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FAIRCHILD HEIGHTS RESIDENTS ASSOCIATION,
INC. v . FAIRCHILD HEIGHTS, INC. (SC 18917) Rogers, C. J., and Palmer, Zarella, McDonald and Vertefeuille, Js. Argued September 18, 2013—officially released January 21, 2014 Douglas J. Varga , with whom, on the brief, were Maximino Medina, Jr. , and Dominic Spinelli , for the appellant (plaintiff).
Thomas T. Lonardo , with whom were Colin P. Mahon and Ryan A. Bauder , for the appellee (defen- dant).
George Jepsen , attorney general, Gregory T. D’Auria , solicitor general, and Phillip Rosario and Brendan T. Flynn , assistant attorneys general, filed a brief for the state of Connecticut et al. as amici curiae.
Opinion
ZARELLA, J. The plaintiff, Fairchild Heights Resi- dents Association, Inc. (association), appeals from the judgment of the Appellate Court, which reversed the judgment of the trial court and directed that court to dismiss the association’s claims alleging negligence and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., against the defendant, Fairchild Heights, Inc., for lack of subject matter jurisdiction. The association argues that the Appellate Court incorrectly concluded that it failed to exhaust its administrative remedies before requesting declaratory relief and that it did not have standing to bring an action under CUTPA. We reverse in part the judgmеnt of the Appellate Court and remand the case for a new trial on the association’s CUTPA claim.
The following relevant facts and procedural history are set forth in the trial court’s memorandum of deci- sion. The association is a nonstock corporation that represents approximately forty-five mobile home own- ers who reside at the Fairchild Heights Mobile Home Park (park) in the town of Shelton. Nancy Dickal, a park resident for more than thirty years, has been the association’s president since its creation in February, 2005. The defendant is a Connecticut corporation that owns and operates the park. The defendant’s majority shareholder and the park’s on-site manager is Jeffrey Doolan.
The association was established in part to address maintenance issues. Shortly after its creation, the asso- ciation distributed a membership application to resi- dents that included questions asking them to identify specific concerns regarding the park’s operation and condition. On March 28, 2005, the association’s attorney sent a letter to the defendant’s attorney discussing these concerns and requesting a meeting to address them. Thereafter, the attorneys conducted a walk-through of the park on June 15, 2005, following which the associa- tion’s attorney sent a letter to the defendant’s attorney listing a series of maintenance violations and giving the defendant three weeks to make the necessary repairs or commit to make the repairs in a timely manner.
After the defendant rejected the deadline and the parties’ negotiations broke down, the association filed an action against the defendant in July, 2006, seeking redress for the defendant’s failure to respond to the association’s concerns. [1] The first two counts of the com- plaint alleged per se negligence for violations of state statutes and municipal ordinances, respectively, relat- ing to maintenance standards applicable to mobile home park owners under chapter 412 of the General Statutes, entitled ‘‘Mobile Manufactured Homes and Mobile Manufactured Home Parks. Park Owners and Residents,’’ General Statutes § 21-64 et seq. The third *4 count alleged a violation of CUTPA. The complaint sought declaratory relief pursuant to Practice Book § 17-56 (a) (2), and injunctive relief, punitive damages and attorney’s fees pursuant to CUTPA. It also sought costs and other equitable relief to which the association might be entitled.
In September, 2006, the association filed a complaint with the Office of the Attorney General. [2] The attorney general forwarded the complaint to the Department of Consumer Protection (department), which assigned the matter to a department investigator. [3] Following several inspections, the investigator sent a letter dated October 13, 2006, to Doolan advising him of ‘‘serious violations’’ of General Statutes § 21-82 (a). [4] The letter listed the violations and requested that Doolan advise the depart- ment by October 30, 2006, as to when the violations would be corrected, adding that a failure to cooperate would lead to additional enforcement action. Appar- ently in response to this letter, Doolan initiated certain actions intended to correct the violations.
Thereafter, the department investigator conducted further inspections of the park. In July, 2007, he issued two written reports noting certain improvements but stating that a number of violations had not yet been corrected. On July 31, 2007, the department conducted an informal compliance hearing, which was attended by the parties’ counsel. At the hearing, it was noted that the defendant had made progress in addressing the violations but that concerns remained. In response, Doolan agreed to perform additional work to eliminate these concerns and to bring the park in compliance with the applicable statutory standards.
