Opinion
CV146049714S
12-15-2016
Connecticut Community Bank, N.A. dba Westport National Bank v. Massey Bros. Excavating, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Robin L. Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff, Connecticut Community Bank N.A. (CCBNA) d/b/a Westport National Bank, commenced the present action against the defendant, Massey Brothers Excavating, LLC (Massey) by service of process on September 9, 2014. The amended complaint dated May 2, 2016 (docket entry no. 110) is in five counts: breach of oral agreement, trespass, temporary nuisance, conversion, and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The plaintiff alleges that the defendant is liable for damages to real property located at 2730 Boston Post Road in Guilford, Connecticut. The plaintiff became title holder to the property as a result of a foreclosure by sale. The plaintiff's claimed damages arise from contaminated soil that remains on the property from the defendant's prior, temporary use of the property for its business. The defendant entered into an oral agreement with the prior owner of the property, Peter Guarino, which allowed the defendant to use a portion of the property to dump soil for a fee on a monthly basis. The plaintiff measures its damages as the difference in the fair market value of the property from the date of appraisal in April 2015 and the sale of the property in October 2015 plus fees the plaintiff paid for an environmental inspection of the soil on the property.
The defendant filed its amended answer and special defense on August 15, 2016 (docket entry no. 137.00). It admits only that it is a Connecticut limited liability corporation with an office and place of business in Guilford, Connecticut and to the existence of an oral agreement between it and Peter Guarino. As its sole special defense, the defendant asserts that the plaintiff lacks standing as to counts two through five (trespass, temporary nuisance, conversion, and violation of CUTPA). A bench trial on the plaintiff's claims took place on August 22 and August 24, 2016.
On August 29, 2016, the plaintiff filed a motion for permission to amend its complaint to conform to the evidence adduced at trial (docket entry no. 141.00). The defendant filed an objection to this motion on September 8, 2016. On September 26, 2016, this court denied the plaintiff's motion (docket entry no. 141.10) and sustained the defendant's objection (docket entry no. 142.10). Thus, the plaintiff's amended complaint dated May 2, 2016, is the operative complaint against which this court will review and assess the claims and evidence. Pursuant to an order of the court, the parties submitted simultaneous proposed findings of fact and briefs on October 20, 2016.
STANDARD OF REVIEW
" It is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006).
BURDEN OF PROOF
The burden of proof is on the plaintiff to prove all of the essential allegations of its complaint and on the defendant to prove all of the essential elements of its affirmative defenses. Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). " While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it . . . The general burden of proof in civil actions is on the plaintiff, who must prove all the essential allegations of the complaint." (Citation omitted.) Gulycz v. Stop & Shop Cos., 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992).
FINDINGS OF FACT
From the credible testimony and evidence presented the court finds the following facts to have been proven by a fair preponderance of the evidence. In April 2001, Peter Guarino began operating a garden center known as Old Broadway Mason and Garden Supply, LLC (Old Broadway) located at 2730 Boston Post Road, Guilford, Connecticut (the property). Guarino was the sole member of Old Broadway. The property consisted of approximately five acres, upon which Guarino constructed a 6200 square foot building and greenhouses and stored trees, plants, bulk materials, mulch, topsoil, and stone. The property abutted a major wetlands area in the Town of Guilford known as Wolf Swamp.
On July 20, 2006, Old Broadway entered into a Term Note in favor of a financing company known as Black Rock Capital, LLC (Black Rock) in the original principal amount of $1,400,000 (the Note). To secure the Note, Old Broadway granted Black Rock an Open-End Mortgage Deed and Security Agreement on the property (the Mortgage) and an Assignment of Leases (the Note, Mortgage and Assignment of Leases are hereinafter collectively the " Loan Documents"). In furtherance of the financing transaction, and to fund the Note, Black Rock executed a Non-Recourse Promissory Note in favor of the plaintiff, Connecticut Community Bank, N.A. d/b/a Westport National Bank (plaintiff) in the original principal amount of $1,400,000 dated July 20, 2006 (Non-Recourse Note). Black Rock delivered to the plaintiff a Collateral Assignment of Note and Other Loan Documents, which assigned the Loan Documents to the plaintiff (the Collateral Assignment). Pursuant to this arrangement, Black Rock collected monthly payments due under the note from Old Broadway and, in turn, Black Rock was required to make monthly payments to the plaintiff. The plaintiff held the Loan Documents as collateral in the event of a default by Black Rock. All of the documents referenced above, memorializing the loan transaction relating to the sale of Old Broadway, were executed by either Guarino as the sole member of Old Broadway, Thomas Gill on behalf of Black Rock, or a representative of the plaintiff. None of the documents were executed by the defendant. The Term Note was executed by Guarino and Thomas Gill; the Open-End Mortgage Deed and Security Agreement was executed by Thomas Gill and Guarino; the Non-Recourse Promissory Note was executed by Thomas Gill and a representative of the plaintiff; the Collateral Assignment of Note and Other Loan Documents was executed by Thomas Gill; and the Assignment of Leases was executed by Guarino and Thomas Gill.
Old Broadway ceased operations in early 2010 and thereafter the Note went into default in late 2011. In March 2012, in an attempt to restructure the debt and in an effort to resolve the default, Steven Bacon, the plaintiff's Senior Vice-President, met with Guarino and conducted a site inspection at the property. During the inspection, Bacon observed that the garden supply store was closed and that there did not appear to be any activity on the property. The parties were unable to resolve the default and as a result, on July 31, 2012, the plaintiff and Black Rock commenced foreclosure of the Mortgage in the Connecticut Superior Court. In conjunction with the foreclosure action, the plaintiff obtained several reports to determine the status of the property. The first report secured by the plaintiff was an appraisal dated March 16, 2013, which valued the property at $790,000. The second report was a Phase I Environmental Site Assessment dated June 28, 2013, prepared by Fuss & O'Neill (the Phase I). The purpose of this report was to identify recognized environmental conditions (RECs) present at the site. John Hankins, Senior Vice President at Fuss & O'Neill and manager of the environmental practice team, inspected the property, interviewed Guarino, and reviewed regulatory databases to determine whether any environmental records existed for the property. Pursuant to the Phase I, no RECs were identified at the property at that time.
