NPC Offices, LLC v. Kowaleski ( 2016 )

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NPC OFFICES, LLC v. WILLIAM KOWALESKI ET AL.
(SC 19408)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued December 9, 2015—officially released March 1, 2016
Michael S. Taylor, with whom, on the brief, were
James P. Sexton and Matthew C. Eagan, for the appel-
lant (plaintiff).
Michelle M. Seery, with whom was William J. O’Sulli-
van, for the appellees (defendants).
Opinion
EVELEIGH, J. The dispositive issue in this appeal is
the determination of the meaning of the term ‘‘profes-
sional offices’’ as used in a right-of-way agreement
(agreement), which created an express easement for
the benefit of property owned by the plaintiff, NPC
Offices, LLC, over a driveway located on the property
owned by the defendant 184–188 South Main Street,
LLC, a limited liability company under the ownership
and control of the defendants William Kowaleski and
Sharon Kowaleski. The plaintiff appeals, on the granting
of certification,1 from the judgment of the Appellate
Court affirming the judgment of the trial court quieting
title to the driveway in favor of the defendants and
declaring the easement terminated. NPC Offices, LLC
v. Kowaleski, 152 Conn. App. 445, 447–48, 100 A.3d 42
(2014). On appeal to this court, the plaintiff claims that
the Appellate Court improperly affirmed the judgment
of the trial court based upon its conclusion that the
plaintiff’s property had been used for purposes other
than ‘‘professional offices’’ in violation of the terms of
the agreement. We agree with the plaintiff and, accord-
ingly, reverse the judgment of the Appellate Court and
remand the case for a new trial in accordance with
this opinion.
The opinion of the Appellate Court sets forth the
following undisputed facts and procedural history. ‘‘The
plaintiff, a limited liability company of which Marc
Aronson is the sole member, owns an office building
located at 192 South Main Street in Middletown. Aron-
son operates a psychologist’s office. The defendant 184–
188 South Main Street, LLC, a limited liability company
under the ownership and control of the defendants Wil-
liam Kowaleski and Sharon Kowaleski, owns an office
building located at 184–188 South Main Street, which
is situated on property abutting the plaintiff’s property.
The defendants operate a hair salon. The buildings are
separated by a driveway, located on the defendants’
property, which provides access to a parking area
behind both buildings.
‘‘The plaintiff’s claimed right of access to the drive-
way stems from an agreement entered into by previous
owners of the two properties. Created in 1960, the
agreement referred to the owners of the property
located at 184–188 South Main Street as the ‘First Par-
ties’ and the owners of the property at 192 South Main
Street as the ‘Second Parties.’ It provided that ‘the First
Parties grant to the Second Parties and unto the survivor
of them, and unto such survivor’s heirs and assigns
forever the right (in common with the First Parties’
heirs and assigns) to pass and re-pass by vehicle or on
foot over the entire length of said driveway running
from South Main Street to the garages on the First
Parties’ premises, except that, in the event that [192
South Main Street] shall be used for purposes other than
residential or professional offices, the Second Parties’
right to use the said driveway shall terminate.’ The
agreement was recorded and was the sole instrument
in either property’s chain of title governing the rights
and obligations of the parties as they relate to the drive-
way. The garages referenced in the agreement no lon-
ger existed at the time of trial, but the driveway
remained intact.
‘‘In 1990, the defendants acquired their property and
the plaintiff acquired its property in 2008. Soon after,
the use of the driveway and the parking area behind the
offices became a source of frequent disputes, leading to
an acrimonious relationship between the parties. On or
about September 6, 2008, the defendants constructed
an iron fence behind the buildings along the properties’
common boundary in an effort to separate the proper-
ties’ respective parking areas. The fence severely
restricted access to and maneuverability in the parking
area behind the plaintiff’s property.
‘‘Thereafter, the plaintiff commenced the present
action and filed a complaint dated September 8, 2008.
