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Analysis and Impact of Connecticut Appellate Level Opinions Involving Real Property Issues

Advance Release Opinions – September 15

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Connecticut Appellate Court

Family Law

Fuller v. Baldino – Man sought visitation with a child of a woman with whom he had been in a relationship for some time. Trial court dismissed for lack of jurisdiction. Appellate Court affirmed, finding that although there was no dispute that man had a parent-like relationship with child, man had failed to plead or prove that the child would suffer any real or substantial harm other than emotional harm that stems from denial of visitation itself.

Franchise Law

Aldin Associates Limited Partnership v. Hess Corporation – Franchisee claimed that franchisor improperly charged too high a wholesale price for gas, which stifled franchisee’s ability to compete. Trial court denied trial by jury based on written jury waivers and found for franchisor, concluding that franchisee had failed to prove damages with sufficient certainty. Appellate Court affirmed the jury trial waiver but reversed on the damages issue.

Insurance

Amica Mutual Insurance Company v. Piquette – Declaratory judgment action about the scope of an insurance policy. Trial court granted summary judgment for insurer. Appellate Court framed the issue on appeal as “whether, under the terms of an automobile insurance contract providing coverage for bodily injury, a loss of consortium claim is entitled to a separate per person liability limitation from the principal bodily injury claim of another person from which the loss of consortium claim arises.” Appellate Court concluded that the policy language in Izzo was substantially similar so Izzo applies and Izzo says there is only one limit for the bodily injury and the loss of consortium.

Landlord-Tenant

Presidential Village, LLC v. Perkins – Trial court dismissed summary process action against Section 8 tenant because the pretermination notice was defective under federal and state law in that it specified an incorrect cure amount to avoid termination of the tenancy and included non-rent charges in the total past due rental obligation.  Appellate Court reversed, noting that only federal law applied to determining the sufficiency of the notice and the notice complied with federal law.

Medical Malpractice

Wilkins v. Connecticut Childbirth and Women’s Center – Defense verdict. Plaintiff appealed, claiming that the threshold interrogatory, which the jury answered in the negative, was confusing and overly restrictive given the allegations in the complaint and the proof elicited at trial.  Appellate Court essentially rejected each of those claims and affirmed.

Personal Injury

Gostyla v. Chambers – Car accident. Defense verdict. Plaintiff appealed because trial court permitted defense’s biomechanical expert to offer an opinion on causation, which was beyond his expertise. Appellate Court agreed that trial court improperly admitted the causation testimony but affirmed because plaintiff failed to provide an adequate record to determine whether the error affected the outcome of the trial.

Zoning

St. Joseph’s High School, Inc. v. Planning and Zoning Commission of the Town of Trumbull – High school wanted to install lights on its football field. P&Z denied special application because of a deadlock (2 votes in favor, 2 votes against, 1 abstention). High school appealed to Superior Court. Superior Court sustained the appeal, finding that the application satisfied the known and definite standards in the regulation, and could not be trumped by the general standard of “detrimental to the character of a residential district. The Appellate Court reversed. After a lengthy discussion, the Appellate Court concluded that “[u]nder Connecticut law, a zoning commission may deny a special permit application due to noncompliance with general standards contained in the zoning regulations.” So, Superior Court had applied an improper legal standard. The Appellate Court then concluded that, using the proper standard, there was substantial evidence in the record to support a denial. Said another way, there was substantial evidence that the high school had not met its burden of demonstrating that the lights would not be detrimental to the character of the neighborhood.

Advance Release Opinions – September 8

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Connecticut Appellate Court

The Appellate Court issued advance release opinions dealing with arbitration, breach of contract, fraud, mortgage foreclosure and personal injury.

Arbitration

A Better Way Wholesale Autos, Inc. v. Rodriguez – Car purchase gone bad. Arbitrator ordered the finance company to return the car to the dealer, among other things. Trial court denied dealer’s application to vacate arbitration award and granted purchaser’s and finance company’s motions to confirm it. Trial court also ordered dealer to pay finance company’s attorney’s fees in defending the arbitrator’s award. On appeal, dealer claimed arbitrator exceeded the scope of the submission in ordering the finance company to return the car because title was never at issue. Appellate Court affirmed, finding that the submission was unrestricted and title was at issue from the get go.  Dealer also challenged the award of attorney’s fees but Appellate Court declined to review these claims because dealer inadequately briefed them.

