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Appellate Court Advance Release Opinions

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.”

Workers’ Comp Average Wage Includes Paid Vacation

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In this Connecticut Appeal, the Appellate Court concluded that an employee’s vacation time should be included in determining his average weekly wage for workers’ compensation purposes.  The decision in Menard v. Willimantic Waste Paper Company, to be officially released on March 1, 2016, involved the interpretation of CGS § 31-310.

More specifically, the statute provides that an employee’s average weekly wage is his total weekly wages for the 52 calendar weeks preceding his injury, divided by the number of weeks the employee was actually employed by the employer during those 52 calendar weeks. “[A]bsence[s] for seven consecutive calendar days” are excluded when determining the number of weeks the employee was employed.

Plaintiff took two weeks of paid vacation in the 52 calendar weeks preceding his injury. He claimed that, because he was not present at work during those two weeks, his average weekly wage was his total weekly wages for the preceding 52 weeks divided by 50 weeks, not 52 weeks. The Workers’ Compensation Commissioner rejected that argument and the Workers’ Compensation Review Board affirmed. Plaintiff appealed to the Appellate Court, which affirmed the Board.

Plaintiff’s Main Argument on Appeal

Plaintiff “argue[d] that the phrase ‘absence for seven consecutive days’ in § 31-310 (a) is not ambiguous and dictates that his vacation related seven consecutive day absences should be subtracted, leaving the total amount of wages received during the fifty-two calendar weeks preceding his injury to be divided by fifty.”

Appellate Court Concludes Workers’ Comp Average Wage Includes Paid Vacation

The Appellate Court noted that § 31-310 was ambiguous because plaintiff’s and defendants’ interpretations were both superficially plausible.”The legislative history of § 31-310 [was] not helpful.” The court ultimately affirmed the Board on the following rationale:

[Plaintiff’s] interpretation leads to bizarre results: for instance, not performing work related tasks for one’s employer during paid vacation increases the average weekly wage, while performing activities benefiting the employer during that time decreases the compensation rate. The plaintiff’s proffered interpretation unduly complicates the determination of the average weekly wage. Under the plaintiff’s interpretation, the amount of pay received by him from his employer for the two weeks of paid vacation would be included in the dividend, but the same two weeks would be subtracted from the divisor, thereby artificially inflating the average. A logical interpretation of the phrase ‘‘average weekly wage’’ contemplates that all wages earned by the plaintiff in the relevant time period are to be included in the dividend and that all weeks in which the plaintiff was ‘‘actually employed’’ and earning wages are to be included in the divisor.

Interpretive Gloss Saves Recognizance Statute’s Constitutionality

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The Connecticut Appellate Court applied interpretive gloss to save the recognizance statute’s constitutionality in an opinion to be officially released on March 1, 2016. The main issue in this appeal, Harnage v. Lightner, was whether an inmate had to post a recognizance bond for his action challenging the conditions of his confinement — namely that defendants were deliberately indifferent to his medical needs. A recognizance bond insures that a prevailing defendant can actually collect costs taxed against plaintiff.

“[T]he trial court found that the plaintiff was indigent and granted him a fee waiver for the entry fee, the filing fee, and the cost of service of process.” Plaintiff commenced his action against defendants in their official and individual capacities. He did not post a recognize bond. Defendants moved to dismiss on the grounds that plaintiff did not properly serve them and for failure to post the recognizance bond. In opposition, defendant claimed, among other things, “that the requirement of posting a recognizance bond pursuant to § 52-185 and Practice Book § 8-3 did not apply to him and, even if it did, the amount of the recognizance bond was in the court’s discretion and should be limited to the nominal amount of one dollar, which, in essence, is a request for a waiver.”

The trial court granted the motion to dismiss but only as to plaintiff’s failure to properly serve defendants in their individual capacities. The court ordered plaintiff to post a $250 recognize bond within ten days. “Because the plaintiff could not afford to post the $250 recognizance bond and desired to appeal from the court’s decision, … he filed a motion for judgment, which the court subsequently granted.”

