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Archives for January 2016

No Zoning Variance Absent Practical Confiscation

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used carsThere can be no zoning variance absent practical confiscation of the property. The Connecticut Supreme Court determined in Caruso v. Zoning Board of Appeals that land use regulations for a regional development zone did not result in a practical confiscation of a property within the zone. The Supreme Court also determined that the Appellate Court’s decision reversing the trial court did not impose a requirement of diminution in value evidence for every practical confiscation claim.

The Meriden zoning regulations permit only six uses within a “Regional Development District.” The six uses are: conference center hotels; executive offices; research and development; medical centers; colleges or universities accredited by the state; and distribution facilities combined with executive offices or research and development.

The developer applied to the board for a variance claiming essentially that limiting its uses to these six things practically confiscated the property. The developer asked for permission to operate a used car lot on it. The board voted to grant the variance.

Plaintiffs appealed to the Superior Court claiming that the developer failed to demonstrate a practical confiscation and that the vote was void because one voting board member had a conflict of interest. Superior Court concluded that there was substantial evidence that the property had been practically confiscated. But, because Superior Court also concluded that the one board member should have disqualified himself from the vote, it remanded the case to the board for further proceedings.

The developer appealed to the Appellate Court, arguing that the vote was proper. Plaintiffs cross-appealed Superior Court’s decision that there was substantial evidence of a practical confiscation. The Appellate Court concluded that there was no substantial evidence of a practical confiscation because the developer “offered no evidence of the current value of the property or its efforts to market, sell, or develop the property for any permitted use within the development district.” The Appellate Court reversed and remanded to Superior Court with a direction to sustain plaintiffs’ appeal.

The Supreme Court affirmed.

Arguments on Appeal

The developer argued that the Appellate Court improperly concluded that there was insufficient evidence supporting the developer’s practical confiscation claim.

The developer also argued that “the Appellate Court improperly required evidence of the property’s diminished value in proving practical confiscation and, in doing so, created a categorical rule that all practical confiscation claims must contain such evidence, contrary to [Supreme Court] precedent.” This, I’m fairly certain, is the reason the Supreme Court took the case.

Supreme Court’s Conclusions

The court noted that “[a] zoning board of appeals is statutorily authorized to grant a variance if two requirements are met: (1) the variance will not ‘affect substantially the comprehensive zoning plan’; and (2) the application of the regulation causes ‘unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.'” The court continued, “[u]nusual hardship may be shown by demonstrating that the zoning regulation has deprived the property of all reasonable use and value, thereby practically confiscating the property.” There is no practical confiscation where, even as regulated, the property can be reasonably used or still has value.

The court concluded that the developer “failed to prove practical confiscation because it did not demonstrate that the property has been deprived of all reasonable use and value under the regulations.”

As for the purported categorical rule requiring evidence of the property’s diminished value, the Supreme Court concluded that the Appellate Court did not impose any such rule. The Supreme Court explained, as follows (quotes and cites omitted; emphasis original):

[T]he Appellate Court … noted that the defendant presented no evidence that it was unable to sell the property or unable to develop the property for any of the uses permitted in [the development district] …. Additionally, the Appellate Court did not declare that all practical confiscation cases must contain evidence of the property’s diminution in value. The Appellate Court simply held that without such evidence in this case, with no evidence that the property could not reasonably be used as permitted in the development district, there was no reliable evidence on which to form the conclusion that application of the . . . regulations had destroyed the value of the property.

Impact

You don’t necessarily have to show a diminution in value to get a variance based on a practical confiscation, but it helps.

About the Photo

It’s a used car lot, of sorts.

Worker’s Compensation Survivor Benefits

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chemical barrel

No separate claim is required for worker’s compensation survivor benefits, according to a Connecticut Supreme Court opinion to be officially released on February 2, 2016.

In McCullough v. Swan Engraving, Inc., two years after he left the job, the employee was diagnosed with an occupational disease. He timely filed a claim for worker’s compensation benefits. He died from the disease before his claim was accepted or any benefits were paid. The employee’s widow filed a claim for death and survivor’s benefits. The worker’s comp carrier eventually accepted the decedent’s claim for benefits. The worker’s comp commissioner conducted a hearing on the widow’s claim. The carrier argued the claim was untimely, having been filed more than a year after death and more than six years after diagnosis. The widow argued that the timely filing and acceptance of her husband’s claim satisfied the limitations period for all claims. The commissioner agreed with the widow. The carrier appealed to the worker’s compensation board, who concluded that the widow’s claim was untimely. The Supreme Court reversed on the widow’s appeal.

