NORCOTT, J.
This is the latest chapter in the efforts of the plaintiffs, including the named plaintiff and defendant in error, the commissioner of environmental protection (commissioner),
The record, as described in part by our previous opinions in various appeals concerning the tire pond, reveals the following background facts and procedural history. Farricielli "and his corporations own four contiguous parcels of property, three of which are located in the town of Hamden and one in the town of North Haven [parcels]. The parcels are bordered by the Quinnipiac River on the east and by State Street on the west. Tidal marshes abut the properties to the north and south, and two of the parcels contain ponds. One of the ponds, which is known as the [`tire pond'] because [Farricielli] and his corporations used it for the unauthorized disposal of approximately 15 million used tires, is separated from the Quinnipiac River and adjoining marshlands by a narrow dike. Since the 1970s, [Farricielli] and his corporations maintained various solid waste disposal operations on these properties, and, on occasion, leased the parcels to other businesses for similar uses. [Farricielli's] corporations and his various tenants used the land for, among other things, the sorting, recycling, reduction and disposal of construction and demolition waste, pumice, used tires and other refuse. One tenant operated a landfill on one of the parcels, and [Farricielli] and his corporations maintained offices and scales on another of the parcels." Rocque v. Farricielli, 269 Conn. 187, 192, 848 A.2d 1206 (2004).
"Beginning as early as 1974, the plaintiffs in this case became concerned over the unauthorized and otherwise illegal activities of [Farricielli], his corporations and his tenants.
"In February, 1998, the commissioner issued a consent order designed to go into effect on May 28, 1998, which was signed by [Farricielli] on behalf of himself individually and on behalf of his corporations [consent order]. Simply stated, the consent order required [Farricielli] and his corporations to cease the operation of all unpermitted solid waste facilities and to remediate the tire pond. Their subsequent failure to comply adequately, or, in some cases, at all, with the terms of the consent order, along with the violation of the stipulated judgment and the cease and desist order obtained by [Hamden], constitute the basis of [the underlying action]." Id., at 192-94, 848 A.2d 1206.
The commissioner commenced the underlying action on July 9, 1999, by filing "a complaint, which subsequently was amended four times, against [Farricielli] and his corporations alleging flagrant and persistent violations of General Statutes §§ 22a-44 (b), 22a-108, 22a-208a, 22a-208b, 22a-208c and 22a-430, concerning the operation of their unpermitted solid waste disposal areas. Specifically, the commissioner sought: an order from the trial court enforcing the terms of the commissioner's 1998 consent order with [Farricielli] and his corporations, which was designed to end ongoing statutory violations; a temporary and permanent injunction requiring [Farricielli] and his corporations to cease their illegal activities; and an order requiring [Farricielli] and his corporations to pay civil penalties for each day of each alleged violation. The town and its zoning enforcement officer subsequently intervened as party plaintiffs in the action, and the plaintiffs filed a joint amended complaint seeking, in addition to all of the
"Following a lengthy court trial [before Hon. Robert Hale, judge trial referee]
With respect to the three specific parcels of the defendants' land at issue herein, known as parcels A, B and C, the tire pond is located on parcel B, which lies in both North Haven and Hamden, and which is bordered on the east by the Quinnipiac River and on the west by State Street. Parcel A lies south of parcel B and is entirely in Hamden. Parcel C, which is located between parcels A and B, is a narrow strip that lies entirely in Hamden. Parcel C is owned by State Five, who, in turn, received its interest in that parcel from its corporate predecessor, Look Investment Agency, Inc. (Look). In February, 2000, Farricielli, through one of his corporations, the defendant Tire Salvage, Inc. (Tire Salvage), conveyed a 6.8 acre strip of land in the southern portion of the tire pond on parcel B to Look, causing it to become part of parcel C.
Modern became involved with this property in June, 2003, while the appeal to this court in the underlying action was pending. Specifically, on June 11, 2003, State Five leased the 6.8 acre strip on parcel C to Modern for an initial five year plus seven month term, ending on February 28, 2009. The lease also included a five year renewal option, which Modern since has exercised. Modern subsequently recorded this lease on the Hamden land records pursuant to General Statutes § 47-19.
