Appellate Notes: Recent Decisions of the Connecticut Supreme and Appellate Courts - January 2013

Pullman & Comley, LLC

Welcome to our Supreme and Appellate Court summaries webpage.  On this page I will provide abbreviated summaries of newly-released decisions from the Connecticut appellate courts which highlight important changes 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 based on my own particular field of practice, so you will not find distillations of the many criminal and matrimonial law decisions on this page.   By necessity, I may from time to time add commentary to a summary to enhance a point, and may even criticize a decision’s reasoning.  Such commentary is solely my opinion….and when mistakes of trial counsel are highlighted by me because they triggered a particular outcome, I will try to be mindful of the old adage….."There but for the grace of God…..  I hope the reader finds these summaries helpful."  - Edward P. McCreery

An ex-wife, who obtained the title to the family home in a divorce, defaulted on the mortgage.  In order to avoid losing the title to the property, she allegedly conveyed the house to the former husband who obtained a new mortgage.  When the husband defaulted on his mortgage, he conveyed the property to a third party, who obtained yet another new mortgage.  The third party then sought to evict the ex-wife, but she claimed that her ex-husband had forged her signature on the deed to him. The Housing Court judge believed her and denied the eviction.  Six months later, she filed a motion under § 52-22, to have the Housing Court declare her as the owner of the property, which motion the Court granted.  The plaintiff appealed, and this decision held that the Housing Court should not have exercised the powers under C.G.S. § 52-22, noting that this statute is a “creature not normally spotted in the Connecticut jurisprudential forest”.  This statute allows a court to declare the ownership of property.  Summary process is a manner to enforce the right to possession to property.  It is not a quiet title action, and does not concern legal title to property.  The summary process action only determined that the plaintiff had no legal right to evict the defendant from the premises; it did not determine who properly held title to the property.   [In a footnote, the Court noted that there was a quiet title action pending brought by the current mortgage lender but I wonder if the husband at least will be bound by the prior court finding.]

  • AC33771 - Thompson Gardens West Condominium Assn., Inc. v. Masto

A condo association brought an action to foreclose its lien, and named the record mortgage holder as a defendant.  After the marshal’s service was returned, the condo’s attorney received a note stating the mortgagee had filed for bankruptcy and sold its loans, and that the service was “ineffective.”  Nonetheless, the condo association obtained a default judgment against the mortgagee.  The “law days” passed without a redemption, and title vested in the condo association.  Two months later, the bank that now owned the mortgage filed a motion to be substituted as the party defendant, along with a copy of the assignment of its mortgage that had just been recorded.  The bank also filed a motion to open and vacate the judgment of strict foreclosure.  The Trial Court concluded that, pursuant to § 49-15, the title had vested. It did not have jurisdiction to open the strict foreclosure, despite its concerns that the condominium association’s counsel should have disclosed the details received about the mortgagee.  The Trial Court was equally concerned, that the new mortgagee had not timely recorded its assignment of mortgage.  That was the basis for the Appellate Court’s ruling, which basically held that service of process was properly effectuated upon the current owner of the mortgage, in accordance with the land records.  The new mortgagee filed its motion to open and vacate six months after the title had already become absolute in the condo association, and thus the Trial Court was without jurisdiction to open the judgment.  The Court noted it has always been the policy of Connecticut that the land records should be the authentic oracle of title on which anyone might safely rely.  Otherwise, the whole system of recordation would have no value.  Here, the marshal made service of process upon the proper address, and return receipt was signed by someone at that address.  A notification that the mortgagee supposedly sold all of its loans does not render that service ineffective.  The fact remains that the condo association served the party whose name was recorded on the land records.  Further, the assignment of the mortgage to the new mortgagee was not signed until after the title had passed.  [Apparently, there was also a pre-foreclosure assignment to the new mortgagee, but in a footnote, the Court noted that the lender had relied upon the recorded post-foreclosure assignment.  The moral of the story is: if you are considering buying a mortgage, you need to immediately run down the title in the land records to see what is going on, and promptly record your assignment while simultaneously performing another title rundown.  If an action is already pending, you need to intervene to protect your rights.]