Arguments on Appeal

The widow argued that her claim was not time-barred by CGS § 31-294c because her husband’s timely notice of claim satisfied the statute and there is no requirement that she file a separate claim.

The carrier offered three arguments in opposition: (1) Section 31-294c(a) required the widow to file a separate claim for survivor’s benefits within the time provided in the statute; (2) The court should defer to the board’s “time-tested” approach of interpreting § 31-294c as requiring a separate, timely notice of claim; and (3)  Section 31-294c must be read with CGS § 31-306b, which in the carrier’s view requires a dependent to comply with the one year limitations period in § 31-294c.

Supreme Court’s Conclusions

The Supreme Court concluded that the plain language of § 31-294c rendered it inapplicable to the facts of this case and required only one notice of claim in any event. The court also noted that there was no provision anywhere in the entire act requiring a survivor to file a separate claim, much less providing a limitations period for such a claim.

As to the board’s time-tested approach, the court cited its own precedent: ‘‘Even if time-tested, we will defer to an agency’s interpretation of a statute only if it is ‘reasonable’; that reasonableness is determined by ‘[application of] our established rules of statutory construction.’’’ The court concluded that the board’s interpretation was not reasonable under traditional rules of statutory construction and declined to defer to it.

With respect to § 31-306b, the court noted that the statute provides, as follows: ‘‘The failure of an employer or insurer to comply with the notice requirements . . . shall not excuse a dependent
of a deceased employee from making a claim for compensation within the time limits prescribed by subsection (a) of section 31-294c . . . .’’ The court rejected the carrier’s argument, saying that “the provisions of § 31-306b (c) to apply only in those situations wherein an employee is receiving workers’ compensation benefits from the employer prior to filing an official claim, such as cases where a collective bargaining agreement requires that such benefits be paid immediately.” Since this wasn’t that situation, § 31-306b did not apply.

Impact

The impact will be limited by what seems to me are the factually unique circumstances of the case. The fact that the worker’s compensation carrier accepted and paid the worker’s claim after the worker died seemed to factor heavily into the court’s decision that the widow did not have to file a separate survivor’s claim. I don’t think that happens too often.

About the Photo

The decedent was a photo engraver and his work exposed him to toxins. He developed disabling pulmonary fibrosis from this exposure and it ultimately killed him. The photo is of a rusting chemical barrel.

Affordable Housing Trumps Local Law

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city-road-people-streetAffordable housing trumps local law, according to the Connecticut Appellate Court’s decision in Brenmor Properties, LLC v. Planning and Zoning Commission, to be officially released on February 2, 2016.

The main issue in this relatively long opinion surrounded an interior road in a proposed affordable housing development. The commission maintained that the interior road did not comply with the town’s road ordinance, which specified things like minimum width and maximum grade. Since the town’s road ordinance was enacted to protect the public health and safety, any deviation from it is per se unacceptable and requires denial of the application.

The developer countered that the interior road did not present any safety risk, notwithstanding its noncompliance with the road ordinance. The developer’s traffic expert submitted a report and testified to that effect.

The commission denied the application. The developer appealed to the Superior Court, who reversed and remanded to the commission with an instruction to grant the application “as is.”

The commission appealed to the Appellate Court, who affirmed the trial court.

Arguments on Appeal

The commission’s principal argument essentially was that it didn’t really have to consider anything beyond the road’s noncompliance with the road ordinance because the road ordinance represented what was necessary for public health and safety.

The commission also argued that the proposed development did not comply with the fire code based on the fire marshal’s report. I’m not going to address this claim because it doesn’t warrant any discussion. The court noted that the argument was not well-made because everyone conceded that the fire marshal’s report was based on an earlier version of the application, not the final, revised application.

The commission’s final argument was that Superior Court did not have the authority to remand with an instruction to grant the application “as is.”

