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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT CIVIL APPEAL PRE-ARGUMENT STATEMENT (FORM C)
1. SEE NOTICE ON REVERSE. Case Caption: 2. PLEASE TYPE OR PRINT. District Court or Agency:
DISTRICT COURT AT NEW HAVEN

3. STAPLE ALL ADDITIONAL PAGES Judge:

VALLEY HOUSING, LTD., ET AL V. CITY OF DERBY, ET AL

TUCKER L. MELANCON
District Court Docket No.:
3:06-CV-01319 (TLM)

Date the Order or Judgment Appealed from was Entered on the Docket:

JULY 9, 2012
Date the Notice of Appeal was Filed:
JULY 25, 2012

Is this a Cross Appeal? 9 Yes 9 No

Attorney(s) for Appellant(s): 9 Plaintiff 9 Defendant

Counsels Name:

Address:

Telephone No.:

Fax No.:

E-mail:

Thomas R. Gerarde, Howd & Ludorf, LLC, 65 Wethersfield Ave, Hartford, CT, (860) 249-1361, Fax: (860) 249-7665, tgerarde@hl-law.com; John A. Blazi, Law Offices of John A. Blazi, 786 Chase Pkwy, Waterbury, CT 06708, (203) 596-0600, Fax: (203) 596-7953, blazi.law@sbcglobal.net
Counsels Name: Address: Telephone No.: Fax No.: E-mail:

Attorney(s) for Appellee(s): 9 Plaintiff 9 Defendant

David N. Rosen, David Rosen Associates, P.C., 400 Orange Street, New Haven, CT 06511, (203) 787-3513, (203) 789-1605, drosen@davidrosenlaw.com; Amy Eppler-Epstein, Shelley A. White, James Bhandary-Alexander, New Haven Legal Assistance Assoc., 425 State Street, New Haven, CT 06510, (203) 946-4811, (203) 498-9271, aeppler-epstein@nhlegal.org, swhite@nhlegal.org, jbhandary-alexander@nhlegal.org
Approx. Number of Transcript Pages: Number of Exhibits Appended to Transcript: Has this matter been before this Circuit previously? If Yes, provide the following: 9 Yes 9 No

Has Transcript Been Prepared?

No.

N/A.

N/A.

Valley Housing, et al v. City of Derby, et al 2d Cir. Docket No.: 12-2478 Reporter Citation: (i.e., F.3d or Fed. App.) 11-4310, 12-18 04
Case Name:

ADDENDUM A: COUNSEL MUST ATTACH TO THIS FORM: (1) A BRIEF, BUT NOT PERFUNCTORY, DESCRIPTION OF THE NATURE OF THE ACTION; (2) THE RESULT BELOW; (3) A COPY OF THE NOTICE OF APPEAL AND A CURRENT COPY OF THE LOWER COURT DOCKET SHEET; AND (4) A COPY OF ALL RELEVANT OPINIONS/ORDERS FORMING THE BASIS FOR THIS APPEAL, INCLUDING TRANSCRIPTS OF ORDERS ISSUED FROM THE BENCH OR IN CHAMBERS. ADDENDUM B: COUNSEL MUST ATTACH TO THIS FORM A LIST OF THE ISSUES PROPOSED TO BE RAISED ON APPEAL, AS WELL AS THE APPLICABLE APPELLATE STANDARD OF REVIEW FOR EACH PROPOSED ISSUE. PART A: JURISDICTION 1. Federal Jurisdiction 9 9 U.S. a party Federal question (U.S. not a party) 9 Diversity 9 Other (specify): 9 9 Final Decision Interlocutory Decision Appealable As of Right 2. Appellate Jurisdiction 9 Order Certified by District Judge (i.e., Fed. R. Civ. P. 54(b)) Other (specify):

IMPORTANT. COMPLETE AND SIGN REVERSE SIDE OF THIS FORM.