Plaintiff appealed. The Appellate Court “reversed only as to the dismissal of the plaintiff’s causes of action against the defendants in their in official capacities and the case is remanded for a hearing consistent with this opinion to consider the plaintiff’s request for a waiver of his obligation to post a recognizance bond.”

Plaintiff’s Main Arguments on Appeal

“[T]he plaintiff argue[d] that the recognizance bond requirement does not apply to him, or if it does, it is unconstitutional because it deprives him of his rights to due process and equal protection of the law under the federal constitution.”

Plaintiff also claimed that he did not have to serve defendants in their individual capacities via in hand or abode service pursuant to CGS § 52-57(a). Rather, plaintiff argued that “in a civil action against state employees in their individual capacities, § 52-64(a) permits service of process to be made by a proper officer leaving a copy of process with the attorney general at the Office of the Attorney General in Hartford.”

Appellate Court Concludes Interpretive Gloss Saves Recognizance Statute’s Constitutionality

As to the recognizance bond, the court “conclude[d] that it is necessary to place an interpretive gloss on §§ 52-185 and 52-186 in order to avoid placing them in constitutional jeopardy. Accordingly, we construe these provisions as authorizing the court to waive the plaintiff’s obligation to post, or to reduce significantly the amount of, a recognizance bond in light of a party’s indigency and status as an inmate.” Without the interpretive gloss, the statutes were in constitutional jeopardy because “prisoners have a fundamental constitutional right of access to the courts.” “In civil cases in which a fundamental right is implicated and judicial recourse is the sole manner of resolving the dispute, there cannot be a total deprivation of access to the courts, and a statute conditioning access to the courts on paying court fees or costs raises significant constitutional concerns.” The gloss was necessary to provide a “safety-valve” for those who cannot afford the recognizance bond.

The court rejected plaintiff’s claim that he properly served defendants in their individual capacities by leaving process with the Attorney General. “Decisions of this court have repeatedly held that a plaintiff, who serves a state defendant pursuant to § 52-64 (a) by leaving a copy of the process with the attorney general at the Office of the Attorney General, has properly served the defendant only in his or her official capacity and has failed to properly serve the defendant in his or her individual capacity.”

Civil Protection Order Stands

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A civil protection order stands if the court finds reasonable grounds to believe that respondent committed sexual abuse, sexual assault or stalking under one, but not all three, of the statutes enumerated in CGS § 46b-16a(a). The Connecticut Appellate Court reached this conclusion in Kayla M. v. Greene, officially released on February 18, 2016 (the court’s website did not make the Advance Release available until February 22).

Section 46b-16a(a) provides in part that “[a]ny person who has been the victim of sexual abuse, sexual assault or stalking, as described in sections 53a-181c, 53a-181d and 53a-181e, may make and application to the Superior Court for [a civil protection order] ….” Section 53a-181c is stalking in the first degree; section 53a-181d is stalking in the second degree; and section 53a-181e is stalking in the third degree.

The husband and wife respondents did not contest any of the trial court’s factual findings. From those factual findings, the “[trial] court concluded that there were reasonable grounds to believe that the defendants had engaged in conduct that constituted the crime of stalking in the second and third degrees and that they would continue to engage in such conduct in the absence of civil protection orders.” The trial court entered protection orders. Respondents appealed. The Appellate Court affirmed.

Respondents’ Arguments on Appeal

Respondents claimed the trial court erred in entering the civil protection orders because (i) no such order could enter unless they committed stalking in the first, second and third degrees, as opposed to just the second and third degrees; and (ii) their conduct did not rise to the level of second or third degree stalking.