Subsequent to the execution of Modern's lease, the commissioner filed a motion for contempt in 2004, alleging that the defendants had failed to complete the remediation of the tire pond as required by the 2001 judgment and that Farricielli had engaged in personal conduct that directly had interfered with the commissioner's efforts to complete the remediation. Although the trial court denied the commissioner's motion for contempt, despite "evidence that [Farricielli] engaged in serious harassment" of the commissioner and two of its contractors engaged in remediation, the court also determined that "further clarification, guidance and strengthening of its injunction [was] required" and issued numerous supplemental orders as an amendment to the underlying judgment. These supplemental orders, issued by memorandum of decision on October 7, 2004 (2004 order), inter alia, "enjoin[ed] all persons who are given notice thereof, from preventing the commissioner, his agents, employees and contractors from having full and complete access to the [t]ire [p]ond and/ or [p]arcel A, and from interfering with actions taken by the commissioner pursuant to paragraph 3 of the September 21, 2001 judgment."
In October, 2007, in the interest of continuing to close and remediate the tire pond after complications had resulted from the loss of fill material from a major construction project in Boston, Massachusetts, and in the interest of resolving both the underlying action and a separate civil action that the commissioner had commenced against State Five seeking to hold State Five and its president, Jean L. Farricielli, Farricielli's wife, liable for the defendants' financial obligations pursuant to the underlying judgment; see generally Commissioner of Environmental Protection v. State Five Industrial Park, Inc., 304 Conn. 128, 37 A.3d 724 (2012);
Subsequently, in June, 2009, upon the commissioner's application, the trial court ordered Modern to appear and show cause why the commissioner's motion for the enforcement of court orders should not be granted. In its motion for enforcement, the commissioner sought an order directing Modern to vacate, within sixty days of the court's order, the portions of the tire pond that Modern occupies, including that portion of the property it occupied pursuant to its lease agreement with State Five. The commissioner argued that the closure plan could not be effectuated with Modern's operations in place because they interfered with the placement of fill material and drainage through the installation of sediment traps. Modern argued in response, however, that it was not a party to the underlying action, that its lease predates any of the applicable orders therein and that its closure is not necessary for the remediation of the tire pond.
The trial court granted the commissioner's motion, concluding that Modern was on notice of the consent order and the various judgments in the underlying action because: (1) the consent order had been recorded on the land records prior to the
In this writ of error, Modern contends that the trial court improperly enforced the injunctions ordered in the underlying action against it because: (1) Modern is not and never has been a defendant therein, and the trial court never found it in privity or acting in concert with a party thereto; (2) it was not necessary to order Modern to vacate its leased premises to effectuate the remediation; and (3) Modern's due process rights were violated when the trial court, in essence, terminated its lease without first affording it an opportunity to be heard as to the validity of its lease and the underlying court orders. We address each claim in turn.