Connecticut Community Bank N.A. d/b/a Westport National Bank v. Old Broadway Mason Supply et al., Superior Court, judicial district of New Haven, Docket No. CV-12-6032126-S.
In September 2013, Bacon conducted another site inspection at the property. During the September inspection, Bacon observed that the business was closed and that a very large pile of dirt was located at the back of the property, which pile had not existed when he had previously visited the property back in 2012. Bacon described the pile of dirt to be much larger than a fishing boat that was located adjacent to the pile and bigger than a school bus or a regular bus. Guarino informed Bacon at this time, that the defendant was temporarily dumping topsoil on the property.
In or about April 2013, Guarino and the defendant entered into an oral agreement pursuant to which the defendant was permitted to deposit topsoil on the property. The terms of the agreement were as follows: 1) the defendant was to deposit no more than 500 yards of soil on the property, because that was what Guarino was allowed by the town; 2) the defendant was permitted to deposit soil on the property between the hours of 7:00 a.m. and 4:00 p.m. and was not permitted on the property on weekends; 3) the defendant was required to pay Guarino the sum of $1,000 per month for access to the property; and 4) the agreement was month to month, and when the property was going to be foreclosed on, the defendant was to get whatever remaining dirt out. At the time the foreclosure judgment had entered and a sale of the property had been scheduled, Guarino advised the defendant of the foreclosure because " [h]e was worried that they would lose 20, $30,000 worth of dirt." T.R., 8/22/2016, p. 172.
At the time Guarino entered the agreement with the defendant, he was the record owner of the property, and had the authority to enter into the agreement with the defendant. No other contractors were permitted to deposit soil on the property and Guarino was not depositing any topsoil or other material in the designated area at that time. Guarino cleaned out space toward the back of the property near a solid rock ledge to create the area designated for the defendant's use. Guarino observed that between April 2013 and March 2014, the defendant was in and out of the Property quite a bit and that in one week the defendant might bring in 20 truckloads of soil. The agreement ended in March 2014. At one point, Guarino noticed that " a couple of pieces of asphalt . . . were dumped. It was part of a load." TR., 8/24/2016, p. 20. Guarino told the defendant to remove the asphalt and the defendant complied.
In November 2013, Regina Reid, a Zoning Enforcement Officer with the Town of Guilford received notice that dumping was taking place on the Property. On November 22, 2013, Reid conducted an inspection of the Property for the purpose of determining compliance with the Guilford Zoning Regulations. On November 25, 2013, Reid sent a letter to Guarino informing Guarino that after inspection " [t]he violation observed and documented during the inspection were numerous piles of earth, loam, mulch and soil mixed with other materials, on your property beyond the scope of a Planning and Zoning approval granted May 16, 2001 and an Inland Wetland approval granted June 10, 2009." Ex. 18. Reid further advised Guarino that " [b]y this letter, you are requested to cease all operations, including deposit and removal of earth, loam, mulch and soil mixed with other materials until such time you receive zoning and inland wetland approval and you must do so within ten (10) days of receipt of this letter. You are only authorized to sell loam, top soil, mulch, and stone that is contained within the cement blocks shown on the west side of the site. There is no approval or authorization to truck in and out loads of material, nor is there approval to stock pile material in any location except within the cement block containment area shown on your approval site plan. Please install erosion controls at the rear edge of the activity area . . ." Id. Guarino complied with the letter by telling the defendant to decrease the pile to less than 500 yards. The defendant removed some of the soil and assisted Guarino in installing a silt fence to prevent runoff into the wetlands. In November 2013, around the time Guarino received the notice from the town, he instructed the defendant to stop dumping the topsoil onto his property to which the defendant complied. Guarino did not receive further notice from the town. According to Reid, she did not have to " issue any citations or fines because [Guarino] was complying with the notice of violation. He had installed the erosion controls . . . [a]nd he was [removing] the material that was beyond the scope of the Planning and Zoning Commission." T.R., 8/24/2016, p. 44. At that time, the defendant " [w]as not hauling a lot of loads. They were mostly hauling out." T.R., 8/24/2016, p. 19.
On November 18, 2013, the court awarded judgment of foreclosure by sale in favor of the plaintiff and found a debt due to the plaintiff in the amount of $1,342,137.57. The court found the fair market value of the Property was $760,000 and set a sale date of February 15, 2014. In January 2014, the foreclosure committee obtained an appraisal which valued the property at $1,060,000. At the foreclosure sale, the plaintiff submitted the sole bid in the amount of $760,000, and on April 4, 2014, became the record owner of the property by virtue of the foreclosure by sale committee deed. The plaintiff took possession and title to the property " as is" and was so advised of this at the time of the sale.
Due to an IRS tax lien, a foreclosure by sale was required. See Connecticut Community Bank, N.A. d/b/a Westport National Bank v. Old Broadway Mason Supply, LLC et al., supra, Superior Court, Docket No. CV-12-6032126-S .
At no time subsequent to the plaintiff's acquiring the property on April 4, 2014, did the plaintiff and the defendant enter into an oral agreement to remove the topsoil from the subject property. Bacon acknowledged that he never had an agreement with the defendant or any representative of the defendant regarding the removal of the topsoil.