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PART B: DISTRICT COURT DISPOSITION


1. Stage of Proceedings 9 9 9 Pre-trial During trial After trial 2. Type of Judgment/Order Appealed 9 Default judgment 9 Dismissal/FRCP 12(b)(1) lack of subj. matter juris. 9 Dismissal/FRCP 12(b)(6) failure to state a claim 9 Dismissal/28 U.S.C. 1915(e)(2) frivolous complaint 9 Dismissal/28 U.S.C. 1915(e)(2) other dismissal 9 9 9 9 9 9 9 9 9

(Check as many as apply)


3. Relief 9 Damages: Sought: $ Granted: $ Denied: $ 9 Injunctions: 9 Preliminary 9 Permanent 9 Denied

Dismissal/other jurisdiction Dismissal/merit Judgment / Decision of the Court Summary judgment Declaratory judgment Jury verdict Judgment NOV Directed verdict Other (specify):

2789613.42

PART C: NATURE OF SUIT (Check as many as apply)


1. Federal Statutes 9 Antitrust 9 Bankruptcy 9 Banks/Banking 9 Civil Rights 9 Commerce, 9 Energy 9 Commodities 9 Other (specify): 9 9 9 9 9 9 9 Communications Consumer Protection Copyright 9 Patent Trademark Election Soc. Security Environmental 9 9 9 9 9 9 Freedom of Information Act Immigration Labor OSHA Securities Tax 2. Torts 9 Admiralty/ Maritime 9 Assault / Defamation 9 FELA 9 Products Liability 9 Other (Specify): 3. Contracts 9 Admiralty/ Maritime 9 Arbitration 9 Commercial 9 Employment 9 Insurance 9 Negotiable Instruments 9 Other Specify 4. Prisoner Petitions 9 9 9 9 9 Civil Rights Habeas Corpus Mandamus Parole Vacate Sentence Other

ADA, FHA, Rehabilitation Act

5. Other 9 9 9 9 Forfeiture/Penalty Real Property Treaty (specify): Other (specify):

6. General 9 Arbitration 9 Attorney Disqualification 9 Class Action 9 Counsel Fees 9 Shareholder Derivative 9 Transfer

7. Will appeal raise constitutional issue(s)? 9 Yes 9 No Will appeal raise a matter of first impression? 9 Yes 9 No

1. Is any matter relative to this appeal still pending below?

9 Yes, specify:

Valley Housing, et al v. City of Derby, et al (11-4310, 12-1804, 12-2478)

9 No

2. To your knowledge, is there any case presently pending or about to be brought before this Court or another court or administrative agency which: (A) Arises from substantially the same case or controversy as this appeal? 9 Yes 9 No (B) Involves an issue that is substantially similar or related to an issue in this appeal? 9 Yes 9 No

If yes, state whether 9 A, or 9 B, or 9 both are applicable, and provide in the spaces below the following information on the other action(s):
Case Name: Docket No.
11-4310, 12-1804, 12-2478

Citation:

Court or Agency:

Valley Housing, et al v. City of Derby, et al


Name of Appellant:

U.S. Court of App. 2nd Circuit

City of Derby and David Kopjanski

Date:

Signature of Counsel of Record:

8-1-2012

/s/ Thomas R. Gerarde

NOTICE TO COUNSEL
Once you have filed your Notice of Appeal with the District Court or the Tax Court, you have only 14 days in which to complete the following important steps: 1. Complete this Civil Appeal Pre-Argument Statement (Form C); serve it upon all parties, and file it with the Clerk of the Second Circuit in accordance with LR 25.1. 2. File the Court of Appeals Transcript Information/Civil Appeal Form (Form D) with the Clerk of the Second Circuit in accordance with LR 25.1. 3. Pay the$455 docketing fee to the United States District Court or the $450 docketing fee to the United States Tax Court unless you are authorized to prosecute the appeal without payment. PLEASE NOTE: IF YOU DO NOT COMPLY WITH THESE REQUIREMENTS WITHIN 14 DAYS, YOUR APPEAL WILL BE DISMISSED. SEE LOCAL RULE 12.1.

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ADDENDUM A

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IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT VALLEY HOUSING LTD PARTNERSHIP, HOME DEV. INC. and HOUSING OPERATIONS MANAGEMENT ENTERPRISE (HOME), Inc. Plaintiffs-Appellees v. CITY OF DERBY AND DAVID KOPJANSKI, ZEO AND BUILDING OFFICIAL, IN HIS OFFICIAL CAPACITY Defendants- Appellants : : : : : : : : : : : : : : NO.: 12-2993cv

AUGUST 1, 2012

DESCRIPTION OF THE NATURE OF THE CASE The plaintiffs brought this action claiming that the defendants intentionally discriminated against them based upon the status of persons they represented and/or would be providing housing to as persons with disabilities and for the defendants purported failure to grant the plaintiffs a reasonable accommodation under any of the legal theories advanced by the plaintiffs.