Appellate Court Concludes  Civil Protection Order Stands

The Appellate Court rejected respondents’ first argument because it would lead to absurd results:

If we were to construe the legislature’s use of the word “and” in the conjunctive, as the defendants argue, the inclusion of § 53a-181d in the statutory language would be rendered meaningless…. If an applicant for a civil protection order on the basis of stalking always had to prove that there were reasonable grounds to believe that the defendant had committed stalking in the first, second, and third degrees, this means all applicants would be required to show that they were the victim of stalking in the first degree pursuant to § 53a-181c. The elements necessary to prove stalking in the first degree by definition include the elements of stalking in the second degree…. In other words, a defendant can only be convicted of stalking in the first degree if he or she committed stalking in the second degree. Thus, if the term ‘‘and’’ in § 46b-16a (a) is conjunctive, then the phrase ‘‘as described in sections 53a-181c, 53a-181d and 53a-181e’’ is synonymous with ‘‘as described in §§ 53a-181c and 53a-181e.’’ Such an interpretation of the term ‘‘and’’ would render the inclusion of § 53a-181d superfluous. Only the construction of ‘‘and’’ in the disjunctive makesthe inclusion of all three stalking statutes logically consistent. Therefore, we conclude that the only reasonable interpretation of the term ‘‘and’’ in § 46b-16a (a) is in the disjunctive. Accordingly, an applicant for a civil protection order on the basis of stalking is required to prove only that there are reasonable grounds to believe that a defendant stalked and will continue to stalk, as described in §§ 53a-181c, 53a-181d or 53a-181e.

As to respondents’ second argument, the Appellate Court noted that this was not a criminal proceeding so petitioner was not required to prove all elements of the crime beyond a reasonable doubt. Rather, § 46b-16a requires only that there be “reasonable grounds to believe that the respondent has” violated one of the enumerated statutes. “Reasonable grounds” is probable cause. The Appellate Court went on to apply the facts the trial court found to the elements of the crimes. It concluded that the trial court properly found that there were reasonable grounds to believe respondents’ conduct met each element.

No Relaxation of Will Execution Formalities

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It was proper for a Probate Court to reject a proponent’s second attempt to proffer a will where the Probate Court already had rejected it as invalid, according to a Connecticut Appellate Court opinion to be officially released on February 23, 2016.

In Davis v. Davis-Henriques, plaintiff proffered for admission into probate what he claimed was his mother’s will. The Probate Court rejected the proffer because the putative will “was not attested by two witnesses, as required by General Statutes § 45a-251.” Plaintiff did not appeal the ruling. The Probate Court appointed defendant, plaintiff’s sister, administratrix of their mother’s estate.

Nine months later, plaintiff filed a “motion for order admitting will into probate.” It was the same putative will plaintiff previously proffered but this time plaintiff had affidavits from two people who said they witnessed the decedent signing the will. The Probate Court denied the motion, citing its prior decree rejecting the will as invalid and CGS § 45a-24, which provides that ‘‘[a]ll orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity and shall not be subject to collateral attack, except for fraud.’’

Plaintiff appealed to the Superior Court. Defendant moved to dismiss the appeal and Superior Court granted that motion. Plaintiff appealed. The Appellate Court affirmed.

Plaintiff’s Main Argument on Appeal

‘‘The plaintiff respectfully requests this Court to excuse the mistake in the will not being subscribed by two witnesses and requests the adoption in Connecticut of the provision by [1]
Restatement (Third), Property, Wills and Other Donative Transfers § 3.3 [p. 217 (1999)], that ‘a harmless error in executing a will may be excused if the proponent establishes by clear and convincing evidence that the decedent adopted the document as his or her will.’’’

Appellate Court Concludes there can be No Relaxation of Will Execution Formalities

The Appellate Court declined to adopt a “harmless error” exception to the will execution formalities for two reasons. “First, the question of what constitutes due execution of a will is a statutory issue. … Although the plaintiff invites this court to rewrite the requirements of § 45a-251, we decline to do so, as that remains properly the province of our General Assembly.”

“Second, the plaintiff’s request asks us to depart from the precedent of this state’s highest court…. It is axiomatic that, as an intermediate appellate tribunal, this court is not free to depart from or modify the precedent of our Supreme Court…. Because our Supreme Court has articulated a ‘rule of strict compliance with the wills act'[,] … we cannot depart from that rule and adopt the harmless error exception proposed by the plaintiff.”