We begin with the principal issue in this writ of error, namely, Modern's claim that the trial court improperly enforced the previously ordered injunctions against it because it was not a party to the underlying action. Modern contends that, because it was never made a party to the underlying action, the court had personal jurisdiction over it only in relation to the commissioner's 2009 motion to show cause that is the subject of this writ of error. Relying on the common law discussed in, inter alia, DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 471 A.2d 638 (1984), and Clancy v. Clancy, 26 Conn.Sup. 46, 212 A.2d 79 (1965), Modern further contends that, because it was not a party to the underlying action and had only an arm's-length business relationship with any of the defendants, the trial court lacked the authority to enforce the previously ordered injunctions against it in the absence of a factual finding that it was in privity or acted in concert with any of the defendants in this case. Finally, Modern argues in its reply brief that the commissioner's recordation of the 1998 consent order did not create an encumbrance that would affect its rights because the terms of that order did not prohibit the leasing of the property or refer specifically to the parcels occupied by Modern and, moreover, that this case is about the enforcement
In response, the commissioner, relying on, inter alia, Beach v. Osborne, 74 Conn. 405, 412, 50 A. 1019 (1902), contends that Modern is bound by the injunctions ordered in the underlying action because it entered into its 2003 lease with State Five with notice of pending proceedings that could affect its interest, given that the consent order had been recorded on the Hamden land records, thus providing notice of the terms thereof to the defendants' "heirs, successors and assigns" pursuant to General Statutes § 22a-225 (e),
The parties further agree as to the generally applicable governing principles, namely, that "[p]ersons who are beyond the scope of an injunction are, of course, not bound by it and are free to ignore it.... At common law an injunction decree bound not only the parties defendant but also those identified with them in interest, in privity with them, represented by them or subject to their control.... The law is clear that a person may be bound by the terms of an injunction, even though not a party to the action, if he has notice or knowledge of the order and is within the class of persons whose conduct is entitled to be restrained or who acts in concert with such persons." (Citations omitted; emphasis added; internal quotation marks omitted.) DeMartino v. Monroe Little League, Inc., supra, 192 Conn. at 276-77, 471 A.2d 638, discussing, inter alia, Regal Knitwear Co. v. National Labor Relations Board, 324 U.S. 9, 14, 65 S.Ct. 478, 89 L.Ed. 661 (1945); Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 833 (2d Cir.1930); Clancy v. Clancy, supra, 26 Conn.Supp. at 50, 212 A.2d 79.
Modern does not argue in its principal brief that it lacked actual or constructive notice of the operative judgments or orders herein for purposes of the notice element of this general legal principle. Instead, Modern contends that it was not made a party to the underlying action for purposes of affording the trial court personal jurisdiction over it.
Application of this principle demonstrates that Modern's status as a tenant of State Five renders it in privity with the defendants in the underlying action as a matter of law. Put differently, there is a key legal right that is shared by State Five and Modern, namely, the right to occupy and use certain portions of the tire pond. Black letter principles of landlord-tenant law establish that Modern's possessory rights under the lease derive from those of its landlord, State Five, which, in turn, derived its interest in the property from the prior transfers by Farricielli and Tire Salvage to Look, State Five's corporate predecessor. See, e.g., Message Center Management, Inc. v. Commissioner of Revenue Services, 50 Conn.Sup. 317, 327, 927 A.2d 378 (2006), aff'd, 282 Conn. 706, 923 A.2d 735 (2007); see also 49 Am. Jur.2d, Landlord and Tenant § 1(2006) ("[a] landlord-tenant relationship is created when there is: [1] a reversion in the landlord; [2] creation of an estate in the tenant either at will or for a term less than that which the landlord holds; [3] transfer of exclusive possession and control to the tenant; and [4] a contract"); 49 Am. Jur.2d, supra, at § 3 ("[i]n a lessor-lessee relationship, the lessor relinquishes physical possession of the property to the lessee, while retaining legal title to the property").
Indeed, not to view Modern as aligned in interest with its landlord, State Five, who took possession of significant portions of parcels B and C and the tire pond while the underlying action was pending, through its corporate predecessor Look, who had taken its possession from the corporate defendant Tire Salvage, would operate to frustrate the trial court's power to order injunctive relief to address an environmental hazard on the defendants' land. We find guidance in a well established line of nuisance cases that recognize the legal interests shared by landlords and tenants and, assuming proper notice, treat injunctions, like that issued in this case, as in rem orders that bind nonparties with possessory rights to the property. Those courts recognize that to decide otherwise would eviscerate the courts' power to vindicate their judgments by permitting defendants to evade injunctions by simply
The seminal case on this point is Silvers v. Traverse, 82 Iowa 52, 55, 47 N.W. 888 (1891), wherein the Iowa Supreme Court upheld a finding of contempt against a nonparty lessee of a party who had been enjoined from using the leased premises for liquor sales, despite the fact that the nonparty lacked actual knowledge of the injunction. The court observed that the underlying "action for an injunction pertained to and affected real estate.... This action is notice to all the world of the matter involved therein; and all persons dealing with the property, or acquiring an interest therein, after the proceedings were instituted, are charged with notice of the proceedings.... The decree was against [the] plaintiff's lessor, who was the defendant in the suit. It affected his right and interest in the property; that is, it limited and cut off his power to use the property for the unlawful keeping and sale of intoxicating liquors. The decree was a restriction upon the use of the property which followed it as a burden, and, as it were, an incumbrance. Surely the plaintiff, in taking the property, took it subject to this restriction and burden." (Citation omitted; emphasis added.) Id., at 55-56, 47 N.W. 888. The court emphasized that viewing the injunction as anything other than an encumbrance on the lessor's right and interest in the property would render "vain" "the attempt to enforce injunctions to abate nuisances of all kinds.... The defendant perpetrating the nuisance could wholly defeat the law by leasing or transferring the property to one who had no notice thereof. He could begin anew the perpetration, and could only be enjoined by a new action, and when so enjoined he could in a like manner transfer the property and so on indefinitely, defeating the law, to the scandal of public justice, and the oppression of the people." (Emphasis added.) Id., at 56, 47 N.W. 888.
