Diamond v. Marcinek

• Decision Date: 03 August 1993
• Docket Number: No. 14572,14572
• Citation: 629 A.2d 350,226 Conn. 737
• Court: Connecticut Supreme Court
• Parties: James B. DIAMOND v. George MARCINEK et al.

Page 350

629 A.2d 350

226 Conn. 737

James B. DIAMOND v. George MARCINEK et al.

No. 14572.

Supreme Court of Connecticut.

Argued April 30, 1993.

Decided Aug. 3, 1993.

Kenneth J. McDonnell, Essex, for appellant (plaintiff).

Richard F. Paladino, Essex, for appellees (defendants).

Richard Blumenthal, Atty. Gen., and Joseph Rubin and Grace M. Dodier, Asst. Attys. Gen., filed a brief for Com'r of Environmental Protection as amicus curiae.

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and PALMER, JJ.

PETERS, Chief Justice.

The dispositive issue in this certified appeal is whether unused underground gasoline storage tanks constitute an "existing facility" for the purpose of the disclosure requirement of § 22a-449(d)-1(f) of the Regulations of Connecticut State Agencies. ¹ The plaintiff, James B. Diamond, brought this action for rescission and restitution against the defendants, George Marcinek and Leona Marcinek, grounded on the defendants' nondisclosure of the presence of unused underground gasoline storage tanks on property that they conveyed to the plaintiff. The trial court rendered judgment in favor of the plaintiff, and ordered the defendants to accept reconveyance of the property. The defendants appealed from the judgment to the Appellate Court, which subsequently reversed the trial court's judgment. We granted the plaintiff's petition for certification to appeal from the judgment of the Appellate Court, ² and now reverse.

The following relevant facts are undisputed. The plaintiff purchased property, located in Clinton, from the defendants. In the course of negotiations prior to the sale, the defendants represented to the plaintiff that the property was fit for residential use, that it contained a farmhouse, a well and a stream, and had been used to grow vegetables. The plaintiff did not inquire regarding any prior nonresidential use of the property. After the plaintiff had taken possession, he learned that the defendants' family had used the property as an automobile service station in the 1930s and 1940s and that, although the station had been dismantled and removed in the mid-1950s, the property still contained the unused underground gasoline storage tanks (tanks) that had been associated with the service station. Upon subsequent inquiry by the plaintiff, the defendants acknowledged the past operation of the service station and the existence of the tanks, as well as their failure to reveal this information to the plaintiff. They also paid the cost of the removal of the tanks from the property.

The plaintiff thereafter initiated this action for rescission and restitution, claiming that the defendants should have informed him of the existence of the tanks prior to the property transfer. Specifically, the plaintiff's complaint alleged that the defendants: (1) should have provided him with a negative declaration pursuant to General Statutes § 22a-134a(b); ³ (2) had violated an implied covenant of warranty because the title was unmarketable; (3) had, by fraudulently concealing the prior use of the property, caused the plaintiff to make improvements at his own expense; and (4) had fraudulently concealed well water shortages. Prior to trial, the plaintiff moved to amend his complaint to include a nondisclosure claim pursuant to § 22a-449(d)-1, the department of environmental protection (DEP) regulation in issue here. ⁴ The defendants objected, and the court subsequently denied the motion. During the course of the trial, the plaintiff nonetheless introduced evidence regarding his claim that the defendants had violated the regulation.

The trial court rendered judgment for the plaintiff on the sole basis that, pursuant to § 22a-449(d)-1, the defendants should have disclosed the existence of the tanks to the plaintiff at least fifteen days before the transfer. Accordingly, the court ordered reconveyance of the property to the defendants and repayment of the purchase price. It did not, however, grant the plaintiff's claim for restitution because it found too speculative the claimed damages pertaining to certain improvements to the farmhouse that the plaintiff had made.