The plaintiff’s operative complaint asserted, [in addition
to claims of fraudulent transfer, entry and detainer, and
creation of prescriptive and implied easements] a quiet
title claim asking the court to find that the erection of
the fence violated the terms of the agreement and to
clarify the extent of the [easement], and a claim seeking
an injunction restoring the plaintiff’s rights under the
agreement. The defendants denied the plaintiff’s claims
and raised special defenses, including an assertion that
the plaintiff’s property had been used for purposes other
than professional offices or residential uses, thus termi-
nating the . . . agreement. The defendants also
asserted counterclaims, including, among other things,
claims of quiet title asking the court to find that the
agreement had been terminated, civil trespass and pri-
vate nuisance. The plaintiff denied the defendants’
counterclaims and raised special defenses.
‘‘After a trial, the court found that the . . .
agreement created an express easement for the benefit
of the plaintiff’s property. The court found that this
easement was in effect until the plaintiff’s property was
used by a mortgage brokerage, a home [health-care]
agency and an appliance delivery coordination service.
The court concluded that the operation of these busi-
nesses constituted use of the property for purposes
other than residential or professional offices, thus ter-
minating the easement.’’ NPC Offices, LLC v.
Kowaleski, supra, 152 Conn. App. 448–50. The trial
court explained as follows: ‘‘While the court in no way
wishes to diminish the undeniable social utility of the
three businesses in question, it is clear that each can
be operated without ‘a prolonged course of specialized
instruction and study’ ’’ and, thus, they do not constitute
‘‘professional office[s].’’ The court further found that
no prescriptive or implied easement existed on behalf
of the plaintiff, and rejected the defendants’ counter-
claims of trespass and private nuisance. Finally, in
regard to the plaintiff’s claim of fraudulent transfer, the
court noted that ‘‘the facts support the conclusion that
the transfer was done for reasons wholly unrelated to
this [action].’’
The plaintiff appealed from the judgment of the trial
court to the Appellate Court. The defendants cross
appealed, claiming that the trial court improperly
rejected the defendants’ civil trespass and private nui-
sance counterclaims. The Appellate Court consulted
the dictionary definitions of the terms ‘‘professional’’
and ‘‘office’’ and determined that ‘‘the unambiguous
meaning of ‘professional office’ as used in the easement
is a place where business is conducted or services are
performed by persons who belong to a learned profes-
sion or whose occupation requires a high level of train-
ing and proficiency.’’ NPC Offices, LLC v. Kowaleski,
supra, 152 Conn. App. 452. Using this definition, the
Appellate Court concluded that the trial court had prop-
erly determined that the mortgage brokerage, home
health-care agency, and appliance delivery coordination
service that had been operated out of the plaintiff’s
property ‘‘did not qualify as professional offices, as a
high level of training and proficiency was not required
for their operation.’’ Id., 453. Furthermore, in regard to
the defendants’ claims on cross appeal, the Appellate
Court concluded that the defendants ‘‘failed to present
any evidence of damages at trial’’ and that, thus, ‘‘a
reversal of the [trial] court’s conclusion rejecting the
defendants’ trespass and private nuisance claims would
result only in an award of nominal damages to the
defendants.’’ Id., 458. Accordingly, the Appellate Court
affirmed the judgment of the trial court. Id. This
appeal followed.
On appeal, the plaintiff claims that the Appellate
Court improperly concluded that the meaning of the
term ‘‘professional offices’’ in the agreement is unam-
biguous. Specifically, the plaintiff claims that the Appel-
late Court improperly relied upon a narrow, legal
definition of the term ‘‘professional’’ when construing
the language of the agreement and failed to consider
broader, common dictionary definitions of the term. In
response, the defendants contend that the Appellate
Court properly affirmed the judgment of the trial court
and properly concluded that the term ‘‘professional
offices,’’ as used in the agreement, is clear and unambig-
uous and is limited to the offices of individuals ‘‘whose
occupation requires a high level of training and profi-
ciency.’’ NPC Offices, LLC v. Kowaleski, supra, 152
Conn. App. 452. We agree with the plaintiff.
