Rader v. Valeri

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MARTIN A. RADER, JR. v.
PAUL J. VALERI ET AL.
(AC 45407)
Bright, C. J., and Alvord and Clark, Js.

Syllabus

The plaintiff stakeholder, an attorney who represented the defendant V in
a real estate transaction in which V sold two real properties to the
defendant M Co., brought an action for interpleader to determine the
rights of V and M Co. to funds held in escrow until V obtained certain
zoning approvals for the properties. The properties, which were adjacent
to each other, were located in a federal opportunity zone, which provided
the opportunity for tax deferment. M Co. made clear its intent to V that
it desired to continue mixed commercial and residential use for the
first property and to convert the second property from a single-family
residence to a two-family residence. Various zoning and use approvals
were required from the city of Danbury in order to use the second
property as a two-family property. In order to qualify for the tax benefits
of the opportunity zone, V and M Co. were required to close on the
transaction within a six month window. In order to ensure the closing
could take place within the time frame needed to obtain the tax defer-
ment, the parties entered into a contract for sale containing a rider to
the contract that called for the creation of an escrow agreement to hold
$75,000 of the purchase price contingent on the receipt of specified
zoning and use approvals on or before February 1, 2020. M Co. designated
V as its agent relative to any application for a variance for the second
property. The zoning board granted the application for the variance for
the second property with the stipulation that there would be no street
access to the front of the second property, the driveway to the front of
the second property would need to be removed and replaced with grass,
and access to parking for the second property would be available only
through an easement over the first property in favor of the second
property. M Co. did not agree to the creation of the easement. After
trial, the court rendered judgment awarding the escrow funds to M Co.
On appeal to this court, V claimed that the trial court made erroneous
factual findings and improperly concluded that he failed to satisfy the
contingency set forth in the escrow agreement requiring that he obtain
a use variance for the second property. Held:
1. M Co. could not prevail on its claim that V’s appeal was moot because
V did not challenge each independent basis for the trial court’s judgment;
if this court were to agree with V’s claim that the trial court misconstrued
the escrow agreement as a matter of law, there would be no other basis
on which to affirm the trial court’s judgment and this court could grant
V practical relief by either directing judgment in his favor or by ordering
a new trial.
2. V could not prevail on his claim that the trial court made clearly erroneous
factual findings; even if this court assumed that the challenged findings
were clearly erroneous, the trial court did not rely on either of those
findings in reaching its conclusion that V failed to satisfy a condition
of the escrow agreement and, thus, any alleged error was harmless.
3. The trial court properly concluded that V failed to satisfy a condition of
the escrow agreement and awarded the escrow funds to M Co.: the
contract for sale and the escrow agreement were connected by reference
and subject matter and, when read together to determine the intent of
V and M Co., were unambiguous that, although M Co. designated V as
its agent to obtain a use variance for the second property, it did not
grant V any authority that allowed him to encumber the first property
in pursuit of a use variance for the second property; moreover, the use
variance V obtained for the second property was conditioned on the
granting of an easement over the first property, which did not satisfy
the terms of the escrow agreement or the contract for sale, which
expressly required that V convey the properties without private restric-
tive covenants or easements; furthermore, V’s reliance on the fact that
there was no dispute that the only access to the additional parking
spaces behind the second property was across the first property as
support for his suggestion that M Co. knew that a permanent easement
would be required for the use variance for the second property lacked
probative force because, with M Co. as the owner of both properties,
no easement would be required to allow such access.
Argued September 18, 2023—officially released January 9, 2024

Procedural History

Action for interpleader to determine the defendants’
rights to certain funds held in escrow in connection
with the sale of two real properties, brought to the
Superior Court in the judicial district of Danbury, where
the court, Kowalski, J., granted the plaintiff’s motion
for an interlocutory judgment of interpleader and
ordered the plaintiff to deposit the funds with the clerk
of the court; thereafter, the case was tried to the court,
Shaban, J.; judgment for the defendant MSPD Downs
Street, LLC, from which the named defendant appealed
to this court. Affirmed.
Alexander Copp, for the appellant (named defen-
dant).
Brandon B. Fontaine, for the appellee (defendant
MSPD Downs Street, LLC).
Opinion

BRIGHT, C. J. This interpleader action arises from a
real estate transaction in which the defendant claimant,
MSPD Downs Street, LLC (MSPD), purchased two prop-
erties located in Danbury from the defendant claimant,
Paul J. Valeri.1 The plaintiff stakeholder, Martin A.
Rader, Jr., sought an order determining the rights of
Valeri and MSPD to funds held in escrow until Valeri
obtained certain zoning approvals for the properties.2
Valeri appeals from the judgment of the trial court,
rendered after a court trial, awarding MSPD the escrow
funds and attorney’s fees. On appeal, Valeri claims that
the court (1) made clearly erroneous factual findings
and (2) improperly concluded that he failed to satisfy
one of the zoning contingencies set forth in the escrow
agreement. We affirm the judgment of the trial court.
The following facts, either as found by the trial court
or undisputed by the parties, and procedural history
are relevant to Valeri’s claims. ‘‘In 2019, MSPD sought
to purchase from Valeri two properties located at 10
Downs Street [also referred to as 10 Downs] and 12
Downs Street [also referred to as 12 Downs] [in] Dan-
bury . . . . The two properties are adjacent to each
other. 12 Downs is a corner lot, also bordering Smith
Street, with parking in the rear of the building that is
accessed from Smith Street. On that lot is a large house
with 2838 square feet of living area. . . . While zoned
as a commercial property for offices, it also houses a
residential apartment. . . . The adjacent property at
10 Downs is a small residential ranch home. . . .
Unlike 12 Downs, its use is limited to a one-family
residential property.’’ (Citations omitted.) 10 Downs
Street has a front driveway that leads to a garage, and
there is a parking area behind the building. In order to
access the parking area behind 10 Downs Street, vehi-
cles must enter from Smith Street and travel across the
parking area behind 12 Downs Street.