ADDENDUM A

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According to the plaintiffs, the defendants misinterpreted and/or misapplied the City of Derby zoning regulation 195-87 (F) and classified their Derby properties as non-conforming uses. The plaintiffs claim that, because of this misinterpretation and/or misapplication, their requests for certificates of zoning were impermissibly/improperly denied. After a bench trial, the District Court ruled in favor of the plaintiffs on their (1) Federal Fair Housing Act claim, (2) Americans With Disabilities Act claim, (3) Section 504 of the Rehabilitation Act claim, and (4) Connecticut Fair Housing Act claim, finding that the defendants had engaged in intentional discrimination. The plaintiffs initially brought a Section 1983 Equal Protection claim in addition to their statutory claims. However, because the plaintiffs stipulated at the outset of trial that the case was primarily a statutory case and the 1983 Equal Protection claim afforded the plaintiffs no additional relief, the Court did not reach the question of whether the defendants violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Subsequently, the plaintiffs filed a Motion for Attorney Fees on August 11, 2011, with accompanying affidavits from Attorney David Rosen, Attorney Joseph ADDENDUM A

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Garrison, Attorney Amy Eppler-Epstein, Attorney Shelley White, and Attorney Margaret Mason. The defendants filed an objection to the plaintiffs Motion for Attorney Fees on September 30, 2011. The plaintiffs replied to the defendants Objection to the Motion for Attorney Fees on October 7, 2011. On October 7, 2011, the plaintiffs filed a Supplemental Motion for Attorney Fees with accompanying affidavits from Attorney Rosen and Attorney White. The defendants objected to the plaintiffs Supplemental Motion for Attorneys Fees on October 14, 2011, and responded to the plaintiffs Reply to the defendants Objection to the Motion for Attorney Fees on October 14, 2011. The plaintiffs replied to the defendants Objection to the Supplemental Motion for Attorney fees on October 19, 2011. The defendants filed a Supplemental Memorandum in Opposition of the Supplemental Motion for Attorney Fees on February 16, 2012. The plaintiffs responded on February 23, 2012. In addition, the plaintiffs filed a second Supplemental Motion for Attorney Fees on February 23, 2012. On March 30, 2012, the Trial Court issued an order granting the plaintiffs Motion for Attorney Fees dated August 11, 2011, and the two Supplemental ADDENDUM A

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Motions for Attorney Fees. In their three motions, the plaintiffs had sought attorneys fees in the total amount of $961,161.17. The Trial Court awarded the plaintiffs attorneys fees in the total amount of $918,620.17, which included plaintiffs costs in the amount of $17,148.67. Specifically, the Trial Court found that a reasonable rate for Attorney Rosen in this action was $485.00 per hour. The Trial Court also found that reasonable rates for Attorney White and Attorney Eppler-Epstein were $400.00 per hour and $350.00 per hour, respectively. In addition, the Court found that three percent of Attorney Rosens total billing hours were to be deducted for vague billing entries. Further, 20 hours were to be deducted from Attorney Eppler-Epsteins total billing hours. Finally, the Court concluded that plaintiffs counsels billing hours were not excessive. However, the Court did conclude that five percent of Attorney Whites billing hours, 32.5 hours, would be deducted because of duplicity. In addition, on April 3, 2012, the plaintiffs filed a Motion for Award of Prejudgment Interest pursuant to Connecticut General Statutes 52-192a. On April 4, 2012, the Honorable Tucker L. Melancon referred the plaintiffs Motion for Award of Prejudgment Interest to the Honorable Holly B. Fitzsimmons on ADDENDUM A

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April 4, 2012. On May 4, 2012, the plaintiffs filed a Motion to Amend/Correct their Motion for Award of Prejudgment Interest filed on April 3, 2012 in order to incorporate the Courts Order on Motion for Attorney Fees issued on March 30, 2012. The defendants filed their first Response to the plaintiffs Motion to Amend/Correct their Motion for Award of Prejudgment Interest on May 14, 2012. The plaintiffs filed their Reply to the defendants Response to the plaintiffs Motion to Amend/Correct their Motion for Award of Prejudgment Interest on May 15, 2012. On May 31, 2012, the Honorable Tucker L. Melancon issued another Order referring the plainiffs Motion to Amend/Correct their Motion for Award of Prejudgment Interest to The Honorable Holly B. Fitzsimmons. On June 1, 2012, the Honorable Holly B. Fitzsimmons granted the plaintiffs Motion for Prejudgment Interest. Specifically, Judge Fitzsimmons awarded prejudgment interest in the amount of $1,120,944.82 for the time period of August 24, 2006 to March 30, 2012. As such, an amended final judgment in the amount of $2,789,613.42 was entered on July 9, 2012. Also, on June 1, 2012, Judge Fitzsimmons issued another order terminating the plaintiffs Motion to Amend/Correct their Motion for Award of Prejudgment Interest. ADDENDUM A