As a preliminary matter, we set forth the applicable
standard of review and guiding legal principles. This
appeal requires us to determine the meaning of the term
‘‘professional offices’’ in the agreement. ‘‘In construing
a deed, a court must consider the language and terms
of the instrument as a whole. . . . Our basic rule of
construction is that recognition will be given to the
expressed intention of the parties to a deed or other
conveyance, and that it shall, if possible, be so con-
strued as to effectuate the intent of the parties. . . .
In arriving at the intent expressed . . . in the language
used, however, it is always admissible to consider the
situation of the parties and the circumstances con-
nected with the transaction, and every part of the writ-
ing should be considered with the help of that evidence.
. . . Thus, if the meaning of the language contained in
a deed or conveyance is not clear, the trial court is
bound to consider any relevant extrinsic evidence pre-
sented by the parties for the purpose of clarifying the
ambiguity.’’ (Citation omitted; internal quotation marks
omitted.) Il Giardino, LLC v. Belle Haven Land Co., 254
Conn. 502, 510–11, 757 A.2d 1103 (2000). Furthermore,
‘‘[t]he language of the grant will be given its ordinary
import in the absence of anything in the situation or
surrounding circumstances which indicates a contrary
intent. . . . Any ambiguity in the instrument creating
an easement, in a case of reasonable doubt, will be
construed in favor of the grantee.’’ (Citation omitted;
internal quotation marks omitted.) Lago v. Guerrette,
219 Conn. 262, 268, 592 A.2d 939 (1991).
‘‘Although in most contexts the issue of intent is a
factual question on which our scope of review is limited
. . . the determination of the intent behind language
in a deed, considered in the light of all the surrounding
circumstances, presents a question of law on which
our scope of review is plenary. . . . Nevertheless, [t]he
determination of the scope of an easement is a question
of fact . . . [and] is for the trier of fact whose decision
may not be overturned unless it is clearly erroneous.’’
(Citations omitted; internal quotation marks omitted.)
Deane v. Kahn, 317 Conn. 157, 166, 116 A.3d 259 (2015).
In the present case, the trial court’s determination of
the intent of the original parties to the agreement was
based solely on the language of the agreement and did
not involve a review of the trial court’s resolution of
any evidentiary issues of credibility. Accordingly, to the
extent that we are interpreting the express terms of the
agreement, our review of the Appellate Court’s con-
struction of the agreement is plenary.
Finally, we note that ‘‘[t]he general principle that
servitudes should be interpreted in favor of validity, in
contrast to the old rule that favored construction in
favor of free use of land, facilitates safeguarding the
public interest in maintaining the social utility of land
while minimizing legal disruption of private transac-
tions. A similar role is played by the rule that where
two or more reasonable interpretations of a servitude
are possible, the one more consonant with public policy
is to be preferred.’’ 1 Restatement (Third), Property,
Servitudes § 4.1, comment (a), p. 498 (2000).
With these principles in mind, we begin our analysis
with the language of the agreement. The agreement
provides in relevant part that ‘‘in the event that [192
South Main Street] shall be used for purposes other
than residential or professional offices, the Second
Parties’ right to use the said driveway shall terminate.’’
(Emphasis added.)
Resolution of the plaintiff’s claim depends on
whether the term ‘‘professional offices,’’ as used in the
agreement, encompasses the previous tenants of the
plaintiff’s property, including a mortgage brokerage, a
home health-care agency, and an appliance delivery
coordination service.2 In the present case, the
agreement does not define the term ‘‘professional
offices’’ and the parties provided no evidence at trial
to suggest that the term ‘‘professional’’ was intended
to have ‘‘any special or unusual connotation . . . .’’
Lakeview Associates v. Woodlake Master Condomin-
ium Assn., Inc., 239 Conn. 769, 777, 687 A.2d 1270
(1997). Thus, we must consider the ordinary meaning
of the term.
‘‘We often consult dictionaries in interpreting con-
tracts . . . to determine whether the ordinary mean-
ings of the words used therein are plain and
unambiguous, or conversely, have varying definitions in
common parlance.’’ (Internal quotation marks omitted.)