  • AC33850 - Unifund CCR Partners v. Schaeppi

After some procedural back and forth, the plaintiff credit card collection agency thought it had obtained a judgment and a weekly order of payments.  It also recorded a judgment lien against the defendant’s property.  It then sought to foreclose that judgment lien, but the Trial Court, on its own, reviewed the underlying file, and determined that the underlying judgment was invalid because no monetary amount had been awarded to the plaintiff in either the referee’s report or the Court decision adopting that report.  The plaintiff went back to the first action, and sought a “clarification of the judgment.”  The Court refused, claiming there was nothing to clarify, because with no dollar amounts stated, it was not a judgment at all.  The defendants then had the foreclosure action dismissed.  In an unusual twist of fate, the plaintiff found itself appealing the dismissal of its own foreclosure action, but that was unsuccessful.  The plaintiff next tried to reopen and modify the underlying judgment, but the Trial Court denied that relief, as well, holding there being no valid judgment, there was nothing to open and modify.  The plaintiff then appealed that decision.  They were turned down again.  The installment payment order cannot fix an invalid judgment.  The Appellate Court noted that the plaintiff should have moved for a correction of the fact-finder’s report, and this it failed to do.  The Appellate Court refused to step in to fix the plaintiff’s mistake.  [This goes to show how one small oversight can snowball into a great deal of litigation without any light at the end of the tunnel.  The plaintiff failed to note that the original judgment in its favor failed to award a specific dollar amount.]

  • AC33400 - Samnard Associates, LLC v. New Britain

The City of New Britain appraised property improved by a Wal-Mart at $11 million.  An appeal reduced the assessment to $9.8 million.  Two years later, but before revaluation, the property owner challenged the assessment again.  The city asserted a special defense that you cannot bring two appeals within the same revaluation period.  The Trial Court granted summary judgment to the city on this issue.  The Trial Court held that the property owner is bound by the new valuation until the next city-wide revaluation.  On appeal, the plaintiff claimed they could challenge an assessment between revaluation years when they claim it was an illegal assessment.  The Appellate Court concluded that C.G.S. §12-111(a) precludes the plaintiff’s subsequent tax appeal.  Public Act 09-196 amended the statute to state that when the assessment is modified, it shall remain fixed until the next revaluation.  The Court concluded that this statutory amendment should apply retroactively, because it was clarifying existing law.  [Bottom line - the plaintiff did not get a second bite at the apple.]

  •  AC33904 - Coley v. Hartford  

C.G.S. §52-557n shielded the city from a liability claim that officers should have remained on the property of a domestic disturbance call longer to ascertain whether or not the boyfriend would return, which he later did and killed the girlfriend’s housemate.  The statute imposes liability upon a municipality for ministerial acts, but no liability for discretionary acts.  The Court emphasized that the operation of a police department is generally a discretionary governmental function.  A plaintiff cannot get around that principal by pointing to department directives, rather than general operating principles.  The officers did not violate C.G.S. §46b-38b which suggests officers should hang around domestic complaint until the coast is clear, because they had determined that the defendant should be arrested and went off searching for him.  Similarly, the city’s police response procedures did not convert a discretionary function to a ministerial function.  It still required the reasoned decision of the police officer as to what was reasonable.

  • AC34042 - 300 State, LLC v. Hanafin

Plaintiff owner sued former tenant, who was already occupying the property when it acquire title, for back rent.  The Trial Court entered judgment in favor of the plaintiff, both on its use and occupancy claim and its quantum meruit claim.  The defendant appealed.  The Court noted that while a party cannot recover in both unjust enrichment and breach of contract because they are mutually exclusive, a judgment on both claims does not necessarily constitute reversible error.  The plaintiff still cannot recover twice, and thus, such error is generally harmless, so long as there was evidence to support a judgment under either theory.

  • AC34169 - Marques v. Allstate Ins. Co.

While this was an underinsured motorist case, which I generally would not summarize, it does involve the defensive use of collateral estoppel.  This is when a defendant in a second action seeks to prevent a plaintiff from re-litigating an issue that plaintiff had previously litigated in another action against either the same defendant or even a different party.  Privity is not required for the defensive use of collateral estoppel.  The plaintiff’s total damages had already been litigated and determined in a previous binding arbitration action.  This decision held that the arbitrator’s award of damages was binding for this second action.  Since the award did not exceed the policy limits of the other driver, the other driver was not underinsured, and thus the plaintiff cannot recover underinsured benefits under his own policy.

