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Appellate Court Notes:  Week of March 9

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.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my own personal opinion.. Pullman & Comley’s Appellate Practice Group of which I am a member includes experienced appellate advocates in almost every area of the law.  Should you have a need to consult about a potential appeal,  please email me at emccreery@pullcom.com I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted March 9, 2015

 

While this was a foreclosure action, the court made some rules of general applicability.  The defendant had been defaulted for failure to file an answer to the complaint.  While a motion for summary judgment was pending, he filed an answer and a motion to reopen the default.  The court denied the motion to reopen, even though an answer had been filed, and even though the Practice Book suggested the clerk should have reopened the default automatically, reasoning that a motion for summary judgment was a motion for judgment that qualified under Practice Book § 17-32(b), to make the reopening discretionary with the court.  Accordingly, the Trial Court denied the motion to reopen, granted summary judgment to the plaintiff, and the defendant appealed.  The Appellate Court reversed, and indicated that Practice Book § 17-32 envisions a motion for judgment, not a motion for summary judgment.  Thus, the clerk should have automatically reopened the default upon the filing of an answer when there was no pending (final) Motion for Judgment.

The second issue on appeal was whether or not the Trial Court should have granted the defendant’s request that the plaintiff be ordered to cite in another family member, who also claimed an interest in the property.  The Appellate Court upheld the Trial Court’s refusal to cite in the new defendant, noting that he was not a necessary party because if he had an interest in the property, the foreclosure would not be binding against him if he was not a party; and therefore his due process rights were not implicated.  Similarly, if he had an interest in the property, and the plaintiff wanted to later foreclosure him out, the plaintiff could utilize the provisions of C.G.S. § 49-30 to foreclose out an omitted party.

  • AC36356        - Sharp Electronics Corp. v. Solaire Development, LLC
 

In this protracted prejudgment remedy dispute, the plaintiff sued for a balance owed on the purchase of certain solar panels in the amount of $1.3 million.  In December, the plaintiff filed an application for prejudgment remedy.  The following May, the court finally held a hearing, and granted the request by stipulation of counsel, subject to the submission of a more detailed order of what was to be attached.  The plaintiff did not submit a proposed amended order of what was to be attached until the following August, which the court rejected as being too generic.  The defendants immediately filed a motion to dismiss the prejudgment remedy on the grounds that the plaintiff had failed to serve and return to the court a valid summons complaint within the thirty days of the granting of the prejudgment remedy as mandated by C.G.S. Book § 52-278(j).  The Trial Court denied the motion to dismiss, and instead accepted a revised proposed order, which the plaintiff had served and returned to court in December, (one year after commencing the original action).  After a bench trial in favor of the plaintiff, the defendant appealed.  The Appellate Court held that the normal 30 day rule in C.G.S. § 52-278(j) to serve a prejudgment remedy and return the summons to court did not apply, where the Trial Court here conditioned its granting of the prejudgment remedy upon the submission of a revised order.  The plaintiff, having served the prejudgment remedy and the complaint within 30 days of the revised order being accepted by the court, it satisfied the requirements of the statute.  That statute acts as a sanction to prevent a plaintiff from unduly encumbering the assets of a defendant by delaying the initiation of a civil action after a prejudgment remedy order has been issued.

Next, the defendant tried to challenge the plaintiff’s use of the defendant’s officer’s deposition to impeach their trial testimony.  It claimed the Trial Court should not have allowed such impeachment when the defendant did not file the sealed copy of the deposition transcript with the Court Clerk and did not make the transcript a full exhibit.  The Appellate Court rejected this argument, noting that a deposition can be used to impeach without it being made a full exhibit and without filing the original under seal.  The rule of filing a sealed deposition transcript with the  trial court has no sanction provision for failing to do so.  It is merely a technical provision.  In any event, the Rule is inapplicable here where the deposition transcript is being used for impeachment and not in lieu of live testimony.

