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 July 30, 2013
Starting off with the comment that “this appeal presents an unfortunate example of a lack of diligence in prosecuting a claim . . .,” cannot be good news for the plaintiff. The Trial Court did not abuse its discretion in refusing to reopen a judgment of dismissal for lack of subject matter jurisdiction, when the fiduciary of the decedent’s estate had not been substituted as the party plaintiff by the pro se plaintiff for three and one-half years despite warnings from the Court. Here, even though the party was acting pro se, their lack of diligence prejudiced the defendants, as it was now a seven-year-old case, with a lack of activity for the last three years. [That’s way too long for a disposition.]
Appellate Court refused to vacate the arbitration award in favor of the New Britain Board of Education involving a security supervisor laid off due to budgetary constraints. That employee tried to bump another supervisor and the issue turned on whether or not seniority should be measured by time spent in the union, or time spent employed by the Board, as the Board of Education contended. The panel’s decision was upheld, which found that the plain language of the collective bargaining agreement provided that seniority was to be measured by service to the Board of Education, and not membership in the union.
Landlord sought to evict the tenant. An agreement was reached, wherein the tenant agreed to get out on a certain date. When the tenant failed to do so, the landlord applied for an execution to regain possession of the property, causing the tenant to run into court to obtain an ex parte temporary injunction order against the landlord. The parties then worked out another agreement, providing the tenant an extra month to remove their property, but it does not sound like they properly addressed the outstanding temporary injunction order in the settlement. When the tenant failed to make payments called for under the second agreement, the landlord reclaimed its efforts to obtain an execution, ……but also exercised self-help and removed some of the defendant’s property from the premises. The tenant then moved to have the landlord held in contempt of court for violating the temporary injunction. [Oops] The Trial Court found the landlord in contempt but reserved decision on what penalty it would impose. The plaintiff sought reargument and, when that was denied, appealed, but the appeal was dismissed because the contempt finding was not a final appealable judgment. C.G.S. § 52-400(d)(a) does not apply, because it pertains to post-money judgment compliance orders. Here, the contempt was for the violation of an ex parte temporary injunction pursuant to C.G.S. § 52-471. Additionally, as a matter of first impression, the Court ruled that the denial of the motion to reargue an interlocutory filing of contempt prior to the issuance of any penalty, is not a final judgment for purposes of appeal.
Two partners, A & B, formed an LLC to develop property, each holding a 50 percent membership. In a proposed follow-up transaction, the LLC contracted to sell one parcel to A’s development company. A dispute arose between A & B resulting in a classic e-mail from B to A: “Richie, I am putting you on notice right now this property will not close . . . until my demands are met. [You won’t provide me copies of the documents] . . . So what you won’t give me is rightfully mine, I will take and make sure that this deal doesn’t close until hell freezes over, unlike you I can weather the financial storm caused by you, and I’ll make it my personal mission to legally bury you for years to come. You have become a real snake and [your] true colors have come out.” A few days later, B , mortgaged the LLC’s properties for $1.3 million to his family trust, with backdated notes and mortgages, which trust shortly thereafter started a foreclosure of the mortgages. That prompted A to execute his own quit claim deed of the LLC property to his own company, signing it as “Member.” B then retaliated by quit claiming part of the property to one of his companies. Finally, A brought a quiet title action, slander of title, and discharge of mortgage action. The Trial Court declared the mortgages lacked consideration, and were invalid, and that the recording of both the mortgages and the subsequent foreclosure lis pendens were done recklessly, and amounted to slander of title.
On appeal, it was found that the plaintiff’s failure to also challenge the validity of the promissory note, did not render invalid the Trial Court’s conclusion that both the mortgages and the notes they secured were invalid for lack of consideration. Next, it was held that A could orally move to amend his complaint at the close of evidence to assert that even if A was not the owner-in-possession, he had an interest in the title, thus granting him standing under C.G.S. § 47-31(b) to quiet title. The quit claim deed to A’s company gave him standing, and the defendant’s knowledge of that deed precluded any claim of prejudice due to the last minute pleading amendment. Similarly, the Trial Court did not abuse its discretion to allow A to reopen his case and offer a copy of that deed. A’s failure to follow-up with a formal, written amended complaint did not render those decisions of the Trial Court invalid, because the claim was now actually litigated. Defendant cannot now claim surprise by the ultimate decision. A’s company also had standing to bring the action because of the LLC’s contract to sell the property to A’s company, which obligation was prevented by the invalid mortgages.
