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Appellate Court Notes:  Week of August 31

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 August 31, 2015

Appellate Court Advance Release Opinions: Released after 11:30 a.m.

Great exchange between Florida counsel and the presiding Judge in this case:

Plaintiff’s Counsel:………….. we do this all the time, Your Honor…………..It’s a perfunctory procedure [to wait till the last minute to substitute dead plaintiffs] …………. ‘in [the asbestos litigation] world, [it] happens all the time. The Trial Court Presiding Judge responded: What you might do in your …. world is one thing, but what the [Connecticut] law requires….is another thing.

CGS 52-599 allows a party six months to substitute a fiduciary of the estate when a plaintiff dies.  In this action the plaintiff’s lawyers let more than three years pass without substituting the fiduciary until the eve of trial when the Presiding Judge pointed it out and warned she was thinking of dismissing the case.  The plaintiff’s attorneys then promptly filed a Motion to Substitute.  During the hearing on that Motion the Judge asked the defendants if they were prejudiced by the delay.  For the first time they asserted that they were prejudiced as the case remained in limbo without their ability to pursue dispositive motions.  They had never complained previously, nor filed any motions about the delay.  The Judge agreed that the delay was prejudicial, granted the Motion to Substitute, and then promptly Dismissed the lawsuit for failure to prosecute with reasonable diligence.

The Appellate Court upheld the dismissal.  While a small amount of lip service was paid to the alleged prejudice to the defendants, the Court just could not countenance ignoring of the rules for 3 years.  That alone qualified as lack of due diligence justifying a dismissal, even without a showing of prejudice.  While late substitutions may sometimes be warranted, the Court seemed truly offended by a three year delay.  [Also underlying the decision, a few hairs may have been raised by the suggestion by an out of state attorney that they had created their own rules for their cases.]


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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