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October 30, 2013

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 5, 2013

  • AC34108 - Wallingford v. Zoning Board of Appeals

Developer applied for a variance in Meriden to use property zoned for a conference center as a used car lot.  The property abutted Wallingford on one side, whose roads would be the primary access point.  Despite Wallingford’s objections, the Meriden ZBA granted the variance.  Wallingford, the City of Meriden, the Meriden Planning Commission, and the Meriden Planning Administrator, all appealed the ZBA decision.  The appeal of the City of Wallingford was dismissed for lack of aggrievement, and thereafter the Trial Court sustained the appeal due to the failure of a conflicted board member to disqualify himself.  The Trial Court ordered the ZBA to re-vote on the matter, on the existing record with no new evidence, utilizing an alternate member of the Board.  The developer appealed on the conflict issue.  The Meriden plaintiffs filed a cross-petition for cert. appealing the remand, and Wallingford appealed their dismissal from the case.  The Appellate Court then, sua sponte, raised the issue of subject matter jurisdiction.  Ultimately, the Appellate Court concluded that the appeal was not rendered moot vis-à-vis Wallingford, simply because the remaining plaintiffs lost the issues they were raising.  Instead, because Wallingford was not allowed to participate in the underlying trial, it may have made different arguments challenging the variance which was never heard by the Trial Court.  That would cause Wallingford to lose its opportunity to litigate the merits of the variance.  Despite this first base hit, the Town of Wallingford never made it to second base.  Turning to the issue of aggrievement, the Appellate Court agreed with the Trial Court that Wallingford was neither classically aggrieved (simply because there would be increased traffic on its roads), nor statutorily aggrieved (as a “concerned municipality”).  First with respect to traffic, the proposed site plan was conceptual in nature, and no approval had been granted to begin developing or building upon the land.  Thus, the concerns over traffic are presently premature.  Zoning Boards of Appeals do not approve site plans as part of a use variance.  A party claiming aggrievement must show more than mere speculation of a possible future harm.  Merely because a ZBA considers public safety factors under C.G.S. § 8-6, does not mean they have made any determinations with respect to any specific traffic patterns proposed as part of a development.  “Finding aggrievement based upon the traffic impact of an unapproved site plan would be tilting at windmills”….the Court said.  With respect to the “concerned municipality doctrine”, C.G.S. § 8-8 does not include municipalities within aggrieved parties.  Heretofore, this doctrine established by the Connecticut Supreme Court has only referred to the municipality of the board where the decision has been rendered.  Thus Meriden would qualify, but not Wallingford, which failed to cite any authority for an extension of the “municipality concerned” doctrine to include adjoining municipalities.

  • AC34262 - Farmington Valley Recreational Park, Inc. v. Farmington Show Grounds, LLC

In this particular action, the seller of the Farmington Polo Grounds granted a purchase money mortgage for $1 million, subordinated to pre-existing mortgages of $1.2 million assumed by the buyer.  In a foreclosure of the seller’s mortgage, the first holding was that even though the defendant failed to raise at trial the claim that the plaintiffs did not establish their ownership of the note, the claim implicated the subject matter jurisdiction of the Court and could be raised for the first time on appeal. But the note was produced at trial.  The mere production of the note establishes a prima facie case against the makers.  The defendants had failed to point to any evidence in the record to rebut that prima facie showing. 

Next, the decision held that a statement by another judge in a prior dispute between one of the original mortgagees on the property and the current owner regarding that the plaintiff’s mortgage had been reduced $300,000 by an agreement, was not binding upon this plaintiff who was not a party to that action, and further, when that Judge’s statement appears to have been dicta, because it was not necessary for the resolution of the dispute between that lender and the current owners to be talking about another lender’s debt.  Therefore, the Trial Judge in this case could disregard the statement of the previous judge, and conclude that there was no evidence that the debt of the mortgage being foreclosed had been reduced by a mortgage modification agreement.

  • AC35189 - Industrial Mold & Tool, Inc. v. Zaleski

You know it is a difficult case when the appellate decisions starts out with:  “This case concerns one plaintiff’s struggle to foreclose on a judgment lien.”  In 2001, the plaintiff obtained a $28,000 judgment against the defendant.  In 2010, the plaintiff filed a judgment lien on real property owned by the defendant.  The defendant then transferred the property to an LLC under his control.  Plaintiff then commenced a foreclosure of the judgment lien, and an auction date was set.  The defendant’s son was the high bidder at the auction, but - surprise surprise - failed to close with the Committee, forcing the Court to order a second sale.  Two days before the second sale, the defendant filed for bankruptcy, which was eventually dismissed in late 2011.  One day before the next auction date, the defendant filed for bankruptcy again.  In 2012, the Bankruptcy Court granted relief from the automatic stay.  Two weeks prior to the next auction date, the defendant filed an emergency motion to reopen the judgment, which was denied and appealed.  The claim made by the defendant in the motion to reopen the judgment was that the plaintiff should not be awarded post-judgment interest.  But, the defendant had previously admitted in its pleadings, and before the Court, that post-judgment interest was due and owing to the plaintiff.  The Appellate Court went into extensive detail on how statements made in pleadings are judicial admission, and dispenses with the requirement for the production of evidence, and the parties are bound by their pleadings. 


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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