In May 2014, the plaintiff hired Fuss & O'Neill to conduct an environmental assessment of the pile of soil. A Fuss & O'Neill hydrogeologist collected a sample of the soil from a small stockpile of soil estimated to be approximately 150 cubic yards and a larger stockpile estimated to be approximately about 5, 000 cubic yards. Fuss & O'Neill tested the soil samples for potential contaminants, including polycyclic aromatic hydrocarbons (PAHs) which are a class of compounds found in heavy petroleum products such as fuel oil and asphalt. Fuss & O'Neill analyzed the results of the tests and the key finding was that in virtually all of the samples from the larger stockpile, PAHs were found at concentrations above the State's standard remediation criteria. Hankins explained that a type of PAH known as benzopyrene, which under the State's regulations has an industrial commercial criteria of 1, 000, was sampled at " almost five times above the criteria." Pl. Ex. 11. Hankins testified that " these criteria were established by the Department of Energy and Environmental Protection . . . as being . . . the levels at which risk to human health may exist if they are exceeded." T.R., 8/24/2016, p. 69. Hankins further testified that when you look at the numbers, it becomes evident that many of the concentrations are above the criteria that had been established by the State of Connecticut.
Fuss & O'Neil recommended that the larger stockpile of contaminated soil be removed from the site by the party who placed it there; if the party is unavailable or unwilling to remove the material, the fill can be transported and disposed at a licensed disposal facility and typical fees for the transportation and disposal of fill material containing PAHs and EPTH at landfills for use as daily cover range from $65 to $85 per ton; the fill could also be reused onsite beneath a cap of asphalt paving or clean fill material. Pl. Ex. 11. The plaintiff paid Fuss & O'Neill the sum of $4,500 for the work performed at the property in May 2014.
On June 26, 2014, and July 31, 2014, the plaintiff demanded that the defendant remove the contaminated soil. The defendant did not respond and in September 2014, the plaintiff commenced this action. The plaintiff ultimately decided to market the property for sale and listed the property with local real estate brokers. The plaintiff received two initial offers, however, nothing became of the offers. In March or April 2015, the plaintiff received an offer from JDL Construction, a contracting company, in the amount of $600,000. The plaintiff issued a commitment letter, however, JDL Construction withdrew its offer because of the existence of the contaminated soil.
On April 23, 2015, the plaintiff obtained an appraisal of the property which determined the fair market value at that time was $550,000. In July 2015, the plaintiff hired Complete Environmental Services (CES), an environmental remediation company to evaluate remediation and disposal options. In order to determine the most cost effective disposal facility for the material, CES was required to conduct further testing of the soil. Based upon the size of the pile and the results of the tests, CES estimated that it would cost $478,770 to remove the soil. The plaintiff paid CES the sum of $12,538.67 for the work it performed at the Property in July 2015. The plaintiff chose not to remove the soil from the Property, and instead found a buyer that would take the property " as-is at a discounted rate." On October 26, 2015, the plaintiff sold the Property via quitclaim deed to 2730 Boston Post Road Associates, LLC for the sum of $350,000. The court may find additional facts as necessary in deciding the merits.
DISCUSSION
I
STANDING
Standing implicates the court's subject matter jurisdiction. See Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012). " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2014). " [A] subject matter jurisdictional defect may not be waived . . . [or jurisdiction] conferred by the parties, explicitly or implicitly . . . [T]he question of subject matter jurisdiction . . . once raised, either by a party or by the court itself . . . must be answered before the court may decide the case." (Internal quotation marks omitted.) Batts-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007).
" It is a basic principle of law that a plaintiff must have standing for the court to have jurisdiction. Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Ganim v. Smith & Wesson Corp., 258 Conn. 313, 347, 780 A.2d 98 (2001). " [W]hen standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the [party] has a legally protected interest [which may be remedied]." (Internal quotation marks omitted.) In re Jonathan M., 255 Conn. 208, 219, 764 A.2d 739 (2001).
In the present case, the defendant raises the issue of standing in its special defense. Specifically, the defendant argues that the plaintiff lacks standing to bring its claims for trespass, temporary nuisance, conversion, and violation of CUTPA because it did not have ownership, possession, or control of the subject property at the time the alleged harm was caused. In response, the plaintiff maintains that it has standing because as the mortgagee, the plaintiff held legal title to the subject property and Old Broadway held equitable title. It cites to Connecticut authority and outside and secondary legal authority that recognizes a mortgagee's right to protect its security interest and, thus, its right of action against a party that has committed waste or damage to mortgaged property.
A
Counts 2-4: Trespass, Temporary Nuisance, Conversion
It is undisputed that the plaintiff acquired title to the property through foreclosure sale on April 4, 2014. As legal title holder and owner in possession of the subject property, it is clear by our standards for standing that the plaintiff has a real and legal interest and title in the subject of the controversy (e.g., damages to the property). Moreover, on the question of standing, the court must take as true that the defendant has committed the alleged tortious acts--leaving soil on the plaintiff's property without its permission and despite its demand to remove it while it was the owner in possession of and title holder to the property. Given the plaintiff's status in relation to the property, it is the proper party to request adjudication of claims for adverse actions against its property to protect its possessory rights and interests. Therefore, the plaintiff has standing to assert the claims alleged in counts two through four of the amended complaint.
B
Count 5: Violation of CUTPA
General Statutes § 42-110g(a) provides in relevant part: " Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages." Legal standing sufficient to satisfy this statutory prerequisite to institute a CUTPA action involves consideration of concepts such as directness and remoteness. See Ganim v. Smith & Wesson Corp., supra, 258 Conn. 348 (in evaluating the question of standing, the task of the court is to " determine whether the facts, as stated in the complaint and taken as true, demonstrate that the injuries, on one hand, are direct or, on the other hand, are indirect, remote or derivative").