Breach of Contract

Luongo Construction and Development, LLC v. MacFarlane – What a mess. LLC sued customer for failure to pay on a contract to erect a modular home in separate actions – one in New Haven and one in Middletown. In the Middletown action, customer counterclaimed against LLC and cited in individual contractor for faulty workmanship and other claims. Middletown denied motion to dismiss based on prior pending action doctrine. LLC withdrew New Haven action. Middletown denied LLC’s motion for summary judgment. After courtside trial in Middletown, but before decision, LLC filed a second motion to dismiss based on prior pending action doctrine, claiming that New Haven action had been commenced first and customer could have litigated there before withdrawal. Court denied motion and issued judgment for customer on LLC’s claims and customer’s counterclaims. Appellate Court affirmed. Decision addresses prior pending action doctrine; summary judgment obligations; and punitive damages. Judge Flynn concurred with everything, except to the punitive damages award, as to which he dissented.

Fraud

Kenneson v. Eggert – In Action 1, plaintiff sued X and Y in tort. X tendered the claim to his Insurer who hired Lawyer to defend him. Jury returned a verdict for plaintiff against X for $67,556.07 and against Y for $380,037.38. Y did not appear at trial. Lawyer filed post-trial motions for X. Plaintiff and Lawyer later appeared for a hearing on the motions and a settlement conference. Plaintiff accepted $67,000 in settlement against X and signed a release and withdrawal as to X. Plaintiff later learned that she could not collect anything from Y because he was uninsured and had died earlier without assets. Plaintiff then moved to open the judgment to reinstate X as defendant, claiming that Lawyer was unfair and deceptive when she instructed plaintiff to sign the release without explaining its impact. Court denied the motion. Plaintiff started Action 2 against Lawyer for intentional misrepresentation and intentional nondisclosure and Insurer for vicarious liability. Trial court granted Lawyer and Insurer summary judgment. Appellate Court affirmed as to nondisclosure because Lawyer had no duty to plaintiff. Appellate Court reversed as to misrepresentation, finding that the denial of the motion to open did not collaterally estop plaintiff; there was a question of fact about whether the misrepresentation related to a past or existing fact, which could support a misrepresentation claim, or a future fact, which could not; and, though Connecticut has not yet recognized the sham affidavit rule (affidavit contradicting prior deposition testimony cannot support or defeat summary judgment), it would not be triggered in this case in any event.

Mortgage Foreclosure

McClancy v. Bank of America, N.A. – Borrowers sued bank on a host of theories surrounding a failed attempt to modify a mortgage loan. Trial court granted bank summary judgment as to all claims. Appellate Court affirmed, concluding that bank’s promise to review the borrowers’ modification application was not a promise to modify, a misrepresentation or a CUTPA violation.

Financial Freedom Acquisition, LLC v. Griffin – Reverse mortgage borrower’s executor made two claims on appeal. First, executor claimed that substitute plaintiff had failed to make out a prima facie case at trial because the substitute plaintiff’s own evidence showed that someone other than the substitute plaintiff owned the loan. Appellate Court affirmed, concluding that under federal and state banking law, and state corporation law, a series of corporate transactions only resulted in a name change of the substitute plaintiff, not a change in loan ownership. In other words, the substitute plaintiff still owned the loan; it’s just that the substitute plaintiff had a new name. Second, executor claimed that substitute plaintiff breached covenant of good faith and fair dealing by declining to extend the repayment date so that the executor could take advantage of the option of selling the house to repay the loan. Appellate Court affirmed, concluding that the covenant applied only to a discretionary application or interpretation of a contract term and there was no discretionary application or interpretation of the repayment date.

Personal Injury

Dinino v. Federal Express Corporation – Worker sued employer and co-worker for injuries sustained when he fell into a gap between the loading dock and the truck he was unloading. He claimed that the motor vehicle exception to worker’s compensation exclusivity applied to his claim against his co-worker, who had parked the truck; and that the intentional creation of a dangerous work condition exception applied to his claim against his employer. Trial court granted summary judgment as to both defendants, finding that there was no genuine issue of material fact that neither exclusion applied. Appellate Court affirmed in a detailed 18-page opinion.

