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Welcome to our Supreme and Appellate Court summaries webpage.  On this page, I provide abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants.  I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long.  It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements.  These summaries are limited to the civil litigation decisions based on my own particular field of practice, so you will not find distillations of the many criminal and matrimonial law decisions on this page.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my opinion . . . and when mistakes of trial counsel are highlighted because they triggered a particular outcome, I will try to be mindful of the adage . . . “There but for the grace of God . . ..”  I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted October 17, 2013

  • SC18893 - Johnson v. Board of Education

Appellate Court and Trial Court properly concluded that a “recall provision” in a collective bargaining agreement entitling an employee to be recalled when an available spot opened up was irrelevant to Plaintiff’s claim of retaliatory termination.  The Board of Ed claimed he was let go when federal funding for the position ended.  The former employee claimed he was really let go for speaking up about disparate pay treatment amongst employees.  The evidence was properly excluded and the verdict for the defendant Board of Ed was sustained.

  • SC19055 - Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission
  • SC19055 Concurrence - Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission

This decision held that a State agency violated FOIA when it met in executive session to discuss an inquiry whether it should retain counsel to look into whether it was violating ethical obligations.  The majority held that the letter did not qualify as a “pending claim” because such a communication must also contain a threat of litigation or other remedy.  The majority reached this conclusion even though the statute CGS 1-200(8) reads ….claim….or….a threat of litigation.  The letter was deemed to be merely an inquiry and did not threaten to take any action if the agency did not act a certain way.  With that said, the majority added they would look through threatening letters that tried to frame themselves in a non-threatening manner so as to prevent the agency from meeting in executive session….but which in reality left the agency with no alternative but to act in one manner.   

Both the majority and the concurrence also cite with approval the Ansonia Library Board decision which held that an executive session is not justified to discuss purely theoretical litigation.  Finally, the majority said they did not have to reach the issue of whether CGS 52-146r allows an agency to meet in executive session just to talk to its attorney without regard to the other provisions of FOIA.  The concurrence however felt the need to address this point and felt that 52-146r does not trump the provisions of FOIA….but went on to add that it should…..and suggested the legislature should modify the provisions of FOIA to allow agencies meet with their attorneys in executive sessions to exchange confidential communications.  

  • AC34438 - Absolute Plumbing & Heating, LLC v. Edelman

Dissatisfied homeowner fired the general contractor (G.C.) building their home and kicked all of G.C.’s subs off the job site.  The G.C. and the subs all filed their own mechanic’s liens.  The G.C.’s lien however was discharged for non-compliance with the Home improvement Act.  The subcontractors then started foreclosures of their liens.  The foreclosures were consolidated for trial where judgment and an award of attorney fees to the subs was entered.  On appeal it was first held that the homeowner was obligated to plead non-compliance with the Home Improvement Act as a special defense against the subcontractors claims if it wished to rely upon it. Having failed to do so, the issue could not be raised on appeal.  [Even if it had, the statute probably would not have applied - see below.] 

Next the decision held that although attorney trial referee decisions on factual disputes are “advisory only,” they generally will not be second guessed.  Here it was found that despite homeowner’s claims to the contrary, a “lienable fund” did exist because once the referee added the change orders that it were verbally agreed to, the total contract price greatly exceeded the total payments to date to the G.C.  This was so even though the G.C. could not rely upon those same change orders in its lien discharge hearing because they were never signed as required by the Home Improvement Act (“HIA”).  [Apparently the homeowner did properly raise the HIA statute in that action.]  Subcontractors are not bound by the limitations of the Home Improvement Act. Thus they could rely upon those verbal change orders to show more was owed to the G.C. than it had been paid and thus there was a lienable fund they could recover from.  [Remember it is always a defense to a subcontractor’s claim if you have already paid the G.C. all it is owed.  Here the subs could say a lot more money was owed to the G.C., even though the G.C. could not make the same claim due to the HIA.] 

Next the decision held that a contractor can use the balance owed on their contract to establish the value of their lien if they can establish the project was substantially complete.  Here, the testimony that the house was 95% done when the subs were kicked off the job established substantial completion.