Similarly, in State v. Porter, 76 Kan. 411, 413-14, 91 P. 1073 (1907), the Kansas Supreme Court followed Silvers v. Traverse, supra, 82 Iowa at 52, 47 N.W. 888, and upheld the nonparty tenants' contempt convictions, despite their lack of actual knowledge or notice of the underlying order against the maintenance of a nuisance in the building, namely, the violation of state liquor laws. In so concluding, the Kansas court observed that the tenants "had possession of the building in which, but a few months before, the owner, his codefendants `and all other persons whomsoever' were enjoined from maintaining just such a nuisance as [tenants] were maintaining. In wilfully embarking upon an unlawful business they might well be presumed to have scanned every possible source of danger and to have not overlooked so public a proceeding as the injunction suit. It is more probable that they thought they had cunningly evaded it. It matters not. The proceedings of the courts for the maintenance of order and the enforcement of law are not thus to be trifled with. The decree of injunction was against the defendants in that suit, and in a sense was ad rem — against the property, or rather against a certain illegal use of the property. It cut off perpetually the use of the property for any of the purposes which the prohibitory liquor law of this state denounces as a nuisance. Thereafter not only the parties to that suit but all persons using the property for any of such unlawful purposes did so at their peril. The judgment is a limitation upon the use of the property of which all subsequent owners or occupants must take notice." (Emphasis added.) State v. Porter, supra, at 413-14, 91 P. 1073; see also State ex rel. Knittle v. Will, 86 Kan. 561, 562, 121 P. 362 (1912) ("An injunction against the owner
This venerable line of state cases providing for the in rem enforcement of injunctions against the maintenance of nuisances or other statutory violations is consistent with federal case law applying rule 65(d) of the Federal Rules of Civil Procedure,
Moreover, the United States Supreme Court has recognized that District Courts' equitable authority to enforce injunctions against nonparties under rule 65(d) of the Federal Rules of Civil Procedure is broader "in furtherance of the public interest than ... when only private interests are involved." (Internal quotation marks omitted.) Golden State Bottling Co. v. National Labor Relations Board, supra, 414 U.S. at 180, 94 S.Ct. 414; see also id. ("a bona fide purchaser, acquiring, with knowledge that the wrong remains unremedied, the employing enterprise which was the locus of the unfair labor practice, may be considered in privity with its predecessor for purposes of rule 65[d]"); United States v. Hall, 472 F.2d 261, 267 (5th Cir.1972) (describing rule 65[d] as "a codification rather than a limitation of courts' common-law powers, [which] cannot be read to restrict the inherent power of a court to protect its ability to render a binding judgment").