 

 

 

Supreme Court Reverses Decision Vacating Arbitration Award

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Kellogg v. Middlesex Mutual Assurance Company – Trial court vacated an unrestricted arbitration award because it found the appraisal panel’s valuation to be too low and that the appraisal panel had imposed depreciation when the policy did not. Supreme Court reversed, concluding that neither of these findings warranted vacating the award under CGS § 52-418.

CT Appeals: AC Reverses Foreclosure for Standing Issue

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In this Connecticut appeal, Deutsche Bank National Trust Company, Trustee v. Thompson, the Appellate Court reversed the judgment of foreclosure because the trial court did not make any factual findings as to plaintiff’s standing.

Plaintiff alleged in the complaint that it was the holder of the note. Defendant was defaulted for failure to plead. The trial court entered a judgment of foreclosure but made no factual findings as to whether plaintiff was the holder or owner of the note at the time it commenced the action. The Appellate Court reversed, concluding that, absent such factual findings, it could not answer “[t]he key question … [of] when the note came into the plaintiff’s possession.”

Plaintiff argued on appeal that if it had not presented the note to the trial court, the trial court could not have entered the foreclosure judgment. Plaintiff claimed, in other words, that it’s implicit from the judgment that the trial court had the note before it at the time of entry. The Appellate Court rejected this contention because there was no evidence that plaintiff ever presented the original note to the trial court. Plus, the copy of the note in the record was payable to the original lender, not plaintiff, and was not endorsed. Without an endorsement, plaintiff could not be the holder.

Plaintiff also argued that it had established holder status because it alleged that status in the complaint and defendant was defaulted for failure to plead. The Appellate Court rejected this argument.  Finding standing by a default in pleading would be akin to finding standing by waiver or consent, which the law expressly precludes.

The Appellate Court also “reject[ed] the plaintiff’s argument that an inadequate record precludes our review of its standing.” Though the appellant has the burden of presenting a record adequate for review, plaintiff has the burden of proving standing whenever the issue is raised, including on appeal. Because it is not the Appellate Court’s function to find facts, “[t]he judgment [was] reversed and the case [was] remanded for a determination of the jurisdictional issue and for further proceedings according to law.”

Ho-Hum, Another Foreclosure Plaintiff has Standing

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Some Connecticut appeals seem doomed to fail from the outset. The challenge to plaintiff’s standing to foreclose in Property Asset Management, Inc. v. Lazarte is one of those.

Plaintiff’s motion for summary judgment included an affidavit asserting that plaintiff received delivery of the note, endorsed in blank, on a specific date that was prior to commencement of the action. The trial court didn’t have to rule on the summary judgment motion because it later defaulted defendant for failing to comply with court-ordered discovery. The trial court ultimately entered a judgment of strict foreclosure and set a law date.

After a couple of dismissed bankruptcies later, the parties were back in court to reset the law date. Defendant filed a motion to dismiss, arguing that plaintiff lacked standing to foreclose. The trial court denied the motion to dismiss and reset the law date. Defendant appealed. The Appellate Court affirmed.

Defendant’s Main Arguments on Appeal

“[D]efendant first argue[d] that the court improperly denied her motion to dismiss on the basis of its finding that she had failed to counter the rebuttable presumption that the original plaintiff had standing to initiate this action.”

“[D]efendant also claim[ed] that the trial court improperly failed to conduct an evidentiary hearing on the motion to dismiss.”

Appellate Court Concludes Plaintiff had Standing to Foreclose

A “holder” is a person in possession of a note (assuming it’s a negotiable instrument) endorsed in blank. Under Supreme Court precedent, in a mortgage foreclosure action, the holder is rebuttably presumed also to be the owner of the debt. Since the owner of the debt on the date the action is commenced has standing to foreclose, so too does a person rebuttably presumed to be the owner of the debt, like the holder of the note, on the date the action is commenced.

“[A]lthough the court did not state the basis for its finding that the original plaintiff was in possession of the note when it initiated the foreclosure action, that finding is supported by the record, namely, the affidavit submitted with the motion for summary judgment indicating that the note [endorsed in blank] was delivered to the original plaintiff on or before October 6, 2008. The defendant presented no evidence that the original plaintiff transferred or lost possession of the note prior to commencing the foreclosure action on October 14, 2008.”