On October 24, 2007, the department investigator con- ducted another inspection and noted in a subsequent report that various improvements had been made. He also noted certain outstanding work that remained to be done. In a report dated November 28, 2007, however, the investigator referred to the October 24 inspection and stated that ‘‘[a]ll previous concerns appeared to be addressed.’’ A letter from the department to the defendant’s attorney dated December 28, 2007, similarly stated that the department had ‘‘determined’’ that the park was ‘‘in compliance’’ with state law, ‘‘no further action [was] warranted,’’ and the file regarding the park had been ‘‘closed.’’
On August 20, 2008, the association amended the complaint previously filed with the trial court in July, 2006, adding more detail to the existing three counts and one count of per se negligence for the defendant’s alleged violations of statutory provisions relating to renewal of the residents’ mobile home leases in Decem- ber, 2007. The association also requested declaratory relief under Practice Book §§ 17-55 and 17-56, and injunctive relief to compel the defendant’s compliance with the applicable statutory provisions, to correct any *5 current areas of noncompliance, and to preclude the defendant from attempting to recover from the associa- tion’s members or other park residents any costs or expenses arising out of or relating to the litigation. The association further clarified that it was requesting injunctive relief pursuant to CUTPA, among other statu- tory provisions. [5]
The case was tried to the court in May, 2009, after which the parties filed posttrial briefs. In a memoran- dum of decision dated September 24, 2009, the trial court found in favor of the defendant on all counts. The court explained that, ‘‘ ‘[a]s a general matter, adminis- trative decisions are entitled to preclusive effect’ ’’ and that, with regard to counts one and three, the associa- tion had failed to provide the court with case law to support a modification of the department’s findings for the defendant in the absence of an administrative apрeal. The trial court further stated, with regard to count two, that the association had not met its burden of proof because no municipal employee had testified that the park was in violation of the municipal ordi- nances. The trial court finally found in favor of the defendant on the CUTPA count, declining to modify the department’s finding that the defendant was in com- pliance with the statutes cited in the association’s com- plaint.
The association appealed to the Appellate Court,
which ordered supplemental briefs on the issue of
whether the association had standing to bring a CUTPA
claim.
Fairchild Heights Residents Assn., Inc Fair-
child Heights, Inc
.,
The Appellate Court first determined that the opera- tive complaint for purposes of addressing subject mat- ter jurisdiction was the association’s original complaint, and not the amended complaint on which the action had been tried. See id., 574 n.8. The Appellate Court thus did not address the alleged violation of statutory lease provisions, a claim that had not been included in the original complaint. The court then concluded, with respect to the first two counts of the original complaint alleging violations of maintenance standards and municipal ordinances under chapter 412, that the asso- ciation’s request for declaratory relief should be dis- missed because the association had not sought a declaratory ruling from the department and thus had failed to exhaust its administrative remedies. See id., 577–80. The Appellate Court also concluded that the association did not have standing to seek injunctive relief because the original complaint did not allege that, in the absence of an injunction, the association would *6 suffer irreparable harm. [6] See id., 580–82. The court finally concluded that the association lacked standing to bring a CUTPA claim because the association’s alle- gations of damages required the participation of the individual association members in order to satisfy the CUTPA requirement of demonstrating ascertainable loss. Id., 582–84. Accordingly, the Appellate Court reversed the trial court’s judgment and remanded the case to that court with direction to dismiss the associa- tion’s action. Id., 584.
The association filed a petition for сertification to
appeal to this court, and we granted certification limited
to the following issue: ‘‘Did the Appellate Court properly
reverse and remand with direction to dismiss the action
based on a determination that the plaintiff failed to
exhaust its administrative remedies and lacked associa-
tional standing?’’
Fairchild Heights Residents Assn.,
Inc Fairchild Heights, Inc
.,
I APPLICABILITY OF THE EXHAUSTION DOCTRINE
A We first consider whether the Appellate Court prop- erly applied the exhaustion doctrine to the association’s request for declaratory relief in connection with its claims of per se negligence for violations of chapter 412 of the General Statutes. The association claims that the Appellate Court incorrectly concluded that it failed to exhaust its administrative remedies because the exhaustion doctrine is inapplicable in light of the proce- dures that the department followed in responding to the association’s complaint. The association contends that, because the department chose to address the com- plaint solely through informal compliance efforts, it foreclosed the association’s ability to challenge the department’s decision through a formal administrative proceeding or administrative appeal. The association also claims that the statutory scheme does not compel administrative exhaustion because use of the word ‘‘may’’ in General Statutes § 21-83e (a), which provides that a mobile home park resident who alleges a violation of the statutory scheme ‘‘may’’ request a declaratory ruling from the department prior to seeking judicial relief, means that the request for a declaratory ruling is discretionary. The association finally claims that requiring the filing of an administrative complaint prior to seeking judicial relief would have harmful public policy consequences because it would result in an increase in department costs and an explosion of for- mal proceedings.