In accordance with our requirements for evaluating standing under CUTPA, this court must take as true that the soil deposited on the plaintiff's property was contaminated, that the contamination made the soil hazardous, that the defendant deposited the soil without the plaintiff's consent or knowledge, and that the defendant has failed to remove the soil from the plaintiff's property. To the extent that the plaintiff alleges that its injuries arise from the contaminated nature of the soil and from the continued presence of the contaminated soil on the property, the plaintiff's injuries are direct and not remote given the plaintiff suffered the alleged injuries while it was owner in possession of and title holder to the property. Therefore, the plaintiff has standing to assert its claim alleged in count five of the amended complaint.
II
PLAINTIFF'S CLAIMS
A
Breach of Oral Agreement
In count one of the amended complaint, the plaintiff maintains that an oral contract with the defendant to remove the soil from the property existed after it took title to the property on April 4, 2014. The plaintiff specifically alleges that after it took title to the property, " representatives of the plaintiff and defendant agreed that the contaminated soil would be removed from the property at the sole cost and expense of the defendant." Pl. Amend Compl., par. 21. It further alleges that it made demands to the defendant to remove the soil yet the defendant failed and refused to do so. In failing and refusing to remove the soil, the plaintiff alleges that the defendant breached the oral agreement with the plaintiff.
" It is a fundamental principle of contract law that the existence and terms of a contract are to be determined from the intent of the parties . . . The parties' intentions manifested by their acts and words are essential to the court's determination of whether a contract was entered into and what its terms were." (Citation omitted; internal quotation marks omitted.) Aquarion Water Co. of Connecticut v. Beck Law Products & Forms, LLC, 98 Conn.App. 234, 239, 907 A.2d 1274 (2006). The plaintiff's evidence does not support the existence of a contract between itself and the defendant. The evidence sufficiently established, and the defendant did not dispute, that the plaintiff contacted the defendant to discuss the soil remaining on the property while the plaintiff was mortgagee and when the plaintiff became the owner in possession and title holder. No additional evidence, however, was presented to demonstrate that this contact resulted in the formation of a contract to remove the soil or that this contact explicitly or implicitly manifested the plaintiff's and the defendant's intent to form such a contract. Indeed, Bacon admitted that no contract existed between the plaintiff and the defendant to remove the soil. Therefore, the plaintiff fails to meet its burden of proof on its claim for breach of oral agreement.
As noted, this court denied the plaintiff's motion for permission to amend the complaint to conform to the trial evidence. The plaintiff sought to incorporate a third-party beneficiary theory of contract liability into count one for breach of oral agreement. The plaintiff also offers this theory of liability in its post-trial brief. This court has clearly articulated its position on the plaintiff's effort to assert this theory of liability in its ruling on the plaintiff's motion for permission to amend. Consequently, the plaintiff's third-party beneficiary theory of liability is not a determinative issue before this court. See Stamford v. Ten Rugby Street, LLC, 164 Conn.App. 49, 74, 137 A.3d 781, cert. denied 321 Conn. 923, 138 A.3d 284 (2016) (" The allegations of a complaint limit the issues to be decided on the trial of a case and are calculated to prevent surprise to opposing parties . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint . . . The purpose of a complaint . . . is to limit the issues at trial, and . . . pleadings are calculated to prevent surprise . . . It is fundamental to our law that the right of a [party] to recover is limited to the allegations in his [pleading]" [internal quotation marks omitted]). Even if this court were to address the issue of third-party beneficiary liability, the plaintiff would fail in establishing that it was a third-party beneficiary to the oral agreement between the defendant and Guarino in the absence of evidence showing that both the defendant and Guarino intended and agreed to the plaintiff being a third-party beneficiary to their agreement. " [T]he ultimate test to be applied [in determining whether a person has a right of action as a third-party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties . . . Although . . . it is not in all instances necessary that there be express language in the contract creating a direct obligation to the claimed third party beneficiary . . . the only way a contract could create a direct obligation between a promisor and a third party beneficiary would have to be, under our rule, because the parties to the contract so intended . . . The requirement that both contracting parties must intend to confer enforceable rights in a third party rests, in part at least, on the policy of certainty in enforcing contracts. That is, each party to a contract is entitled to know the scope of his or her obligations thereunder. That necessarily includes the range of potential third persons who may enforce the terms of the contract. Rooting the range of potential third parties in the intention of both parties, rather than in the intent of just one of the parties, is a sensible way of minimizing the risk that a contracting party will be held liable to one whom he neither knew, nor legitimately could be held to know, would ultimately be his contract obligee." (Citation omitted; internal quotation marks omitted.) Reyes v. Nautilus Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV-10-6013254-S, (March 6, 2012, Wilson, J.) (53 Conn.L.Rptr. 656, 658). Here, as this court has ascertained from the evidence presented, the terms of the oral agreement between the defendant and Guarino was to permit the defendant to use a portion of the property to dump soil on it for $1,000 a month. The term of the contract was month to month. There is no evidence that at the formation of this agreement the parties contemplated or even considered the plaintiff's interests or intended to include the plaintiff as a third-party beneficiary. There is no evidence that any time after the formation of the agreement that the defendant and Guarino intended for the plaintiff to be a party in any form to the agreement. Thus, there is no evidence that both the defendant and Guarino intended to confer enforceable rights under the oral agreement to the plaintiff. To interpret Guarino's suggestions to the defendant to remove its soil during the pendency of the foreclosure action as somehow making the plaintiff a third-party beneficiary would be a gross misinterpretation of the evidence. Guarino testified that he made these suggestions to the defendant so it would not lose a valuable resource (i.e., the soil). Moreover, such a gross misinterpretation would run afoul of our well-established law that requires that there be evidence of consent by both parties to recognize a third-party beneficiary and that contracting parties be obligated to fulfill only the duties to which they assent.