The developer offered an alternative ground for affirmance, namely that the commission failed to state its reasons for denying the application.

Appellate Court’s Conclusions

The Appellate Court agreed that the road ordinance protects public health and safety. The court disagreed that the affordable housing statutes allowed the commission to end the inquiry there. Rather, the court concluded:

“In an affordable housing appeal pursuant to § 8-30g, the commission bears the burden of demonstrating that its denial was necessary to protect a substantial public interest that clearly outweighs the need for affordable housing. When a municipal legislative enactment is involved, the commission—as well as a reviewing court—must look to the rationale behind that enactment to determine whether that standard is satisfied.”

The evidence showed that the road ordinance’s restrictions were not necessary to protect a substantial public interest. The developer’s traffic engineer explained that the proposed interior road could safely accomplish all of the things that a road needed to accomplish. In contrast, there was no evidence, other than speculation, from anyone that the proposed interior road posed any risk for anyone.

As to the commission’s argument that the Superior Court could not direct the commission to accept the application “as is”, the Appellate Court concluded that “[t]he court’s authority under § 8-30g (g) includes ‘the power’ to order a commission to grant an affordable housing application on remand.” The trial court did not abuse its discretion with its remand order.

The Appellate Court rejected the developer’s alternate ground for affirmance, as follows: “Admittedly, the motion to deny the plaintiff’s modified application was not a model of precision. It nonetheless set forth various grounds for denial in plain fashion…. As a result, we conclude that the record contains a clear basis on which to review the commission’s decision.”

Impact

The notion that noncompliance with a town ordinance is not a per se ground to deny an affordable housing application appears to me to be an extension of existing law. The Appellate Court explained that one of the reasons we have the affordable housing statutes is to prevent commissions from pre-textual denials based on noncomformance with planning and zoning regulations. For that reason, it is established law that a commission cannot deny an affordable housing application based on mere nonconformance with planning and zoning regulations. The Appellate Court seems to have extended that reasoning to all town regulations and ordinances.

About the Photo

A road like the one in the photo probably would have supported denial of the application.

Foreclosing Plaintiff Had Standing

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commercial buildingA foreclosing plaintiff had standing to foreclose because it was the holder of the note and defendant failed to rebut the resulting presumption of ownership. Also, defendant failed to preserve an appellate challenge to the existence of an agency relationship between the loan servicer and plaintiff because defendant didn’t object or otherwise raise the issue during the servicer’s testimony.

The Connecticut Appellate Court made these determinations in AS Peleus, LLC v. Success, Inc., which will be officially released on February 2, 2016.

Standing is one of my pet issues. What the court didn’t say about standing in this case is more interesting to me than what it did say. I will explain that in the “Impact” section. For now, I note that plaintiff apparently plead that it was the owner and holder of the note. Defendant left plaintiff to its burden of proof on that allegation. At trial, plaintiff introduced the original note which “contained” six allonges ending with a special endorsement to plaintiff. Plaintiff also introduced testimony from a representative of plaintiff’s loan servicer.

Defendant did not offer any evidence at the trial. Nor did defendant object to the competence of the servicer representative to testify about the existence of an agency relationship between itself as agent and plaintiff as principal. Defendant instead made a tactical decision to raise that issue in its post-trial brief.

The trial court found that plaintiff was the owner and holder of the note and had established the other elements of its foreclosure claim.

The Appellate Court affirmed.

Arguments on Appeal

Defendant argued that the trial court erred in determining that plaintiff was the owner and holder of the note. I can’t give you any specifics of why defendant thought the trial court erred in this regard because the Appellate Court didn’t give any specifics in the opinion. If I had to guess, I would say it had something to do with the allonges because the Appellate Court said the note “contained” the allonges, rather than the allonges were attached to the note. It also dropped a footnote defining “allonge” and explaining that an allonge is considered part of the note. Without digressing too much, an allonge isn’t an allonge unless it’s physically attached to the note, which means that an allonge isn’t part of the note unless it’s attached to the note. In short, I don’t think the court used “containing” accidentally.

Defendant also argued that the trial court erred in accepting the servicer representative’s testimony absent proof that he was plaintiff’s agent.