Finally the Court had to address the award of attorney fees.  There was a Joint Defense Agreement amongst the subs and the G.C. for the G.C. to pay one attorney for all, with appropriate conflict disclosures.  That was found not to violate public policy because the G.C. had a valid interest in helping out the subs.  The award of attorney fees under 52-249a was nonetheless set aside and remanded because only the attorney referee made findings justifying the award.  Such findings must be made by the trial court….not a referee…who can only recommend an award of fees.  [So keep that in mind next time you have an atty referee trial.  Ugh! Land mines everywhere.]

  • AC34919 - MacKenzie v. Planning & Zoning Commission

[I know it's not good for you, but the opening a new second McDonalds near my home will be delayed due to this decision.  Every now and then you just have to have a Big Mac or a Quarter Pounder.] 

The applicant filed a for zone change from one type of business zone to another and for a special exception permit  The regs also required any business application abutting a residential zone to include certain setbacks, a buffer and landscaping.  The applicant did not include those in anticipation that the abutting residential property was also about to be rezoned for business.  When faced with objections during the hearing by a competitor [Duchess], the applicant’s attorney returned to the next meeting and asked the commission to: (a) exercise its power to waive the requirements for a buffer and etc.; or, (b) accept a revised application with the buffer he was submitting then and there; or, (c) appreciate they will be applying for a zone change next door very soon to change it to business uses and thus eliminate the buffer requirement. 

The commission decided to approve the original application without a buffer, landscaper or setback, but took no formal steps to waive that requirement (as the regulations would authorize).  On appeal it was first held that the appeal was not rendered moot by an interim zone change of the abutting residential property to business use that eliminated the need for a buffer and landscaping.  Even if that rendered moot the buffer issue, it did not moot a potential set back violation.  Next the Court held that contrary to Commission’s zoning regulations, there was no statutory authority for a PZC to empower themselves to vary their (zoning) special exception permit requirements.  Only ZBAs are empowered to vary the provisions of the zoning regulations.  Thus here the PZC had no authority to waive or vary either the buffer & landscape requirements, or the setback requirements in their regulations.  Only CGS 8-26 concerning subdivisions grants PZCs authority to vary their regs. This was not a subdivision. 

The decision weakly [in my opinion] tries to distinguish the case law allowance of PDDs (floating zones) which grant wholesale authority to PZCs to approve anything they like on any terms they deem appropriate by suggesting the regulations in those new (floating) zones are at least consistent and not varied …..and …..the agency is acting legislatively with more discretion in approving floating zones.  With special exception permit applications, there are acting administratively. 

The decision held it did not matter that a parallel (legislative) business to business zone change took place at the same time, as that legislative function did not provide an umbrella to vary the administratively required zoning requirements.  Only if a zone change that eliminated the need for buffers (and etc.)  was approved first could the PZC then move on to approve a permit without them.  Here the legislative zone change for the parcel in question from one type of business use to another did not do that.  It was the later zone change on the abutting property that eliminated some of those requirements.   

The decision ends upholding the Notice of the application stating that it does not have to be precisely accurate.  Here the notice contained a metes and bounds description and referred to a series of maps on record.  That was adequate to put any reasonable person on notice of the property that was subject to an application.

AC32606 - RBC Nice Bearings, Inc. v. SKF USA, Inc.

Defendant sold its ball bearing line to the plaintiff and agreed to buy back $6 million each year in product as the exclusive sales rep or pay the balance.  The agreement prohibited changes unless in writing and signed by both parties.  When defendant failed to meet its purchase quota two years in a row, the plaintiff (who was desirous of eliminating the middleman anyway) terminated the contract and sued for the two years of non-compliance and an anticipatory breach of the remaining years under the contract.  Defendant counterclaimed for breach of its exclusive sales rep status during the life of the contract where plaintiff sold product directly to customers.   The trial court ruled for the defendant on the complaint holding the plaintiff’s lack of complaints about missed sales quotas and letting the defendant buy what it could each year amounted to a change in the contract by course of performance and was a waiver of the right to enforce the minimum quota for all years of the contract.  It also ruled for the plaintiff on the counterclaim. 

On appeal it was held 42a-2-209(2) governed and the clause prohibiting modifications had to be enforced.  The course of performance argument found in 42a-1-103 is specifically subservient to a “no change” clause under 42a-2-209 and thus cannot be used to modify the terms of the contract.  The trial court’s alternate finding that the emails of the parties amounted to sufficient “writings to evidence a change” was also reversed.  These writings did not rise to the level of “mutual assent” to change the contract. 