The plaintiff crashed into the back of a fire truck on Interstate 95 that had stopped in the center lane to respond to a tractor trailer rollover in the right lane. Despite the fact that the fireman had put up traffic cones, the plaintiff claimed that the lane closure had been inadequately marked.  The town moved to strike the nuisance claim, asserting that it was barred by a defective highway statute (C.G.S. §13a-149).  The Supreme Court held that while §13a-149 may be the exclusive remedy when the town owns or maintains the road, §52-557n(a)(1) does not grant immunity to municipalities if they create a nuisance on a road they do not own or maintain.  Thus, a person who sustains injuries on a state road may make a claim against the municipality based on nuisance, or if they are injured on a municipal road, may pursue an action under C.G.S. §13a-149.  The Court applied the reasoning that there is a presumption that the legislature did not intend to eliminate a common law right without express, clear statutory language.  A footnote in the decision comments on the town’s argument that all the Court is doing is setting the stage for plaintiffs to attempt to get around the defective highway statute by asserting a nuisance claim.  The Court disagreed, and said it was simply dealing with a motion to strike, and had to take the facts pled as true.  That did not mean that the plaintiff would necessarily prevail at trial.  [Comment: Assuming the fire truck’s flashing lights were on, I just do not see how an inattentive driver can blame the fire truck in this situation.  I guess the jury is going to decide this one.]

  • SC18788 - Aaron Manor, Inc. v. Irving 

Nursing home sued the patient’s daughter for unpaid fees, even though the original admission records disclosed that her brother held the power of attorney and was responsible for billings.  Rather than pay the nursing home fees, the brother divvied up the assets of their father’s estate and split them with his sister.  The sister prevailed at trial, on the grounds that she was not responsible for the billings to her father, as she was not his personal representative, and then she asserted a claim for her legal fees under C.G.S. § 42-150bb.  This statute allows prevailing consumers to recover attorney fees when the contract entitles the commercial party to recover attorney fees.  The Appellate Court threw out the award of over $30,000 in legal fees to the daughter, on the grounds that she was not the legal representative of her father.  The Supreme Court reversed, holding that the issue was not whether the daughter was the personal representative of the father as set forth in the Statute, but rather whether the nursing home had sued on a consumer contract, claiming that the daughter was personally responsible.  That contract had an attorneys’ fees clause, and the purpose of C.G.S. § 42-150bb was to level the playing field for consumers who successfully defended such actions.  Since the plaintiff failed to prove that the daughter had control of the father’s financial assets, the daughter was entitled to recover her fees defending the action.  Finally, the Supreme Court declined to consider whether the award of attorneys’ fees of over $30,000 for a claim of less than $30,000 was unreasonable, because the nursing home had failed to ask the Trial Court to articulate its decision about those fees, and must assume the Trial Court was properly awarding reasonable fees.  [Commercial parties suing a consumer always have to keep this statute in mind and make sure they are on solid footing and can prove their case before initiating a lawsuit against a consumer.]

Posted January 30, 2013 

  • AC34136 - Newtown Pool Service, LLC v. Pond

Plaintiff sued the defendant for the balance due on the installation of a pool in Small Claims Court, and the defendant counterclaimed for repairs to the pool.  The magistrate awarded $5,000 to the plaintiff, and $8,000 to the defendant on the counterclaim, even though the jurisdictional limit for the Small Claims Court is only $5,000.  The plaintiff brought a writ of error, claiming that even though small claims actions are not appealable under Practice Book § 72-1(b)(2), and C.G.S. § 51-197a, the Appellate Court should accept jurisdiction.  The Appellate Court agreed holding that to avoid injustice, the writ of error should be granted, as the plaintiff had no notice that the trial court would exceed its jurisdictional limit until after the deadline for transferring the action to the Superior Court had passed.  This extraordinary set of facts, combined with the plaintiff’s attempt to bring the error to the attention of the trial court, made it appropriate to intervene when the Small Claims Court acted outside its jurisdictional limit.  As a matter of first impression, the decision held that C.G.S. § 51-15(d) and P.B. § 24-2 limits both the amount that can be claimed in small claims court and the amount that can be awarded to a party in small claims court to $5,000.  [I think this is the right result as everyone already assumed your risks in small claims would never exceed 5k.]