‘‘Valeri marketed the properties as being in a federal
opportunity zone. Such designated zones are an eco-
nomic development tool that encourages investment in
distressed communities by providing the opportunity
for tax deferment. In expressing its interest in the prop-
ert[ies] to Valeri, MSPD made clear that it desired to
continue the mixed commercial and residential use of
12 Downs but also to convert 10 Downs from a single-
family residence to a two-family rental property. To
qualify for the tax benefits under the requirements of
the opportunity zone, the parties had to close on the
transaction within a six month window.
‘‘In order to ensure that the closing could timely take
place to obtain the tax deferment benefit, the parties
entered into a contract for sale of 10 Downs and 12
Downs that was fully executed on September 23, 2019.
. . . That contract called for a purchase price of
$625,000. Nevertheless, knowing that a zoning variance
and other approvals would be needed to meet the goals
of MSPD as to the use of the properties, the parties
added a rider to the contract [that] called for the cre-
ation of an escrow agreement to hold $75,000 of the
purchase price in escrow contingent upon the receipt
of specified zoning and use approvals from the city of
Danbury on or before February 1, 2020.
‘‘To this end, paragraph 14 of the contract specifically
states: ‘Seller [Valeri] due diligence through 9/27/19 [ini-
tialed] w/City of Danbury regards escrow contingen-
cies. Escrow agreement to be finalized by attorneys:
contingent upon [Valeri] delivering 2 family status for
#10 Downs [and] zoning use letter confirming #12
Downs for [apartment] over professional offices, both
by 1/31/20.’ . . . The parties also added a rider to the
contract that . . . states: ‘Supplementing paragraph
14, the sum of $75,000 shall be held in escrow until
the zoning and use contingencies are satisfied. Seller
[Valeri] and Purchaser [MSPD] shall execute a mutually
agreeable form of escrow agreement at closing.’ . . .
‘‘[A]t the time of the closing on October 2, 2019, the
parties entered into an escrow agreement as called for
by the contract. The relevant portion of that agree-
ment states:
‘‘ ‘2. The Escrow Agent shall hold said funds until
satisfaction of the following conditions: a. The Seller
obtains a zoning use letter from the Zoning Enforcement
Officer of the City of Danbury, CT to the effect that
under current zoning regulations the property known
as #12 Downs Street may be used for professional office
and residential use with one residential unit over the
professional office space, and
‘‘ ‘b. The Seller obtains a Use Variance for the prop-
erty known as #10 Downs Street, Danbury, CT which
variance permits the use of the property for two residen-
tial units, with the addition of a second floor to the
existing building to accommodate the second residen-
tial unit.
‘‘ ‘Notwithstanding the above, Seller may alterna-
tively satisfy the zoning conditions by obtaining a zone
change to R-3 residential plus such variances from the
[zoning board] as would be required to add a second
residential unit over the existing building at #10 Downs
Street and permit the use of #12 Downs Street for pro-
fessional office space with one residential unit over the
professional office space or three residential units.
‘‘ ‘3. In the event that the conditions set forth above
are not met before February 1, 2020 (Termination Date),
then in that event the Escrow Funds shall be returned
to the Buyer.’ . . .
‘‘Hence, the escrow agreement set forth two [condi-
tions] that needed to be met in order to release the
$75,000 to Valeri as the seller and set a deadline of
February 1, 2020, for doing so. Because of his experi-
ence in the field of real estate as a broker for over forty
years, MSPD agreed to designate Valeri as its agent
relative to any application for a variance brought to the
city of Danbury relative to 10 Downs. . . . There was
no provision regarding any action by Valeri as MSPD’s
agent relative to 12 Downs.
‘‘Following the execution of the contract and escrow
agreement, the parties proceeded to close the transac-
tion and Valeri commenced work on meeting the [condi-
tions]. As to paragraph 2a of the agreement, Valeri
obtained a letter from the zoning enforcement officer
of the city of Danbury dated October 10, 2019, that
confirmed that 12 Downs could continue to be used for
professional office and residential use with one residen-
tial unit over the professional office space. . . . There-
fore, that condition of the escrow agreement was
timely met.
‘‘As to paragraph 2b of the agreement, Valeri began
his effort under the authority granted to him to act as
agent for MSPD to obtain a use variance for 10 Downs.
Although already addressed in paragraph 7 of the
escrow agreement, the parties subsequently executed
a separate agency designation dated October 8, 2019.
That designation states: ‘The undersigned owner of #10
Downs Street, Danbury, CT [MSPD] does hereby autho-
rize Paul J. Valeri to act as its agent to pursue a use
variance from the [Danbury zoning board of appeals
(zoning board)], which variance would allow the addi-
tion of a second story to the existing building and the
use of the two-story building as a two-family residence,
and to do all things reasonably necessary to achieve
that purpose.’ . . . Like paragraph 7 of the escrow
agreement, this designation also made no mention of
any authority relative to 12 Downs.
‘‘On or about October 21, 2019, Valeri submitted an
application to the Danbury zoning board . . . for a use
variance on 10 Downs consistent with the intent of the
parties as expressed in the contract for sale and the
escrow agreement. . . . After consideration by the
zoning board . . . on or about December 12, 2019, the
application was denied without prejudice to the submis-
sion of a new application. . . . Thereafter, Valeri sub-
mitted a new application dated December 13, 2019,
which proposed eliminating the driveway in front of 10
Downs and obtaining an easement over 12 Downs to
allow access to parking behind 10 Downs. . . . This
was based on Valeri’s belief from comments by the
zoning board during the hearing that these conditions
would be required for an approval. As part of the pro-
cess, Valeri submitted a survey map dated December
18, 2019, entitled ‘Proposed Parking Layout & Easement
Map.’ That map showed an easement over 12 Downs
in favor of 10 Downs. . . . The application also
included an unsigned Declaration of Easement which
Valeri indicated to the zoning board would be signed
and recorded upon the granting of the variance. The
second application was assigned for a hearing in Janu-
ary, 2020, but [it] was continued until February 13, 2020,
due to the lack of a quorum.
