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Appellate Court Advance Release Opinions

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.

Release of Lis Pendens

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pencil sharpener

A release of lis pendens is not available for the asking.

I know that sounds too obvious to require the Connecticut Appellate Court’s attention but it’s really the only thing worth mentioning about the opinion in Levinson v. Lawrence, to be officially released on January 26, 2016.

Levinson and Lawrence had had an on again, off again relationship since college. Lawrence married, and eventually divorced, someone else. She got her house in the divorce, subject to a short-term mortgage in favor of her ex-husband. When the mortgage matured, Levinson paid it off. Shortly after that, Levinson moved into the house.  He made, and paid for, some renovations.

If you’ve ever watched Judge Judy, you know what happened next. The relationship soured. After some trouble of the usual kind in these circumstances, Levinson moved out. He brought a small claims action seeking to recover some personal property and lost. He started an action in Superior Court and recorded a lis pendens against the house. Superior Court dismissed that action. He started a second Superior Court action and recorded another lis pendens. In the second Superior Court action, Levinson claimed that he paid off the mortgage in exchange for a 50% ownership interest in the house, which should be recognized as a resulting trust. He also claimed compensation for the renovations on an unjust enrichment theory. Lawrence counterclaimed alleging slander of title arising out of Levinson’s lis pendens.

During the litigation, Lawrence sent Levinson at different times two separate notices demanding release of lis pendens. In the first notice, Lawrence claimed that Levinson did not properly serve the first lis pendens. The opinion doesn’t mention Lawrence’s basis for her second notice, which related to the second lis pendens.

Years later, the parties stipulated during the litigation that Levinson would release the lis pendens by a certain date and Lawrence would market the house. Levinson was late with his releases and Lawrence apparently never marketed the property.

The trial court found for Lawrence on Levinson’s complaint and Lawrence’s counterclaim.

Arguments on Appeal

There’s not much to say here. Levinson argued that the evidence showed that there was a resulting trust and that Lawrence had been unjustly enriched by Levinson’s renovations. He also argued that the trial court should not have found for Lawrence on her counterclaim or awarded damages under CGS § 49-8. The statute provides for actual or statutory damages, plus attorney’s fees, if a plaintiff fails to timely release an ineffective or invalid lis pendens.

Appellate Court’s Conclusions

The Connecticut Appellate Court affirmed the trial court as to the rulings for Lawrence on Levinson’s complaint. It reversed the trial court’s decision on Lawrence’s counterclaim.

A resulting trust arises only if that is what the parties intended. There was no evidence that the parties intended for Levinson to have a 50% ownership interest in the house.

There is no “unjust” enrichment if one party officiously confers a benefit on another. There’s enrichment, but it’s not unjust because the recipient did not solicit it. There was no evidence that Lawrence solicited the renovations that Levinson made. Rather, the evidence showed that Levinson did the renovations because he wanted them and Lawrence was more or less indifferent.

As for Lawrence’s counterclaim, § 49-8 provides damages if a plaintiff fails to timely release a lis pendens that “has become of no effect pursuant to section 52-326.” CGS § 52-326 essentially provides that a lis pendens becomes ineffective when the controversy underlying the lis pendens is formally disposed — by a judgment or withdrawal of the action, for example. Neither Lawrence’s notices nor the parties’ stipulation disposed of the action. So, it was improper for the trial court to award damages under § 49-8.

Impact

My takeaway from the opinion is simple: If the litigation remains pending, you don’t have to release a lis pendens simply because the other party claims it’s ineffective or invalid. I think that’s true even if the other party turns out to be right.

About the Photo

My son took it. I like it, and not just because he took it. He’s got more that I like and I will feature them in future posts. You can see some of his work here.

Interpreting Collective Bargaining Agreements

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Snow

Arbitrators have wide latitude in interpreting collective bargaining agreements according to a new Appellate Court opinion to be officially released on January 26, 2016.

In Burr Road Operating Company II, LLC v. New England Health Care Employees Union, District 1199, the parties asked the arbitrator to determine whether an employment discharge was for just cause and, if not, the appropriate remedy. The employer-plaintiff had terminated the grievant (union member) for failing to timely report a claim of abuse of a nursing home patient. The employer had previously issued “final warnings” to the grievant for unrelated conduct. Two other employees were aware of the claim but did not report it. They were not discharged. The grievant grieved her termination and the union took the termination to arbitration pursuant to the collective bargaining agreement.

The arbitrator found there was no just cause because, of the three people that were aware of the claim, only the grievant actually reported it. Though she was late in doing so, the other two employees did not come forward at all. The arbitrator reinstated the grievant.

The employer filed an application to vacate the award and the union filed an application to confirm the award. The trial court denied the employer’s application and granted the union’s. The Appellate Court reversed the reinstatement, finding it contrary to public policy. The Supreme Court reversed and remanded to the Appellate Court to determine whether the trial court improperly denied the employer’s application to vacate the award. The January 26, 2016 decision is the opinion on remand.

Arguments on Appeal

The employer argued that the arbitrator improperly (i) failed to give dispositive weight to the employer’s “final warnings”; and (ii) added a term to the collective bargaining agreement by considering the grievant’s report of the incident a “mitigating factor.”

The employer also had a third argument that the arbitrator improperly added a procedural requirement to the collective bargaining agreement by refusing to consider grievant’s voicemail messages.  The opinion doesn’t really discuss the details. Apparently, the grievant left voicemail messages that the employer claimed contained damaging admissions. The arbitrator declined to consider the messages because the employer didn’t investigate them. The Appellate Court concluded that the third argument involve the same issue as the second argument and did not separately address it.

Appellate Court’s Conclusions

The issue that really was in dispute was whether the arbitrator changed the collective bargaining agreement by interpreting the collective bargaining agreement. The answer, of course, is “no.”

The court noted that the arbitrator was obliged to interpret and apply the agreement, subject to the prohibition on adding, deleting or modifying any of its terms. The court’s review was limited to whether the arbitrator showed “patent infidelity” to his obligation. The court will confirm the award if it “draws its essence” from the agreement.

The agreement permitted termination for “just cause.” But the agreement did not define just cause. Nor did the agreement define “final warning” or require discharge for an employee’s infraction while under a final warning.

Since the agreement didn’t provide the essential definitions, the arbitrator had to provide his own. There was no patent infidelity to the agreement in concluding that it was unjust to discharge an employee for meeting a reporting requirement, albeit untimely, where other employees entirely failed to meet the requirement — and were not discharged. It was not improper for the arbitrator to reject a “final warning” as dispositive because the agreement did not provide for it or make it dispositive.

Impact

If an employer wants a “final warning” to be a dispositive basis for a just cause discharge, it has to be spelled out in the employment agreement.

About the Photo

I finished this post on January 23, 2016, when it was snowing, a lot.