  • AC30200 - O’Connor v. Med-Center Home Health Care, Inc.

This decision held that a plaintiff can make a showing of unemployability so as to be totally disabled, even though the medical reports would suggest that she is capable of sedentary desk work when there was evidence of significant physical limitations, and the plaintiff’s testimony regarding her inability to perform a desk job.  It is not necessary for the commission to receive medical evidence that categorically states that a plaintiff is incapacitated from any work.

  • AC33592 - Pan Handle Realty, LLC v. Olins

When plaintiff was unable to sell its $5 million home, it entered into a lease agreement with the defendant for $138,000 per year.  The defendant signed the lease and provided a post-dated check for $138,000.  The landlord was required to make some modifications, and when those were completed, it went to deposit the check only to discover a stop payment order.  Subsequent efforts to re-let the property, including expending $80,000 to restage it, were unsuccessful.  The plaintiff sued for breach of lease.  The trial court ordered post-trial briefing, and scheduled a date for closing arguments, but issued its memorandum of decision immediately after the filing of the briefs, and before he scheduled oral argument.  The trial court ruled in favor of the plaintiff for $146,000, plus interest and found that the plaintiff attempted to mitigate damages.  Subsequently, the trial court relented, and agreed to hear oral arguments from the parties, after which it reissued its decision in its entirety but also added attorneys’ fees and interest to the plaintiff’s claim.  The Appellate Court disagreed with the defendant’s claim that by issuing its decision before closing arguments, the trial court had violated established rules of practice for the trials of civil cases.  Practice Book § 15-5(a) only establishes the ordinary procedure for cases, but the trial court may depart from that procedure for cause, including electing to accept legal briefs in lieu of oral arguments.  Reversal for lack of cause is only justified if there was an abuse of the broad discretion granted to the trial court, and the error must be prejudicial.  Here, it appears the trial court simply made an innocent mistake.  While such a mistake would not amount to just cause to deviate from the ordinary order of proceedings, and would constitute abuse of discretion, the mistake must also be harmful.  Here, any prejudice potentially arising from the deviation was fully cured by the court’s subsequent agreement to hear closing arguments and reissuing its decision. 

  • AC33612 - National Fire Ins. Co. of Hartford v. Beaulieu Co., LLC

Plaintiff insurance company sued roofing contractor for whom it provided worker’s compensation insurance coverage, claiming that it had more employees to be covered than originally estimated at the beginning of the policy term.  The insurer issued a supplemental bill, which the policy language based upon those persons whom the employer might be liable to pay workers’ compensation benefits.  The defendant disputed the supplemental bill, claiming that while the identified workers did work for the company, they were independent contractors or sole proprietors.  The trial court held that even if they were independent contractors, the additional premiums were due and owing because the insured could be held liable for workers’ compensation coverage for them.  On appeal, the issue was found not to be whether these workers were actually employees of the insured company, but whether the company could be held liable for workers’ compensation benefits.  The trial court did not err in its conclusion that this was a possibility.  It did not matter that the workers did not affirmatively elect to be covered under the company’s policy.  It also did not matter that they were contract laborers without payroll tax withholdings.  The fact that they were paid by the hour can be indicative of an employee status.  Further, the company supervised all of their work.  The Court also noted that C.G.S. § 31-291 requires that in many instances, the contractor may become liable to pay the workers’ compensation benefits to an employee of its independent subcontractors.  Calling the employees “sole proprietors”, a term not defined by the Act, did not excuse the defendant from paying the additional premium, even if the term “sole proprietorship” was an appropriate term to use in the context of workers’ compensation.  Further, these workers did not meet the Black’s Law Dictionary meaning of sole proprietor which is someone who owns all their business assets and liabilities.  These workers performed work for the defendant in a capacity that could have exposed the insurer to liability to provide workers’ compensation benefits.  Therefore, the additional premiums were due and owing.  [You have to be careful trying to cut corners in CT with those “independent contractors”.]