Nation-Bailey v. Bailey, 316 Conn. 182, 193, 112 A.3d
144 (2015). The Appellate Court adopted the definition
of ‘‘professional’’ in Black’s Law Dictionary, which pro-
vides as follows: ‘‘ ‘[A] person who belongs to a learned
profession or whose occupation requires a high level
of training and proficiency.’ ’’ NPC Offices, LLC v.
Kowaleski, supra, 152 Conn. App. 452, quoting Black’s
Law Dictionary (9th Ed. 2009). We are also aware, how-
ever, that numerous common dictionaries also contain
a broader definition of the term.3 Merriam-Webster’s
Collegiate Dictionary (11th Ed. 2003) defines ‘‘profes-
sional’’ as, inter alia, ‘‘of, relating to, or characteristic of
a profession’’ and ‘‘profession’’ as, inter alia, ‘‘a principal
calling, vocation, or employment . . . .’’ The American
Heritage Dictionary of the English Language (5th Ed.
2011) similarly defines ‘‘professional’’ as, inter alia,
‘‘[o]f, relating to, engaged in, or suitable for a profes-
sion’’ and ‘‘profession’’ as, inter alia, ‘‘[a]n occupation
or career . . . .’’ Webster’s Third New International
Dictionary (2002) defines ‘‘professional’’ as, inter alia,
‘‘one that engages in a particular pursuit, study, or sci-
ence for gain or livelihood . . . .’’
It is well established that ‘‘[i]f the language of the
contract is susceptible to more than one reasonable
interpretation, the contract is ambiguous.’’ (Internal
quotation marks omitted.) Murtha v. Hartford, 303
Conn. 1, 9, 35 A.3d 177 (2011). The fact that these dic-
tionaries contain both the narrow definition adopted
by the Appellate Court and the aforementioned, broad
definition indicates that both parties’ interpretations of
the term are reasonable. Therefore, on the basis of our
review of the entire agreement and various dictionary
definitions, we conclude that the term ‘‘professional
offices’’ in the agreement is ambiguous. The trial court
and the Appellate Court, however, ignored the broader
definitions provided in common dictionaries and
improperly concluded that the term ‘‘professional
offices,’’ as used in the agreement, was plain and unam-
biguous. See NPC Offices, LLC v. Kowaleski, supra,
152 Conn. App. 452.
It is undisputed that there was no evidence presented
at trial as to the circumstances surrounding the creation
of the agreement and, thus, evidence of the original
parties’ intent regarding the term ‘‘professional offices.’’
Therefore, we must construe the ambiguous language
of the agreement in favor of the plaintiff, as the grantee
of the easement. See Lago v. Guerrette, supra, 219 Conn.
268 (‘‘[a]ny ambiguity in the instrument creating an
easement, in a case of reasonable doubt, will be con-
strued in favor of the grantee’’ [internal quotation marks
omitted]). This conclusion is fortified by the application
of the principle ‘‘that servitudes should be interpreted
in favor of validity . . . .’’4 1 Restatement (Third),
supra, § 4.1, comment (a), p. 498. Therefore, we apply
the broader definition of the term ‘‘professional’’ and
conclude that the term ‘‘professional offices,’’ as used
in the agreement, means an office where one ‘‘engages
in a particular pursuit, study, or science for gain or
livelihood . . . .’’ Webster’s Third New International
Dictionary (2002). Using this definition of ‘‘profes-
sional’’ indicates that, contrary to the Appellate Court’s
conclusion, the agreement does not preclude offices of
the type that had been previously operated out of the
plaintiff’s property, namely that of a mortgage broker,
a home health-care agency, and an appliance delivery
coordination service. See NPC Offices, LLC v.
Kowaleski, supra, 152 Conn. App. 453.