Other Things to Note

The Appellate Court noted that plaintiff appealed to Superior Court within the time prescribed by CGS § 45a-186, which meant that Superior Court had subject matter jurisdiction over the probate appeal. While this would have required Superior Court to deny the motion to dismiss, the Appellate Court concluded that Superior Court “viewed the substance of that filing as a challenge to the legal sufficiency of the plaintiff’s pleading.” In other words, defendant called it a motion to dismiss but Superior Court properly treated it as a motion to strike.

The Appellate Court then considered the legal sufficiency of plaintiff’s pleading, which was his “motion for order admitting will into probate.” “Because no appeal was taken from the Probate Court’s … decree declaring the will invalid, that decree remained conclusive upon the parties. As such, the plaintiff’s … motion to admit the will into probate more properly is characterized as a motion to open and set aside the … decree.”

“To mount a collateral attack on the … decree of the Probate Court, the plaintiff thus was obligated to allege, in his complaint before the Superior Court, that the decree was procured by ‘fraud, mistake or like equitable ground.’… That he has not done.” Instead, plaintiff admitted that there was no problem with the initial decree and asked the Appellate Court to adopt the harmless error exception, which it declined to do.

Attorney Who Violates Contingency Fee Statute Cannot Recover in Quantum Meruit

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An attorney who violates the contingency fee statute cannot recover in quantum meruit. The Connecticut Appellate Court reached this conclusion in Parnoff v. Yuille, to be officially released on February 23, 2016.

Plaintiff and defendant entered into a contingent fee agreement that would have paid plaintiff 40% of any recovery, exceeding the contingency fee cap in CGS § 52-251c. After an arbitration panel awarded defendant nearly $1.1 million, defendant objected to plaintiff’s fee.

Plaintiff commenced an action alleging three counts: breach of contract, quantum meruit and bad faith. “Following a jury trial, the jury found in favor of the plaintiff on the first and third count…. As to the second count, quantum meruit, the jury was instructed that it need not reach the claim should the jury find the existence of a contract and a subsequent breach, which it did.”

Plaintiff appealed and defendant cross-appealed. The Appellate Court concluded “that a fee agreement that required payment of fees greater than permitted by the fee cap statute is not enforceable and against public policy.” It reversed and remanded with instructions to dismiss the first and third counts. The Appellate Court “did not address count two, quantum meruit, because neither party asked that the matter be remanded for a hearing.”

“On remand to the trial court, the defendant filed a ‘Motion for Judgment’ and moved for judgment as a matter of law on count two. The trial court rendered judgment in favor of the defendant on count two, quantum meruit.”

Plaintiff appealed. The Appellate Court affirmed.

Plaintiff’s Main Argument on Appeal

On appeal, plaintiff’s main argument was “that count two was never decided on the merits by the jury and he requests his day in court.”

Appellate Court Concludes that an Attorney Who Violates the Contingency Fee Statute Cannot Recover in Quantum Meruit

In the first appeal, the Appellate Court noted that the public policy underlying the contingency fee cap statute was to protect the public from overreaching attorneys. “[E]nforcement of an overreaching fee agreement would violate such a policy even where recovery is limited to the statutory amounts because such a result would create no disincentive for an overreaching attorney and no corresponding public benefit. In other words, if an attorney could be assured of a fee no less than the amount provided by the fee cap statute, such an attorney, if unscrupulous, would have no reason, based in law, to limit fees to the statutory prescribed amount because enforcement of the contract in accordance with the statutorily permitted amount would simply become the lowest possible fee recoverable.” For this reason, the court will not enforce a fee agreement that violates the statute.

The same reasoning applies to a claim in quantum meruit. “An attorney who is permitted to recover in quantum meruit, although unable to recover under the unenforceable contract, would again, if unscrupulous, have no reason based in law to limit fees as required by § 52-251c if he knows that at the very least he can recover in quantum meruit. Accordingly, to permit a recovery in quantum meruit would render the statutory limits of the fee cap statute a meaningless legislative gesture.”

