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Appellate Court Notes:  Week of March 16

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 16, 2015

This decision held that an agency may not go into executive session under the FOIA to discuss enforcing its own permit.  An agency’s executive session must be justified by pending or threatened litigation in a forum other than itself.  In effect the court narrowed its earlier decision in the Furhman case which suggested that discussing options short of litigation would justify an executive session.  The decision further suggests that even the agency’s meeting to contemplate bringing its own litigation for enforcement purposes may not justify an executive session under FOIA.  However, it is unclear whether the court meant to go that far as that extreme would even conflict with the position of the FOIC.  Finally, the court also ruled that an agency may not go into executive session to discuss a matter that is finally adjudicated as it is no longer “pending litigation.”  A matter shall be deemed finally adjudicated once all appeal timeframes have expired, even if the trial court still retains jurisdiction to enforce the underlying decision.  [NOTE: the author was on the losing end of this decision.]

  • AC35917        - AFSCME, AFL-CIO, Council 4, Local 2405 v. Norwalk
  • AC36561        - Chase Home Finance, LLC v. Morneau

A self-recorded document by a former cohabitant, claiming that she had a constructive trust, one-half interest in the property, but with the additional commentary that her claim would be formalized in the future, did not create a legal interest in title.  Accordingly, the mortgage lender, whose mortgage was signed and recorded by the titled owner after the Notice of Constructive Trust, could foreclose out her claimed interest.

  • AC36102        - Sargent v. Sargent
  • AC35601        - Congress Street Condominium Association, Inc. v. Anderson

When the condominium association brought a foreclosure for past due assessments and fines, the unit owner claimed that he had not been afforded a hearing before the imposition of the fines.  The condominium association acknowledged that it failed to hold a hearing before imposing the fines, but claimed that the defendant had received due process through the court hearing, and thus, the court should still impose a fine amount, but start the daily fines from the date of the court hearing.

The Trial Court agreed.  The Appellate Court reversed, noting that C.G.S. §47-244(a)(11) holds that an association may impose reasonable fines for violations of the declaration or bylaws after reasonable notice and an opportunity to be heard.  The association’s own bylaws copied that statutory language.  The requirement for notice and hearing is not a mere formality, as the condominium association argued.  It is a prerequisite that must occur before fines can be opposed.  The later trial court hearing cannot be used as a substitute for the due process hearing the association was supposed to provide before the matter came to court.

  • AC36330        - Bozelko v. Papastavros

This decision held that a pro se plaintiff needed an expert witness to establish the standard of care in order to maintain her legal malpractice action.  She could not disclose an attorney who had declined to agree as an expert, and stated he had no opinion.  Equally, she could not assert she was going to use the defendant attorney as an expert (against himself), because he had not been disclosed within the time frame required by the Court’s Scheduling Order.  Accordingly, summary judgment in favor of the law firm was properly granted.

  • AC34910        - State v. A. M.
  • AC35712        - Bellini v. Patterson Oil Co.

This decision held that when the parties went off and negotiated sequential extensions of their written lease without referring to the terms of the original lease, they abandoned the original written lease terms and converted the tenancy to month-to-month.  Thus, a provision in the original lease that required advance notice before the tenant could vacate the premises was no longer in effect.  (A lesson to execute formal written lease agreement extensions, incorporating those provisions of the original lease that you want to insure continue.)

 

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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