‘‘Prior to the hearing, Valeri contacted MSPD to make
them aware of [his] belief that both the removal of
the driveway from 10 Downs and an easement over 12
Downs would be needed to obtain the variance. There
was communication between the parties and their coun-
sel on the subject and MSPD expressly made clear that
it would not support the plan to remove the driveway
and grant an easement. In an email exchange between
Attorney Rader representing Valeri and Attorney
Michael Wood on behalf of MSPD, just hours before
the February 13, 2020 hearing before the zoning board,
Rader wrote in part: ‘Word was passed to Paul [Valeri]
last night that we will have to give up access to Downs
Street forever to get variance. They will want to hear
us agree to that tonight before they vote. I also believe
[the zoning board] will want a commitment that [the]
owner will sign and record [the] easement and map.’
In response, Wood wrote, ‘Marty, [I] will give you a call
but Joe, Michele and Peter [i.e., MSPD] are not willing
to unconditionally make these commitments tying up
the parcels.’ . . . MSPD’s reasoning for this was that,
if done, it would effectively create a situation that would
merge the lots and prevent them from being sold sepa-
rately thereby reducing the collective value of the two
parcels. Even with that position, MSPD allowed Valeri
to go forward with the February 13, 2020 hearing before
the zoning board but reserved its right to claim that
Valeri had failed to comply with the February 1, 2020
deadline for the granting of the use variance.
‘‘At the hearing, Valeri pursued the variance applica-
tion based on the plan of removing the driveway to 10
Downs and granting an easement over 12 Downs for
the purpose of ingress and egress to 10 Downs. Follow-
ing the hearing, the use variance for 10 Downs was
granted based on those conditions. The relevant portion
of the variance certificate issued by the zoning board
. . . read[s] as follows: ‘NATURE OF VARIANCE:
GRANTED WITH STIPULATION: Use Variance, Sec.
5.A.2 to allow a two-family dwelling in a CG-20 Zoning
District; Sec. 9.C.1.a. to change nonconforming, single-
family dwelling into nonconforming, two-family dwell-
ing; Sec. 9.C.2.b to extend or expand a nonconforming
single-family dwelling to add second floor/second
dwelling unit. The plan submitted, subject to the stipula-
tion below, was entitled Proposed Parking Layout &
Easement Map, No. 10 & No. 12 Downs Street, Danbury
. . . . STIPULATION: The concrete area, formerly the
driveway, will be eliminated and changed to grass, and
there will be no entry onto Downs Street from 10 Downs
Street.’ . . . The variance was issued with the direc-
tion it be recorded on the land records.
‘‘On March 12, 2020, following the expiration of the
appeal period, Valeri provided the variance certificate
to MSPD and asked that the $75,000 escrow be released
to him. . . . In response, MSPD’s counsel objected to
the release of the escrow on the basis that ‘[t]he vari-
ance enclosed with your correspondence contains con-
ditions and stipulations which are unacceptable to
MSPD (and to which it notified Mr. Valeri it did not
consent . . .). In addition, the variance was not
obtained in a timely manner.’ . . . Shortly thereafter,
by email on March 16, 2020, on behalf of MSPD, Attorney
Wood wrote to Attorney Rader relative to the condi-
tional granting of the use variance and relayed that it
was not acceptable to MSPD.
‘‘ ‘I discussed with [Joseph Savino, a member of
MSPD], your letter, and we respectfully disagree with
both points. Joe was willing to allow the variance pro-
cess to play out during February to see if [Valeri] would
be able to deliver the approvals he repeatedly repre-
sented would be easily obtained. As you know, it
became clear that there would be restrictions on not
only 10 Downs but 12 Downs as well. The requirement
for an easement will tie the two properties together in
perpetuity, which was never contemplated or agreed
[to] as part of the transaction. As for any representation
[Valeri] may have made to the [zoning board], he had
been expressly informed by his principal prior to
appearing that we did not agree to the conditions, and
therefore was not acting within the scope of his agency
by purporting to agree to them. To the contrary, he
appears to have been pursuing only his own self-inter-
ests. The conditions in the variance and the easement
requirement were never agreed to or contemplated, and
had they been at the time, MSPD would not have agreed
to the purchase price it did. Notwithstanding the forego-
ing, MSPD is open [to] discussing a negotiated resolu-
tion of this matter if [Valeri] is. All of MSPD’s rights,
remedies and defenses are expressly reserved.’ . . .
‘‘Although having received the variance certificate,
MSPD has not recorded it, and it therefore has yet to
take effect. With respect to any encumbrances against
the property, paragraph 16 of the contract states that
the seller shall provide a warranty deed at closing that
is ‘free and clear of all encumbrances except . . . (ii)
restrictive covenants and easements of record . . . .’
It also states that ‘[t]he Property shall be conveyed free
of any violations of any governmental rules, regulations
or limitations or private restrictive covenants or ease-
ments.’ . . . Valeri credibly testified at trial that the
title search done prior to the sale of the property
revealed that there were no easements or other encum-
brances on the property. As such, at the time of closing,
the purchase price of the properties paid by MSPD
did not involve 12 Downs [Street] being subject to any
easements subservient to 10 Downs [Street].’’ (Citations
omitted; emphasis omitted; footnotes omitted.)
Rader initiated the underlying interpleader action in
May, 2020, and Valeri and MSPD filed competing state-
ments of claim. Valeri claimed that he satisfied both
conditions set forth in the escrow agreement, whereas
MSPD claimed that the condition set forth in paragraph
2b of the escrow agreement had not been satisfied and
that Valeri failed to satisfy both conditions before the
February 1, 2020 deadline. After the court, Kowalski,
J., rendered an interlocutory judgment of interpleader;
see footnote 2 of this opinion; the pleadings were
closed, and the matter was tried to the court, Shaban,
J., on October 5, 2021. At trial, the court heard testimony
from Valeri and his attorney, Rader, as well as from
Savino, a member of MSPD, and MSPD’s attorney. After
trial, the court issued an order directing the parties to
file posttrial briefs along with any claims for attor-
ney’s fees.