Next it was held that B’s later quit claim of property to his company did not destroy A’s interest in the property so as to give him standing to bring suit. Additionally, even though the plaintiff’s complaint did not fully comply with C.G.S. § 47-31(b), to properly describe its interest in the property, the Court had subject matter jurisdiction to proceed with judgment. Here, it was not necessary for A to have named B’s company as a party defendant, because its interest would not be adverse to the effort to have the mortgages declared invalid. In any event, even if the company were a necessary party, the failure to join them under C.G.S. § 47-31(b) does not require a reversal. Only the parties named in the quiet title action are bound by the judgment.
The Court next turned to the slander of title claim. This decision holds that prior case law language suggesting a plaintiff must first make a demand for a release of the invalid lien was simply dicta. There is no prerequisite for a slander of title action that there first be a demand that the offensive lien be removed. [Remember, however, there is such a requirement under certain statutory remedies entitling you to damages and attorney’s fees, so always make written demand anyway.] The element of malice in the slander of title cause of action is found when the defendant does not have a good faith belief in the truth of what they have done. If they do not have such good faith of belief, they have knowledge of falsity. Actual malice, in turn, exists when there is knowledge of falsity or reckless disregard to the truth. The defendant's bare assertion that he acted reasonably is an insufficient defense. The defendants who close their eyes to the truth cannot insulate themselves from a defamation claim. Here, the lovely e-mail came home to roost, and the recording of the mortgages four days after B sent those e-mails was all the evidence needed of the bad faith and reckless disregard for the truth.
[This was another quiet title action but not as juicy as the last one. This one prompts the old saying…..Can’t we all just get along?] Four neighbors went to war over their abutting waterfront lots. The dispute arose over the property lines due to the lack of quality and detail in the original 1919 map, which in turn did not match the metes and bounds description in the original deeds. Each of the four lot owners hired their own expert who, in turn, each prepared their own versions of the map. The Trial Court picked one expert to believe, and found his reliance on the metes and bounds was more reliable than other experts who relied upon the old, inaccurate map. The Trial Court properly relied on the language in a deed first before considering extrinsic evidence. The deeds referenced the map, but also included a metes and bounds description. The two did not match. When a deed sets forth different descriptions of property to be conveyed, the one containing less certainty must yield to that possessing more certainty if the conflict cannot be resolved. The conflict here rendered the intent of the grantor unclear, and thus, the Trial Court properly considered one expert’s extrinsic evidence. It is for the Trial Court to assess the credibility of any particular expert and choose which if any to believe. That expert opined that the map was less reliable than the metes and bounds and the Trial Court was justified picking that expert to rely upon.
[Hmmm? When is it logical to allow a borrower to pay less in interest by defaulting on a loan? Doesn’t seem like much incentive to pay it back.] In this one the owner defaulted on his car loan, the bank took possession and sold it at public auction for $13,000, but then credited the borrower with its fair value of $17,000, and then went after the borrower for the deficiency of $5,600. Exercising its discretion under C.G.S. § 37-3a, the Trial Court awarded plaintiff post-judgment interest at the rate of only 2 percent, ruling that post-judgment interest was discretionary with the Court, and did not have to be awarded based on the contractual provision of 9 percent under C.G.S. § 37-1. Since the contract never used the term “post-judgment interest,” it was fair for the Trial Court to conclude that no contractual agreement had been reached on post-judgment interest to pay, and it was therefore discretionary with the Court. The Trial Court only awarded the 9 percent rate for the pre-judgment interest.
Plaintiff sued defendant over a credit card debt, and obtained a default judgment. Defendant moved to reopen the judgment beyond the four-month time limit, claiming that the Trial Court did not have subject matter jurisdiction. That motion was denied. Rather than appeal, the defendant filed a second motion to reopen the judgment, again arguing that the Trial Court did not have subject matter jurisdiction. The appeal from the second denial held that the defendant’s remedy was to appeal the first denial. The second motion to reopen and the subsequent appeal, amounted to an impermissible collateral attack on the underlying judgment. Even though the defendant raised the issue of subject matter jurisdiction, which in theory can be raised at any time, that doctrine can be superseded by the need for finality of judgments, when the parties have already had an opportunity to contest jurisdiction of the tribunal. The time period during which jurisdiction may be challenged is not unbounded. The defendant should have appealed directly from the Trial Court’s denial of his first motion to reopen. [Even though this was a small credit card case, it has an interesting ruling on finality of judgments that override jurisdictional challenges.]
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.Back to Top