limited to damages on wife’s loss of consortium count ‘‘will
not work an injustice to the parties in this case’’ because ‘‘[t]he parties
already have litigated the plaintiff husband’s claim without any argument
to the trial court or to this court that the jury charge was incorrect as to
his claim’’), cert. denied, 258 Conn. 938, 786 A.2d 426 (2001); Harewood v.
Carter, 63 Conn. App. 199, 206–207, 772 A.2d 764 (2001) (restricting retrial
to count seeking punitive damages for wilful or reckless disregard of motor
vehicle statutes pursuant to General Statutes § 14-295 because ‘‘[n]either
party claims, and no reason exists for us to conclude, that the jury was
misled or confused about liability or the compensatory damages’’ as to
negligence count).
9
‘‘See Allstate Ins. Co. v. Palumbo, 296 Conn. 253, 268, 994 A.2d 174(2010) ([t]here are times . . . when the undisputed facts or uncontroverted
evidence and testimony in the record make a factual conclusion inevitable
so that a remand to the trial court for a determination would be unnecessary
. . .); Waterbury v. Washington, 260 Conn. 506, 583, 800 A.2d 1102 (2002)
(remand for decision on unreached elements of claim is unnecessary if
remaining elements can be determined as matter of law on record); Coppola
Construction Co. v. Hoffman Enterprises Ltd. Partnership, 157 Conn. App.
139, 171–72, 117 A.3d 876 (remand for new trial was unnecessary when all
elements of cause of action for breach of contract had been proven), cert.
denied, 318 Conn. 902, 122 A.3d 631 (2015); see also State v. Carbone, 172
Conn. 242, 254, 374 A.2d 215 (The reversal of a judgment annuls it, but does
not necessarily set aside the foundation on which it rests. This foundation
may be sufficient to support a judgment of a different kind, and may be
such as to require it. A reversal therefore is never, standing alone, and ex
vi termini, the grant of a new trial. If the error was one in drawing a wrong
legal conclusion from facts properly found and appearing on the record, it
would be an unnecessary prolongation of litigation to enter again on the
work of ascertaining them. . . .), cert. denied, 431 U.S. 967, 97 S. Ct. 2925,
53 L. Ed. 2d 1063 (1977).’’ (Internal quotation marks omitted.) Channing
Real Estate, LLC v. Gates, supra, 326 Conn. 132–33.
10
Practice Book § 84-11 provides in relevant part: ‘‘(a) Upon the granting
of certification, the appellee may present for review alternative grounds
upon which the judgment may be affirmed provided those grounds were
raised and briefed in the Appellate Court. Any party to the appeal may also
present for review adverse rulings or decisions which should be considered
on the appeal in the event of a new trial, provided that such party has
raised such claims in the Appellate Court. . . .
‘‘(b) Any party may also present for review any claim that the relief
afforded by the Appellate Court in its judgment should be modified, provided
such claim was raised in the Appellate Court either in such party’s brief or
upon a motion for reconsideration.
‘‘(c) Any party desiring to present alternative grounds for affirmance,
adverse rulings or decisions in the event of a new trial or a claim concerning
the relief ordered by the Appellate Court shall file a statement thereof within
fourteen days from the date the certified appeal is filed in accordance with
Section 84-9. . . .’’ (Emphasis added.)