B
Trespass
In count two of the amended complaint, the plaintiff alleges that the defendant committed trespass by intentionally failing and refusing to remove the soil from the plaintiff's property thereby violating the agreement with the plaintiff to do so and frustrating the plaintiff's ownership of and possessory interest in the property.
" The essentials of an action for trespass are: 1.) ownership or possessory interest in land by the plaintiff; 2.) an invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; 3.) done intentionally; and 4.) causing direct injury . . . Trespass must be proven by a preponderance of the evidence, and the party claiming trespass must establish that the other party proximately caused his damages . . . A trespass on real estate is the doing of a direct injury to property by force . . . The invasion, intrusion or entry must be physical . . . Thus, in order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land . . . When a party prevails on a trespass claim, it is entitled to damages based on the lost use value of the property [trespassed upon] and any harm caused by the trespass during the defendant's occupation . . . One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove." (Citations omitted; internal quotation marks omitted.) Har v. Borieko, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-06-4005573-S, (February 11, 2008, Robinson, J.), aff'd, 118 Conn.App. 787, 986 A.2d 1072 (2010). Regarding ownership and possession, " [p]ossession may be actual or constructive . . . Actual possession means actual and exclusive possession of the disputed area . . . If a plaintiff relies on constructive possession, and has alleged both title and possession in a complaint, a plaintiff must prove, in addition to title, the absence of actual and exclusive possession in another." (Citations omitted.) McCullough v. Waterfront Park Ass'n, 32 Conn.App. 746, 749, 630 A.2d 1372, cert. denied 227 Conn. 933, 632 A.2d 707 (1993). See also Toby v. Reed, 9 Conn. 216, 223-24 (1832). (" It is an established principle of law, that the action of trespass is founded on possession only, and not on title. An injury to the plaintiff's possession is the gist of his action; and if this indispensable fact does not appear, the suit cannot be sustained . . . The proof of title does not dispense with the proof of possession. It is for this conclusive reason, that the action of trespass is adapted and intended to give the possessor a remedy for an injury committed . . . [citations omitted]).
In the specific context of trespass by contaminated or hazardous substances, our Supreme Court has articulated the standards for evaluating the element of intent: " Regarding the element of intent, '[i]t is enough that an act is done with knowledge that it will, to a substantial certainty result in the entry of the foreign matter.' 1 Restatement (Second), supra, § 158, comment (i), p. 279; 75 Am.Jur.2d 45, supra, § 55. In the absence of authoritative Connecticut case law on the meaning of intent in a trespass action, we turn for guidance to federal law. In Scribner v. Summers, 84 F.3d 554, 558 (2d Cir. 1996), the United States Court of Appeals for the Second Circuit considered whether the migration of toxic substances from the defendants' property to the plaintiffs' property constituted a trespass. The court stated that, in determining the existence of the requisite intent for trespass, the issue was not whether the defendants had intended the contaminated substances to enter the plaintiff's land, but whether the defendants had intended the act that amounted to or produced the unlawful invasion and had good reason to know or expect that subterranean and other conditions would cause the contaminated substances to migrate from the defendants' to the plaintiffs' land." Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 88-89, 931 A.2d 237 (2007); see also Moskowitz v. Edgerton, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-12-6013017-S, (December 9, 2013, Adams, J.) (57 Conn.L.Rptr. 313, 319) (" In order to have the intent necessary for trespass, not only does the defendant have to intend the act, but it must also have good reason to know that a damaging invasion is possible . . . As long as a defendant has good reason to know that an act it is taking could lead to a harmful invasion, the intent necessary for trespass is satisfied" [footnote omitted]); Rosa v. Walsh, Superior Court, judicial district of Waterbury, Docket No. CV-08-5010707-S, (February 20, 2009, Agati, J.) (granting motion to strike trespass claim because plaintiffs had not sufficiently pleaded intent because they never alleged that defendants had any reason to suspect, let alone know to a substantial certainty, that alleged trespassing object would cause harm).
In the present case, it is not enough that the plaintiff prove that the defendant intentionally left the soil on the property under the present circumstances in which the plaintiff alleges that its damages are diminution of property value from contamination in the soil. The plaintiff did not present sufficient evidence to establish that the defendant had a good reason to know or to suspect to a substantial certainty that leaving the soil on the plaintiff's property could lead to a harmful invasion. The plaintiff presented no evidence as to the defendant's knowledge of the existence of contaminants in the soil. While it presented evidence that contaminants existed through environmental investigations for which it contracted and through expert testimony, it failed to present evidence of the defendant's knowledge of these contaminants and their eventual impact on the plaintiff's property or how it had good reason to know of the contaminants and their eventual effect on the plaintiff's property.
Furthermore, the plaintiff cannot succeed on its trespass claim on other grounds. First, the defendant did not dump its soil on the subject property while the plaintiff was the owner. While the plaintiff has proven that the defendant did the act of dumping the soil at issue and did so intentionally, the defendant did not engage in this conduct while the plaintiff was the owner in possession and control. The defendant dumped soil on the property while Guarino was the owner in possession and control and with permission from Guarino. Thus, the plaintiff did not have actual possession of the property when the defendant engaged in dumping. The plaintiff also did not show that it had constructive possession because it did not prove the absence of actual and exclusive possession in another during the period in which the defendant was dumping soil. Again, while the defendant was dumping soil on the property, the property was in possession and control of Guarino. It is not enough that the plaintiff established that it held equitable title to the property as mortgagee. While true a mortgagee has a right to assert a claim for waste, the plaintiff, to the extent that it attempts to assert the rights it had when it was mortgagee, does not make a claim for waste, but for trespass. The above-cited authority makes clear, a viable claim for trespass requires actual or constructive possession; title alone is insufficient.