The defendant responds that the Appellate Court’s
conclusion ‘‘comports with the numerous public poli-
cies underlying the exhaustion doctrine,’’ including use
of the department’s expertise, where possible, in evalu-
*7
ating alleged statutory violations, the efficiency and
economy achieved by relying on the department’s fac-
tual findings, the likelihood of a resolution during an
administrative proceeding, and the disincentive it pro-
vides to forum shop. The defendant also argues that
the Appellate Court’s conclusion is consistent with this
court’s reasoning in
Connecticut Mobile Home Assn.,
Inc Jensen’s, Inc
.,
‘‘As a preliminary matter, we set forth the applicable
standard of review. . . . Because the exhaustion [of
administrative remedies] doctrine implicates subject
matter jurisdiction, [the court] must decide as a thresh-
old matter whether that doctrine requires dismissal of
the [plaintiff’s] claim. . . . [Additionally] [b]ecause [a]
determination regarding a trial court’s subject matter
jurisdiction is a question of law, our review is plenary.’’
(Internal quotation marks omitted.)
Nyenhuis
v.
Metro-
politan District Commission
,
‘‘It is a settled principle of administrative law that if
an аdequate administrative remedy exists, it must be
exhausted before the Superior Court will obtain juris-
diction to act in the matter. . . . Thus, exhaustion of
remedies serves dual functions: it protects the courts
from becoming unnecessarily burdened with adminis-
trative appeals and it ensures the integrity of the
agency’s role in administering its statutory responsibili-
ties.’’ (Citation omitted; internal quotation marks omit-
ted.)
Piquet Chester
,
There are two ways to determine whether an adminis-
trative remedy has been exhausted. ‘‘[When] a statute
has established a procedure to redress a particular
wrong a person must follow the specified remedy and
may not institute a proceeding that might have been
permissible in the absence of such a statutory proce-
dure. . . . When, however, a statutory requirement of
exhaustion is not explicit, courts are guided by [legisla-
tive] intent in determining whether application of the
doctrine would be consistent with the statutory scheme.
.
.
. Consequently, [t]he requirement of exhaustion
may arise from explicit statutory language or from an
administrative scheme providing for agency relief.’’
*8
(Citation omitted; internal quotation marks omitted.)
Piteau
v.
Board of Education
,
We begin our inquiry by examining the statutory lan-
guage and the remedies provided in chapter 412 of the
General Statutes to determine whether the assoсiation
was required to request a declaratory ruling from the
department prior to seeking judicial relief. In this
endeavor, we are guided by the well established princi-
ple that ‘‘[i]ssues of statutory construction raise ques-
tions of law, over which we exercise plenary review.
. . . The process of statutory interpretation involves
the determination of the meaning of the statutory lan-
guage as applied to the facts of the case, including the
question of whether the language does so apply. . . .
When construing a statute, [o]ur fundamental objective
is to ascertain and give effect to the apparent intent of
the legislature. . . . In other words, we seek to deter-
mine, in a reasoned manner, the meaning of the statu-
tory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered.’’ (Internal quotation
marks omitted.)
Ugrin Cheshire
,
In the present case, the relevant statutory provisions on mobile home parks are contained in chapter 412 of the General Statutes, which operates in conjunction with the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. Beginning with the provisions in chapter 412, General Statutes § 21-75 provides that ‘‘[t]he Commissioner of Consumer Protec- tion shall adopt such regulations as are necessary to carry out the purposes of . . . chapter [412], in accor- dance with the provisions of [the UAPA].’’ In addition, § 21-83e (a) provides that ‘‘[a] [mobile home] resident who claims that an owner is violating any provision of . . . chapter [412] . . . may request a declaratory rul- ing from the [d]epartment . . . .’’ General Statutes § 21-72 further provides that ‘‘[a]ny person aggrieved by any action of the department may appeal therefrom in accordance with the provisions of section 4-183.’’
Turning to the UAPA, General Statutes § 4-176 (a) provides that ‘‘[a]ny person may petition an agency . . . for a declaratory ruling as to the validity of any regula- tion, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency.’’ Section 4-176 (i) also provides that, ‘‘[i]f an *9 agency does not issue a declaratory ruling within one hundred eighty days after the filing of a petition therefor . . . the agency shall be deemed to have decided not to issue such ruling.’’ General Statutes § 4-175 (a) further provides that, ‘‘if an agency (1) does not take an action required by . . . section 4-176 . . . (2) decides not to issue a declaratory ruling under . . . section 4-176, or (3) is deemed to have decided not to issue a declaratory ruling under . . . section 4-176, the petitioner may seek in the Superior Court a declaratory judgment as to the validity of the regulation in question or the appli- cability of the provision of the general statutes, the regulation or the final decision in question to specified circumstances. . . .’’ General Statutes § 4-183 (a) repeats this rule in more general terms, providing that ‘‘[a] person who has exhausted all administrative reme- dies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . .’’