In his posttrial brief, Valeri claimed that he ‘‘fulfilled
all of the conditions required in the escrow agreement
. . . .’’ He argued that the contract for sale and the
escrow agreement ‘‘do not contain a requirement that
an easement or passway not be a condition for a use
variance for 10 Downs Street. The language of the desig-
nation of agency authorized . . . Valeri to seek the
variance doing all things reasonably necessary. The
[contract for sale] and escrow agreement are . . .
complete, thorough contracts. . . . There is a merger
clause in the real estate contract at section 28 . . . .
The presence of a merger clause in a written agreement
establishes conclusive proof of the parties’ intent to
create a completely integrated contract and . . . any
extrinsic evidence . . . should not be used to construe
the contract.’’ (Citations omitted.)
In its posttrial brief, MSPD claimed that the escrow
agreement and contract for sale ‘‘are clear and unambig-
uous’’ and that Valeri ‘‘failed to comply with the clear
terms and intentions of the parties’ agreement . . . .’’
It argued that it ‘‘never consented to [the zoning board’s]
conditions in any contract it signed, nor were such
conditions implied or remotely reasonable after the
fact. . . . That is particularly true here [because] an
easement would be contrary to what MSPD bargained
for at paragraph 16 of the [contract for sale]—a property
without any easements. . . . Valeri should not get the
financial benefit of the sale at full market value and
then immediately depreciate the property after the fact
to meet [the escrow] conditions, purely to [MSPD’s]
detriments. MSPD has the same common ownership
that Valeri did and does not want an easement. . . .
Clearly, the easement and driveway removal would
devalue the properties and decrease marketability by
tying them together . . . .’’ (Internal quotation marks
omitted.)
On March 14, 2022, the court rendered judgment for
MSPD, concluding that Valeri failed to satisfy the condi-
tion set forth in paragraph 2b of the escrow agreement
requiring that he obtain a use variance for 10 Downs
Street. In its memorandum of decision, the court rea-
soned that ‘‘Valeri was to obtain a variance to permit
the use of the property for two residential units with
the addition of a second floor to the existing building
to accommodate the second residential unit. While
receiving approval to do so, the approval was condi-
tioned by the zoning board upon the grant of an ease-
ment over 12 Downs as well as the removal of the
driveway from 10 Downs which was to then be covered
with grass. These were conditions that were expressly
not agreed to or authorized by MSPD after it became
aware of the possibility [that] such conditions would
either be sought by Valeri or imposed by the zoning
board.
‘‘While MSPD had designated Valeri as its agent to
do what was ‘reasonably necessary’ to obtain the vari-
ance, the authorization to do so was limited to matters
involving 10 Downs, not 12 Downs. . . . Even if ‘rea-
sonably necessary’ was interpreted to mean that the
pursuit of the use variance to obtain an easement over
12 Downs for access to 10 Downs, and removing the
driveway from 10 Downs, MSPD had made clear when
the topic was first broached on or about December 20,
2019, following the first hearing before the zoning
board, that it was not agreeable to such conditions.
. . . Again, immediately prior to the February 13, 2020
hearing, MSPD’s counsel, upon being advised by Valeri’s
counsel [that] the zoning board would likely require an
easement over 12 Downs and giving up direct access
to 10 Downs, specifically set forth in writing that MSPD
was ‘not willing to unconditionally make these commit-
ments tying up the parcels.’ . . . Valeri acted contrary
to the express direction of his principal and credibly
testified at trial that he never received authorization
from MSPD to seek an easement or [to] agree to one,
nor did he receive any authorization to agree to removal
of the driveway . . . .
‘‘The designation of Valeri as MSPD’s agent to do
what was reasonably necessary to obtain a use variance
for [10] Downs could not entail pursuit of any easement
over 12 Downs as to do so would put Valeri in direct
conflict with the terms of the contract. Paragraph 16
of the contract made clear that the sale of the properties
was to be clear of any ‘private restrictive covenants or
easements.’ . . . To encumber the property with an
easement, without the express consent of MSPD, would
result in MSPD receiving something other than what it
had bargained for at the time of the sale and purchase.’’
(Citations omitted; emphasis in original.) This appeal
followed.3
I
Before addressing Valeri’s claims, we first consider
MSPD’s claim that Valeri’s appeal is moot because he
has failed to challenge each independent basis for the
judgment. See, e.g., Hartford v. CBV Parking Hartford,
LLC, 330 Conn. 200, 210, 192 A.3d 406 (2018) (‘‘if there
exists an unchallenged, independent ground to support
a decision, an appeal from that decision would be moot,
as this court could not afford practical relief even if
the appellant were to prevail on the issue raised on
appeal’’); Jacques v. Jacques, 195 Conn. App. 59, 61–62,
223 A.3d 90 (2019) (same).
On appeal, Valeri claims that (1) the court made
clearly erroneous findings as to the layout of 10 Downs
Street and as to when MSPD first learned about the
variance conditions imposed by the zoning board and
(2) the court improperly concluded that he failed to
satisfy paragraph 2b of the escrow agreement due to
the variance conditions.
MSPD claims that the ‘‘court found that each of the
two variance conditions—the easement over 12 Downs
and the removal of the driveway at 10 Downs and cov-
ering with grass—were independently not authorized
by MSPD, not ‘reasonably necessary,’ and not in compli-
ance with paragraph 2b of the escrow agreement.’’
(Emphasis in original.) Therefore, MSPD argues that
‘‘Valeri has not raised an adequate challenge to (1) the
variance stipulation requiring removal of the front drive-
way from 10 Downs being noncompliant with paragraph
2b and (2) the court’s factual finding that removal of
each [of] the driveway and the easement were ‘unrea-
sonable.’ ’’ Valeri responds that the court did not find
that the two conditions were unreasonable and that he
has adequately challenged the court’s interpretation of
the escrow agreement, which was the basis for the
court’s decision. We agree with Valeri.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[this] court’s subject matter jurisdiction . . . . [A]n
actual controversy must exist not only at the time the
appeal is taken, but also throughout the pendency of
the appeal. . . . When, during the pendency of an
appeal, events have occurred that preclude an appellate
court from granting any practical relief through its dis-
position of the merits, a case has become moot. . . .