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Finally, on July 9, 2012, the Honorable Tucker L. Melancon issued an Amended Judgment. Judge Melancon ordered: 1. Attorney fees and costs are awarded to the plaintiffs in the total amount of $918,620.17; 2. Prejudgment interest in the total sum of $1,120,944.82 awarded to the plaintiffs, with interest at a rate of 12 percent per annum from August 24, 2006 until March 30, 2012; 3. The total amount awarded to plaintiffs is $2,789,613.42, broken down as follows: a. Damages of $676,279.65 to Valley Housing Limited Partnership and Home Development, Inc.; b. Damages of $73,768.78 to Home Operations Management Enterprises, Inc.; c. Attorney fees of $918,620.17; and d. Interest of $1,120,944.82 for the period of August 24, 2006 to March 30, 2012. 4. Sums awarded for attorney fees and prejudgment interest are allocated pro rata; and 5. Post-judgment interest shall accrue on the sum of $2,789,613.42 from March 31, 2012 until paid at the rate provided for by Title 28, United States Code, 1961.

ADDENDUM A

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DEFENDANTS-APPELLANTS, CITY OF DERBY and DAVID KOPJANSKI, Zoning Enforcement Officer and Building Official, in his official capacity

/s/ Thomas R. Gerarde Thomas R. Gerarde Howd & Ludorf, LLC 65 Wethersfield Avenue Hartford, CT 06114 Phone: (860) 249-1361 Fax: (860) 249-7665 E-Mail: tgerarde@hl-law.com

ADDENDUM A

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CERTIFICATION This is to certify that on AUGUST 1, 2012, a copy of the foregoing DESCRIPTION OF THE NATURE OF THE CASE was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Courts electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Courts CM/ECF System. Amy Eppler-Epstein, Esquire Shelley A. White, Esquire James Bhandary-Alexander, Esquire New Haven Legal Assistance Assoc. 425 State Street New Haven, CT 06510 (203) 946-4811 (Tel.) (203) 498-9271 (Fax) aeppler-epstein@nhlegal.org swhite@nhlegal.org jbhandary-alexander@nhlegal.org David N. Rosen, Esquire David Rosen Associates, P.C. 400 Orange Street New Haven, CT 06511 (203) 787-3513 (Tel.) (203) 789-1605 (Fax) drosen@davidrosenlaw.com

/s/ Thomas R. Gerarde Thomas R. Gerarde

ADDENDUM A

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ADDENDUM B

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IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT VALLEY HOUSING LTD PARTNERSHIP, HOME DEV. INC. and HOUSING OPERATIONS MANAGEMENT ENTERPRISE (HOME), Inc. Plaintiffs-Appellees v. CITY OF DERBY AND DAVID KOPJANSKI, ZEO AND BUILDING OFFICIAL, IN HIS OFFICIAL CAPACITY Defendants- Appellants : : : : : : : : : : : : : : NO.: 12-2993 cv

AUGUST 1, 2012

ISSUES DEFENDANTS/APPELLANTS PROPOSE TO RAISE ON APPEAL The Defendants/Appellants, City of Derby and David Kopjanski, Zoning Enforcement Officer and Building Official, in his official capacity, respectfully set forth the following issues they propose to raise on appeal, with corresponding standards of appellate review.

ADDENDUM B

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1.

WHETHER THE DISTRICT COURT ERRED IN CONCLUDING THAT THE DEFENDANTS DID NOT PROVE THEIR AFFIRMATIVE DEFENSE THAT PLAINTIFFS FAILED TO MITIGATE THEIR DAMAGES.

Applicable Standard of Appellate Review. In a Fair Housing lawsuit, "[w]hether plaintiffs failed to mitigate damages depends upon the reasonableness of their conduct; the finding of the trial court is one of fact reversible only for clear error" Miller v. Apartments and Homes of New Jersey, Inc., 646 F. 2d 101, 112. (3rd Cir. 1981).

2.

WHETHER THE DISTRICT COURT ERRED IN ITS ASSESSMENT OF DAMAGES BY USING AN INCORRECT TIME PERIOD TO DETERMINE DAMAGES.

Applicable Standard of Appellate Review. The Second Circuit reviews a district court's findings of fact after a bench trial for clear error and its conclusions of law de novo. Arch Ins. Co. v. Precision Stone, Inc., 584 F.3d 33, 38-39 (2d Cir. 2009)(citing, Amalfitano v. Rosenberg, 533 F.3d 117, 123 (2d Cir. 2008)).