“Because the defendant presented the court with nothing to rebut the evidence in the record that the original plaintiff possessed the mortgage note endorsed in blank at the time that it commenced this action, and thus that it had standing, we conclude that the court properly denied the motion to dismiss.”

Appellate Court Concludes No Evidentiary Hearing Required

“A court is required to hold an evidentiary hearing before adjudicating a motion to dismiss only if there is a genuine dispute as to some pertinent jurisdictional fact…. In the present case, there was no jurisdictional fact in dispute necessary to determine whether the original plaintiff had standing to bring the present action. The record before the court revealed that the original plaintiff was in possession of the note, endorsed in blank, at the time it commenced the action, and, thus, there was a rebuttable presumption of standing. Because the defendant failed to demonstrate the existence of any relevant jurisdictional fact that was in dispute, the court was not required to hold an evidentiary hearing before ruling on the defendant’s motion to dismiss.”

Other Things to Note

In footnote 5, the Appellate Court rejected plaintiff’s arguments that defendant had waived standing and public policy militated against raising the standing argument at such a late stage in the proceedings. “As we have indicated, … a party may raise a lack of subject matter jurisdiction at any time, and subject matter jurisdiction cannot be conferred on the court by waiver or consent of the parties…. The defendant’s claim that the original plaintiff lacked standing implicates subject matter jurisdiction and, therefore, is not waivable and is properly before this court.”

Defendant Denied Attorney’s Fees in Withdrawn Foreclosure

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In this Connecticut appeal (Connecticut Housing Finance Authority v. Alfaro), the Appellate Court denied defendant’s motion for attorney’s fees pursuant to CGS § 42-150bb after plaintiff withdrew its foreclosure action.

Defendant raised a special defense that “plaintiff lacked standing … because it was not a person or entity entitled to enforce the note and mortgage.” Plaintiff moved for summary judgment.  “In his objection, the defendant argued that the plaintiff lacked standing to bring this action because the plaintiff cannot prove that it is the holder of the note as it does not have possession of the original note; it only has possession of a copy of the original note, which does not contain any assignment to the plaintiff from [the original lender].”

Plaintiff withdrew its summary judgment motion. Then, “before any hearing on the merits was held, the plaintiff withdrew its foreclosure action as a matter of right pursuant to General Statutes § 52-80.”

Defendant moved for an award of attorney’s fees pursuant to CGS § 42-150bb. The statute provides that a contract provision requiring a consumer to pay a commercial party’s attorney’s fees is, as a matter of law, reciprocal. In other words, if the commercial party can get its attorney’s fees from the consumer, the consumer can get her attorney’s fees from the commercial party, provided the consumer “successfully prosecutes or defends an action or a counterclaim based upon the contract ….”

The trial court denied defendant’s motion. The Appellate Court affirmed.

Defendant’s Argument on Appeal

“The defendant argue[d] that ‘[i]t is only logical to surmise that the [p]laintiff realized that if the court determined that issues raised by [the defendant] went to the merits of the case, it could lose the right to foreclose on the mortgage,’ and, thus, the plaintiff withdrew its case on
the basis of the defendant’s special defense that the plaintiff lacked standing to bring the action.”

Appellate Court Concludes Defendant Failed to Establish a Successful Defense

“In raising his claim on appeal, the defendant has assumed that the plaintiff withdrew its action in response to his special defense. On the basis of this assumption, the defendant argues that he successfully defended the action and, thus, is entitled to attorney’s fees under § 42-150bb. The record, however, does not indicate the reason that the plaintiff withdrew its action; it may have been because of the defendant’s defense, but it may have been for a myriad of other reasons. There was no hearing on the merits, and the defendant offered no evidence at the hearing on the motion for attorney’s fees to prove that the plaintiff withdrew the action in response to his defense. The defendant’s argument is founded on speculation alone. This court will not speculate on what is not in the record.”

Foreclosure Property Valuation Challenge Fails

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The appeal in Salisbury Bank & Trust Co. v. Christophersen involved two adjacent undeveloped parcels of waterfront property in Westport. Defendant borrowed money from plaintiff against the properties, planning to repay the debt when he sold them. Defendant defaulted and plaintiff started a foreclosure action.