Appellate Court’s Conclusions

The court concluded that the note and allonges established plaintiff’s holder status, which gave rise to the rebuttable presumption of ownership. Defendant, who didn’t offer any evidence at trial, failed to rebut the presumption. Thus, the trial court properly determined that the foreclosing plaintiff had standing as the owner and holder of the note.

As to defendant’s agency argument, the court concluded that defendant had not preserved it for appeal because defendant did not object to any of the servicer representative’s testimony, including his testimony that he was authorized to speak for plaintiff. Defendant’s decision to raise the issue for the first time in its post-trial brief was inconsistent with the preservation requirement. It also effectively ambushed plaintiff, who was deprived of the opportunity to supply curative evidence.

Impact

Defendant left plaintiff to its proof on the owner and holder issue. “Leaving plaintiff to its proof” of an allegation is like a denial, with one big difference: Defendant does not get to controvert the allegation as it would with an outright denial. So, all plaintiff has to do is offer some evidence to support the allegation, which establishes it as fact, prima facie. Since defendant can’t controvert it, the weakness of plaintiff’s evidence is irrelevant. That would make you think that a defendant who leaves a plaintiff to its proof of the owner/holder allegation forgoes the right to rebut the presumption. The court didn’t say that defendant lost the right to rebut the presumption. It said that plaintiff didn’t attempt to rebut the presumption.

On the other hand, standing is an aspect of subject matter jurisdiction, which can’t be created by waiver or consent. This might mean that borrower can’t lose the right to attempt to rebut the presumption.

The case leaves these issues open. I think the better course of action for a borrower is to deny the owner/holder allegation. That way, there can be no question of forfeiting the right to attempt to rebut the ownership presumption.

About the Photo

I used this picture in my first post, which was about another foreclosure case. It might become my go to pic for this category of cases.

Default Judgment Not Void

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UK telephone boothA default judgment was not void despite procedural irregularities in obtaining it. Nor was the judgment inconsistent with the relief requested in the complaint.

Before you jump to any conclusions about that first sentence, yes, a default judgment and a judgment based on a default are different things and yes, I’m really talking about a judgment based on a default. Google, however, apparently will rank me higher if I say “default judgment not void” when I mean “judgment based on a default not void.” So there you have it. Now back to the case.

Plaintiff in Dawson v. Britagna filed a breach of contract complaint seeking money damages and “other and further relief as the court finds just and equitable.” Defendant timely appeared. I summarize the ensuing “convoluted procedural history” this way: plaintiff attempted to obtain a judgment based on a default with three different motions all of which were procedurally incorrect for one reason or another.

Plaintiff got his act together and obtained a default for failure to plead. The trial court conducted a hearing in damages and entered a judgment against defendant for $70,000.

Two years later, defendant moved to open the judgment on the ground that “it is void as a matter of law.” The trial court denied the motion because it was untimely, having been filed outside the four month limitation, and the judgment was not void in any event. The Appellate Court affirmed.

Arguments on Appeal

Defendant’s first argument was that the judgment was void because plaintiff failed to follow the proper procedures in obtaining his default. Her second argument was that the judgment was void because it was inconsistent with the relief requested in the complaint.

Appellate Court’s Conclusions

As to defendant’s first argument, the court effectively concluded that none of the procedural irregularities surrounding the default prejudiced defendant because she had appeared in the action, received notices of the hearings and court orders, but did not nothing in response. Additionally, the irregularities were not a factor in the default judgment that the trial court ultimately rendered.

The court’s conclusion in respect of defendant’s second argument requires a few more facts. Plaintiff and defendant had some sort of business arrangement where plaintiff would supply funds for defendant to operate a cellular telephone store (Sprint). The deal seems to have contemplated that defendant would return plaintiff’s funds and give him a share of the profits. Plaintiff sued because defendant didn’t tender him any money.

Defendant expressed her second argument as follows: “There is most definitely no claim made in the complaint for return of mon[eys] loaned or invested in the business enterprise.’’ The Appellate Court concluded that, although plaintiff didn’t necessarily use the best words in the complaint to articulate his claim, they sufficiently expressed his intent. That, coupled with the fact that defendant’s default was an admission of the allegations, meant the judgment was consistent with the relief requested in the complaint.

Impact

I think the court left the door open to the notion that procedural irregularities might render a judgment void if the irregularities prejudiced a party.