ADDENDUM B

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3.

WHETHER THE DISTRICT COURT ERRED IN NOT PERMITTING THE DEFENDANTS TO SET OFF FROM THE PLAINTIFFS JUDGMENT MONIES THE PLAINTIFFS RECEIVED FROM THE CONNECTICUT HOUSING FINANCE AUTHORITY.

Applicable Standard of Appellate Review. The Second Circuit reviews a district court's findings of fact after a bench trial for clear error and its conclusions of law de novo. Arch Ins. Co. v. Precision Stone, Inc., 584 F.3d 33, 38-39 (2d Cir. 2009)(citing, Amalfitano v. Rosenberg, 533 F.3d 117, 123 (2d Cir. 2008)). 4. WHETHER THE DISTRICT COURT ERRED IN DETERMINING THE ATTORNEYS FEES FOR ATTORNEY DAVID ROSEN AND ATTORNEY AMY-EPPLER-EPSTEIN.

Applicable Standard of Appellate Review. The Second Circuit reviews a district courts award of attorneys fees, including the reasonable number of billable hours, for abuse of discretion. See Fabotko v. Clinton County of New York, 433 F.3d 204, 208 (ed Cir. 2005); Leblanc-Sternberg v. Fletcher, 143 F.3d 748, 757 (2d Cir. 1998); Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997); Sands v. Runyon, 28 F.3d 1323, 1333 (2d Cir. 1994). 5. WHETHER THE DISTRICT COURT ERRED IN ITS INITIAL DECISION TO AWARD PREJUDGMENT INTEREST TO THE PLAINTIFFS, AND THEREAFTER AS TO THE SCOPE OF THE PREJUDGMENT INTEREST AWARD.

ADDENDUM B

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Applicable Standard of Appellate Review. Whether prejudgment is allowed under law in a given case is an issue of law that the Second Circuit will review de novo. Arch Ins. Co. v. Precision Stone, Inc., 584 F.3d 33, 38-39 (2d Cir. 2009)(citing, Amalfitano v. Rosenberg, 533 F.3d 117, 123 (2d Cir. 2008))(The Second Circuit reviews a district court's findings of fact after a bench trial for clear error and its conclusions of law de novo.) If allowed under law, the decision whether to grant prejudgment interest and the rate used if such interest is granted are matters confided to the district court's broad discretion, and will not be overturned on appeal absent an abuse of discretion. Novella v. Westchester County, 661 F.3d 128, 150 (2d Cir. 2011)(citing, Endico Potatoes, Inc. v. CIT Group/Factoring, Inc., 67 F.3d 1063, 107172 (2d Cir.1995) (internal quotation marks omitted); see also Slupinski v. First Unum Life Ins. Co., 554 F.3d 38, 5355 (2d Cir.2009); Commercial Union Assurance Co. v. Milken, 17 F.3d 608, 61315 (2d Cir.), cert. denied, 513 U.S. 873, 115 S.Ct. 198, 130 L.Ed.2d 130 (1994)). DEFENDANTS-APPELLANTS, CITY OF DERBY and DAVID KOPJANSKI, Zoning Enforcement Officer and Building Official, in his official capacity

/s/ Thomas R. Gerarde Thomas R. Gerarde Howd & Ludorf, LLC 65 Wethersfield Avenue Hartford, CT 06110 Phone: (860) 249-1361 Fax: (860) 249-7665 E-Mail: tgerarde@hl-law.com ADDENDUM B

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CERTIFICATION This is to certify that on AUGUST 1, 2012, a copy of the foregoing ISSUES DEFENDANTS/APPELLANTS PROPOSE TO RAISE ON APPEAL was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the Courts electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Courts CM/ECF System. Amy Eppler-Epstein, Esquire Shelley A. White, Esquire James Bhandary-Alexander, Esquire New Haven Legal Assistance Assoc. 425 State Street New Haven, CT 06510 (203) 946-4811 (Tel.) (203) 498-9271 (Fax) aeppler-epstein@nhlegal.org swhite@nhlegal.org jbhandary-alexander@nhlegal.org David N. Rosen, Esquire David Rosen Associates, P.C. 400 Orange Street New Haven, CT 06511 (203) 787-3513 (Tel.) (203) 789-1605 (Fax) drosen@davidrosenlaw.com

/s/ Thomas R. Gerarde Thomas R. Gerarde

ADDENDUM B