The Appellate Court provided a detailed factual background but ultimately there isn’t really much to this advance release opinion.  One of the main issues was whether to value the properties as one two-acre parcel or two one-acre parcels. The record contained a lot of competing evidence. The court chose to treat the properties as one two-acre parcel for three reasons: (i) one of the parcels arguably was subject to a restrictive covenant which “represented a significant cloud on title that adversely affected the ability of the parcel to be marketed as a single building lot”; (ii) “plaintiff’s appraiser credibly testified that the fair market value should be determined as one two-acre lot on the basis of the information he had obtained about the … parcel and the restrictive covenant”; and (iii) “defendant often marketed the property as a single building lot.”

The trial court found that the debt exceeded the value of the property and entered a judgment of strict foreclosure. Defendant appealed. The Appellate Court affirmed.

Defendant’s Argument on Appeal

“On appeal, the defendant claim[ed] that the court abused its discretion by rendering a judgment of strict foreclosure rather than a foreclosure by sale ‘because there is monumental uncertainty as to the value of the property and as a result there is also monumental uncertainty as to whether the debt owed to [the] plaintiff is greater than the value of the property.’ The defendant argue[d], on the basis of his appraiser’s opinion, that the … parcels should be valued as two separate building lots, which would result in a value in excess of the debt owed the plaintiff.”

Appellate Court Concludes that Superior Court Properly Valued the Properties as One Parcel

“On the basis of our review of the record and the [trial] court’s detailed and well reasoned memorandum of decision, we conclude that it did not abuse its discretion by ordering a judgment of strict foreclosure.”

 

 

Appellate Stay Exemption Bites Foreclosure Defendant

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In an advance release opinion issued February 29, 2016, the Connecticut Appellate Court concluded that the new anti perpetual motion machine rule concerning appellate stays in foreclosure cases required it to dismiss the borrower’s appeal.

The first law day in Citigroup Global Markets Realty Corporation v. Christiansen was April 7, 2009. “The judgment was opened and the law day extended five times over the six years that followed the initial judgment of strict foreclosure as a consequence of five bankruptcy petitions filed by [one of] the [mortgagors].” Plaintiff obtained relief from stay in the final bankruptcy. On plaintiff’s motion, the trial court reset the law date for August 25, 2015.

Defendant filed three consecutive motions to open the judgment and extend the law date. The trial court denied all three motions. But, as to the first two, the court sua sponte opened the judgment and extended the law date. The court didn’t do that in respect of the third motion and left the law date at December 1, 2015.

Defendant filed his appeal on November 30, 2015. The December 1 law date came and went without redemption. On December 9, defendant moved the Appellate Court to dismiss the appeal as moot. Defendant did not respond to the motion.

Plaintiff’s Main Argument on its Motion to Dismiss the Appeal

“The plaintiff argue[d] that the court’s denial of the defendant’s third motion to open did not stay the running of the law day, that title to the property accordingly has vested in the plaintiff, and that there is no relief that this court can afford the defendant.”

Appellate Court Concludes Anti Perpetual Motion Machine Rules Rendered Appeal Moot

Practice Book § 61-11(a) is the source of the automatic appellate stay. The section provides that “proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to file an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause.” Where the judgment is a judgment of strict foreclosure, this Practice Book rule means that the law date cannot be set sooner than the time to file an appeal — twenty days from entry — because a sooner law date would deprive defendant of his right to appeal.

Defendant also has a right to appeal, within twenty days of entry, a denial of a motion to open the judgment and extend the law date. So, even if the court was denying a mortgagor’s motion to open and extend, it had to sua sponte extend the law date at least twenty-one days so as to not deprive the borrower of the right to appeal the court’s denial of his motion to open and extend. In other words, defendant was more or less guaranteed an unlimited number of twenty-one day extensions of the law date. In First Connecticut Capital, LLC v. Homes of Westport, LLC, 112 Conn. App. 750, 762, 966 A.2d 239 (2009), the Appellate Court described this process as “almost the perfect perpetual motion machine.”