We have recognized on multiple occasions that an
aggrieved party must exhaust its administrative reme-
dies
before
it may seek judicial relief. See, e.g.,
Republi-
can Party of Connecticut
v.
Merrill
,
The association filed a complaint with the trial court in July, 2006. Two months later, in September, 2006, it filed a complaint with the Office of the Attorney Gen- eral, which forwarded the complaint to the department. The department conducted an informal investigation and closed its file on the complaint in December, 2007. Accordingly, the association failed to exhaust its admin- istrative remedies with respect to counts one and two because it filed the complaint with the Office of the Attorney General two months after it sought judicial relief and the department did not complete its investiga- tion until fifteen months after the filing.
Even if the association had filed the complaint after the investigation was completed, however, it still would *10 have failed to exhaust its administrative remedies because it did not seek a declaratory ruling pursuant to § 21-83e (a), from which it could have appealed to the trial court under §§ 4-183 and 21-72. The association merely sent a letter to the Office of the Attorney General in which it listed the alleged maintenance violations, made other claims regarding retaliatory actions by the defendant against individual members of the associa- tion’s board of directors, and sought an ‘‘immediate investigation.’’
Furthermore, we disagree with the association’s claim that the language used in § 21-83e (a) does not require that a complainant request a declaratory ruling prior to seeking judicial relief. Although § 21-83e (a) provides that ‘‘[a] [mobile home] resident who claims that an owner is violating any provision of . . . chapter [412] . . . may request a declaratory ruling from the [d]epartment’’; (emphasis added); the legislature’s use of the more permissive word, ‘‘may,’’ rather than the generally mandatory word, ‘‘shall,’’ does not mean that the request for a declaratory ruling is discretionary inso- far as it may serve as a prerequisite to seeking declara- tory reliеf from the court. The statutory scheme provides dissatisfied residents with numerous other administrative remedies for addressing substandard conditions at a mobile home park, either by way of a department investigation or by direct individual action. These remedies include suspension or revocation of the owner’s license to operate the park; see General Statutes § 21-71 (a); the imposition of fines; see General Statutes § 21-71 (a); prohibitions on the collection of rent after suspension or revocation; see General Stat- utes § 21-73 (a); termination of the rental agreement following proper notice for breach of the landlord’s responsibilities; see General Statutes § 47a-12 (a); and placement of the required rent in a special account administered by the court until the statutory violations are addressed. See General Statutes § 47a-14h. When viewed in this context, the language in § 21-83e (a) providing that a resident ‘‘may request a declaratory ruling from the [d]epartment’’ simply means that a resi- dent has the discretion to request a declaratory ruling or to seek any of the other remedies available to achieve statutory compliance. It does not mean, even implicitly, that a resident has the discretion to request a declara- tory ruling prior to seeking a declaratory judgment from the court.
If this was the meaning of the statute, a declaratory
ruling would be required only if the word ‘‘shall’’ had
been used in place of the word ‘‘may.’’ As the Appellate
Court noted, however, this would lead to an absurd
result because it would mean that, in addition to another
type of statutory remedy or informal compliance proce-
dure, like the one employed in the present case, all
complainants would be required to request a declara-
tory ruling, despite their preference for another remedy,
*11
in seeking relief for a statutory violation by an owner.
See
Fairchild Heights Residents Assn., Inc
. v.
Fair-
child Heights, Inc
., supra,
Finally, the fact that the department chose to follow an informal compliance procedure is no excuse for the association’s omissions. The department did exactly what the association asked it to do, which was to inves- tigate the association’s complaint. The association had the responsibility in the first instance to request a declaratory ruling, from which it could have appealed to the court pursuant to §§ 4-183 and 21-72 if it was not satisfied with the outcome. This it did not do. As a consequence, the fact that there was no declaratory ruling by the department from which the association could appeal was not the department’s fault. It was the association’s obligation to pursue this option at the outset, and its failure to do so means that it did not exhaust its administrative remedies with respect to counts one and two.
