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Appellate Court Notes: Week of January 25, 2016

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.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my own personal opinion.  Pullman & Comley’s Appellate Practice Group of which I am a member includes experienced appellate advocates in almost every area of the law.  Should you have a need to consult about a potential appeal,  please email me at emccreery@pullcom.com I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted April 4, 2016

Supreme Court Advance Release Opinions:

  • SC19480 - McCullough v. Swan Engraving, Inc.

This case determined that when a husband had already filed a claim for disability benefit in a timely fashion under the Worker’s Compensation Act, the wife’s claim for survivor benefits would not be dismissed after his death simply because she did not file a new and separate notice of claim for survivor benefits.  The husband had filed a Worker’s Compensation Claim in 2002, claiming pulmonary illness from his exposure to toxins as a photograph engraver.  He subsequently died from his illness in 2005.

The spouse did not file a claim for Survivor Benefits until fifty-five weeks after her husband’s death.  This decision held her claim was not barred by the statute of limitations in C.G.S. § 31-294 because there was no requirement that she file a separate claim when her now deceased husband’s was already pending.  It does not matter that for 20 years the Worker’s Compensation Board has interpreted the statute as requiring such a new notice, because even though an agency’s interpretation of a statute may be given deference when it is time-tested, that time tested interpretation must still be reasonable.  The court found no support in the statute for the interpretation being followed by the Worker’s Compensation Board.

  • SC19380 - Caruso v. Zoning Board of Appeals

The Supreme Court upheld the Appellate Court decision that I summarized last year.  The plaintiff had purchased a 48-acre parcel in Meriden in a Regional Development District that was restricted to hotels, medical centers, distribution facilities or executive offices.  The property owner claimed that he had been unsuccessful finding anyone interested in buying the property for those uses, and thus applied to the Zoning Board of Appeals for a variance from the existing zoning regulations to construct a used car lot, claiming that the regulations amounted to a practical confiscation of his property.  The Appellate Court had rejected this argument.

The Supreme Court noted that the hardship necessary to obtain a variance can include a showing that the regulations have deprived the property owner of all reasonable use of their property.  Such a finding rests at the intersection of two areas of the law – Land Use Regulations and Constitutional Takings.  A zoning regulation that permanently restricts the enjoyment of property such that it cannot be used for any reasonable purpose, goes beyond valid regulation, and amounts to a taking without due process.  The same rule applies if the regulation practically destroys, or greatly decreases, the property’s value for any permitted use to which it can be put.  But, a mere reduction in fair market value will not suffice.  The owner must show an extraordinary situation where the property is rendered practically worthless.  Whenever a reasonable use exists, there can be no practical confiscation.

Here the court concluded the plaintiff simply failed to meet its burden of proving practical confiscation.  No evidence was presented of the property’s unfitness for any permitted use in the zone, nor of efforts to sell the property or to develop it.  A letter from a local attorney and an appraiser’s report describing prior efforts to sell the property is simply insufficient to show no reasonable use exists.  Evidence opining that the property was unsuitable for executive offices failed to address the other uses allowed under the zone.

Despite the Trial Court granting a motion to reopen the judgment of dissolution three years later by consent of the parties, and thereafter finding that the husband had under-reported his income by almost half, the Appellate Court concluded that the Trial Court lacked subject matter jurisdiction to hear the claim because it never made a finding of fraud.  Absent a finding or concession of fraud, a trial court lacks subject matter jurisdiction to open a dissolution judgment as to the division of the parties’ marital assets, notwithstanding an agreement by the parties permitting the court to do so.

  • AC37293 - Brenmor Properties, LLC v. Planning & Zoning Commission

Applicant proposed a Section 8-30(g) Affordable Housing Subdivision proposal, but the applicant’s road design did not comply with the town ordinance as to width and grade.  After being invited to resubmit the application, the applicant refused to address the road issue.  The applicant’s attorney claimed they did not think it was necessary to build an internal private road to the town’s 40-foot wide standards.  The applicant then presented an expert who opined the proposed 20-foot wide roadway would be safe.  The town’s experts refuted that claim by generally claiming a 20-foot width was unsafe.  The commission then denied the application on the grounds that it did not meet the town’s road code.