Indeed, in United States v. Hall, supra, 472 F.2d at 267, the United States Court of Appeals for the Fifth Circuit emphasized that rule 65(d) of the Federal Rules of Civil Procedure does not preclude the issuance of in rem injunctions because it "was intended to embody rather than to limit ... common law powers." The court then concluded that the District Court had the inherent power to protect its judgment ordering the desegregation of a school by holding a nonparty protester, "in a position to upset the court's adjudication"; Id.; in contempt for violating an injunction of which he had notice because his "[d]isruption of the orderly operation of the school system, in the form of a racial dispute, would thus negate the plaintiffs' constitutional right and the defendant's constitutional duty. In short, the activities of persons contributing to racial disorder at [the school] imperiled the court's fundamental power to make a binding adjudication between the parties properly before it." Id., at 265. Put differently, the key to permitting the enforcement of injunctions against nonparties under rule 65(d) is
This public interest extends to the environment, as the United States District Court, in enjoining nonparty city agencies from interfering with previous court orders granting relief in an action brought under the federal Clean Water Act, 33 U.S.C. § 1365, observed that it "has broad discretion to fashion remedies that will protect and effectuate its judgments, particularly when the public interest is involved.... Persons who were not parties to the original action may be enjoined from interfering with the implementation of court orders which establish and protect public rights." (Citations omitted.) Mumford Cove Assn. v. Groton, 647 F.Supp. 671, 691 (D.Conn.1986); see also Natural Resources Defense Council, Inc. v. Texaco Refining & Marketing, Inc., 719 F.Supp. 281, 291 (D.Del.1989) (water pollution injunction issued under federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., is enforceable pursuant to rule 65[d] of the Federal Rules of Civil Procedure against nonparty who became partner in operation of party's refinery after initiation of action because holding otherwise "would have the effect of enabling a successor permit holder which had acquired the refinery with knowledge of ongoing violations to evade enforcement"), vacated on other grounds, 906 F.2d 934 (3d Cir. 1990); Mumford Cove Assn., Inc. v. Groton, supra, at 691 ("[t]he actions of the [c]ity, its agencies and officials, and some of its residents, threaten to interfere with this court's efforts to remedy pollution of federally-protected waters of the United States").
Under these lines of cases, we conclude that, consistent with due process and Modern's notice of the trial court's orders rendered in the underlying action, the trial court had the inherent power to enforce its previously ordered injunctions against Modern despite its nonparty status.
Modern next contends that the trial court improperly found that it was necessary for Modern to move its operations in order for the commissioner to accomplish the remediation of the tire pond. Specifically, Modern relies on the testimony of Coy Angelo, the chief of operations for Gateway Terminal, who was responsible for coordinating the transportation and placement of fill material for the tire pond site and Earl Tucker, Modern's president, to establish that no remediation work presently is occurring or imminent on the tire pond site, which has been secured, and that making Modern move its operations off the site would cause it to experience financial hardship that would drive it out of business. In response, the commissioner contends that Modern has not established that the trial court's findings of necessity are clearly erroneous, based on the fact that the only currently existing remediation plan that is presently in effect, namely, the remediation and closure plan crafted by Fuss & O'Neill, Inc.; see
At the outset, we agree with the commissioner that the trial court's finding as to whether it was necessary for Modern to move in order to effectuate the remediation plan that implements the trial court's judgments in a question of fact subject to review only for clear error. See Kelo v. New London, 268 Conn. 1, 88-90, 843 A.2d 500 (2004) (reviewing trial court's evaluation of agency determination of land "reasonably necessary" for effectuation of economic development plan under clearly erroneous standard), aff'd, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005). "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.... Because it is the trial court's function to weigh the evidence and determine credibility, we give great deference to its findings.... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached.... Instead, we make every reasonable presumption ... in favor of the trial court's ruling." (Internal quotation marks omitted.) Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 507-508, 4 A.3d 288 (2010).
Having reviewed the record, we conclude that the trial court's finding that it is necessary for Modern to move in order for the commissioner to implement the remediation and closure plan presently in effect; see footnote 11 of this opinion; is not clearly erroneous. Although Modern accurately notes a stipulation and testimony to the effect that future phases of the closure plan may well be revised by new contractors in a way that would obviate the need for it to move until after the expiration of its lease, the trial court was entitled, as finder of fact, to decline to credit this evidence as speculative.
