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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 March 3, 2014

  • AC34096 - Walker v. Housing Authority

Plaintiff initiated an action against the City of Bridgeport Housing Authority for personal injuries sustained upon the defendant’s property.  C.G.S. § 8-67, however, requires that for any injuries on Housing Authority property, a personal injury claimant must first provide written notice of the time and place of the accident within six months of the injury to the Authority’s Board President or Secretary.  The purported notice in this case was apparently sent by regular mail and simply addressed “To Whom It May Concern”.  It was not addressed to either the Chairman or Secretary.  The Chief of Security, however, acknowledged that he did receive the plaintiff’s letter, but claimed he had no authority to receive notice of claims even though the internal policy of the defendant provided that upon receipt of the claim, the Director of Security should be immediately contacted.  The Director of Security had even written to the plaintiff’s attorney and acknowledged receipt of the letter.

Notwithstanding these facts, the Trial Court granted summary judgment to the Authority because C.G.S. § 8-67 specifically provides that the notice must be sent to the Chairman or the Secretary of the Authority.  There was no evidence that the Chairman or the Secretary delegated their authority to receive such notice to the Director of Security.  The Appellate Court upheld that decision, because there was no evidence that the Chairman or the Secretary actually received the letter.  It does not matter that the lawyer submitted an affidavit that he mailed it to the Chairman or the Secretary when, in fact, the salutation read “To Whom It May Concern”.  This is true especially where an employee of the defendant submitted an affidavit that the Chairman would only receive letters if specifically addressed to her.  The death of the Chairman before the lawsuit did not create a material issue of fact of whether she actually received the letter.  It was not hearsay for another employee to testify that, upon information and belief, the Chairman did not receive mail not addressed to her.  It was not hearsay because it is not a statement made by one other than the declarant.

The Trial Court properly dismissed plaintiff’s lawsuit against eighteen defendants, which included twelve State Legislators, one Superior Court Judge, one Appellate Court Clerk, the New London Superior Court Clerk. and the Connecticut Appeals Court Clerk, and the State of Connecticut Clerk, asserting that the requirement that indigent plaintiffs seeking to bring medical malpractice actions must obtain opinion letters supporting their claims from similar health care providers …..just as would any other plaintiff…….. was an unconstitutional impediment to commencing suit.

The Trial Court properly dismissed all of the claims.  The legislative defendants are immune under sovereign immunity, legislative immunity, qualified immunity and lack of personal jurisdiction.  The claims against the judicial defendants, in turn, are barred by absolute judicial immunity, qualified immunity and lack of personal jurisdiction.  Finally, the claims against the insurance company defendant were dismissed because the plaintiff failed to adequately brief those claims in his appeal.

Plaintiffs with improved residential property abutted a vacant piece of land owned by the defendants.  The defendants sought an Inland Wetlands Permit to construct a single-family home.  The Wetlands Commission approved the permit without a public hearing in 2006, and no appeal was filed.  The defendants then sought a variance from the Fairfield Zoning Board of Appeals, which was denied.  The defendants appealed the denial of the variance, and the plaintiffs intervened.  The defendants appeal was sustained, thus granting them their variance.  The plaintiffs sought a petition for certiorari, but that was denied.  When that round of litigation was over, the defendant asked the Wetlands Commission to reissue the wetlands permit but with a new expiration date so they could finally start to build their house.  The Commission responded that their permit was automatically being extended, due to the conclusion of the litigation “based upon (the Commission’s) past practice” in such instances.  The plaintiffs then sued, claiming that the permit extension was invalid, and the permit should have been deemed to have lapsed because there was never a vote of the Commission extending the permit.

The defendants filed a motion to dismiss on the grounds that the plaintiffs had failed to exhaust their administrative remedies pursuant to C.G.S. § 22a-43.  The Trial Court granted the motion both for failure to exhaust remedies….and….on the grounds that the permit had been automatically extended by C.G.S. § 22a-42a(g) . . . and . . . the delay caused by the plaintiffs’ various lawsuits.  The Appellate Court agreed.  First, an adequate administrative remedy existed here for the plaintiffs.  The failure of a party to appeal from the action of a municipal land use authority renders the action final.  C.G.S. § 22a-43(a) authorized an appeal here.  This is not one of those exceptional cases where a collateral attack may be allowed because a condition of approval is so outside the norm as to be beyond a valid exercise of zoning or a strong public policy had been violated.  Here, the plaintiffs failed to appeal the Commission’s decision granting the defendant’s wetlands permit in 2006, and their most recent lawsuit was deemed nothing more than a thinly-veiled collateral attack on that original 2006 approval because they also sought injunctive relief to prevent the use of the permit.

As to the permit being extended, the court noted that C.G.S. § 22a-42(a) was amended after 2006, to add section (g) which clearly and unambiguously states that a permit shall be good for not less than six years.  There is nothing in the Statutes that requires actual or construction notice for such an extension up to six years which occurs automatically and retroactively by operation of the law.

Further, in accordance with Frommer v. 200 Post Associates, and Dean-Moss Family Limited Partnership v. Five Mile River, a permit to conduct a regulated activity runs with the land, and not with the applicant.  Thus, where a valid permit has been issued, and an appeal has been taken from the granting of that permit, the time period within which to conduct the regulated activity is tolled until all the litigation has been completed.  The Trial Court properly concluded that the tolling of the permit had occurred by both operation of the statute and by case law.

  • AC35220 - Russell v. Mitchell Properties, Inc.

Plaintiff brought a claim for personal injuries suffered upon the defendant’s parking lot, but in an initial suit both named the wrong corporation and failed to properly it.  Plaintiff then moved to cite in the correct defendant, but by then the statute of limitations had expired.  The correct defendant moved for summary judgment on the basis of the expiration of the statute of limitations.  The plaintiff claimed that C.G.S. § 52-593 saved his action.  The defendant responded that since even the improperly named defendant had never been served, the action had never been commenced, thus precluding the plaintiff from using the savings provision of C.G.S. § 52-593.  T

The Appellate Court agreed with the defendant and held that C.G.S. § 52-593 contemplates the scenario in which there are two separate actions, the original action brought against the wrong person, followed by a new action against the right person.  An action is brought once a writ, summons and complaint have been served upon a defendant.  Without service, it has not been commenced.  Here, the writ, summons and complaint was never properly served upon the original (incorrect) defendant.  As such, the original action was never brought, and thus, C.G.S. § 52-593 cannot be utilized by the plaintiff to save it from missing the statute of limitations.

  • AC34959 - Anderson v. Commissioner of Correction
  • AC35460 - Devone v. Finley

 

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.  ©2014 Pullman & Comley, LLC. All Rights Reserved.

 

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