Second, to the extent that the plaintiff claims that its injuries arise from the defendant's act of leaving the soil on its property, the plaintiff did not establish that the defendant had a duty to remove the soil from the property. As this court has concluded, no contract to remove the soil existed between the plaintiff and the defendant. Thus, the defendant had no contractual duty to remove the soil. Also, this court has declined to address the plaintiff's third-party beneficiary theory of liability. Moreover, the plaintiff stresses evidence of Guarino's notices to the defendant regarding the foreclosure action and his suggestion to the defendant to remove the soil. This evidence, however, does not support the existence of a duty or imposition of a duty on the defendant to remove the soil. As Guarino testified, the purpose of the communications with the defendant during the pendency of the foreclosure action was to ensure that the defendant would not incur a loss to the tune of $20 - $30,000. Guarino was concerned that the defendant would lose its soil in light of the foreclosure action. This evidence does not suggest that Guarino made these communications to mandate the defendant to remove its soil or to acknowledge or protect the plaintiff's rights and interests in relation to the property. Guarino's communications were to ensure that the defendant would not lose its soil once the property was foreclosed upon, and were unrelated to the oral agreement between the defendant and Guarino and to the plaintiff's interests. Therefore, the plaintiff does not meet its burden of proof on its claim for trespass.
C
Temporary nuisance
In count three of the amended complaint, the plaintiff alleges that the defendant depositing soil on the property and its failure to remove the contaminated soil was an unreasonable interference with the plaintiff's right to use and enjoyment of its land, which constituted a temporary nuisance. On the basis of the evidence submitted, the plaintiff claims that the contaminants in the soil posed a direct risk to the environment and human health and, therefore, had a natural tendency to inflict injury on the property. The plaintiff maintains that this risk of injury and harm was continuing from the time the defendant deposited the soil when the plaintiff was mortgagee to when the defendant failed and refused to remove the dirt when the plaintiff was owner in possession of and title holder to the property. The plaintiff further claims that the presence of the contaminated soil significantly affected its ability to market and sell the property.
At the outset, this court must clarify the applicable law to the plaintiff's cause of action for nuisance. The plaintiff does not clearly distinguish the significance of a temporary nuisance as opposed to a permanent nuisance and appears to intermix the different standards for public nuisance and private nuisance. First, the distinction between temporary nuisance and permanent nuisance is significant to the measure of damages. " A permanent nuisance has been said to be one which inflicts a permanent injury upon real estate; the proper measure of damages is the depreciation in the value of the property . . . A temporary nuisance is one where there is but temporary interference with the use and enjoyment of property; the appropriate measure of damages is the temporary reduction in rental value, not depreciation in market value . . . Whether a nuisance is temporary or permanent is ordinarily a question of fact." (Citations omitted.) Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 40, 404 A.2d 889 (1978).
Second, for a time, the same core elements were used for both public and private nuisance. Our Supreme Court, however, has squarely determined that the elements and nature of public nuisance and private nuisance are distinct. See Pestey v. Cushman, 259 Conn. 345, 788 A.2d 496 (2002). " A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor . . . The essence of a private nuisance is an interference with the use and enjoyment of land . . . [I]n determining unreasonableness, [c]onsideration must be given not only to the interests of the person harmed but also [to] the interests of the actor and to the interests of the community as a whole . . . Determining unreasonableness is essentially a weighing process, involving a comparative evaluation of conflicting interests . . . Unreasonableness cannot be determined in the abstract, but, rather, must be judged under the circumstances of the particular case." (Citations omitted; internal quotation marks omitted.) Id., 352-53.
" Although there are some similarities between a public and a private nuisance, the two causes of action are distinct. Indeed, Professors Prosser and Keeton in their treatise on the law of torts have stated: The two have almost nothing in common, except that each causes inconvenience to someone, and it would have been fortunate if they had been called from the beginning by different names . . . Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety . . . Private nuisance law, on the other hand, is concerned with conduct that interferes with an individual's private right to the use and enjoyment of his or her land. Showing the existence of a condition detrimental to the public safety, or . . . showing that the condition complained of had a natural tendency to create a continuing danger, is often irrelevant to a private nuisance claim. In light of the fundamental differences between these two distinct causes of action, we conclude that further attempts to employ the four-part test discussed previously herein [(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; and (4) the existence of the nuisance was the proximate cause of the plaintiff's injuries and damages] in the assessment of private nuisance causes of action would be imprudent; private nuisance claims simply do not fit comfortably within the same analytical rubric as public nuisance claims." (Citations omitted; internal quotation marks omitted.) Id., 357-58.
" [I]n order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property. The interference may be either intentional . . . or the result of the defendant's negligence . . . Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case. In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff's use and enjoyment of his or her property, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable . . . The determination of whether the interference is unreasonable should be made in light of the fact that some level of interference is inherent in modern society. There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference. Accordingly, the interference must be substantial to be unreasonable . . . Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated." (Citations omitted.) Id., 361-62.
In accordance with the above-cited authority, the following facts are pertinent in making a determination on the plaintiff's private nuisance claim: From April 2013 to March 2014, the defendant had permission, by oral agreement with Guarino, to deposit soil on the subject property as part of the defendant's business. The subject property was approximately six acres on which a 6, 200 square foot building and greenhouses stood. Prior to the plaintiff's ownership, the property was used to operate a garden center. The plaintiff was the mortgagee of the property and initiated a foreclosure action upon Guarino's default. As a bank, the plaintiff commonly entered into agreements with financing companies in which it received collateral assignments. During the pendency of the foreclosure action, the plaintiff was aware of the pile of soil and to whom it belonged. The plaintiff acquired title to the property on April 4, 2014, by foreclosure sale. It acquired the property " as is, " including the pile of soil.