The defendants appealed to the Appellate Court from the judgment in favor of the plaintiff. See Diamond v. Marcinek, 27 Conn.App. 353, 606 A.2d 1001 (1992). In that court, they claimed that the trial court had improperly relied on § 22a-449(d)-1 in deciding for the plaintiff, because the regulation and violation thereof had not been alleged in the plaintiff's complaint. In addition, the defendants claimed that the court had improperly found that the defendants had violated the regulation and that it should not have granted the remedy of rescission for the alleged violation of the regulation. Id., at 354-55, 606 A.2d 1001. The plaintiff cross appealed for compensation for the farmhouse improvements. Id., at 355, 606 A.2d 1001. ⁵

The Appellate Court reversed the judgment of the trial court on an alternative basis not presented by either party. It concluded, pursuant to a plain error review, that even if § 22a-449(d)-1 had been properly raised in the trial court, the regulation did not require disclosure to a transferee of the category of unused tanks at issue in this case. Id. at 359-64, 606 A.2d 1001. Specifically, it determined that the tanks, which the regulations defined as "temporarily out-of-service," could not also have constituted an "existing facility" for the purpose of the disclosure requirement in § 22a-449(d)-1(f). Id., 360-61. Having resolved the appeal in favor of the defendants on this ground, the Appellate Court therefore did not reach the issues raised by the parties. We granted the plaintiff's subsequent petition for certification to appeal. ⁶ Diamond v. Marcinek, 223 Conn. 910, 612 A.2d 55 (1992).

On appeal the plaintiff maintains that we should reinstate the judgment of the trial court because that court properly determined that § 22a-449(d)-1 applied to the tanks and that the regulation's provisions required disclosure of their existence. The defendants maintain that we should affirm the judgment of the Appellate Court for the reasons set forth in its decision, as well as the reasons presented to but not decided by the Appellate Court. Because we agree with the plaintiff that the tanks constituted an "existing facility" for the purpose of disclosure pursuant to § 22a-449(d)-1(f), we reverse and remand the case to the Appellate Court for resolution of the remaining issues previously raised in that court.

We now turn to the principal inquiry underlying this certified appeal. To determine whether the tanks were subject to the disclosure requirement of § 22a-449(d)-1(f), we interpret the regulation, as did the Appellate Court, as promulgated by the DEP in accordance with the definitions included therein. Section 22a-449(d)-1(a) defines the various categories of "facility" to which each of the regulation's requirements applies. ⁷ As the Appellate Court correctly observed, "[t]he duty of disclosure owed by the defendants to the plaintiff concerning these tanks arises only if this conveyance constituted a 'transfer ... of any new or existing facility.' " Diamond v. Marcinek, supra, 27 Conn.App. at 361, 606 A.2d 1001. It concluded that, because the tanks fell within the definition of a "temporarily out-of-service" facility, they could not also be considered an "existing facility." The plaintiff argues, to the contrary, that the tanks, although "temporarily out-of-service," were nonetheless also "existing" and therefore subject to the disclosure requirements of subsection (f). We agree with the plaintiff.

Our explication of the definitions set forth in the regulation is governed by well established rules of construction. ⁸ As a preliminary matter, we note that the question of whether a regulation applies in a particular case is a question of law; cf. United Illuminating Co. v. Groppo, 220 Conn. 749, 752, 601 A.2d 1005 (1992); consequently our review is de novo. Cf. Connecticut Hospital Assn., Inc. v. Commission on Hospitals & Health Care, 200 Conn. 133, 140-41, 509 A.2d 1050 (1986).

When interpreting regulations, if the provisions are reasonably clear, we need not engage in further construction to ascertain their meaning. See University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991). Section 22a-449(d)-1(a) defines an "existing facility" as "a facility the construction or installation of which began prior to the effective date of these regulations," November 1, 1985. A "temporarily out-of-service" facility is one that is "not in use, in that no regular filling or drawing is occurring; or not established and maintained in accordance with these regulations; or not regularly attended and secured." ⁹ These definitions are clear, and consequently we need not search further to employ them properly.

Applying the plain language of the definitions contained in § 22a-449(d)-1(a) to the tanks, ¹⁰ we start with the unchallenged fact that the tanks were constructed prior to the adoption of the 1985 regulation, so that they were clearly an "existing facility." It is equally undisputed that at the time of transfer the tanks were no longer in use, at least to the extent that they were not in compliance with the regulation, so that they were "temporarily out-of-service." On the face of the regulation, the fact that the tanks satisfied both definitions does not diminish their satisfaction of each definition separately. As a definitional matter, therefore, because the tanks constituted an "existing facility," the defendants were required to satisfy the disclosure provision of § 22a-449(d)-1(f).

The defendants argue, however, that the tanks could not have been both "existing" and "temporarily out-of-service." Although the language of the regulation provides no support for their interpretation, the defendants emphasize the language of other § 22a-449(d)-1 subsections as indicative...