About the Photo

Who doesn’t like UK telephone booths?

Municipal Parking Lot is Not A Nuisance

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parking lotA municipal parking lot is not a nuisance in and of itself, even if it is right next to your house. The Connecticut Appellate Court came to this conclusion in Perry v. Putnam, which will be officially released on February 2, 2016.

The Town of Putnam built an athletic facility on property adjoining plaintiffs’ residence. The town also constructed a parking lot to service the athletic facility. The parking lot is close to the plaintiffs’ home. Plaintiffs commenced an action that they thought sounded in nuisance based on all of the things that occur in parking lots next to town athletic facilities. Think teenagers, beer league softball players and truckers.

The trial court struck the complaint because it did not allege facts sufficient to state a nuisance claim. Plaintiff filed an amended complaint. The trial court struck that too, for the same reason. The Appellate Court affirmed.

Arguments on Appeal

Plaintiffs’ principal argument on appeal seems to have been that their amended complaint stated a nuisance claim because it alleged that the town engaged in a “positive act.” The positive act allegation is essential to a nuisance claim against a municipality. As the trial court noted, however, the other four elements of a nuisance claim also are essential to assert a nuisance cause of action against a municipality. A positive act allegation alone will not suffice.

Appellate Court’s Conclusions

The Appellate Court found lacking plaintiffs’ allegations relating to the positive act and two of the four other elements of the nuisance cause of action: (i) condition complained of has a natural tendency to create danger and inflict injury; and (ii) the use of the land was unreasonable and unlawful.

As for the positive act, the court noted that the requirement is that the municipality engages in a positive act that causes the alleged nuisance. In this case, it was not the municipality’s positive act in locating the parking lot near plaintiffs’ home that rankled them. Rather, the alleged nuisance stemmed from the positive acts of people using the parking lot, not from the location of the parking lot in and of itself. In other words, if no one was doing in the parking lot the things plaintiffs were complaining about, the lot would not have posed a problem.

The court also concluded that a parking lot does not have a natural tendency to create danger or inflict injury. The court noted that the lot was not like the town dump where fires routinely burned unattended or the landfill that leaked contaminants into the water supply.

The court further concluded that using town land for a parking lot to service an adjoining athletic facility was not unreasonable or unlawful. “Building a public parking lot is a quintessential public function, and … to be functional, a parking lot must be in proximity to the facilities it is intended to serve.” The placement of the lot on town land but in close proximity to plaintiffs’ home was not unreasonable or unlawful.

Impact

The case seems to have been an attempt at a new tactic for the “not in my backyard” opposition to public projects. It didn’t work. I don’t think it will work in the future, unless you’re talking about something that really is a nuisance, like a landfill.

About the Photo

I couldn’t find a picture of an outdoor parking lot. This was the next best thing.

Worker’s Compensation Exclusivity

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police carThe motor vehicle exception to the worker’s compensation exclusivity provision did not apply to a police officer’s negligence action against a fellow officer, according to a Connecticut Appellate Court opinion to be officially released on February 2, 2016.

The facts in Rodriguez v. Clark are a little unusual. Officer Rodriguez was breaking up a physical alternation and getting the participants under control. Officer Clark, and his K-9 partner, Niko, arrived as backup as did other officers. Officer Clark put his police cruiser in park, got out, and closed the door. He left the engine running. Apparently, Niko’s services weren’t immediately necessary, so Clark left him in the car with the window open (it was July).  Niko, however, didn’t know his services were unnecessary. He left the cruiser through the open window and got involved in the fracas. Unfortunately, he went after the wrong guys. He severely injured Rodriguez’ leg and nipped one of the other officers as well.

Rodriguez sued Clark in negligence and under the dog bite statute. Mrs. Rodriguez brought corresponding loss of consortium claims against Clark.

Clark moved to strike the complaint based on the worker’s compensation exclusivity provision. The Rodriguez’ claimed that they were within the exception to the exclusivity provision for “action[s] … based on the fellow employee’s negligence in the operation of a motor vehicle.” The trial court disagreed and struck the complaint.

Arguments on Appeal

No surprise here. The Rodriguez’ argued that the worker’s compensation exclusivity provision did not bar the action.