To address this problem, Pratice Book § 61-11 was amended effective October 1, 2013. “Practice Book § 61-11(g) applies in this appeal and provides in relevant part: ‘In any action for foreclosure in which the owner of the equity has filed, and the court has denied, at least two prior motions to open or other similar motion, no automatic stay shall arise upon the court’s denial of any subsequent contested motion by that party, unless the party certifies under oath, in an affidavit accompanying the motion, that the motion was filed for good cause arising after the court’s ruling on the party’s most recent motion. . . .’’’

“The defendant’s third motion to open, filed on November 16, 2015, did not have an accompanying affidavit, and, thus, the motion did not meet the requirement contained in § 61-11 (g) to set forth a good cause that arose after the court’s ruling on the defendant’s most recent motion. As was the case with the prior two motions, the defendant’s third motion to open sought an extension of the law day as [defendants] pursued alternatives to foreclosure. Under § 61-11 (g), the denial of that motion to open on November 30, 2015, did not create an automatic appellate stay. Because the defendant failed to exercise his right of redemption on his law day, title to the property vested in the plaintiff after the close of business on December 1, 2015.”

Non-party Lacks Standing to Appeal

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The Connecticut Appellate Court dismissed an appeal because the appellant, who was not a party to the underlying judgment, lacked standing.  The appellant in M.U.N. Capital, LLC v. National Hall Properties, LLC, an advance release opinion to be officially released March 1, 2016, was a lessee of the property plaintiff was foreclosing in the underlying action. Appellant was a named defendant, along with the property owner.  Appellant “claimed, however, that it was not a proper party to the foreclosure action, and, before the judgment of strict foreclosure was rendered … the plaintiff withdrew the action as to [appellant] and proceeded only against the [property owner].”

Subsequently, appellant was defaulted in a summary process action, which terminated its leasehold interest in the property. Appellant apparently believed that it could not undo the summary process default judgment unless it first undid the foreclosure judgment. So, appellant filed, in the foreclosure action, a motion to open and vacate the foreclosure judgment on the ground that plaintiff lacked standing to foreclose.

The trial court dismissed appellant’s motion to open and vacate the foreclosure judgment. Appellant appealed. The Appellate Court dismissed the appeal.

Out of the Ordinary

Normally, this is where I would describe the appellant’s main arguments on appeal. This appeal is different. As the court explained:

Following oral argument in this appeal, we asked the parties to submit simultaneous supplemental briefs addressed to the following: ‘‘1. Whether [appellant], a nonparty to the underlying foreclosure action, had standing to file a motion to open the foreclosure judgment? 2. Whether a nonparty can appeal the dismissal of a motion to open a judgment in a case in which it was not a party? 3. What practical relief can this court provide to [appellant], in this appeal?’’

Appellate Court Concludes Non-party Lacks Standing to Appeal

The court noted that under CGS § 52-263 and Practice Book § 61-1 only a “party” may appeal. ‘‘Ordinarily, the word party has a technical legal meaning, referring to those by or against whom a legal suit is brought . . . the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons. . . . This definition of party . . . includes only those
who are parties to the underlying action’’ (emphasis original).

“Consequently, because the [appellant] is not a party to the underlying foreclosure judgment in this case, it does not have standing to appeal, and we do not have subject matter jurisdiction over the appeal.”

City Can Demolish Building in Emergency

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demolished buildingA city can demolish a building in an emergency without paying compensation, according to a Connecticut appeal to be officially released on February 23, 2016.

The plaintiff in Edgewood Street Garden Apartments, LLC v. Hartford owned a building that was constructed in 1925. Plaintiff was renovating the building with the intent of leasing out apartments. On a Sunday in February 2011, the fire department responded to a report that the building’s roof had collapsed. A certified building inspector, who works in the city’s department of licenses and inspections, also responded to the report. The inspector “saw cracks at some areas in the sidewalls of the subject property and above two windows. He determined that the roof had collapsed, which was causing the cracks in the side walls as well as bowing of the walls, and he was concerned that due to the snow load on the roof, the building could come down at any minute, endangering the adjoining property.” The inspector informed plaintiff’s principals that he order the property immediately demolished. The principals wanted their structural engineer and insurance adjuster to inspect the property before demolition but there were unavailable on Sunday. The inspector declined to postpone demolition: the building was 75% demolished that Sunday.