In determining mootness, the dispositive question is
whether a successful appeal would benefit the plaintiff
or defendant in any way.’’ (Citation omitted; internal
quotation marks omitted.) L. L. v. M. B., 216 Conn. App.
731, 736, 286 A.3d 489 (2022). Insofar as MSPD’s claim
requires that we construe the court’s judgment, our
review is plenary. See Cunningham v. Cunningham,
204 Conn. App. 366, 373, 254 A.3d 330 (2021) (‘‘[b]ecause
[t]he construction of a judgment is a question of law
for the court . . . our review of the . . . claim is ple-
nary’’ (internal quotation marks omitted)).
At the outset we note that the court did not, as MSPD
contends, expressly find that both conditions for the
variance were unreasonable. Instead, the court held
that Valeri’s authorization to act as MSPD’s agent to
obtain the variance ‘‘was limited to matters involving
10 Downs Street’’ and that Valeri ‘‘acted contrary to the
express direction of his principal [because] he never
received authorization from MSPD to’’ agree to the vari-
ance conditions. The court also held that ‘‘[t]he designa-
tion of Valeri as MSPD’s agent to do what was reason-
ably necessary to obtain a use variance for [10] Downs
could not entail pursuit of any easement over 12 Downs’’
because ‘‘[t]o encumber the property with an easement,
without the express consent of MSPD, would result
in MSPD receiving something other than what it had
bargained for at the time of the sale and purchase.’’
Accordingly, there are three bases for the court’s con-
clusion that Valeri failed to satisfy paragraph 2b of the
escrow agreement: (1) Valeri exceeded his authority as
to 10 Downs Street by agreeing to an easement over
12 Downs Street; (2) Valeri exceeded his authority by
agreeing to the variance conditions to which MSPD
objected; and (3) interpreting the agreement as allowing
Valeri to encumber 12 Downs Street with an easement
would contradict the express terms in the contract for
sale requiring that 12 Downs Street be conveyed free
of any encumbrances.
On appeal, Valeri claims that the court made clearly
erroneous findings that justify a new trial and improp-
erly concluded that he failed to satisfy paragraph 2b of
the escrow agreement. He argues that ‘‘a variance with
reasonable conditions is still a variance, and the vari-
ance [he] obtained . . . to allow a two-family house
constituted a ‘use variance’ under the contract as a
matter of law.’’ If we agree with Valeri and conclude
that the court misconstrued the escrow agreement as
a matter of law, there would be no other basis on which
to affirm the court’s judgment, and we could grant Valeri
practical relief by either directing judgment in his favor
or ordering a new trial. Accordingly, his appeal is not
moot. See, e.g., L. L. v. M. B., supra, 216 Conn. App.
737 (appeal not moot if ‘‘successful appeal would bene-
fit [the appellant]’’).
II
On appeal, Valeri challenges two of the court’s factual
findings. First, he claims that the court’s finding that
‘‘10 Downs has a front driveway that leads to a garage
in the back with a number of parking spots in the rear’’
is clearly erroneous, as ‘‘[t]he only vehicular access to
the back parking lot behind 10 Downs Street is through
the back parking lot behind 12 Downs Street.’’ Second,
he claims that the court’s finding that the conditions
imposed by the zoning board were ‘‘first broached on or
about December 20, 2019,’’ is clearly erroneous because
‘‘the topic of driveway removal was broached on
December 6, 2019, at the latest, while the topic of the
easement was broached on December 13, 2019, at the
latest.’’ According to Valeri, ‘‘the trial court believed
that the back parking area of 10 Downs Street could
be accessed by vehicle over the unused, front driveway
of 10 Downs Street, rather than solely through the back
parking area of 12 Downs Street. As a result, the trial
court failed to appreciate that the easement over 12
Downs Street was necessary to ensure access to ade-
quate parking over 10 Downs Street. Especially when
coupled with its factual errors concerning the timing of
Mr. Valeri’s notice of the required conditions to MSPD,
taken as a whole, the erroneous factual findings justify
a new trial.’’
For its part, MSPD concedes that the driveway for
10 Downs Street ‘‘does not lead to the parking spots in
the rear’’ but notes that ‘‘[t]hat fact was never in dispute
. . . .’’ MSPD claims that ‘‘the court’s phrasing can only
be fairly construed as a clerical error or misstatement
that was not an erroneous factual finding’’ and, in the
alternative, that any error as to the layout of the proper-
ties is harmless. Likewise, MSPD contends that any
alleged error as to the precise date when Valeri first
notified MSPD about the zoning board’s conditions for
the variance is harmless because, ‘‘[u]nder either sce-
nario, MSPD learned of the variance conditions a few
months after it purchased the property . . . .’’ (Empha-
sis in original.) We conclude that the challenged find-
ings did not affect the court’s conclusion and, conse-
quently, that the alleged errors are harmless.
It is well established that ‘‘[a]ppellate review of a
trial court’s findings of fact is governed by the clearly
erroneous standard of review. . . . A finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) Tilsen v. Benson, 347 Conn. 758, 796–
97, 299 A.3d 1096 (2023). ‘‘[W]here . . . some of the
facts found [by the trial court] are clearly erroneous
and others are supported by the evidence, we must
examine the clearly erroneous findings to see whether
they were harmless, not only in isolation, but also taken
as a whole. . . . If, when taken as a whole, they under-
mine appellate confidence in the court’s [fact-finding]
process, a new hearing is required.’’ (Internal quotation
marks omitted.) Autry v. Hosey, 200 Conn. App. 795,
801, 239 A.3d 381 (2020). In a civil case, ‘‘[t]he harmless
error standard . . . is whether the improper ruling
would likely affect the result.’’ (Internal quotation
marks omitted.) JPMorgan Chase Bank, National Assn.
v. Lakner, 347 Conn. 476, 496, 298 A.3d 249 (2023).