Neither the defendant nor the plaintiff removed the soil at issue between the time the plaintiff took title and the time the plaintiff sold the property. The plaintiff performed an environmental assessment on the soil after taking possession of the property. The plaintiff sold the property via quitclaim deed to a third party on October 25, 2015. This third party was willing to take the property " as is" and at a " discounted rate." As of April 2015, the property was appraised to have a fair market value of $550,000. The plaintiff sold the property in October 2015 for $350,000. At trial, the plaintiff's expert witnesses confirmed that the plaintiff had the following options concerning the soil on the property: remove the soil or flatten the soil and cap it with asphalt or clean fill (i.e., incorporate the soil into the existing land).
This court's analysis must answer the following questions: Did the defendant's conduct of leaving contaminated soil on the plaintiff's property unreasonably interfere with the plaintiff's use and enjoyment of its land (e.g., its ability to market and sell the property) and was the interference beyond that which the plaintiff should bear, under all of the present circumstances, without being compensated? This court answers these questions in the negative. The weight of the circumstances and the evidence do not support a finding that the interference was unreasonable and, therefore, it did not rise to the level of a nuisance. First, because the plaintiff took title to the property " as is, " it cannot now deem that condition it accepted as a nuisance and seek damages premised on that accepted condition. Likewise, the plaintiff cannot now cite the existence of contaminants in the soil as constituting a nuisance when the nature of the contaminants is not the proper focus of a claim for private nuisance and when it discovered them after the fact. See e.g., Holly Hill Holdings v. Lowman, 226 Conn. 748, 628 A.2d 1298 (1993) (reasoning that because " as is" provision in contract for sale of real property shifts burden of mistake on to accepting party and freedom to contract includes right to contract for the assumption of known or unknown hazards and risks that may arise as consequence of execution of contract, parties to contract for sale of real property are free to disclaim responsibility for known environmental risks); Chase ex rel. Wilson v. Smith, Superior Court, judicial district of Tolland, Docket no. CV-03-0080383-S, (August 15, 2006, Peck, J.) (recognizing that principle of caveat emptor prevails in judicial sales of real property absent fraud and finding that " as is" provision in contract for sale of real property and buyer's knowledge of land's prior use involving hazardous materials precluded buyer from voiding sale); Larson v. Miller, Superior Court, judicial district of Waterbury, Docket no. CV-07-5005171-S, (December 10, 2008, Brunetti, J.) (recognizing that principle of caveat emptor prevails in judicial sales and that judicial sales carry inherent risks that private sales do not and noting specific facts that sale would be " as is" and that buyer had investigated property prior to sale in denying motion to vacate judicial sale based on alleged discrepancies in descriptions of property).
Second, the past history of the property as a garden center that stored trees, plants, bulk materials, mulch, topsoil, and stone and the size of the property indicate that the locale was suitable for the interfering conduct. To the extent that the plaintiff claims that its use and enjoyment in the form of its ability to market and sell the specific property at issue were interfered upon by the existence of the soil, the nature of the property and its prior use suggest that this interference was not unreasonable. Third, the plaintiff was able to sell the property, with the pile of soil, within a little over a year of assuming title and possession of the property. This court is mindful that dumping contaminated soil is poor form and that the plaintiff has suffered a loss given the diminution in property value based on the difference between the 2015 appraisal and eventual sale in the same year. The plaintiff's contentions as to the wrongful nature of the defendant's actions and the degree of its loss cannot be taken in isolation and cannot alone raise the alleged interference to the level of a nuisance. The court is bound by the rule of law, which requires it to examine the totality of the circumstances and to balance the interests involved under the circumstances of this case. See Pestey v. Cushman, supra, 259 Conn. 361-62. In accordance with the above-cited authority, this court concludes that the plaintiff has not met its burden of proof in showing that the defendant's interference was unreasonable and, therefore, its nuisance claim fails.
D
Conversion
In count four of the amended complaint, the plaintiff alleges that by virtue of the defendant's disposal of and refusal to remove the contaminated soil from the plaintiff's property, the defendant has exercised unauthorized dominion over the plaintiff's property. The plaintiff, therefore, reasons that the defendant has wrongfully converted the plaintiff's property by refusing to remove the contaminated soil despite demand to do so. Specifically, the plaintiff argues that the defendant's refusal and failure to remove the contaminated soil interfered with its right to market and sell the property.
Conversion is an " unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights . . . It is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." (Internal quotation marks omitted.) Aetna Life & Casualty Co. v. Union Trust Co., 230 Conn. 779, 790-91, 646 A.2d 799 (1994). " To establish a prima facie case of conversion, [the plaintiff must] demonstrate that (1) the material at issue belonged to the plaintiff, (2) that [the defendant] deprived the plaintiff of that material for an indefinite period of time, (3) that [the defendant's] conduct was unauthorized and (4) that [the defendant's] conduct harmed the plaintiff." News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 545, 862 A.2d 837 (2004), aff'd 276 Conn. 310, 885 A.2d 758 (2005).
" Wrongful conversion can apply only to personal property." Hartlin v. Cody, 144 Conn. 499, 508, 134 A.2d 245 (1957); see also Aetna Life & Casualty Co. v. Union Trust Co., supra, 790 n.6. " In Connecticut, intangible property interests have not traditionally been subject to the tort of conversion, except for those intangible property rights evidenced in a document. See, e.g., Aetna Life & Casualty Co. v. Union Trust Co., 230 Conn. 779, 790 n.6, 646 A.2d 799 (1994) (conversion of trust account); Devitt v. Manulik, 176 Conn. 657, 662-63, 410 A.2d 465 (1979) (conversion applicable to account passbook). Comment (f) to § 242 of the Restatement (Second) of Torts, however, provides that 'in a proper case liability for intentional interference with some . . . kind of intangible rights may . . . be found.'" Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 44, 761 A.2d 1268 (2000).