Other Things to Note

“[P]laintiff also claim[ed] that the trial court inappropriately acted on the defendant’s motion, which was captioned ‘Motion for Judgment,’ because a stand-alone motion for judgment does not exist under our rules of practice.” The Appellate Court concluded that, although a stand-alone motion for judgment does not exist in Connecticut, it’s the substance of the motion, not the title, that determines the appropriateness of the relief. Here, the Appellate Court in the first appeal determined that “a fee agreement governed by § 52-251c was the exclusive method for payment of the attorney.” The trial court in granting defendant’s motion for judgment on the quantum meruit claim merely was giving effect to this pronouncement in respect of a claim that the Appellate Court effectively decided in the first appeal.

Summary Judgment Movant Must Demonstrate the Absence of Any Fact Issue

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chain link fenceA summary judgment movant must demonstrate the absence of any fact issue before the opponent must do anything, according to the Connecticut Appellate Court’s opinion in Capasso v. Christmann, to be officially released on February 23, 2016.

In this Connecticut appeal, defendant filed a motion for summary judgment on all six counts of plaintiffs’ complaint. Plaintiffs filed opposition papers. “Although they argued that genuine issues of material fact existed as to all of the plaintiffs’ claims, and thus that summary judgment was not warranted as to any such count, the plaintiffs made no specific references to evidence in their objection.”

At a later hearing, the trial court conducted a trial management conference in chambers. “On the record after that conference, the court had requested that the plaintiffs submit a more detailed response to the defendants’ motion for summary judgment.” The trial court directed plaintiffs to provide specific factual citations to record evidence and to “state with precision … the cause of action in the first count of your second revised complaint.”

Plaintiffs filed a supplemental memorandum that “contained general references to the affidavits that previously had been filed by the plaintiffs, [but] did not contain specific citations to the evidence of record, as the court had instructed.”

The trial court concluded that plaintiffs had not complied with either of its directives. “[T]he court informed the plaintiffs’ counsel that his supplemental memorandum of law opposing the motion for summary judgment was ‘completely inadequate . . . .’ The plaintiffs’ counsel, however, maintained that he had complied with both of the court’s instructions. The court then stated that it would take the matter on the papers, and concluded the hearing. Significantly, the court heard no argument on the merits of the motion for summary judgment.”

“Later that same day, the [trial] court issued a memorandum of decision in which it granted the defendants’ motion ‘for the failure of its counseled opponents to submit an adequate brief following specific instructions to do so.’ … Relying on a case from the United States Court of Appeals from the Second Circuit, the court declined to search the record for facts asserted in the plaintiffs’ supplemental memorandum.”

Plaintiffs appealed. The Appellate Court reversed.

Plaintiffs’ Arguments on Appeal

Plaintiffs argued that the trial court’s instructions weren’t clear and failure to file adequate opposition was not a valid basis for granting summary judgment in any event.

Appellate Court Concludes Summary Judgment Movant Must Demonstrate the Absence of Any Fact Issue

To begin, the Appellate Court rejected plaintiffs’ contention that the trial court’s instructions were not clear: “The trial court clearly and unambiguously stated on the record that the plaintiffs’ counsel was to make specific citations to the record evidence in the opposition to the motion for summary judgment and to state precisely the cause of action set forth in count one of the operative complaint.” Plaintiffs’ supplemental opposition memorandum did neither.

Next, the Appellate Court, relying on ample Supreme Court precedent, observed that “‘the rule that the party opposing summary judgment must provide evidentiary support for its opposition applies only when the moving party has first made out a prima facie case for summary judgment. . . . [I]f the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings.'”

“The trial court failed to address or consider whether the defendants had met their burden of establishing that they were entitled to summary judgment. The court instead rendered judgment in favor of the defendants because the plaintiffs’ counsel had submitted an inadequate brief.” This was error.

“Under our jurisprudence, the court was required to consider, in the first instance, whether the defendants, as the movants, had satisfied their burden of establishing their entitlement to summary judgment. If, and only if that burden was met, would the court have considered the plaintiffs’ memoranda in opposition and supporting evidentiary submissions to determine if they raised genuine issues as to any facts material to the defendants’ right to judgment in their favor. If the defendants had failed to meet their initial burden, it would not matter if the plaintiffs had not filed any response.”