  • AC33962 - Stratford v. American Federation of State County & Municipal Employees, Council 15, Local 407

This decision held that the trial court should have vacated an arbitration award ordering the reinstatement of a police officer.  The police officer was terminated for lying during a medical exam after an accident wherein he crashed a police cruiser.  The court noted that municipalities are particularly entitled to the qualities of truthfulness, honesty and integrity from a police officer, and there is a clearly discernible public policy against intentional dishonesty by police officers in connection with their employment.  To uphold the arbitration award would violate this public policy.  In this case, the police officer failed to disclose that he suffered epileptic seizures and that he had previously abused alcohol when specifically asked those topics.  The arbitration panel found that the police officer’s offense was serious, but it could be understood why he lied to the doctors - because he was trying to preserve his job.  The narrow scope of public policy limitations on an arbitrator’s authority was discussed.  [Clearly, the court was imposing a higher obligation of honesty and integrity upon a police officer, as they probably would not upset an arbitration award of a similar nature for a non-police officer employee.  The court also declined the union’s suggestion that they should impose a sliding scale to measure the degree of the officer’s lie, noting a “degree of dishonesty test” would dilute the clear public policy against intentional dishonesty by a police officer in connection with their employment.]

  • AC33264 - C & H Management, LLC v. Shelton

The city planning and zoning commission approved plans for a single family home but the city engineer refused to grant his approval, and the property owner had to sue the City & its engineer for a writ of mandamus to compel approval of its application.  Thereafter, the plaintiff sued the City and its engineer again claiming inverse condemnation and monetary damages under 42 U.S.C. § 1983.  The defendants claimed the action was barred by res judicata, because the claims could have been brought with the 1st mandamus action.  When the defendants’ motion for summary judgment was denied, they appealed.  On appeal, it was held that res judicata barred the plaintiff’s ability to sue the City again, but did not bar the claim for damages against the city engineer who was being sued individually for the first time in the second lawsuit.  While government officers and employees are generally in privity with a city for purposes of res judicata, they are not when they are sued in their individual capacity.  Therefore, they are not bound by the prior adjudication in which the government was a party.  The prior mandamus action was against the City and against the town engineer in his official capacity as town engineer.  The current action is against the City and the town engineer in his individual capacity.  When dealing with the same set of operative facts, a plaintiff is generally obligated to bring all of its claims in one complaint, regardless of the different kinds of relief pursued.  Absent evidence that the facts that could give rise to the party’s liability were concealed by fraud, discovery of additional facts after judgment does not block an application of res judicata.  Plaintiff knew there were sufficient facts to bring the mandamus action, and it does not matter that it discovered additional facts through the cross-examination of the city engineer towards the end of the first trial.  It still should have brought all claims against the City in the first suit.  No facts of the City’s potential liability were concealed by fraud.  [The Plaintiff nearly made a fatal mistake by not bringing all of its claims in the first suit but its case remains alive against the town employee with the obligation of the City to defend him and the complex rules on whether indemnification of any personal liability will follow a verdict.]

  • AC34902 - Norwich v. Shelby-Posello

City brought an eviction complaint against a housing unit that it acquired through foreclosure.  After obtaining judgment, the defendant appealed, but the appeal had to be dismissed because the defendant failed to provide a bond pursuant to C.G.S. § 47a-35 and C.G.S. § 47a-35a.  Since the immediate requirement of the bond and the attainment of it may be questionable, the tenant always has the alternative of filing a motion to make periodic use and occupancy payments.  The providing of security is mandatory for an appeal taken by a defendant occupying a dwelling unit, but is permissive for any other appeal.  The court pointed out that the legislation has been amended repeatedly in confusing ways over the years, and thus when and how a bond should be set is in question.  The statute neither informs a defendant they should file a motion to post a bond, or pay use and occupancy, nor clearly requires dismissal upon their failure to do so.  But the most recent revisions would suggest that the defendant has an affirmative duty to initiate the security process.  The decision concludes that the failure to either post a bond or file such a motion renders the appeal void altogether. [I have had a case where we successfully obtained dismissal of the appeal due to the defendant’s failure to post a bond where the tenant was clearly trying to delay the eviction process.]   

