Appellate Court Notes

by Pullman & Comley, LLC
Contact

Welcome to our Supreme and Appellate Court summaries page.  Here, I provide abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants.  I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long.  It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements.  These summaries are limited to the civil litigation decisions.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my own personal opinion.. I hope the reader finds these summaries helpful. – Edward P. McCreery

Supreme Court Advance Release Opinions:

  • SC19480 - McCullough v. Swan Engraving, Inc.

This case determined that when a husband had already filed a claim for disability benefit in a timely fashion under the Worker’s Compensation Act, the wife’s claim for survivor benefits would not be dismissed after his death simply because she did not file a new and separate notice of claim for survivor benefits.  The husband had filed a Worker’s Compensation Claim in 2002, claiming pulmonary illness from his exposure to toxins as a photograph engraver.  He subsequently died from his illness in 2005.

The spouse did not file a claim for Survivor Benefits until fifty-five weeks after her husband’s death.  This decision held her claim was not barred by the statute of limitations in C.G.S. § 31-294 because there was no requirement that she file a separate claim when her now deceased husband’s was already pending.  It does not matter that for 20 years the Worker’s Compensation Board has interpreted the statute as requiring such a new notice, because even though an agency’s interpretation of a statute may be given deference when it is time-tested, that time tested interpretation must still be reasonable.  The court found no support in the statute for the interpretation being followed by the Worker’s Compensation Board.

  • SC19380 - Caruso v. Zoning Board of Appeals

The Supreme Court upheld the Appellate Court decision that I summarized last year.  The plaintiff had purchased a 48-acre parcel in Meriden in a Regional Development District that was restricted to hotels, medical centers, distribution facilities or executive offices.  The property owner claimed that he had been unsuccessful finding anyone interested in buying the property for those uses, and thus applied to the Zoning Board of Appeals for a variance from the existing zoning regulations to construct a used car lot, claiming that the regulations amounted to a practical confiscation of his property.  The Appellate Court had rejected this argument.

The Supreme Court noted that the hardship necessary to obtain a variance can include a showing that the regulations have deprived the property owner of all reasonable use of their property.  Such a finding rests at the intersection of two areas of the law – Land Use Regulations and Constitutional Takings.  A zoning regulation that permanently restricts the enjoyment of property such that it cannot be used for any reasonable purpose, goes beyond valid regulation, and amounts to a taking without due process.  The same rule applies if the regulation practically destroys, or greatly decreases, the property’s value for any permitted use to which it can be put.  But, a mere reduction in fair market value will not suffice.  The owner must show an extraordinary situation where the property is rendered practically worthless.  Whenever a reasonable use exists, there can be no practical confiscation.

Here the court concluded the plaintiff simply failed to meet its burden of proving practical confiscation.  No evidence was presented of the property’s unfitness for any permitted use in the zone, nor of efforts to sell the property or to develop it.  A letter from a local attorney and an appraiser’s report describing prior efforts to sell the property is simply insufficient to show no reasonable use exists.  Evidence opining that the property was unsuitable for executive offices failed to address the other uses allowed under the zone.

Despite the Trial Court granting a motion to reopen the judgment of dissolution three years later by consent of the parties, and thereafter finding that the husband had under-reported his income by almost half, the Appellate Court concluded that the Trial Court lacked subject matter jurisdiction to hear the claim because it never made a finding of fraud.  Absent a finding or concession of fraud, a trial court lacks subject matter jurisdiction to open a dissolution judgment as to the division of the parties’ marital assets, notwithstanding an agreement by the parties permitting the court to do so.

  • AC37293 - Brenmor Properties, LLC v. Planning & Zoning Commission

Applicant proposed a Section 8-30(g) Affordable Housing Subdivision proposal, but the applicant’s road design did not comply with the town ordinance as to width and grade.  After being invited to resubmit the application, the applicant refused to address the road issue.  The applicant’s attorney claimed they did not think it was necessary to build an internal private road to the town’s 40-foot wide standards.  The applicant then presented an expert who opined the proposed 20-foot wide roadway would be safe.  The town’s experts refuted that claim by generally claiming a 20-foot width was unsafe.  The commission then denied the application on the grounds that it did not meet the town’s road code.

On appeal, the Trial Court reversed the denial of the submission and remanded the case to the commission, with direction to grant the application as submitted.  On further appeal, the Appellate Court noted that while the 8-30g requires a commission to specifically state its reasons for denying an affordable housing application so that the reasons may be addressed by the Superior Court on appeal, the statutory requirements should not exult form over substance, and commissions composed of laymen may not always nicely comply with the statutes.