About the Photo

The dispute between plaintiffs and defendants apparently started when plaintiffs installed a fence on their property. Plaintiffs and defendants were neighbors. Plaintiffs operated a construction business out of their property. Defendants lived in theirs. The opinion describes a little bit of their relationship. You can read more about it the New Haven Independent.

Defamatory Statement Must Be Specially Alleged

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The Connecticut Appellate Court concluded that a defamatory statement must be specially alleged in the complaint to be considered on summary judgment. In this Connecticut appeal, Stevens v. Carlton Hemming, to be officially released on February 23, 2016, defendants were appointed receiver of plaintiff’s oil company after he left unfulfilled hundreds of prepaid consumer heating oil contracts. Plaintiff filed a bankruptcy petition. “[D]efendants audited the business’ accounts and found instances where the plaintiff had apparently used corporate funds for personal expenses.” Defendants “filed a proof of claim in the bankruptcy court … alleging that the plaintiff had committed corporate waste.”

A newspaper “article quoted [defendant] as stating, ‘We have not done sufficient work yet to present it in court, but I don’t have any doubt that probably 99 percent would stand up, and that we’d probably find more.’ The plaintiff refer[red] to this statement as the ’99 percent comment.’ The article stated that Helming said that the business ‘paid the various amounts listed in the proof of claim over different periods, from one year to up to five years.’ The plaintiff refers to this as the ‘one to five year allegation.'”

“[P]laintiff filed a complaint against the defendants, in which he alleged that the 99 percent comment and the allegations in the proof of claim were defamatory. He did not plead that [defendant] defamed him by making the one to five year allegation.”

“[D]efendants moved for summary judgment on the grounds that [defendant]’s statements were absolutely privileged; the statements were opinions protected by the fair comment privilege; the allegedly improper statements were not defamatory as they did not ascribe any improper conduct to the plaintiff; and the allegedly unprivileged statements were substantially true.” Plaintiff opposed and defendants replied. Plaintiff then filed a sur-reply memorandum alleging that defendant had defamed him by making the one to five year allegation.

“The [trial] court granted the defendants’ motion for summary judgment in regard to the 99 percent comment on the grounds that it was an opinion on a matter of public concern protected by the first amendment, and was protected by the qualified privilege of fair comment.” The court did not consider the one to five year comment.

The Appellate Court affirmed.

Plaintiff’s Only Argument on Appeal

Plaintiff’s only claim on appeal was “that the trial court improperly declined to consider the one to five year allegation when it granted the defendants’ motion for summary judgment.”

Appellate Court Concludes Defamatory Statement Must be Specially Alleged

The Appellate Court concluded that the trial court properly declined to consider the one to five year comment because plaintiff did not allege it in his complaint. In response to plaintiff’s claim that the modern trend, which Connecticut follows, allows for a broad reading of pleadings, the court said: “This trend … is not a panacea for every instance where a party fails to adhere to the basic procedural requirements of pleading, especially in the context of a defamation complaint.” The court noted in a footnote that, “[a]lthough this court has not addressed the issue, we find persuasive the reasoning of various Superior Courts in requiring specificity in pleading defamation.”

The court ultimately concluded, as follows: “The trial court, in ruling on the defendants’ motion for summary judgment, was limited to the facts alleged in the complaint standing alone, which cannot fairly be read to encapsulate the one to five year allegation. Simple fairness requires that a defendant not be forced to defend against facts that are not clearly pleaded in a complaint. Thus, we conclude that the court did not err in declining to consider the plaintiff’s claim as to the one to five year allegation.”

 

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.”

Inverse Condemnation: Taking Parking Lot Takes Building

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parking lotA city inversely condemned a commercial building when it took the parking lot that served it, according to the Connecticut Appellate Court in Barton v. Norwalk, to be officially released on February 23, 2016.