Further, in discounting the economic hardship that Modern would experience as a result of moving, the trial court was entitled to consider the fact that Modern was aware of the implementation of the closure plan, yet continued to bring increasing amounts of materials onto the site. To this effect, the trial court also properly considered the time-consuming aspect of moving Modern's operations and the delay that would be caused by implementing subsequent phases of any closure plan if Modern remained on the site. Accordingly, we conclude that the trial court's factual conclusion that it was necessary to order Modern to vacate the site in order to complete the closure of the tire pond is not clearly erroneous.
Finally, we turn to Modern's claim that the trial court's decision to enforce its previous orders against Modern, without first affording it notice and the opportunity to be heard regarding the validity of those orders, violated its right to due process under the federal and state constitutions
It is well settled that, "[w]hether [a party] was deprived of his due process rights is a question of law, to which we grant plenary review." (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 489, 500, 970 A.2d 570
We agree with Modern that the concept of the enforcement of court orders against nonparties to civil actions raises a "substantial issue" of due process, particularly insofar as they affect property interests like Modern's validly recorded leasehold.
Nevertheless, contrary to Modern's rather conclusory arguments, it is well settled that due process does not require that the nonparty be afforded the opportunity to contest the underlying judgment. In addressing whether an order remedying unfair labor practices could be enforced against a nonparty bona fide purchaser of a business, the Supreme Court stated that "[t]here will be no adjudication of liability against a bona fide successor `without affording [it] a full opportunity at a hearing, after adequate notice, to present evidence on the question of whether it is a successor which is responsible for remedying a predecessor's unfair labor practices. The successor [will] also be entitled, of course, to be heard against the enforcement of any order issued against it.'" Id., at 180, 94 S.Ct. 414 quoting In re Perma Vinyl Corp., 164 N.L.R.B. 968, 969 (1967); see also Golden State Bottling Co. v. National Labor Relations Board, supra, 414 U.S. at 181, 94 S.Ct. 414 ("In this case, All American [Beverages, Inc.] has no complaint that it was denied due notice and a fair hearing. It was made a party to the supplemental backpay specification proceeding, given notice of the hearing, and afforded full opportunity, with the assistance of counsel, to contest the question of its successorship for purposes of the [National Labor Relations Act] and its knowledge of the pendency of the unfair labor practice litigation at the time of purchase.").
Under the facts of this case, we conclude that Modern received ample due process protections prior to the trial court's issuance of the order requiring it to vacate the tire pond. As noted previously, it is undisputed in this writ of error that Modern had notice of the injunctions rendered in the underlying action. See footnote 15 of this opinion and accompanying text. Further, the commissioner served the order to show cause and the motion for enforcement of the trial court's order on Modern on June 30, 2009. The trial court subsequently conducted a two day evidentiary hearing in September, 2009, at which Modern was represented by counsel with the opportunity to examine witnesses, introduce documents into evidence and argue, both orally and in posttrial briefs, that it was not necessary for it to vacate the tire pond site in order to effectuate the trial court's order. Accordingly, we conclude that the trial court's order directing Modern to vacate the premises did not violate its due process rights.
The writ of error is dismissed.
In this opinion the other justices concurred.
"In December, 1995, [Hamden] obtained a temporary injunction against [Farricielli] and his corporations, which eventually evolved into the stipulated judgment at issue in the present case. In March, 1999, [Hamden] obtained a cease and desist order against [Farricielli] and his corporations in relation to their unauthorized processing and storage of pumice and fragmented metals, and the storage of trucks and truck parts on the [Farricielli's] Hamden properties. [Farricielli's] subsequent failure to comply with this order, in addition to his failure to comply with the terms of the stipulated judgment, was the basis of [Hamden's] complaint in the present case.
"On December 3, 1999, nearly six months after the first complaint was filed in the present case, the commissioner moved the trial court for an immediate temporary injunction to prevent [Farricielli] and his corporations from engaging in any unauthorized activities in relation to the tire pond, pending adjudication of the merits of the commissioner's claim. The motion went unopposed, and the trial court granted it on January 3, 2000. Less than one month later, however, the commissioner filed a motion for contempt, claiming that [Farricielli] and his corporations failed to comply with the temporary injunction. The motion was still pending at the time the case went to a hearing, and the trial court granted it along with all other forms of relief sought by the plaintiffs, including the imposition of a permanent injunction in lieu of the existing temporary injunction." Rocque v. Farricielli, supra, 269 Conn. at 192-93 n. 3 [848 A.2d 1206].