The defendants contend, however, that the applica-
tion of the broader dictionary definition would render
the term ‘‘professional’’ in the agreement meaningless.5
Specifically, the defendants assert that our interpreta-
tion would violate the rule of construction that ‘‘ ‘mili-
tates against interpreting a contract in a way that
renders a provision superfluous.’ ’’ Awdziewicz v. Meri-
den, 317 Conn. 122, 130, 115 A.3d 1084 (2015). We reject
this claim for two reasons. First, we note that, contrary
to the defendants’ claim, our interpretation gives effect
to all provisions of the agreement as we are construing
the term ‘‘professional offices’’ as a whole. Second, the
definition of ‘‘professional’’ that we conclude applies
to the interpretation of the agreement in the present
case does not include all offices, but rather is limited
to offices where one engages in a pursuit ‘‘for gain or
livelihood’’ as opposed to merely in pursuit of one’s
interests. Webster’s Third New International Dictionary
(2002). For example, the office of a local youth program
or a similar organization would not qualify as a ‘‘profes-
sional office’’ under our interpretation of the agreement.
Therefore, our interpretation does not render any term
of the agreement in the present case meaningless.
Pursuant to Practice Book § 84-11, the defendants
also filed a statement of alternative grounds for
affirmance of the Appellate Court’s judgment and of
adverse rulings to be considered in the event of a new
trial. In that statement, the defendants raised as alterna-
tive grounds for affirmance that the doctrines of judicial
estoppel and induced error are applicable to the present
case and that the plaintiff’s use of its property to house
multiple simultaneous businesses constituted use for
‘‘purposes other than residential or professional
offices’’ in violation of the agreement.6 Practice Book
§ 84-11 (a) provides in relevant part: ‘‘[T]he 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. . . .’’
(Emphasis added.) Our review of the Appellate Court
record reveals that the defendants did not raise these
grounds for affirming the judgment of the trial court in
the Appellate Court. Thus, because the plaintiff would
be prejudiced by our review of these issues, we decline
to consider these issues in the present appeal.7
Furthermore, the defendants claim that the judgment
of the Appellate Court could be affirmed on the alterna-
tive ground that the plaintiff’s use of its rear parking
lot for, inter alia, a ‘‘log-cutting operation’’ and the stor-
age of boats and trailers constituted use for ‘‘purposes
other than residential or professional offices’’ in viola-
tion of the agreement. We decline to review this claim
because we conclude that it does not constitute an
alternative ground for affirmance. The question of
whether the plaintiff’s performance of the aforemen-
tioned activities in its rear parking lot constitutes use
for ‘‘purposes other than residential or professional
offices’’ requires additional factual findings by the trial
court, including a determination of whether the prop-
erty was being used for residential purposes. Therefore,
the judgment of the Appellate Court is reversed.
Reversing the judgment of the Appellate Court as to
whether these prior tenancies of the plaintiff’s property
constituted ‘‘professional offices’’ within the meaning
of the agreement does not dispose of all the claims
relating to the agreement and the parties’ respective
properties. As a result of the trial court’s determination
that the easement had terminated, there are several
claims that the trial court did not independently
address. Accordingly, we now turn to the issues that
the trial court must consider on remand in light of the
conclusion that we have reached.8
We conclude that the trial court must address the
following issues on remand. First, because the trial
court determined that the easement had been termi-
nated, it solely addressed the plaintiff’s claims of fraud-
ulent transfer, prescriptive easement, and implied
easement. The trial court did not address the plaintiff’s
claims of quiet title, injunctive relief, and entry and
detainer. Accordingly, on remand, the trial court must
address these claims. Second, for the same reason, we
conclude that the defendants will have the opportunity
on remand to establish their counterclaims of overbur-
dening the easement and breach of contract. Third, the
defendants will also have the opportunity to establish
their special defenses that the plaintiff breached other
provisions of the agreement not at issue in this appeal
and that the plaintiff’s claims were barred by the doc-
trines of waiver and of unclean hands. Fourth, the defen-
dants will have the opportunity on remand to establish
their quiet title counterclaim and breach of contract
special defense regarding the issue of whether the plain-
tiff’s property had been used for ‘‘purposes other than
residential or professional offices’’ to the extent that
they relate to the question of whether the plaintiff vio-
lated the terms of the agreement by engaging in the
aforementioned activities in its rear parking lot. Fifth,
the plaintiff will have the opportunity to establish the
special defenses that it had asserted in response to the
defendants’ counterclaims, namely that the defendants’
counterclaims were barred by the doctrines of bad faith,
unclean hands, collateral estoppel, and breach of con-
tract. Finally, we note that, because the trial court did
not fully determine the boundaries of the easement due
to its conclusion that the easement had terminated,
on remand, the trial court must make a determination
regarding all of the dimensions of the easement.9
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to the trial court for a new trial in accordance
with this opinion.