On appeal, the Trial Court reversed the denial of the submission and remanded the case to the commission, with direction to grant the application as submitted.  On further appeal, the Appellate Court noted that while the 8-30g requires a commission to specifically state its reasons for denying an affordable housing application so that the reasons may be addressed by the Superior Court on appeal, the statutory requirements should not exult form over substance, and commissions composed of laymen may not always nicely comply with the statutes.

While the commission’s Motion to Deny was not a model of precision, it did set forth various grounds for the denial, and thus, there was a clear basis upon which their decision may be reviewed.  Turning to the merits of the town’s appeal, the court held that a land use agency must establish something more than a mere theoretical possibility of harm to public interest in order to reject an affordable housing application.

The road ordinance here was predicated upon public safety, and therefore the commission could reasonably conclude that non-compliance with it created more than a mere theoretical possibility of harm to public health.  Therefore, noncompliance with that ordinance was sufficient evidence to satisfy the minimum grounds for a commission’s rejection of an Section 8-30(g) proposal.  But the court must still decide whether or not the denial was necessary to protect substantial interest in health and safety. 

The court concluded that merely because there might be deviation from a public safety ordinance of any degree does not give a town a right to reject an application without showing the prospect of real harm.  Otherwise, affordable housing applications could be easily thwarted.  In addition to pointing to the deviation from the road ordinance, the town was burdened with the obligation to demonstrate that the proposed deviation from 40’ to 20’ would be unacceptable from a public interest point of view, such that the risk of harm would outweigh the need for affordable housing, and that attaching conditions would not satisfy the issue.

In this case, it was to be a private road servicing only a handful of homes, with a deed restriction informing all owners that the town had no responsibility for it and street parking was prohibited.  The plaintiff had experts who claimed that the road design would not cause a risk of injury, because at twenty feet wide, it allowed for sufficient space for vehicles to pass one another.  The trown never put on evidence of any specific harm that would be caused by the roadway design.  The Trial Court’s order was upheld.

A property owner sued the town for locating a parking lot adjacent to their property, claiming that such an act satisfied the affirmative requirement of C.G.S. § 52-557n for the creation of a nuisance.  The plaintiffs claimed that a litany of annoyances originated from the parking lot, including noise, littering, loud music, parties, sex, drugs and headlights.  This decision upheld the Trial Court’s conclusion that the complaint did not state a claim for nuisance and was properly the subject of a motion to strike.  The plaintiff’s argument merely assumed that the creation of a parking lot is a nuisance by virtue of its location next to a residential property.  Building a public parking lot on town land in the vicinity of town athletic facilities is not an unreasonable use of land, nor is it unlawful.  Building a public parking lot is a quintessential municipal function.  It logically must be in proximity to facilities it serves, and parking lots regularly abut residential zones.  Further, none of the improper conduct alleged is attributable to the municipality.  Such unpleasant and disruptive behavior is the proper bailiwick of police control, not lawsuits alleging nuisance.

The plaintiff was a police officer who sued another police officer, who was in charge of a police canine, alleging negligence.  While attempting to arrest a suspect, the canine control officer’s dog attacked the police officer instead of the suspect.  The Trial Court properly granted a motion to strike the complaint in its entirety because all of the claims were barred by the exclusivity provisions of the Worker’s Compensation Act.

Two years after a default judgment was entered against him, the defendant moved to reopen the default judgment and have it set aside, noting several procedural irregularities the plaintiff tried before finally filing a proper motion that the clerk would grant.

The Appellate Court noted that motions to reopen judgment must normally be filed within four months unless the underlying judgment itself was void.  Merely because the plaintiff filed multiple pleadings out of order, inappropriate pleadings, and pleadings that were rejected by the clerk, does not mean that when she finally got it right, that the judgment that was rendered was void.  Further - the defendant was not harmed by any of that nonsense as he did not appear in the lawsuit.  It was all going on without him knowing.  This decision also held that while the complaint was not artfully pled and included claims for breach of contract and emotional distress, in totality, the complaint could be read as also claiming money was loaned to the defendant which the plaintiff wanted back.  Therefore, it was not improper for the Trial Court to enter judgment for the plaintiff for “monies loaned” to the defendant even though not specifically pled that way.  Further, in a footnote, the court noted even if that a judgment is granted upon an issue not pled in a complaint, that would merely render the judgment erroneous, not void.


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.  © 2016 Pullman & Comley, LLC. All Rights Reserved. 

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