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Appellate Court Notes:  Week of September 18

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 September 18, 2015

Appellate Court Advance Release Opinions:

  • AC36390 - Folsom v. Zoning Board of Appeals

Trial court properly granted a motion to strike a direct lawsuit by a disgruntled neighbor against the Town Zoning Enforcement Officer (ZEO) and Zoning Board of Appeals (ZBA) members.  The statutes do not authorize a direct action.  Additionally, the defendants were entitled to governmental immunity for their discretionary decision making - in the case of the ZEO, whether to issue a certificate of zoning compliance - and in the case of the ZBA, deciding if there was a conflict of interest as claimed by the neighbor.  The decision added that just because the ZBA previously ruled on one case adverse to the neighbor, that does not disqualify them from participating in another case with the neighbor, even if over the same subject.  Such rulings by an administrative agency member are not a “personal interest” in a matter that gives rise to a disqualification.  It is just the members in their official capacity in more than one instance. 

  • AC36986 - Santos v. Massad-Zion Motor Sales Co.

Trial court improperly enforced a settlement under Audubon when it was explicitly subject to the defendant drafting, and the plaintiff executing, a confidentiality agreement when no consensus could be reached on the terms of that clause.  The decision points to prior decisions that involved settlements conditioned upon a formal written agreement (that never happened) where the Court also refused to enforce the settlement. 

  • AC36396 - Sorrentino v. Sorrentino

Child visitation modification order did not modify the underlying main points of the original order including holiday visit rights of the father.

  • AC36661 - Bank of Stamford v. Schlesinger

The Court described this case as a comedy of errors arising out of a clerical error 20 years earlier.  A clerk failed to include the amount of a stipulated judgment in a judgment file …….and several years later the assignee of the judgment had difficulty enforcing it in other states.  The assignee of the judgment then unilaterally filed an appearance in the case 13 years later as a non-party to correct the error.  The motion to correct was granted.  Then two years later the debtor realized what had happened and sought to vacate the correction claiming that assignee (Cadle) had no right to do what he did and the court had no jurisdiction to approve it.  This was the appeal from the denial of the effort to vacate the correction.  The debtor claimed the court had no jurisdiction to do what it did but the Appellate Court found that courts have the inherent authority to protect and correct their judgments and clerical errors which can be fixed at any time.

  • AC36707 - U.S. Bank National Assn., Trustee v. Works

After two bankruptcies delaying a foreclosure for two years, the plaintiff moved to reset the law days upon the existing judgment of strict foreclosure.  The defendant countered with a motion to reopen the default for failure to plead and the default judgment against her, and sought permission to assert predatory lending counterclaims against the plaintiff, whose loan originated with a loan officer personally visiting the elderly lady’s residence, and allegedly getting her to take out an interest on a mortgage she could not afford.  The trial court granted the requests of the defendant.  Plaintiff appealed.  This decision held that it could consider the plaintiff’s appeal that challenged the reopening of the judgment because it challenged the jurisdiction of the court to have done so.  It then went on to hold that it did not have to address the propriety of the trial court’s conclusion that the mere filing of a bankruptcy “reopens” a judgment under 49-15, because the fact of the matter is that a motion to reopen was filed by the defendant….. and the trial court made all the necessary findings under the statute of good cause and a viable defense necessary to reopen a judgment.  So it does not matter if the trial court was legally wrong that the statute provides for an automatic reopening.  However, the plaintiff could not also appeal the reopening of the default as that was an interlocutory order at this stage of the proceedings.

  • AC35943 - State v. Prosper
  • AC36829 - State v. Bacon Construction Co.
  • AC36489 - Disciplinary Counsel v. Serafinowicz

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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