To the extent that the plaintiff rests its conversion claim on the defendant keeping soil on the property and refusing to remove it, it is clear that the subject of the conversion claim is the part of the plaintiff's property on which the soil remains. Accordingly, as a matter of law, the plaintiff cannot maintain a claim for conversion as it pertains to real property because our appellate authority makes clear that real property cannot be the subject of conversion. To the extent that the plaintiff rests its claim on conversion of its right to market and sell its property--an intangible property interest--the plaintiff did not present documentary evidence of this intangible property right or interest. Therefore, the plaintiff's claim for conversion fails as a matter of law to the extent that it alleges that the defendant converted real property and fails for insufficient evidence to the extent that it alleges that the defendant converted an intangible property right or interest.
E
CUTPA
" [General Statutes § ]42-110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise--in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . . In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice . . ." (Internal quotation marks omitted.) Ulbrich v. Groth, 310 Conn. 375, 409-10, 78 A.3d 76 (2013).
" Although our Supreme Court repeatedly has stated that CUTPA does not impose the requirement of a consumer relationship . . . the court also has indicated that a plaintiff must have at least some business relationship with the defendant in order to state a cause of action under CUTPA." (Internal quotation marks omitted; emphasis in original.) Angiolillo v. Buckmiller, 102 Conn.App. 697, 709, 927 A.2d 312, cert. denied 284 Conn. 927, 934 A.2d 243 (2007) citing Pinette v. McLaughlin, 96 Conn.App. 769, 778, 901 A.2d 1269, cert. denied 280 Conn. 929, 909 A.2d 958 (2006). " [I]t strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any ascertainable harm, caused by any person in the conduct of any trade or commerce." (Internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 88, 793 A.2d 1048 (2002).
The factual circumstances and reasoning in Angiolillo v. Buckmiller, supra, 102 Conn.App. 697 are particularly instructive. In Angiolillo, the Appellate Court affirmed the trial court's decision to grant the defendant funeral home's motion for summary judgment for violation of CUTPA. Id., 703. The plaintiffs commenced action against the funeral home after the decedent's widow improperly buried the decedent's remains in the family cemetery plot. Id., 701-02. There were miscommunications between the widow and the funeral home as to whether the funeral home actually had one of the plaintiff's permission to bury the decedent's remains at the plot. Id. One of the plaintiff's was the owner of the plot and did not become aware of the transaction between the widow and the funeral home until the widow decided to put a monument where the decedent was buried. Id. The monument company contacted the owner plaintiff for permission to place the monument at which time the owner plaintiff objected to burial of the decedent's cremains on the plot. Id. On appeal, the Appellate Court affirmed the trial court's granting of summary judgment on the CUTPA claim. Id., 709-10. In concluding that the trial court properly determined that the plaintiffs' CUTPA claim failed, the Appellate Court stated: " The transaction arranging for the burial of the cremains of the decedent occurred between the decedent's widow and [the defendant funeral home]. The plaintiffs did not know about the transaction until approximately ten months later when the decedent's widow arranged to have a marker placed on the decedent's grave. The [trial] court correctly concluded that no business relationship existed between the plaintiffs and [the defendant funeral home] to support the particular CUTPA violation alleged in the complaint." Id., 710.
As this court has concluded, no contractual relationship whatsoever existed between the plaintiff and the defendant. On the basis of the evidence presented to this court, the only agreement relating to the dumping and removal of soil that existed was between the defendant and Guarino. As a result, the only business relationship with respect to the pile of soil was between the defendant and Guarino. The plaintiff presented no evidence to establish that a business relationship existed between itself and the defendant. The defendant and Guarino entered into an oral agreement in April 2013. The plaintiff discovered the defendant's pile of soil in September 2013, five months into the defendant's and Guarino's agreement. The agreement ended in March 2014, a month before the plaintiff took ownership of the property in April 2014. Even after taking ownership of the property, the plaintiff and the defendant had little to no communications that would or could have amounted to establishing a continued or new business relationship related to the pile of soil. Thus, the transaction arranging for the dumping and removal of soil for a monthly fee was solely between the defendant and Guarino.
Even on the basis of its third-party beneficiary theory of liability, the plaintiff's CUTPA claim fails because, as this court previously noted, there is no evidence to support a finding that both Guarino and the defendant either explicitly or implicitly intended the plaintiff to be a third-party beneficiary to the oral agreement regarding the use of the property to dump soil. Our well-established law on third-party beneficiaries requires a showing of intent by both contracting parties to bestow enforceable rights under the subject contract to a third party. See Gazo v. Stamford, 255 Conn. 245, 261-62, 765 A.2d 505 (2001). Our appellate authority makes clear that the liability for alleged violations of CUTPA has limits. Again, this court is mindful that dumping contaminated soil is poor form and that the plaintiff has suffered a loss. This court reiterates, however, that it is bound by the rule of law; CUTPA cannot remedy every ascertainable harm arising from any person engaged in any trade or commerce. Here, the plaintiff cannot hold the defendant liable for harms arising from a transaction to which the plaintiff was not a party and through which a business relationship between the plaintiff and defendant was not created; the transaction involved only the defendant and Guarino. Accordingly, the plaintiff has not met its burden on its CUTPA claim for failure to produce evidence supporting a business relationship between itself and the defendant.
CONCLUSION
For the foregoing reasons, the plaintiff has failed to meet its burden of proof on all of its claims and thus, this court enters judgment in favor of the defendant.
Wilson, J.