As an initial matter, we are not persuaded that the
court’s inaccurate description of 10 Downs Street indi-
cates a fundamental misunderstanding of the layout of
the properties. Indeed, as noted by MSPD, there was
no dispute that the parking area behind 12 Downs Street
provided the only vehicular access to the parking area
located behind 10 Downs Street. Valeri testified that
‘‘everybody understood. You know, you can’t get a car
from behind 10 [Downs Street] out to Smith Street with
a helicopter. You’ve got to get there legally.’’ Similarly,
Savino, when asked if vehicles must drive across 12
Downs Street to access the parking behind 10 Downs
Street, testified: ‘‘That’s correct.’’ MSPD, however,
maintained that it could accommodate the necessary
parking spaces without recording an easement, just as
Valeri had used the properties while he owned them.
Nevertheless, assuming arguendo that the challenged
findings as to the layout of the properties and the timing
of MSPD’s awareness of the additional conditions for
the variance are clearly erroneous, such errors are
harmless because the court did not rely on either of
those facts in reaching its conclusion that Valeri failed
to satisfy paragraph 2b of the escrow agreement.
Instead, as previously discussed in part I of this opinion,
the court concluded that Valeri exceeded his authority
as MSPD’s agent by agreeing to conditions to which
MSPD objected and that Valeri’s authority under the
escrow agreement could not entail encumbering 12
Downs Street. Notwithstanding Valeri’s claim that the
court’s ‘‘erroneous factual findings justify a new trial,’’
he appears to agree that the court did not rely on those
findings in reaching its ultimate conclusion, as he states
in his reply brief that the court’s decision ‘‘is clear:
MSPD’s unilateral agency designation conclusively
established its right to the subject funds, regardless of
whether . . . Valeri obtained the required ‘use vari-
ance’ as that term is used in the contract, and regardless
of whether the two conditions were ‘reasonably neces-
sary.’ ’’ Consequently, because the court did not rely
on the challenged findings in rendering judgment for
MSPD, we conclude that any alleged error is harmless.
See, e.g., C. D. v. C. D., 218 Conn. App. 818, 828 n.6,
293 A.3d 86 (2023) (‘‘[a]ssuming arguendo that [court’s]
finding is clearly erroneous, the error is harmless’’).
III
Valeri next claims that the court improperly con-
cluded that he failed to satisfy paragraph 2b of the
escrow agreement. Valeri argues that, ‘‘[r]ather than
focusing on the key issue before it, i.e., whether the
term ‘use variance’ as used in the escrow agreement
includes variances with reasonable conditions, the trial
court relied almost exclusively on the agency designa-
tion which was not even part of the underlying contract.
. . . When properly focused on the language of the
escrow agreement itself, it becomes clear that the term
‘use variance’ necessarily includes reasonable condi-
tions imposed by a zoning board.’’ MSPD responds that
the use variance Valeri obtained for 10 Downs Street
‘‘was not consistent with the parties’ agreement in that
it imposed unacceptable conditions upon MSPD outside
the express terms of the contract, to which MSPD never
agreed . . . or authorized.’’ We agree with MSPD.
We begin our analysis with the applicable standard of
review and relevant legal principles regarding contract
interpretation. ‘‘When a party asserts a claim that chal-
lenges the trial court’s construction of a contract, we
must first ascertain whether the relevant language in
the agreement is ambiguous. . . . When the language
of a contract is ambiguous, the determination of the
parties’ intent is a question of fact . . . . [When] there
is definitive contract language, [however] the determi-
nation of what the parties intended by their contractual
commitments is a question of law. . . . It is implicit in
this rule that the determination as to whether contrac-
tual language is plain and unambiguous is itself a ques-
tion of law subject to plenary review. . . .
‘‘We accord the language employed in the contract
a rational construction based on its common, natural
and ordinary meaning and usage as applied to the sub-
ject matter of the contract. . . . Where the language
is unambiguous, we must give the contract effect
according to its terms. . . . A contract is unambiguous
when its language is clear and conveys a definite and
precise intent. . . . The court will not torture words
to impart ambiguity where ordinary meaning leaves no
room for ambiguity. . . . Moreover, the mere fact that
the parties advance different interpretations of the lan-
guage in question does not necessitate a conclusion
that the language is ambiguous. . . . In contrast, a con-
tract is ambiguous if the intent of the parties is not
clear and certain from the language of the contract
itself. . . . [A]ny ambiguity in a contract must emanate
from the language used by the parties. . . . The con-
tract must be viewed in its entirety, with each provision
read in light of the other provisions . . . and every
provision must be given effect if it is possible to do so.
. . . If the language of the contract is susceptible to
more than one reasonable interpretation, the contract
is ambiguous.’’ (Citations omitted; internal quotation
marks omitted.) C & H Shoreline, LLC v. Rubino, 203
Conn. App. 351, 356–57, 248 A.3d 77 (2021).
When multiple ‘‘agreements . . . are connected by
reference and subject matter, [they] are to be consid-
ered [together] in determining the real intent of the
parties. . . . Where . . . the signatories execute a
contract which refers to another instrument in such a
manner as to establish that they intended to make the
terms and conditions of that other instrument a part of
their understanding, the two may be interpreted
together as the agreement of the parties. . . . Con-
tracts must be given a reasonable interpretation and
the words used their common, natural, and ordinary
meaning and usage . . . unless a technical or special
meaning is clearly intended.’’ (Citations omitted; inter-
nal quotation marks omitted.) Meeker v. Mahon, 167
Conn. App. 627, 634, 143 A.3d 1193 (2016).
In the present case, although neither party claims
that the escrow agreement is ambiguous, they disagree
as to the applicable standard of review. Valeri contends
that our review of the court’s decision is plenary
because the court relied on the language of the parties’
agreements only, whereas MSPD claims that ‘‘this issue
presents primarily questions of fact about the parties’
intent and reasonableness, which are subject to the
clearly erroneous standard [of review].’’ We conclude
that Valeri’s interpretation of the agreement is unrea-
sonable and that the escrow agreement, when read
together with the contract for sale, is unambiguous
as to whether he satisfied paragraph 2b. Accordingly,
because the parties’ intent is ‘‘clear and certain from
the language of the contract itself,’’ our review is ple-
nary.4 C & H Shoreline, LLC v. Rubino, supra, 203 Conn.
App. 357.