This was a medical malpractice action, arising out of a bacterial infection developed after acupuncture treatments.  The plaintiff sought to preclude the defendant from introducing an alternate cause of the infection due to her wiping the wound, asserting that the defendant had failed to plead comparative negligence.  The court disagreed, and held that under a general denial of the plaintiff’s allegations of causation, such evidence could be offered.  The Appellate Court agreed with the trial court, and went into an extensive discussion on matters which may be proven under a general denial verses matters that must be specifically pleaded as a special defense.  The plaintiff’s defense was based on causation, which is a burden upon the plaintiff.  The defendant may introduce alternate evidence of causation under a general denial.  The defendant is merely attempting to show the plaintiff was the sole proximate cause of the injury.  This is not an issue of contributory negligence.

Plaintiff sued defendant, claiming they had interfered with a right-of-way between their properties.  The trial court found that there were deeded passage rights to the plaintiff and held the plaintiff could use the right-of-way in return for $100 per year, and upon failure to make payment, lose the right to pass and repass.  On appeal, it was held that the trial court should not have transformed the plaintiff’s easement into a license subject to an annual fee.  An easement is different than a license, and the court abused its equitable discretion when it converted one into the other.  The requirement that the plaintiff pay defendant $100 per year or otherwise forfeit their right, was reversed.

Husband sued ex-wife for conversion for allegedly taking his personal property.  His suit was dismissed under the prior pending action doctrine because the divorce action dealt with the disposition of personal property in the decree.  If the ex-wife had disregarded the court orders in the marital divorce action, the plaintiff could have pursued a remedy by way of a motion for contempt in those proceedings.  [The husband did get to keep his Hess Truck collection, however, and having collected those for my boys while they were growing up, I can appreciate that.]

Posted January 31, 2013

  • SC18766 - Anastasia v. General Casualty Co. of Wisconsin 

This decision held that an insurer is entitled to a reduction of its limits of liability for UM/UIM coverage by an amount equal to the sum of punitive damages paid to the insured.  Thus, even though the tortfeasor’s coverage limit was only $100,000, and the injured policyholder’s UIM coverage was $250,000, there was no UIM to be paid because the tortfeasor’s parents also paid $300,000 out of their own pocket to answer the punitive damage claim against their daughter, the tortfeasor.  Connecticut Insurance Regulation permit insurers to reduce the amount payable pursuant to UIM coverage to the extent the damages paid on behalf of any person responsible for the injury.  The policy in question used a different term, and said that the coverage may be reduced by “all sums” paid.  For all practical purposes, the term “damages” and “all sums” are the same, because the term “damages” encompasses common law punitive damages.  The Supreme Court refused to accept the defendant’s argument that its decision would cause “otherwise prudent drivers to suddenly succumb to the urge to drive recklessly.”

  • SC18784 - Anatra v. Zoning Board of Appeals  

Plaintiff previously sought a variance to replace an aged waterfront cottage with a modern, multi-story home on the same footprint.  The applicant’s attorney represented to the board that the building would be a two-bedroom house that could not be enlarged and the footprint would not be increased.  That variance was granted, and the new house was built.  A few years later, the property owner applied for another variance to add a balcony onto the end of the house that would extend beyond the footprint of the original house.  This variance was denied, so the homeowner tried to get around that by applying for a certificate of zoning compliance from the ZEO, claiming the balcony was entirely within the setback.  The ZEO denied the request, and the ZBA upheld that denial on the grounds that the first variance was granted upon very specific plans that did not show this additional expansion.  The trial court upheld that decision because the balcony conflicted with the variance.  The Appellate Court reversed, holding that conditions to a variance must be stated within the recorded variance itself and it contained no restriction on a balcony or further building within the setback.  The Supreme Court disagreed, and said that conditions to a variance do not have to be explicitly described in the certificate, when they can be ascertained from the public record.  C.G.S. § 8-3d requires the variance to be recorded, but does not require that all conditions or limitations be attached.  It is appropriate to consider the entire public record in construing a variance and the conditions that might have been attached to it.  Notices that are recorded on the land records, such as a variance (or a security instrument for that matter), are merely to put parties on notice and do not have to be highly detailed.  The recorded notice need not state all the particulars.  As in a secure transaction, once a party is on notice, they may inquire further and examine pertinent records for more details.  Therefore, a recorded variance puts the parties on notice to investigate the administrative file to determine the conditions that might have been attached to it.  The record of approvalincludes not only the decision, but the meeting minutes and the hearing transcript.  That record here reflects that the original variance was conditioned upon not exceeding the original footprint.  [This is the correct result.  The property owner was trying to avoid the promises made to the land use board when they applied for the first variance.]