Appellate Court’s Conclusions

The Appellate Court affirmed, adopting the trial court’s memorandum of decision on the motion to strike. The trial court essentially concluded that Clark was not “operating a motor vehicle” when he left Niko in his parked cruiser with the window open.

Impact

The trial court distinguished this case from several cases where the motor vehicle exception applied to a parked vehicle that was not being driven at the time of the injury. Now we have an example of an injury too far removed from the parking to qualify for the exception.

About the Photo

Case is about police officers and a police car.

Appeal Requires Record

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record player

An appeal requires a record. Lawyers should know that. But it’s understandable that the self-represented plaintiff in Lazzari v. The Stop and Shop Supermarket Company, LLC did not.

Plaintiff claimed that he was injured at work and filed for workers’ compensation benefits. Defendants (the employer and its insurer) sought to depose plaintiff. Plaintiff filed a memoranda with the Workers’ Compensation Commission requesting, among other things, the commissioner’s legal authority to compel him to appear for a deposition. The commissioner answered with a letter explaining defendants’ right to take his deposition, as well as the scope and mechanics of the deposition.

Plaintiff then “appealed” to the Workers’ Compensation Review Board, who remanded the matter to the commissioner because due process required an evidentiary hearing to create a record that the board could review.

Plaintiff appealed the board’s remand to the Connecticut Appellate Court.

Arguments on Appeal

This will be short for this case. The Appellate Court noted that “[t]he issue presented on appeal is whether the board properly remanded the matter to the commissioner for a formal hearing.”

Appellate Court’s Conclusions

The Appellate Court affirmed the board’s decision. It concluded: “The board properly determined that it could not decide the issues presented without a formal hearing at which all parties would have an opportunity to make their arguments and the commissioner would be able to render a decision, which could then be reviewed by the board if an appeal was taken.”

Impact

I don’t this case will have any impact.

About the Photo

Since the case was about the lack of a record, it made me think of a different type of record.

Court Cannot Open Dissolution Judgment Absent Fraud

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machineryA court cannot open a dissolution judgment absent fraud, the Connecticut Appellate Court re-confirmed in a January 25, 2016 advance release opinion. The court lacks subject matter jurisdiction to open the judgment without finding fraud, even if the parties agree to open it.

In 2010, the plaintiff in Reinke v. Sing (to be officially released on February 2, 2016) filed a motion to open the 2007 dissolution judgment claiming that defendant fraudulently misrepresented his assets in his financial affidavit.

The trial court opened the judgment ‘‘by oral agreement of both parties, without a finding of fraud’’ in order to reassess the financial orders. No one raised the issue of subject matter jurisdiction to open the judgment absent fraud.

The court found that defendant’s financial affidavit underreported both his income and the value of a number of assets. Defendant’s income was twice, yes twice, what his affidavit disclosed. The court changed the alimony terms and the division of marital assets and retirement accounts.

Arguments on Appeal

Plaintiff argued that the changes to the alimony and the division of the marital assets were inequitable given the trial court’s findings concerning the actual status of defendant’s financial affairs.

Appellate Court’s Conclusions

The Appellate Court raised the subject matter jurisdiction issue sua sponte. It considered itself bound by its decision in Forgione v. Forgione, 162 Conn. App. 1, officially released on December 22, 2015. The court observed: “That case held that in the absence of a finding or concession of fraud, the trial court lacked subject matter jurisdiction to open a dissolution judgment, at least as to the division of the parties’ marital assets, despite an agreement by the parties to permit the trial court to do so.”

The Appellate Court reversed and remanded with instructions to dismiss plaintiff’s motion to open for lack of subject matter jurisdiction.

Impact

Ouch. Defendant avoided a fraud finding by agreeing to open the judgment and ended up benefitting from underreporting his income (by a factor of two) and assets on his financial affidavit. It occurred it to me that maybe plaintiff agreed to open without the fraud finding because she wasn’t convinced that she could establish, under the elevated clear and convincing evidence standard, that defendant committed fraud. That would mean that defendant knew plaintiff could prove his financial affidavit was inaccurate. It seems wrong to me let stand a judgment based on an inaccurate financial affidavit even if the inaccuracies were not fraudulent. I like to think, because I’ve seen evidence of it, that our appellate courts find a way to fix such problems. I guess it couldn’t be done in this case.