In this appeal, plaintiff had purchased an office building in 1981. The city said the building had insufficient parking, so plaintiff constructed a lot across the street to serve it. Years later, the city condemned the parking lot in connection with its construction of a new police station. Plaintiff challenged the city’s just compensation for the lot, claiming that the “highest and best” use for the property was mixed development. Plaintiff also “twice tried to amend his pleadings in that case to add a claim for losses to [the commercial building] as a result of the taking of [the parking lot].” The city successfully objected to both amendments.  Superior Court found that the highest and best use was mixed development and awarded plaintiff additional compensation.

Plaintiff then commenced a separate action to recover for losses to the commercial building on a theory of inverse condemnation. “The [trial] court found that the lack of parking, caused by the taking of 65 South Main by eminent domain, ‘ha[d] substantially destroyed the [plaintiff’s] ability to operate the property as a leasable facility and enjoy even a modicum of financial success. The evidence shows the lack of parking, which the [city] initially insisted upon, reduced the . . . [property’s] chances of commercial success to negligible or nonexistent’ and amounted to ‘a substantial destruction of the [plaintiff’s] ability to enjoy or use the property . . . .’ As such, the plaintiff ‘proved [his] claim of inverse condemnation.'”

Defendant appealed. The Appellate Court affirmed.

City’s Main Arguments on Appeal

“The [city] appealed … , arguing that: (1) judicial estoppel barred the plaintiff’s recovery for losses to 70 South Main; and (2) in any case, the interference with the plaintiff’s use of [the commercial building] was not so substantial as to be an inverse condemnation.”

The thrust of the city’s judicial estoppel argument was that plaintiff had obtained additional compensation for the parking lot by asserting that its highest and best use was mixed development. Plaintiff could not now be heard to say that he needed it to be a parking lot.

Appellate Court Concludes Taking Parking Lot Inversely Condemned Building

The Appellate Court noted that “[t]ypically, judicial estoppel will apply if: 1) a party’s later position is clearly inconsistent with its earlier position; 2) the party’s former position has been adopted in some way by the court in the earlier proceeding; and 3) the party asserting the two positions would derive an unfair advantage against the party seeking estoppel.”

The court concluded that the first prong failed. Plaintiff’s “parking lot as mixed use” position in the first action was not “clearly inconsistent” with its “parking lot as parking lot” position in the second action because the law does not require the owner actually to put the property to its highest and best use. In other words, “highest and best use” determines just compensation. Actual use is irrelevant to just compensation.

Moreover, plaintiff’s claim that the best use for the parking lot, standing alone, was mixed development did not contradict his argument that the best use for the building and the lot, standing together, was as an office building with a parking lot to serve it.

The court also concluded that the third prong failed: “[T]he question is whether a party gained more by taking inconsistent positions than it would have by taking consistent positions…. [P]laintiff’s two positions allowed him to recover once for [the lot] and once for [the building], the same as if he had valued [the lot] as a parking lot instead of as a mixed use development. He gained no advantage, let alone an unfair one.” In other words, plaintiff was entitled to recover twice and did recover twice so he did not gain anything extra.

As to the city’s second argument on appeal, the court noted that “inverse condemnation requires either: (1) total destruction of the property’s economic value; or (2) substantial destruction of the owner’s ability to use and enjoy the property.” The facts showed substantial destruction. Plaintiff had been unable to lease roughly 90% of the building’s space because there was no parking. One tenant, a church, remained, at a below market rent, solely because the city allowed church members to park for free on city property. Plaintiff’s expert testified without contradiction that the land might be worth more than the land and building.

Other Things to Note

In the trial court, plaintiff claimed that he was entitled to offer of compromise interest because the city rejected his offer of compromise. “The court denied the plaintiff offer of compromise interest on the ground that he failed to meet two requirements of § 52-192a: (1) that a plaintiff offer to settle his action ‘for a sum certain’; and (2) that, after the defendant rejects the offer, the plaintiff recover ‘an amount equal to or greater than the sum certain’ he requested.”

Plaintiff cross-appealed. The Appellate Court concluded that plaintiff’s offer was not for a sum certain. It included not a certain dollar amount but an amount for fees and costs “up to $20,000” and permits and approvals to renovate the buildings. “Up to” is not a sum certain, nor is permits/approvals.