Paragraph 14 of the parties’ contract for sale, titled
‘‘Additional Terms and/or seller concessions,’’ as well
as paragraph 34 of the rider to the contract, expressly
reference the escrow agreement and related zoning con-
tingencies.5 Paragraph 2b of the escrow agreement
requires that Valeri obtain ‘‘a [u]se [v]ariance for the
property known as #10 Downs Street, Danbury, CT
which variance permits the use of the property for two
residential units, with the addition of a second floor
to the existing building to accommodate the second
residential unit.’’ Paragraph 7 of the escrow agreement
provides that ‘‘[MSPD] agrees to cooperate fully with
[Valeri] in satisfying the zoning conditions set forth
herein. In the event [Valeri] has not filed his application
for variance for #10 Downs as of the conveyance of title,
[MSPD] agrees that [Valeri] may file [the use variance]
application for [MSPD] as the [a]gent of [MSPD].’’ Sev-
eral days after the closing, MSPD, as the owner of 10
Downs Street, executed a separate agency designation
authorizing ‘‘Valeri to act as its agent to pursue a use
variance from the [zoning board], which variance would
allow the addition of a second story to the existing
building and the use of the [two-story] building as a
[two-family] residence, and to do all things reasonably
necessary to achieve that purpose.’’ No similar agency
designation was executed for 12 Downs Street.
As Valeri emphasizes throughout his brief, he
obtained a use variance that permits the use of the
property for two residential units, with the addition of
a second floor to the existing building to accommodate
the second residential unit. He argues that ‘‘the term
‘use variance’ plainly includes within its definition a
variance with reasonable conditions or stipulations’’
and that ‘‘not only were the [conditions] reasonable,
they were necessary when interpreted in light of the
situation of the parties and the circumstances con-
nected with the transaction.’’ (Emphasis in original.)
Although we agree with Valeri that the term ‘‘use vari-
ance’’ reasonably could be interpreted to include rea-
sonable conditions imposed by a zoning board on the
use of 10 Downs Street, we are not persuaded that the
agreement reasonably can be interpreted to allow him
to encumber 12 Downs Street in pursuit of a use vari-
ance for 10 Downs Street.
At the outset we note that the contract for sale and
the escrow agreement are connected by reference and
subject matter and, therefore, must be read together in
determining the intent of the parties. See Meeker v.
Mahon, supra, 167 Conn. App. 634. Although Valeri
claims on appeal that the parties’ agency relationship
was governed by the escrow agreement alone and that
the court improperly relied on MSPD’s agency designa-
tion, the only discernible difference between the agency
designation in the escrow agreement and the later one
executed by MSPD is that MSPD’s later designation
authorized Valeri ‘‘to do all things reasonably necessary
to’’ obtain the use variance, whereas the escrow agree-
ment did not include that phrase. Significantly, neither
the escrow agreement nor MSPD’s agency designation
grant Valeri authority as to 12 Downs Street. Thus,
whether reading the escrow agreement alone or
together with MSPD’s agency designation, we agree
with the trial court that Valeri’s authorization to pursue
the use variance was limited to 10 Downs Street.
Likewise, we agree with the court that the variance
condition requiring an easement over 12 Downs Street
would directly conflict with paragraph 16 of the con-
tract for sale, which required that Valeri convey the
properties without ‘‘private restrictive covenants or
easements.’’ The fact that paragraph 16 also provides
that, ‘‘[i]n the event [Valeri] cannot deliver the [proper-
ties] to [MSPD] at [c]losing, free of violations as afore-
said, [MSPD] may . . . terminate this [c]ontract
because of such violations,’’ demonstrates the signifi-
cance of the clear title requirement. Indeed, it has been
observed that ‘‘an easement of any kind, is an [e]ncum-
brance, because it is a load or weight on the land,
and must lessen its value.’’ (Emphasis added; internal
quotation marks omitted.) Storrs v. Pannone, 113 Conn.
328, 332, 155 A. 234 (1931).
Valeri, however, argues that his alleged lack of
authority to bind 12 Downs Street is irrelevant to the
analysis because ‘‘the [v]ariance does not bind the
owner of 12 Downs Street to anything. Rather, it merely
grants 10 Downs Street a variance on the condition that
it obtain an easement from 12 Downs Street; it does
not order 12 Downs Street to grant one.’’ (Emphasis in
original.) Similarly, he contends that there is no conflict
between the escrow agreement and the contract for
sale because (1) ‘‘the properties were conveyed without
private restrictive covenants or easements at the closing
on October 2, 2019,’’ and (2) paragraph 16 of the con-
tract for sale ‘‘is mere boilerplate language unrelated
to the variance in particular. As a separately added and
negotiated term, paragraph 2b of the escrow agreement
prevails. See 2 Restatement (Second), Contracts § 203,
p. 93 (1981) (‘(c) specific terms and exact terms are
given greater weight than general language; (d) sepa-
rately negotiated or added terms are given greater
weight than standardized terms or other terms not sepa-
rately negotiated’).’’ (Emphasis in original.) In his view,
‘‘[t]here is no limitation on what [he] could do to obtain
the variance, and MSPD could not unilaterally impose
such a limitation (without breach), nor unilaterally
decide what was ‘reasonably necessary’ to obtain the
variance.’’ Valeri maintains that the conditions imposed
by the zoning board were not only ‘‘reasonable, they
[also] were necessary when interpreted in light of the
situation of the parties and the circumstances con-
nected with the transaction.’’ (Emphasis in original.)