The claim of waiver was also adequately rebutted by the oral testimony of plaintiff’s employees that they never discussed nor intended to modify the contract.  Repeated efforts to get the defendant to comply with the contract were also deemed inconsistent with a suggestion of waiver. 

The decision on the counterclaim was reversed too.  The Appellate Court said it did not matter that the counterclaim was thought up as part of a litigation defense for the first time.  The trial judge somehow felt that was relevant.  The decision also held that lost profits for the usurped sales was a proper way to measure the defendant’s damages.  They were not speculative and could be readily ascertained from the improper direct sales by the plaintiff to customers, but only for the products within the defendant’s exclusive line.  Even though defendant could not show it had contact with those customers, being the “exclusive distributor” leads to a presumption it could have made those sales.

  • AC33132 - North Haven Holdings Ltd. Partnership v. Planning & Zoning Commission

The Trial Judge improperly substituted its judgment for that of the commission when it found that the approval of a site plan would cause traffic problems along the shared driveway with the abutting commercial property as complained about by the plaintiff.  During the administrative hearing, the commission was presented with substantial evidence from the State DOT, its own staff, and its own observations, that the traffic pattern proposed was sufficient.  Also, with respect to traffic issues, lay commissioners may rely upon their own knowledge and experiences.  They do not have to rely upon experts. 

As part of the application, the commission also approved the shared driveway becoming a town road and issued a favorable 8-24 referral.  The plaintiff also complained on appeal that action would render its property non-conforming.   The Appellate Court held that complaint  is not a proper appeals ground because it would be the action of the town in accepting the roadway under 13a-48 that would create any non-conformity.  PZCs do not accept roads and thus their actions approving a site plan with a proposed “town owned road” cannot be the cause of any non-conformity.

  • AC34618 - Doyle Group v. Alaskans for Cuddy

Cuddy wanted to run for the U.S. Senate in Alaska.  He entered into a contract with the plaintiff to provide political consulting.  The contract stated the plaintiff was a Connecticut (CT) corporation and was mailed to Alaska and was signed there by the defendant and mailed back to CT with a personal check of Cuddy.  The contract did not have a jurisdiction clause but referred to billings for work to be performed in CT …..and outside of CT…….but only if Cuddy approved.  When the contract was not paid, the plaintiff sued Cuddy personally here in CT.  The trial court rejected a claim of lack of personal jurisdiction over Cuddy though he claimed he had never set foot in the State and conducted no business here.  The Appellate Court held that the contract exchange, the phone call exchanges, the emails, and entering into a CT for services to be performed in CT, all combined subjected the defendant to personal jurisdiction in CT under the transaction of business test per CGS 52-59b.  [A footnote suggested the defendant failed to raise a complaint over the second jurisdictional test of whether due process would be violated by exercising personal jurisdiction over him - so they did not consider it.]

  • AC34466 - Cockerham v. Zoning Board of Appeals

[Why does it seem half of all case law comes from neighbors suing each other?]  In this case two neighbors owned abutting lots that were both non-conforming. Only the plaintiff’s lot had a house on it.   The lots were always kept separate on the land records but were last owned by the same series of individuals.  The towns zoning regulations provided that abutting non-conforming lots could be built upon so long as they were owned separately such that a “merger” could not be deemed to have occurred.  The defendant applied for a building & zoning compliance permit and it was granted by the ZEO.  The plaintiff appealed the issuance of the permit to the ZBA and claimed there had been a “merger of the lots” for “zoning purposes” such that the defendant could not now build on it as it was nonconforming.  The issue turned on whether “owned separately” meant owned by different people….or owned via separate deeds.  This decision held that the trial court properly deferred to the ZBA’s decision that it was always the intent of the town to mean the parcels must be owned by…separate deeds….not separate people.  The local agency charged with enforcing the regulation in question and with a history of interpreting it, is in the best position to interpret an otherwise ambiguous regulation.

 

The facts and holdings of any case may be redacted, paraphrased or condensed for ease of reading.  No summary can be an exact rendering of any decision, however, so interested readers are referred to the full decisions.  The docket number of each case is a hyperlink to the Connecticut Judicial Department online slip opinion.  ©2013 Pullman & Comley, LLC. All Rights Reserved.

 

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