About the Photo

Connecticut courts often describe subject matter jurisdiction as “the right to set the judicial machinery in motion.” The photo depicts machinery.

Collateral Estoppel and Party Mutuality

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old truck

Lack of party mutuality does not bar collateral estoppel. That’s what the Connecticut Appellate Court concluded in Pollansky v. Pollansky, which will be officially released on January 26, 2016. The Appellate Court cited two Connecticut Supreme Court decisions from the 1990s for the propositions that “the mutuality requirement has … been widely abandoned as an ironclad rule” and “important notions of judicial economy are served by abandon[ing] … the doctrine of mutuality.” That surprised me a little, but I’m getting ahead of myself.

Intra-family disputes drag me down and this one is no different. Mom and Dad bought some property in the ’60s and began operating a sand and gravel business on it. Son worked with Dad in the business from Son’s teenage years through Dad’s retirement in 1992. After Dad retired, Mom and Dad let Son and his wife use the property for their own businesses. Dad died in 2010 and Mom became the property’s sole owner.  That’s when the problem started. Mom, then in her eighties, needed some additional retirement income. She wanted to sell or rent the property, which meant that Son and his wife would have to vacate. Son refused to do that, maintaining that Dad had promised him the property.

Mom commenced a summary process action to evict Son. Son claimed in a special defense that Dad had granted Son an ownership interest in the property. The trial court entered a judgment of immediate possession for Mom. Son appealed and the Appellate Court affirmed.

Son then commenced an action against Mom and others alleging breach of contract, unjust enrichment, quantum meruit and adverse possession. The trial court determined that res judicata barred Son’s breach of contract claim and collateral estoppel barred his other claims.

Arguments on Appeal

Son argued that res judicata did not apply to his breach of contract claim because it was not litigated in the summary process action. He provided two reasons. First, he claimed that when the summary process court asked, the parties were in agreement that Son’s property ownership claim was not before the court notwithstanding Son’s special defense. Son quoted a portion of the summary process transcript where the court and counsel discussed a “property” claim. Second, Son claimed that two of the defendants in this case were not parties to the summary process action so there was no mutuality of parties. (The opinion doesn’t explain whether these two other defendants are family — I’m assuming they are Son’s aunts or sisters).

Son also argued that many of the issues in his other counts were not fully and fairly litigated in the summary process action and thus not precluded by collateral estoppel.

Appellate Court’s Conclusions

Even though it received relatively little attention, I’m starting with the mutuality of parties issue because I think it is the most interesting aspect of the opinion.  The Appellate Court first noted that the trial court did make a mistake in concluding that res judicata barred the contract claim against the non-Mom defendants. The Appellate Court said it’s actually barred by collateral estoppel. The record showed that the substance of the contract claim was fully and fairly litigated in the summary process action and the summary process court’s denial of Son’s ownership special defense was necessary to its judgment.

With those elements out of the way, the court turned to mutuality and said lack of party mutuality does not bar collateral estoppel in Connecticut. It cited Torres v. Waterbury, 249 Conn. 110 (1999) and Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285 (1991) for the proposition that the mutuality requirement has been abandoned because it promotes judicial inefficiency. So, it didn’t matter that the non-Mom defendants were not parties to the summary process action.

As for Son’s other claimed reason for the inapplicability of res judicata — that his contract claim expressly was not before the summary process court, the Appellate Court consulted the transcript. It noted that colloquy outside the snippet Son quoted confirmed that the “property” issue that the summary process court did not decide was a personal property issue, not a real property issue. Son’s counsel conceded this point in oral argument before the Appellate Court.

The Appellate Court also concluded that Son was collaterally estopped to assert his other claims against Mom.

Impact

I think abandoning the mutuality requirement is fine, as long as it is mutual. I wouldn’t like to see Plaintiff 2, who could have, but didn’t, join with Plaintiff 1 in an action against Defendant, be permitted to bring a new action against Defendant after Plaintiff 1 loses.

About the Photo

I used this photo because I thought the truck in the photo looked like a truck that might have been used in Dad and Mom’s sand and gravel business in the ’60s.