“The plaintiff filed a six count complaint alleging the following: (1) denial of equal protection under § 1983; (2) denial of substantive due process under § 1983; (3) denial of procedural due process under §1983; (4) inverse condemnation under §1983; (5) inverse condemnation under the fifth amendment to the United States constitution; and (6) inverse condemnation under article first, § 11, of the Connecticut constitution.”

The trial court found for defendants on all six counts. Plaintiff appealed. The Appellate Court affirmed.

Plaintiff’s Main Arguments on Appeal

“On appeal, the plaintiff claims that the court erred when it (1) made various findings of fact that were unsupported by the evidence introduced at trial, (2) did not find that provisions of the municipal and state building codes that the defendant violated constituted a ‘policy’ supporting a claim of municipal liability under 42 U.S.C. § 1983, (3) concluded that the defendant’s actions did not constitute a taking of property for which the plaintiff was entitled to just compensation, (4) placed the burden of proof on the plaintiff, and (5) did not draw an inference in the plaintiff’s favor on account of the defendant’s failure to preserve evidence critical to the plaintiff’s case.”

Appellate Court Concludes City can Demolish Building in an Emergency

Plaintiff’s first argument essentially was that the trial court should have given certain evidence more weight than other evidence. The Appellate Court concluded that, although there may have been conflicting evidence as to some issues, the conflict did not render the trial court’s findings unsupported.

As to plaintiff’s second argument, the court noted that “‘it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the moving force behind the injury alleged.'” The state and city building codes, which gave the inspector discretion to demolish a building determined to be unsafe, do constitute a municipal policy in respect of such buildings. But, that policy itself was not unconstitutional because it was not the moving force behind the demolition of plaintiff’s building. Rather, the moving force was the inspector’s exercise of his discretion in favor of demolition.

“‘Where … a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.’ … ‘[W]here the policy relied upon is not itself unconstitutional, considerably more proof than [a] single incident [of unconstitutional activity] will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the ‘policy’ and the constitutional deprivation.'” The court concluded that “[b]ecause the identified municipal policy itself is not unconstitutional, the plaintiff was required to prove more than a single exercise of [the inspector’s] discretion to impose liability on the defendant.” The court rejected the claim because the incident involved only a single exercise of the inspector’s discretion.

With respect to plaintiff’s “taking” argument, the court noted that the demolition was a valid exercise of police power, which would require compensation only if “no reasonable use may be made of the property and it becomes of little or no value to the owner.” It concluded that “[t]here was no testimony or other evidence indicating that ‘’no reasonable use may be made of the [subject] property’; … such as evidence that the plaintiff was prevented from rebuilding. In light of the dearth of evidence tending to show that the defendant’s exercise of its police power was unreasonable or confiscatory, the trial court properly concluded that there was no taking when it ruled in the defendant’s favor on the plaintiff’s inverse condemnation claims in counts five and six.”

Plaintiff’s fourth argument was a contention that the Superior Court action was a substitute for the administrative hearing that it never received and the agency would have had the burden of proof in such a hearing. The court rejected this argument because there was no supporting authority for the “substitution” claim.

Plaintiff’s fifth argument was “that the court erred when it did not draw an inference in the plaintiff’s favor on account of the defendant’s failure to preserve evidence critical to the plaintiff’s case—namely, the defendant’s demolition of the building without taking any measurements or detailed photographs.” The court noted that “the trier of fact may [but is not obligated to] draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it.” The court rejected the argument because “[t]here was sufficient evidence in the record, in the form of [the inspector’s] testimony regarding his predemolition assessment of the building and his determination that it posed an imminent danger, to support the court’s decision not to draw an adverse inference.”

Other Things to Note

In footnote 4, the court addressed the possibility that the appeal was moot. More specifically,”[w]e raised the issue of mootness to consider whether the [trial] court’s finding that the plaintiff failed to prove damages, which the plaintiff does not challenge, is an independent basis for the judgment, which would prevent this court from providing practical relief on appeal.” The court “conclude[d] that the [trial] court’s finding regarding damages did not independently support the judgment because proof of actual damages was not a necessary element of the plaintiff’s causes of action. Notwithstanding its failure to prove actual damages, the plaintiff could have prevailed and received nominal damages.”