B We next consider whether the Appellate Court prop- erly applied the exhaustion doctrine to the association’s claim for declaratory relief based on the alleged CUTPA violation. The association claims that the Appellate Court incorrectly concluded that the association was required to seek a declaratory ruling from the depart- ment prior to seeking a judicial remedy under CUTPA. The defendant responds that the Appellate Court did not conсlude that the association should have exhausted its administrative remedies with respect to the CUTPA claim, and, therefore, this court need not address that issue. We agree with the defendant that the Appellate Court’s holding as to the CUTPA claim was not based on the association’s failure to exhaust its administra- tive remedies.
After the parties filed their briefs, the Appellate Court
issued the following order: ‘‘Counsel are hereby sua
sponte ordered to file . . . simultaneous supplemental
briefs . . . in which they address whether the [associa-
tion] has standing to assert a CUTPA claim. See
Con-
necticut Assn. of Health Care Facilities, Inc
. v.
Worrell
,
Thereafter, the Appellate Court stated in the introduc-
tory portion of its decision: ‘‘[D]uring our review of the
record, we questioned whether the [association] had
standing to bring a CUTPA claim and ordered, sua
sponte, counsel to submit supplemental briefs on that
issue. We conclude that the [association] failed to
exhaust its administrative remedies and therefore
lacked standing to bring a CUTPA action. The trial
court, therefore, was without subject matter jurisdic-
tion and the action must be dismissed.’’ (Footnote omit-
ted.)
Fairchild Heights Residents Assn., Inc Fair-
child Heights, Inc
., supra,
On the basis of these facts, we conclude that the
Appellate Court did not reject the association’s CUTPA
claim on the ground that the association had failed
to exhaust its administrative remedies. The Appellate
Court’s single, isolated reference to the exhaustion doc-
trine in connection with the CUTPA claim, without any
further explanation, must be attributed to an oversight.
We nonetheless consider whether the exhaustion doc-
trine applies because a reviewing court may consider
the issue of subject matter jurisdiction at any time; see,
e.g.,
Perez-Dickson Bridgeport
,
The association claims that it was not required to exhaust its administrative remedies before bringing a CUTPA claim because (1) the department did not have the ability to award the injunctive relief, punitive dam- ages and attorney’s fees that the association sought under CUTPA, (2) the legislative history of CUTPA evinces a clear legislative intent not to require private litigants to exhaust any remеdies available through the department before pursuing a CUTPA action in the Superior Court, and (3) public policy warrants allowing parties to bypass administrative remedies and to bring CUTPA actions directly in the Superior Court because it will decrease the burden on the department, provide consumers with a judicial remedy and affirm the attor- ney general’s power to enforce the ban on unfair trade practices. In their amicus brief, the state and the depart- ment argue that CUTPA provides consumers with a comprehensive, multi-faceted enforcement framework that includes administrative proceedings but that allows private parties to assist in the enforcement of CUTPA through private actions brought in the Superior Court. As previously noted, the defendant claims that there is no need for this court to address the issue because the Appellate Court never held that exhaustion is required prior to the commencement of a CUTPA action. Accord- ingly, the defendant has not expressed an opinion one way or another. We agree with the association and the amici curiae that CUTPA does not require litigants to exhaust their administrative remedies before bringing a CUTPA claim.
The language of CUTPA and our prior case law strongly suggest that the exhaustion doctrine does not apply. CUTPA provides for two general enforcement mechanisms. These include (1) administrative proceed- ings initiated by the commissioner of consumer protec- tion (commissioner) and carried out by the commis- sioner’s authorized representatives, including the attor- ney general, pursuant to General Statutes §§ 42-110d and 42-110m, and (2) actions initiated by private parties in the Superior Court for punitive damages, costs, attor- ney’s fees, injunctive and other equitable relief pursuant to General Statutes § 42-110g. Section 42-110g contains no requirement that a private party exhaust administra- tive remedies prior to seeking judicial relief.
In interpreting the foregoing provisions, we have
stated that CUTPA is ‘‘remedial in character . . . and
must be liberally construed in favor of those whom
the legislature intended to benefit.’’ (Internal quotation
marks omitted.)
Eder Bros., Inc Wine Merchants of
Connecticut
,
Inc
.,
We also note that exhaustion is not required when
an administrative remedy is futile or inadequate. See
Connecticut Mobile Home Assn., Inc Jensen’s, Inc
.