While the commission’s Motion to Deny was not a model of precision, it did set forth various grounds for the denial, and thus, there was a clear basis upon which their decision may be reviewed.  Turning to the merits of the town’s appeal, the court held that a land use agency must establish something more than a mere theoretical possibility of harm to public interest in order to reject an affordable housing application.

The road ordinance here was predicated upon public safety, and therefore the commission could reasonably conclude that non-compliance with it created more than a mere theoretical possibility of harm to public health.  Therefore, noncompliance with that ordinance was sufficient evidence to satisfy the minimum grounds for a commission’s rejection of an Section 8-30(g) proposal.  But the court must still decide whether or not the denial was necessary to protect substantial interest in health and safety. 

The court concluded that merely because there might be deviation from a public safety ordinance of any degree does not give a town a right to reject an application without showing the prospect of real harm.  Otherwise, affordable housing applications could be easily thwarted.  In addition to pointing to the deviation from the road ordinance, the town was burdened with the obligation to demonstrate that the proposed deviation from 40’ to 20’ would be unacceptable from a public interest point of view, such that the risk of harm would outweigh the need for affordable housing, and that attaching conditions would not satisfy the issue.

In this case, it was to be a private road servicing only a handful of homes, with a deed restriction informing all owners that the town had no responsibility for it and street parking was prohibited.  The plaintiff had experts who claimed that the road design would not cause a risk of injury, because at twenty feet wide, it allowed for sufficient space for vehicles to pass one another.  The trown never put on evidence of any specific harm that would be caused by the roadway design.  The Trial Court’s order was upheld.

A property owner sued the town for locating a parking lot adjacent to their property, claiming that such an act satisfied the affirmative requirement of C.G.S. § 52-557n for the creation of a nuisance.  The plaintiffs claimed that a litany of annoyances originated from the parking lot, including noise, littering, loud music, parties, sex, drugs and headlights.  This decision upheld the Trial Court’s conclusion that the complaint did not state a claim for nuisance and was properly the subject of a motion to strike.  The plaintiff’s argument merely assumed that the creation of a parking lot is a nuisance by virtue of its location next to a residential property.  Building a public parking lot on town land in the vicinity of town athletic facilities is not an unreasonable use of land, nor is it unlawful.  Building a public parking lot is a quintessential municipal function.  It logically must be in proximity to facilities it serves, and parking lots regularly abut residential zones.  Further, none of the improper conduct alleged is attributable to the municipality.  Such unpleasant and disruptive behavior is the proper bailiwick of police control, not lawsuits alleging nuisance.

The plaintiff was a police officer who sued another police officer, who was in charge of a police canine, alleging negligence.  While attempting to arrest a suspect, the canine control officer’s dog attacked the police officer instead of the suspect.  The Trial Court properly granted a motion to strike the complaint in its entirety because all of the claims were barred by the exclusivity provisions of the Worker’s Compensation Act.

Two years after a default judgment was entered against him, the defendant moved to reopen the default judgment and have it set aside, noting several procedural irregularities the plaintiff tried before finally filing a proper motion that the clerk would grant.

The Appellate Court noted that motions to reopen judgment must normally be filed within four months unless the underlying judgment itself was void.  Merely because the plaintiff filed multiple pleadings out of order, inappropriate pleadings, and pleadings that were rejected by the clerk, does not mean that when she finally got it right, that the judgment that was rendered was void.  Further - the defendant was not harmed by any of that nonsense as he did not appear in the lawsuit.  It was all going on without him knowing.  This decision also held that while the complaint was not artfully pled and included claims for breach of contract and emotional distress, in totality, the complaint could be read as also claiming money was loaned to the defendant which the plaintiff wanted back.  Therefore, it was not improper for the Trial Court to enter judgment for the plaintiff for “monies loaned” to the defendant even though not specifically pled that way.  Further, in a footnote, the court noted even if that a judgment is granted upon an issue not pled in a complaint, that would merely render the judgment erroneous, not void.


The facts and holdings of any case may be redacted, paraphrased or condensed for ease of reading.  No summary can be an exact rendering of any decision, however, so interested readers are referred to the full decisions.  The docket number of each case is a hyperlink to the Connecticut Judicial Department online slip opinion.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pullman & Comley, LLC | Attorney Advertising

Written by:

Pullman & Comley, LLC
Contact
more
less

Pullman & Comley, LLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.