137 Conn. App. 142
Conn. App. Ct.2012Background
- Waterman v. United Caribbean established that § 51-183b time limits are waivable by conduct or consent, and late judgments are voidable, not void.
- Zemma Mastín White obtained a zoning variance in 2006; plaintiff abutting landowner appealed to Superior Court.
- Court remanded to the zoning board to reassess hardship without regard to the 1988 variance; public hearing held October 30, 2008.
- Board found hardship existed and not self-created; plaintiff appealed to Superior Court, trial conducted November 19, 2009.
- May 21, 2010 memorandum denied appeal; judgment issued 189 days after trial; plaintiff moved to set aside alleging § 51-183b violation.
- Circuit of communications: clerk sought extension through White’s counsel; plaintiff’s counsel purportedly refused to take a position.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether waiver occurred to validate a late judgment | Jacobson contends waiver by prejudice or prejudgment conduct invalidated the late judgment. | White argues waiver occurred via parties’ conduct, justifying delay. | Waiver did not occur; no implicit consent from single-party extension. |
| Whether the court's late judgment was voidable or void | Late judgment is voidable and subject to set aside upon timely objection. | Late judgment can be deemed valid if waived or consented. | Late judgment was voidable, but no waiver by party conduct was proven; remand required. |
| Whether prejudgment communications via clerk to one party create a duty to object | Any extension request triggers obligation to respond to preserve § 51-183b timing. | Such communication does not impose a duty to object absent clear consent or instruction. | No duty to object arose from single-party clerk communication. |
Key Cases Cited
- Waterman v. United Caribbean, Inc., 215 Conn. 688 (1990) (waiver can validate a late judgment; conduct or consent matters)
- Foote v. Commissioner of Correction, 125 Conn. App. 296 (2010) (prejudgment silence alone does not constitute waiver)
- Cowles v. Cowles, 71 Conn. App. 24 (2002) (procedural considerations for judgments outside time limits)
- Wasko v. Farley, 108 Conn. App. 156 (2008) (avoid tactical obstruction of timely rulings)
- Michler v. Planning & Zoning Board of Appeals, 123 Conn. App. 182 (2010) (importance of exceptional hardship in zoning variances)