Plaintiff and defendant settled a property line dispute and adverse possession claim, with an agreement that a portion of the defendant’s land would be conveyed to the plaintiff after the defendant applied for a variance with the ZBA, because of the loss of frontage.  If the variance was denied, the conveyance would not take place and the matter would proceed to trial.  The defendant had a change of heart, and tried to back out of the deal, but the court ordered the settlement to be enforced.  In retaliation, the defendant showed up before the ZBA, and claimed there was no hardship to justify granting a variance in an effort to force the matter to proceed to trial.  Due to the skullduggery of the defendant, the trial court held that he waived the right to seek a variance, and waived the right to proceed to trial, and ordered that the disputed parcel be conveyed to the plaintiff.  The Appellate Court agreed, and the Supreme Court refused to review it.  [This case was an unusual type of an Audubon enforcement of a settlement but shows the courts are not going to let you back out of a deal to settle a matter.]

  • SC18725 - Department of Environmental Protection v. Freedom of Information Commission

Pictometry contracted with the DEP to utilize certain computerized aerial photographic images and associated data that was owned and copyrighted by Pictometry.  A citizen demanded copies, and the state refused unless he paid a $25/photo licensing fee.  The FOIC ordered disclosure of the photographs, but not the associated metadata, which shows the time, latitude, longitude and camera angle of when the image was taken.  The FOIC concluded only the software & metadata were trade secrets and exempt from disclosure.  This decision held that the FOIC improperly reconfigured the citizen’s request when ordering disclosure of the photographs stripped of metadata, since this was never asked for, and the requestor expressed no interest in just the photographs.  The request here sought both exempt information and inextricably intertwined non-exempt information.  The FOIC also improperly ordered the provision of photographs without determining whether the DEP had the technical capability of stripping metadata from them.  The FOIC also abused its discretion by ordering the DEP to provide photographs, without providing an opportunity to determine if the disclosure would create a safety risk.  Finally, the court agreed with the DEP that the FOIC improperly determined that federal copyright laws didn’t qualify for the exemptions in C.G.S. § 1-210(a), preventing disclosure.  The Court noted that the FOIC itself had previously issued an opinion that federal copyright law applied, and therefore it declined to defer to the agency’s contrary interpretation of the statute this time.  The licensing agreement with the DEP did not interfere with the public’s right to open records because copyrighted records are exempt under federal exemption law from the copying provisions of FOIA.  The Court held that none of the numerous decisions and opinions cited by the FOIC, held that federal copyright law cannot impose restrictions on the use of copyright public records.  The Federal Copyright Act  preempts state open records laws.  The FOIC also did not have jurisdiction to conclude whether or not turning over the photographs would be deemed fair use of the materials.  Only a federal court could do that.  Next, the Court agreed with the DEP that it was not barred from passing on the $25 per photo licensing fee to the citizen if they wanted to obtain reproduced copies of the images.  A public agency can charge for not only the costs of copying the copyrighted materials, but any fees legitimately allowed.  The $25 per photograph fee here is not a copying cost per se, but rather is a licensing fee.  Nothing in C.G.S. § 1-212 prohibits passing on the cost of a licensing fee.  Also it would lead to the absurd result that the DEP could have to turn over 400,000 photographs to the citizen for a few dollars, but pay $9 million in licensing fees to Pictometry.  The court noted the State is not in a financial position to expend millions of dollars to provide public records for personal use, and that that is an unrealistic interpretation of FOIA.  [FOIC is at it again.  They never saw a record that they don’t think should be turned over to the public.]

  • SC18724 - Pictometry International Corp. v. Freedom of Information Commission  

The factual summary, or even the legal conclusions, of any case may be summarized, redacted, paraphrased or altered at the author’s discretion for ease of reading.  Accuracy of the summary cannot be guaranteed and the viewer is referred to the actual case for an exact reading. The Docket number should be a link to the full decision.

[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.

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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 (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

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 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 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 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

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:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (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
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit 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 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:

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