* * *
"(e) When the commissioner issues an order pursuant to this chapter, he shall cause a certified copy or notice thereof to be filed on the land records in the town wherein the land is located, and such certified copy or notice shall constitute a notice to the owner's heirs, successors and assigns. When the order has been fully complied with or revoked, the commissioner shall issue a certificate showing such compliance or revocation, which certificate the commissioner shall cause to be recorded on the land records in the town wherein the order was previously recorded...."
For actual notice, the commissioner relies on: (1) service of court orders in 2004 and 2009 informing Modern that its leased premises were part of the tire pond that is subject to closure; (2) a letter sent by Fuss & O'Neill, Inc., the commissioner's contracted environmental consulting firm, to Earl Tucker, Modern's president, along with a copy of the final grading plan for the tire pond that demonstrated that Modern needed to vacate the premises to permit the filling and grading of the land; and (3) the fact that the attorney who represented Modern in the 2003 lease negotiations, also represented Gateway Terminal, the state's remediation contractor, in its 2007 contract negotiations.
Nevertheless, because Modern failed to argue the issue of notice adequately in its main brief, we address that issue only insofar as it is part and parcel of Modern's properly briefed due process claim, addressed in part III of this opinion, which includes our extensive discussion of notice issues at oral argument before this court. See, e.g., Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 59, 12 A.3d 885 (2011) (appellate claims are abandoned when raised for first time in reply brief).
"(A) the parties;
"(B) the parties' officers, agents, servants, employees, and attorneys; and
"(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B)."
Second, Modern's argument ignores the fact that the commissioner sought to avoid necessary party issues like that presented in this writ of error by moving — albeit unsuccessfully — to join additional corporate defendants after the commencement of the underlying action. Indeed, among the parties that the commissioner had sought to join in this case was Look, the corporate predecessor to State Five, as owner of parcel C. The defendants opposed this motion to amend the complaint, and the trial court, Booth, J., denied the motion in December, 1999, "with assurance by the defendants that access ... would be allowed" via parcel C to the tire pond on parcel B, and parcel A in order to render injunctive relief effective. (Emphasis added.) Indeed, this denial properly was recognized in the trial proceedings that gave rise to this writ of error when the court sustained the commissioner's objection and precluded Farricielli's counsel from pursuing a line of cross-examination about the propriety of the closure plan and whether Modern's presence interfered with it.
Modern's reliance on these general rules is, however, misplaced, given more specific provisions in the Restatement (Second) and American Jurisprudence, Second Edition, which both define privity in the context of property transfers that occur during the pendency of litigation that concerns land. See 2 Restatement (Second), supra, at § 44 p. 18 (1982) ("[a] successor in interest of property that is the subject of a pending action to which his transferor is a party is bound by and entitled to the benefits of the rules of res judicata to the same extent as his transferor, unless: (1)[a] procedure exists for notifying potential successors in interest of pending actions concerning property, the procedure was not followed, and the successor did not otherwise have knowledge of the action; or (2)[t]he opposing party in the action knew of the transfer to the successor and knew also that the successor was unaware of the pending action" [emphasis added]); 47 Am.Jur.2d, supra, at § 591 ("[t]he general rule is that although one to whom an assignment is made or property is granted by a party to an action during the pendency of the action is regarded as in privity with such party within the meaning of the doctrines of res judicata and collateral estoppel, a judgment is regarded as conclusive only as between the parties and their successors in interest by title acquired subsequent to the commencement of the action, so that a person to whom a party to an action has made an assignment or has granted property or an interest therein before the commencement of the action is not regarded as in privity with the assignor or grantor so as to be affected by a judgment rendered against the assignor or grantor in the action, unless that person is made a party to the action" [emphasis added]).