In this opinion the other justices concurred.
1
We granted the plaintiff’s petition for certification to appeal, limited to
the following issues: ‘‘1. Did the Appellate Court properly affirm the trial
court’s decision based upon its conclusion that the doctrine of disproportion-
ate forfeiture does not apply in this matter? [and] 2. Did the Appellate Court
properly affirm the trial court’s decision based upon its conclusion that the
premises had been used for purposes other than ‘professional offices?’ ’’
NPC Offices, LLC v. Kowaleski, 314 Conn. 936, 936–37, 102 A.3d 1115 (2014).
Because we conclude that the Appellate Court improperly determined that
the premises had been used for purposes other than ‘‘professional offices,’’
we do not reach the first certified question.
2
The trial court found, and the parties agree, that a mortgage brokerage,
a home health-care agency, and an appliance delivery coordination service
had been operated out of the plaintiff’s property. Furthermore, it is undis-
puted that Aronson’s current operation of a psychologist’s office at the
property qualifies as a ‘‘professional office.’’
3
Although we have previously relied on Black’s Law Dictionary in the
past in order to ascertain the ‘‘common, natural, and ordinary meaning and
usage’’ of a term; (internal quotation marks omitted) Remillard v. Remillard,
297 Conn. 345, 355–56, 999 A.2d 713 (2010); we note that it is often not the
best source for determining the ordinary use of a term.
4
We also recognize the rule of construction that provides that an ambiguity
is construed against the party that drafted the instrument. See Harbour
Pointe, LLC v. Harbour Landing Condominium Assn., Inc., 300 Conn. 254,
260, 14 A.3d 284 (2011); 1 Restatement (Third), supra, § 4.1, comment (d),
p. 500. Although there was some testimony at trial suggesting who the drafter
of the agreement may have been, the trial court made no finding concerning
this issue. Thus, we do not apply this principle of construction in the pres-
ent case.
5
The defendants make a number of nonmeritorious contentions that we
reject. First, the defendants contend that this court should decline review
of the plaintiff’s claim because the plaintiff failed to adequately preserve
its claim for appeal. Specifically, the defendants contend that the plaintiff
did not advocate for the application of a broad definition of the term ‘‘profes-
sional offices’’ before the trial court. We disagree with the defendants. The
trial court ordered the parties to file posttrial briefs on the question of the
meaning of the term ‘‘professional’’ and subsequently held in favor of the
defendants based upon its conclusion that the previous tenants of the plain-
tiff’s property did not fall within the scope of the term ‘‘professional offices.’’
The plaintiff advanced a broad definition of the term in its posttrial reply
brief, asserting that the term ‘‘professional offices’’ in the agreement could
reasonably be interpreted as a means of prohibiting the use of the property
to house retail or manufacturing offices. The Appellate Court affirmed the
judgment of the trial court on the basis of its conclusion that the plaintiff’s
property had been used for purposes other than ‘‘professional offices.’’ See
NPC Offices, LLC v. Kowaleski, supra, 152 Conn. App. 452. Thus, because
the issue of the meaning of the term ‘‘professional offices’’ was clearly at
issue before both the trial court and the Appellate Court, we conclude that
the present case does not present a situation that ‘‘would amount to trial
by ambuscade.’’ State v. Santana, 313 Conn. 461, 467, 97 A.3d 963 (2014);
see also id. (noting that ‘‘this court has expressed a willingness to review
claims that a party did not explicitly raise to the trial court if it is clear
from the record that the substance of the claim was raised’’).
Furthermore, the defendants represent in their brief to this court that the
testimony of the plaintiff’s expert in real estate law supports their under-
standing of the term ‘‘professional offices.’’ Our review of the record, how-
ever, indicates that the trial court ruled that the plaintiff’s expert was not
qualified to give an opinion as to the definition of the term ‘‘professional
offices.’’ Therefore, we do not consider this testimony.
