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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 deferment, 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 restrictive 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 defendant).

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 properties 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] Danbury . . . . 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, vehicles 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 economic development tool that encourages investment in

distressed communities by providing the opportunity

for tax deferment. In expressing its interest in the propert[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 singlefamily 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 creation 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 [initialed] w/City of Danbury regards escrow contingencies. 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 agreement 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 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.

‘‘ ‘Notwithstanding the above, Seller may alternatively 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 professional 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 [conditions] 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 experience 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 transaction and Valeri commenced work on meeting the [conditions]. 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 residential unit over the professional office space. . . . Therefore, 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 authorize 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 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.’ . . . 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 submission of a new application. . . . Thereafter, Valeri submitted 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 process, 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 January, 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 counsel 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 separately 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 application 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. Following 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, singlefamily dwelling into nonconforming, two-family dwelling; 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 stipulation 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 direction 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 variance enclosed with your correspondence contains conditions 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 conditional 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 process to play out during February to see if [Valeri] would

be able to deliver the approvals he repeatedly represented 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-interests. 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 foregoing, MSPD is open [to] discussing a negotiated resolution 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 easements.’ . . . 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 encumbrances 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 statements 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 attorney’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 designation 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 unambiguous’’ 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 condition 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 reasoned 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 conditioned by the zoning board upon the grant of an easement 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 variance, the authorization to do so was limited to matters

involving 10 Downs, not 12 Downs. . . . Even if ‘reasonably 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 commitments 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 covering with grass—were independently not authorized

by MSPD, not ‘reasonably necessary,’ and not in compliance 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 driveway 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 ‘unreasonable.’ ’’ 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 disposition 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 plenary’’ (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 variance conditions. The court also held that ‘‘[t]he 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’’

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 conclusion 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 improperly 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 variance [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 benefit [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 adequate 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 properties 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 scenario, MSPD learned of the variance conditions a few

months after it purchased the property . . . .’’ (Emphasis in original.) We conclude that the challenged findings did not affect the court’s conclusion and, consequently, 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 undermine 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 indicates 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 variance’ as that term is used in the contract, and regardless

of whether the two conditions were ‘reasonably necessary.’ ’’ 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 concluded 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 designation 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 conditions 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 challenges 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 determination 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 contractual language is plain and unambiguous is itself a question 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 subject 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 language in question does not necessitate a conclusion

that the language is ambiguous. . . . In contrast, a contract 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 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.

. . . 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 considered [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. . . . Contracts 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; internal 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 unreasonable 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 plenary.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 contingencies.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].’’ Several 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 connected with the transaction.’’ (Emphasis in original.)

Although we agree with Valeri that the term ‘‘use variance’’ reasonably could be interpreted to include reasonable 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 variance 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 designation, 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 agreement 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 contract 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 [properties] to [MSPD] at [c]losing, free of violations as aforesaid, [MSPD] may . . . terminate this [c]ontract

because of such violations,’’ demonstrates the significance of the clear title requirement. Indeed, it has been

observed that ‘‘an easement of any kind, is an [e]ncumbrance, 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 contract 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) separately negotiated or added terms are given greater

weight than standardized terms or other terms not separately 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 connected 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 contract’s language in such a way that it would lead to an

absurd result.’’ Welch v. Stonybrook Gardens Cooperative, 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 analysis, 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 transaction, 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. Machinist, 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 negotiated and more specific provisions will control over standardized 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 specifically 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 reasonable interpretations’’ (emphasis added)).

Finally, Valeri relies on the fact that MSPD understood 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 permanent easement would be required for the use variance for 10 Downs Street. The problem with this reasoning 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 unambiguous 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 unambiguous, 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.