,
supra,
In the present case, the remedies available to the association included a request for declaratory relief; see General Statutes § 21-83e (a); the imposition of fines on the owner of the mobile home park; see General Statutes § 21-71 (a); suspension or revocation of the owner’s license to operate the park; see General Stat- utes § 21-71 (a); prohibitions on the collection of rent after suspension or revocation; see General Statutes § 21-73 (a); termination of the rental agreement follow- ing proper notice for breach of the landlord’s responsi- bilities; see General Statutes § 47a-12 (a); and placement of the required rent in a special account administered by the court until the statutory violations are addressed. See General Statutes § 47a-14h. The department has no authority to award the injunctive relief, punitive damages, attorney’s fees and costs sought by the association and available under CUTPA. Accordingly, any administrative request for such reme- dies would have been futile and inadequate.
The present case is similar to
Griswold Union
Labor Life Ins. Co
.,
‘‘It appears, therefore, that the plaintiffs had no practi- cal or adequate administrative remedy which would require exhaustion. . . . The plaintiffs are entitled to maintain a private right of action for monetary damages for alleged unfair trade practices, as defined by [what is now General Statutes § 38a-816], without first exhausting the administrative remedies under [what is *15 now General Statutes § 38a-817] and it was error for the court to hold otherwise.’’ (Citations omitted.) Id., 520–21. In the present case, as in Griswold , the relevant state agency was unable to award the punitive damages, attorney’s fees, costs, injunctive and other equitable relief sought by the association. Accordingly, there was no administrative remedy that the association could have exhausted to obtain such relief before bringing its CUTPA claim.
II ASSOCIATIONAL STANDING UNDER CUTPA The association next claims that the Appellate Court incorrectly concluded that it lacked associational stand- ing to bring a CUTPA claim on the ground that the third prong of the associational standing test required residents of the park to testify regarding their firsthand knowledge of the alleged statutory violations and how they were individually harmed. The association specifi- cally claims that the Appellate Court misapplied the applicable law because, under United States Supreme Court and other federal precedent, the participation of each individual member of the association was not indispensable to a determination of whether the defen- dant had committed the violаtions and whether the association was entitled to injunctive relief, punitive damages and attorney’s fees. The association also claims that individual participation was not required to establish the CUTPA element of ascertainable loss because it was not necessary for the association to prove quantifiable damages in order to satisfy that element.
The defendant responds that the Appellate Court cor- rectly concluded that the association failed to satisfy the third prong of the associational standing test because extensive member participation was required to prove ascertainable loss and to recover punitive damages and injunctive relief under CUTPA. We agree with the asso- ciation.
‘‘[S]tanding is the legal right to set judicial machinery
in motion. One cannot rightfully invoke the jurisdiction
of the court unless he [or she] has, in an individual or
representative capacity, some real interest in the cause
of action, or a legal or equitable right, title or interest
in the subject matter of the controversy. . . . Never-
theless, [s]tanding is not a technical rule intended to
keep aggrieved parties out of court; nor is it a test
of substantive rights. Rather it is a practical concept
designed to ensure that courts and parties are not vexed
by suits brought to vindicate nonjusticiable interests
and that judicial decisions which may affect the rights
of others are forged in hot controversy, with each view
fairly and vigorously represented.’’ (Citation omitted;
internal quotation marks omitted.)
Citibank, N.A
. v.
Lindland
,
In
Connecticut Assn. of Health Care Facilities, Inc
.
v.
Worrell
, supra,
The defendant concedes that the first two prongs of the foregoing test were satisfied and that the only disputed issue is whether the third prong was satisfied. Thus, in order to determine whether the claim asserted and the relief requested required the participation of the association’s individual members, we must consider the prinсiples that govern a CUTPA claim.
‘‘[T]o prevail on a CUTPA claim, [a plaintiff] must
prove that (1) the defendant engaged in unfair or decep-
tive acts or practices in the conduct of any trade or
commerce; General Statutes § 42-110b (a); and (2) each
*17
class member claiming entitlement to relief under
CUTPA has suffered an ascertainable loss of money or
property as a result of the defendant’s acts or practices.
General Statutes § 42-110g (a).’’ (Footnote omitted;
internal quotation marks omitted.)
Neighborhood
Builders, Inc
. v.
Madison
,
Although the association alleged per se CUTPA viola-
tions of several provisions of chapter 412 of the General
Statutes; e.g., General Statutes § 21-83e (b) (‘‘[a] viola-
tion of any of the provisions of . . . chapter [412] shall
be deemed an unfair or deceptive trade practice under
[CUTPA]’’); it still was required to prove that it had
suffered an ascertainable loss because of the violations.
See, e.g.,
A. Secondino & Son, Inc
. v.