Valeri’s arguments are premised on an unreasonable
interpretation of the parties’ agreement, in that it would
lead to the absurd result that he could, as MSPD’s agent
in regard to 10 Downs Street, agree to one or more
conditions that would devalue 12 Downs Street, such
that the variance would be worthless to MSPD, simply
to secure for himself the $75,000 held in escrow. It is
well established that courts ‘‘will not construe a con-
tract’s language in such a way that it would lead to an
absurd result.’’ Welch v. Stonybrook Gardens Coopera-
tive, Inc., 158 Conn. App. 185, 198, 118 A.3d 675, cert.
denied, 318 Conn. 905, 122 A.3d 634 (2015). In arguing
that he was required only to ‘‘obtain’’ the variance and
whether MSPD chose to use it is irrelevant to the analy-
sis, Valeri ignores the clear and unambiguous language
of the contracts viewed as a whole. The same is true
as to his argument that he delivered 12 Downs Street
unencumbered at the time of the closing as required
by the contract for sale. In other words, he reads each
requirement in isolation and ignores the context of the
transaction, in which MSPD purchased unencumbered
properties from Valeri and, as part of that same transac-
tion, agreed to pay Valeri $75,000 if he could obtain
certain zoning approvals for those properties. Such a
reading is contrary to well established principles of
contract interpretation. See, e.g., Hirschfeld v. Machin-
ist, 181 Conn. App. 309, 323, 186 A.3d 771 (‘‘contract
must be viewed in its entirety, with each provision read
in light of the other provisions . . . and every provision
must be given effect if it is possible to do so’’ (internal
quotation marks omitted)), cert. denied, 329 Conn. 913,
186 A.3d 1170 (2018); Meeker v. Mahon, supra, 167 Conn.
App. 634 (when agreements are connected by reference
and subject matter, court must consider them together
in determining parties’ intent); Morrissey-Manter v.
Saint Francis Hospital & Medical Center, 166 Conn.
App. 510, 521, 142 A.3d 363 (‘‘[a] contractual promise
cannot be created by plucking phrases out of context;
there must be a meeting of the minds between the
parties’’ (internal quotation marks omitted)), cert.
denied, 323 Conn. 924, 149 A.3d 982 (2016).
Furthermore, Valeri’s reliance on § 203 of the
Restatement (Second) of Contracts in support of his
argument that paragraph 16 of the contract for sale is
boilerplate language that is superseded by the escrow
agreement is misguided. To be sure, separately negoti-
ated and more specific provisions will control over stan-
dardized and more general ones. See 2 Restatement
(Second), supra, § 203 (c) and (d), p. 93. At the same
time, however, subsection (a) of that provision provides
that ‘‘an interpretation which gives a reasonable, lawful,
and effective meaning to all the terms is preferred to
an interpretation which leaves a part unreasonable,
unlawful, or of no effect.’’ Id., § 203 (a), p. 93. Thus,
given that paragraph 16 of the contract for sale specifi-
cally requires that 12 Downs Street not be subject to
easements, whereas the escrow agreement is silent on
that issue, the only reasonable interpretation that gives
effect to both provisions precludes a unilaterally
imposed variance condition that requires an easement.
See id., comment (a), p. 93 (noting that preferences for
interpretation ‘‘apply only in choosing among reason-
able interpretations’’ (emphasis added)).
Finally, Valeri relies on the fact that MSPD under-
stood that the only access to the additional parking
spaces behind 10 Downs Street was across 12 Downs
Street to suggest that MSPD therefore knew that a per-
manent easement would be required for the use vari-
ance for 10 Downs Street. The problem with this reason-
ing is that ‘‘easement’’ is defined, in relevant part, as
‘‘[a]n interest in land owned by another person . . . .’’
(Emphasis added.) Black’s Law Dictionary (11th Ed.
2019) p. 644. Therefore, because MSPD owned both
properties, no easement would be required to allow
such access. See, e.g., Beneduci v. Valadares, 73 Conn.
App. 795, 808, 812 A.2d 41 (2002) (‘‘[w]hen the plaintiff
became the owner in fee of the servient estate, his
easement was extinguished by merger’’); 2 Restatement
(Third), Property, Servitudes § 7.5, comment (a), p. 366
(2000) (‘‘When the burdens and benefits are united in
a single person, or group of persons, the servitude
ceases to serve any function. Because no one else has
an interest in enforcing the servitude, the servitude
terminates.’’). Accordingly, the fact that there was no
dispute about the location of the additional parking
spaces does not have the probative force that Valeri
suggests.
In sum, we conclude that the escrow agreement,
when read together with the contract for sale, is unam-
biguous that the use variance Valeri obtained for 10
Downs Street, which was conditioned on the granting
of an easement over 12 Downs Street, could not satisfy
paragraph 2b of the escrow agreement. Accordingly,
the court properly awarded the escrow funds to MSPD.6
The judgment is affirmed.
In this opinion the other judges concurred.
1
For the sake of clarity, we refer to the parties by name.
2
On August 21, 2020, the trial court, Kowalski, J., granted Rader’s motion
for an interlocutory judgment of interpleader and ordered that his legal fees
be paid and that the remaining balance of $73,398.80 be deposited with the
court clerk. Rader was thereafter discharged from liability, and he is not
participating in the present appeal.
3
The trial court also concluded that MSPD failed to rebut the presumption
that time was not of the essence as to the February 1, 2020 deadline. After
Valeri filed the present appeal, MSPD filed a preliminary statement of the
issues pursuant to Practice Book § 63-4 (a) (1), in which it indicated that
it intended to raise the timeliness issue as an alternative ground for affirming
the judgment in its favor. In his principal brief on appeal, Valeri argued that
the court properly concluded that time was not of the essence under the
parties’ agreement. Because MSPD has abandoned that issue by failing to
address it in its appellee’s brief and because Valeri is not aggrieved by that
part of the court’s decision, we do not consider it.
4
Although the trial court did not state whether the agreement was unam-
biguous, we note that it concluded that Valeri’s authority was limited by
the language of the parties’ agreements, and it did not rely on any extrinsic
evidence as to the parties’ intent in reaching that conclusion.
5
As previously noted in this opinion, paragraph 14 of the contract for
sale provides: ‘‘Escrow agreement to be finalized by attorneys: contingent
upon [Valeri] delivering [two-family] status for #10 Downs . . . by 1/31/20.’’
Paragraph 34 of the rider to contract provides: ‘‘Supplementing paragraph
14, the sum of $75,000 shall be held in escrow until the zoning and use
contingencies are satisfied. [Valeri] and [MSPD] shall execute a mutually
agreeable form of escrow agreement at closing.’’
6
We note that Valeri did not challenge the amount of attorney’s fees
awarded to MSPD and claimed only that the award must be reversed along
with the court’s award of the escrow funds.