  • AC36540        - Deutsche Bank National Trust Co. v. McKeith
 

When the plaintiff went to foreclose on a piece of vacant property, it could not locate the current address of the defendant.  Accordingly, the plaintiff’s law firm’s paralegal swore under oath that they could not locate the plaintiff.  The Trial Court granted a request for a notice by publication in the local newspaper, which was accomplished by the marshal.  Thereafter, the court granted an order that no further notice was required.  Judgment of foreclosure was then granted, and title vested with the plaintiff.  One year later, the defendant filed a motion to reopen the judgment, claiming she had lived at the property the entire time, and attached an unsigned affidavit to support her position.  The Trial Court denied the motion to reopen.  On appeal, the Appellate Court held that the normal four month rule to reopen a judgment under C.G.S. § 52-212(a) does not apply to judgments of strict foreclosure.  In such situations, the court must look to C.G.S. Book § 49-15(a)(1), which allows a judgment of strict foreclosure to be reopened at any time up until title has vested with any encumbrancer.  Here, title had vested, and therefore, the judgment could only be reopened if the Trial Court had lacked jurisdiction over the defendant.  Clearly, the court had jurisdiction when the Notice by Publication provisions were properly followed.  The marshal’s return indicated it had attempted to make service upon the defendant and was unable to locate the defendant, and the property appeared vacant.  The law firm’s detailed efforts to locate a current address were unsuccessful.  Permission for the statutory notice was granted by the court and procedurally complied with the provisions of CGS §52-68.  Finally, a movant cannot rely on upon an unsigned and unsworn-to affidavit, as it has no evidentiary value.

  • AC36875        - Norwich v. Norwich Harborview Corp.
 

This was yet another foreclosure appeal, where the defendant challenged the approval of the sale on the grounds that the court-ordered independent appraisal had not been returned to court prior to the sale.  The debt amounted to less than $200,000 as against a finding of fair market value of $700,000, and an independent appraisal of $775,000.  The property sold at auction for $220,000.  The Trial Court ordered a new sale to take place with a new independent appraisal.  On the day before the new auction, the Committee filed a motion for advice, noting the new appraisal ordered by the court had not been received, but only a verbal representation from the new appraiser that the fair market value of the property was $350,000.  Before the court could rule, the auction took place and the high bid was for $233,000.  The Committee filed a motion to approve the sale, and shortly thereafter, the independent appraisal report was received in written format, confirming the $350,000 opinion value the appraiser had given to the Committee before the auction took place.

The court approved the sale this time, and on appeal, the plaintiff claimed that the sale could not be approved when the Standing Orders on foreclosures had not been complied with.  Those orders stated that the independent appraisal was to be filed ten days before the auction.  The Appellate Court noted that the Practice Book Commentaries state that standing orders are for the purpose of providing convenience to the Bench and the Bar.  They are not Practice Book Rules.  Accordingly, Standing Orders do not carry the weight of Statute or Rules of Practice.  Rather, it is up to each trial court whether to apply them.  There can be no error if a trial court refuses to impose the provisions of a standing order. 

While this was a matrimonial matter, it does contain a summary of the rule when a trial court may unilaterally award attorney fees on its own to a prevailing party even if there is no contractual or statutory authority to do so.  The Trial Court shall be deemed to have inherent authority to assess attorney’s fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.  It is a narrow exception and has been justified for example when the case was found to be "wholly without merit’ and ‘the plaintiff repeatedly ….testified untruthfully and in bad faith." The decision reminds us that the party seeking recovery under this rule faces a “high hurdle.”  So in this case the award of attorney fees to the former wife for a post-judgment motion argument was reversed when the Trial Court found that the Motion of the ex-husband was close to being frivolous and a waste of everyone’s time.   That did not rise to the level justifying an award of fees.  The Trial Court would have had to found the Motion was “entirely without color” and “filed in bad faith”. 

 
  • AC35733 - Yerinides v. Commissioner of Correction

  

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.  Copyright 2015 Pullman & Comley, LLC. All Rights Reserved.

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