LoRicco
, 215
Conn. 336, 343–44,
As previously noted,
‘‘[r]epresentational standing
depends in substantial measure on the nature of the
relief sought. If in a proper case the association seeks
a declaration, injunction, or some other form of pro-
spective relief, it can reasonably be supposed that the
remedy, if granted, will inure to the benefit of those
members of the association actually injured.’’ (Internal
quotation marks omitted.)
Connecticut Assn. of Health
Care Facilities, Inc Worrell
, supra,
In the present case, the association seeks injunctive
relief to ensure that the defendant will operate the park
in compliance with chapter 412 and other applicable
statutes, will address any issues of noncompliance, and
will not be allowed to recover from association mem-
bers or other park residents any costs or expenses
arising out of or relating to the present litigation. This
is exactly the type of prospective relief to which we
referred in
Connecticut Assn. of Health Care Facilities,
Inc
., and the other cases in which we addressed the
issue because such relief would inure to the benefit of
all injured association members and thus would not
indispensably require the testimony of each individual
member.
Connecticut Assn. of Health Care Facilities,
Inc
. v.
Worrell
, supra,
Insofar as the association also seeks punitive dam-
ages, costs, and attorney’s fees, they are awarded at
the discretion of the court; see, e.g.,
Votto
v.
American
Car Rental, Inc
.,
In addition to the fact that punitive damages, costs
and attorney’s fees are discretionary, they would not
require the testimony of each individual member of the
assоciation in the present case. In
Ulbrich Groth
, 310
Conn. 375,
To the extent the defendant persists in arguing that the testimony of all the individual association members was required to establish the existence of the alleged statutory violations and ascertainable loss, we disagree. With respect to the statutory violations, the associa- tion’s complaint contained numerous allegations con- cerning the defendant’s failure to comply with the statutory requirements relating to the physical condi- tion of the park (count one), municipal ordinances gov- erning mobile home parks (count two), and lease obligations imposed on mobile home park owners and tenants (count three). [8] All of these allegations appear to be directed to the defendant’s failure to maintain the common areas of the park or to matters affecting all or a large number of the association members and resi- dents, such as the condition of the roads and the pro- posed lease for 2008 that the defendant delivered to all of its tenants. In additiоn, the association presented documentary and testimonial evidence at trial in sup- port of these allegations. This included a large number of photographs depicting the violations, several depart- ment inspection reports discussing the violations and the status of the defendant’s compliance efforts, corre- spondence between the parties’ attorneys and between the parties’ attorneys and the department regarding the violations, a copy of the defendant’s proposed lease for 2008, and the testimony of the department investigator, the department counsel, Doolan, and two association members, including Dickal. In view of the allegations and the evidence introduced to support them, we con- clude that all of the association’s individual members were not required to testify regarding their firsthand knowledge of the violations and how they were individ- ually harmed.
We likewise conclude that the individual members’
participation was unnecessary to establish ascertain-
*20
able loss. In addition to the fact that the association’s
allegations were directed principally to relief relating to
maintenance of the common areas and other conditions
that affected the functional or aesthetic experience of
all of the association members and park residents, the
association specifically alleged that the defendant, by
engaging in the acts and omissions described in the
complaint, ‘‘has deprived, and continues to deprive, the
[a]ssociation’s members and other [p]ark residents of
the benefits to which they are entitled as tenants, and
for which they have made monthly rental payments to
[the defendant].’’ We reiterate that ‘‘ ‘[t]he term ‘‘loss’’
necessarily encompasses a broader meaning than the
term ‘‘damage,’’ ’ and ‘has been held [to be] synonymous
with deprivation, detriment and injury.’ . . . To estab-
lish an ascertainable loss, a plaintiff is ‘not required to
prove actual damages of a specific dollar amount.’ . . .
‘[A] loss is ascertainable if it is measurable even though
the precise amount of the loss is not known.’ ’’ (Cita-
tions omitted.)
Artie’s Auto Body, Inc
. v.
Hartford Fire
Ins. Co
., supra,
In the present case, the allegations that the associa- tion’s members were not receiving the benefits to which they were entitled as tenants and for which they made monthly rental payments are sufficient under this stan- dard because the alleged violations were such that they affected the mobile home park as a whole, and, there- fore, all of the association members received something less than what they bargained for. We therefore con- clude that the association did not require the participa- tion of all its individual members to allege ascertainable loss for the purpose of obtaining injunctive and othеr equitable relief under CUTPA.