Second, the defendants cite to Dlugos v. Zoning Board of Appeals, 36
Conn. Supp. 217, 219, 416 A.2d 180 (1980), which the trial court also relied
on, and several out-of-state cases in support of their claim that the Appellate
Court properly adopted a narrow definition of the term ‘‘professional.’’ See
NPC Offices, LLC v. Kowaleski, supra, 152 Conn. App. 452. We do not find
these cases, which involved the interpretation of the term ‘‘professional’’
in certain zoning ordinances and statutes of limitations for professional
malpractice actions, to be persuasive in the context of interpreting the
agreement between the parties in the present case.
Third, the defendants contend that the interpretation of the term ‘‘profes-
sional’’ as used in the context of zoning ordinances is especially instructive
in the present case because it would be logical for this court to infer that
the original parties to the agreement intended to attach the same significance
to the language in their agreement. Specifically, at oral argument before
this court, counsel for the defendants contended that the fact that the
plaintiff’s property was located in a residential zone at the time the agreement
was drafted indicates that the original parties’ intention was to permit ‘‘lim-
ited professional use’’ of the property. The defendants never introduced
evidence at trial regarding the zoning ordinances in effect at the time the
agreement was drafted and the trial court made no finding on this issue. If
the defendants wished to rely on the definition of ‘‘professional’’ in the
context of zoning ordinances, the defendants should have provided evidence
at trial that the agreement was drafted in accordance with the zoning ordi-
nances in effect in 1960. Indeed, in their posttrial brief, the defendants
acknowledged the fact that they solely provided these zoning cases in
response to the trial court’s order that the parties discuss cases defining
the term ‘‘professional.’’
Furthermore, we note that the original parties to the agreement did not
include language restricting the definition of the term ‘‘professional offices’’
or references to the zoning ordinances in effect at the time in the agreement.
Thus, the interpretation of the agreement that the defendants advance would
require us to add the term ‘‘limited’’ as a restrictive modifier of the term
‘‘professional offices,’’ which is something we cannot do. See Stratford v.
Winterbottom, 151 Conn. App. 60, 73, 95 A.3d 538 (‘‘[i]n interpreting a con-
tract courts cannot add new or different terms’’ [internal quotation marks
omitted]), cert. denied, 314 Conn. 911, 100 A.3d 403 (2014). Accordingly,
we reject the defendants’ claim.
6
In their Practice Book § 84-11 statement, the defendants further asserted
that the judgment of the Appellate Court could be affirmed on the alternative
ground that the issue the plaintiff has raised on appeal was not properly
preserved for review. We have previously addressed this issue in this opinion.
See footnote 5 of this opinion.
7
We further note that the defendants failed to move for special permission
to raise these alternative grounds. See Practice Book § 84-11 (a) (‘‘If such
alternative grounds for affirmation or adverse rulings or decisions to be
considered in the event of a new trial were not raised in the appellate court,
the party seeking to raise them in the supreme court must move for special
permission to do so prior to the filing of that party’s brief. Such permission
will be granted only in exceptional cases where the interests of justice
so require.’’).
8
In compliance with Practice Book § 84-11, the defendants further present
an adverse ruling of the trial court for our consideration. Specifically, the
defendants assert that the trial court improperly determined that the plain-
tiff’s use of its rear parking lot for the aforementioned activities did not
constitute an unreasonable use of the defendants’ driveway. We understand
the defendants’ claim regarding the adverse ruling to be a part of the defen-
dants’ counterclaims for trespass and private nuisance. Thus, we conclude
that the filing of a statement pursuant to § 84-11 is not the proper means
to raise these claims in view of the fact that the Appellate Court concluded
that these claims ‘‘if successful would entitle [the defendants] only to nomi-
nal damages.’’ NPC Offices, LLC v. Kowaleski, supra, 152 Conn. App. 458.
If the defendants wished to contest these issues, they should have filed a
cross petition for certification to appeal.
9
We note that the defendants raised this issue in their Appellate Court
brief and again in their Practice Book § 84-11 statement to this court.