III RELIEF ON REMAND *21 With respect to the appropriate relief to be ordered, in light of our conclusion that the association has stand- ing to assert a CUTPA claim, the defendant argues that this court should remand the case to the trial court with direction to render judgment for the defendant because the association failed to prove a violation of CUTPA. The association responds that the record estab- lished clear violations of chapter 412 of the General Statutes, and, accordingly, this court should remand the case to the trial court with direction to render judg- ment for the association as to liability and to hold a hearing in damages. We note that the association is not seeking compensatory damages but, rather, injunctive relief, punitive damages, attorney’s fees, costs and other equitable relief. We disagree with both of the pro- posed approaches.
The trial court dismissed the association’s CUTPA claim on the ground that the department ‘‘found [the defendant] to be in compliance with chapter 412 of the General Statutes. Due to the reasons set forth in part III A of [the] court’s memorandum of decision, [the] court declines to modify the [department’s] finding that [the defendant] was in compliance with chapter 412 . . . . If [the defendant] was in compliance with chap- ter 412 . . . then there can be no per se violation of CUTPA through § 21-83e (b). Therefore, the court finds in favor of the defendant with regard to count four of the operative complaint.’’ In part III A of its memorandum of decision, the trial court had determined with respect to count one that, because the department had concluded ‘‘that the defendant was in compliance with chapter 412 . . . and closed its file regarding the park,’’ and because, ‘‘[a]part from the deference [the] court must give to the findings of the [department], the [association had] not provided [the] court with case law to support [the] court’s modification of the [department’s] findings absent an administrative appeal,’’ the court would not modify the department’s ‘‘finding that [the defendant] was in compliance with chapter 412 . . . .’’ In sum, the trial court concluded that the CUTPA claim failed on the ground that the department’s ‘‘finding’’ that the defendant was in compliance with chapter 412 must be given preclusive effect in the absence of any legal authority provided by the association that would sup- port the court’s modification of the finding.
We conclude that the trial court’s reasoning was flawed. The court’s conclusion was based entirely on the department’s informal determination that the defen- dant was in compliance with chapter 412 of the General Statutes and its decision to complete its investigation because ‘‘no further action [was] warranted . . . .’’ [9] Moreover, the association’s CUTPA claim was not an appeal from an administrative proceeding but was brought separately pursuant to § 42-110g, which pro- vides that any person who suffers any ascertainable *22 loss of money or property as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action to recover actual or punitive damages, attorney’s fees, costs and other equitable relief. A CUTPA action thus may be brought directly in the court. Accordingly, the trial court improp- erly deferred to the department’s conclusions because they were based on an informal investigation of the association’s complaint that did not result in a final decision in a contested case subject to appeal under § 4-183 (a). In addition, the court failed to engage in the fact-finding рrocess necessary to reach its own con- clusions with respect to the association’s independent CUTPA claim. The association is therefore entitled to a new trial on that claim.
The judgment of the Appellate Court is reversed only as to the association’s CUTPA claim and the case is remanded to the Appellate Court with direction to remand the case for a new trial on that claim; the judg- ment of the Appellate Court is affirmed in all other respects.
In this opinion the other justices concurred.
[1]
Prior to filing the complaint, the association filed a complaint against
the defendant in October, 2005, that was dismissed in May, 2006, on the
ground that the association lacked standing to sue on behalf of the individual
park residents.
[2]
The complaint was in the form of a letter dated September 11, 2006,
from the association’s attorney, in which he listed a number of maintenance
violations and other claims regarding alleged retaliatory actions by the
defendant against individual members of the association’s board of directors.
The letter concluded as follows: ‘‘I have assured the [a]ssociation and its
[b]oard of [d]irectors that your office will not allow Connecticut mobile
home residents to live in substandard, unhealthy, unsafe conditions, in а
park run by an oppressive and unscrupulous landlord. This situation cannot
continue; and I look forward to your immediate investigation.’’
[3]
The original investigator was Gregory Carver. After Carver left his posi-
tion in 2007, Keith Lombardi assumed Carver’s duties.
[4]
General Statutes § 21-82 (a) describes sixteen responsibilities of a mobile
home park owner.
[5]
The association also requested injunctive relief pursuant to General
Statutes §§ 35-52, 52-570b (a) and 53-452 (a). Those statutory provisions,
however, are contained in chapters relating to trade secrets and computer
crimes, respectively, and thus are inapplicable for purposes of the pre-
sent appeal.
[6]
We note that the Appellate Court’s conclusion as to the association’s
request for injunctive relief and its discussion of irreparable harm, which
appear to be directed to the first three counts of the complaint, are not at
issue in this appeal. The association, however, sought injunctive relief under
CUTPA, which does not require allegations of irreparable harm. See, e.g.,
Artie’s Auto Body, Inc.
v.
Hartford Fire Ins. Co
.,