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Appellate Court Notes:  Week of November 13

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 December 7, 2015

Supreme Court Advance Release Opinions:

Despite a very convoluted history, the essence of this decision was that the amendments to CGS 4-61 requiring contractors to provide a detailed and timely notice of their claims against the State, were not meant as a vehicle to defeat valid claims.  The changes also allowed the State to seek documentation of the claim, thus eliminating the need for overly detailed and highly specific Notices of Claims.  Also the contractor does not have to specify if it intends to seek arbitration or litigation in pursuit of its right to payment in the Notice of Claim.  The Notice here from the contractor set forth the job, the issues in dispute, the amount in dispute, and demanded arbitration.  That was more than enough to put the DOT on notice of the claim so that it could investigate it.

The dissent would have agreed with the Appellate Court that the Notice was inadequate and therefore the arbitrator was without jurisdiction to decide the matter.

Appellate Court Advance Release Opinions:

In this matrimonial decision it was held the trial court erred by retroactively modifying the monthly unallocated support award to a monthly alimony award in a lesser amount without delineating the portion of the unallocated support award that was attributable to child support and limiting its retroactive modification of that amount. Secondly, it was held that the trial court erred by retroactively modifying the supplemental bonus alimony award.

The dissent agreed with the majority’s decision regarding the nonretroactivity of certain of the modified financial orders issued by the trial court, but disagreed that the trial court could prospectively eliminate the supplemental bonus alimony award because the change here, to wit: the change in physical custody of the parties’ minor children did not justify the elimination of the supplemental bonus alimony award because it was not shown to have had any relevant impact, supportive of the modification, upon at least one of the limited statutory factors that govern the making and modification of alimony awards

The parties stipulated that they had entered into a "Nikahnama’’, referred to as a marriage contract which upon divorce would allow the plaintiff to collect $4815.40.  The defendant / husband/ breadwinner, argued this was akin to pre-nup under Islamic and Bangladeshi law and the USA courts should enforce it.  The trial court was able to duck the issue by finding that notwithstanding the joint stipulation, none of the copies produced were signed.  This decision held that the trial court could ignore the joint stipulation of the parties where the stipulation did not cover all the elements of the claim.  Here the parties would have had to have stipulate to the details of the agreement, and that it was entered into, and that it was legally binding for a set dollar amount, before the trial court would be obligated to accept the stipulation as fact.  Next, this decision reversed certain financial orders of the trial court as they deviated from the 46b-84 guidelines without proper findings and explanations.  Under those circumstances our courts have utilized the mosaic doctrine as a remedial device that allows reviewing courts to remand cases for reconsideration of all financial orders even though the review process might reveal a flaw only in the alimony, property distribution or child support awards.

This decision upheld the dismissal of disbarred attorney Nancy Burton’s environmental claims against a power plant for lack of standing.  The plaintiff did not specify whether her appeal was brought pursuant to CEPA or the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq. “Because the UAPA does not, by itself, render the plaintiffs statutorily aggrieved for standing purposes,’’ a party must establish that it is classically aggrieved.  Acknowledging that she was not classically aggrieved, the plaintiff asserted she had really asserted a CEPA claim and as such was automatically aggrievement.  But have standing under CEPA a plaintiff must still make a colorable claim of environmental harm in their complaint.  Here the complaint was full of conclusory non-specific allegations of environmental harm which were insufficient to assert a CEPA claim.  The plaintiff’s additional procedural irregularity allegations could not form the basis for standing under CEPA.  Only environmental claims can form the basis for standing under CEPA.

Arbitrator ruled in favor of Subway terminating the Delaware franchise agreement with the plaintiff and ordered plaintiff to pay $250/day for each day it kept operating thereafter utilizing the Subway name on its store. Subway filed a motion to confirm the award in DE.  Plaintiff then filed an application to vacate the award in CT.  Subway then filed an Objection in CT and within the body of its Objection asked that the award be confirmed.  This decision held that while it may have been nice for Subway in the CT lawsuit to have filed a separate and formal Motion to Confirm the Arbitration Award, it was OK to have filed it within the body of its Objection.  Everyone knew what was going on.  This decision also held that the trial court did not fulfill its duties when as part of the Confirmation Order, it failed to take the $250/day fine and add it up, and enter that amount (now in excess of $100,000) as a formal judgment against the plaintiff.

Trial court improperly refused to consider modification of alimony and child support when ex-husband’s income dropped from 100k to 50k per 46b-86  when it concluded the earlier trial judge had made a finding of earning capacity of 100k as opposed to a current salary of 100k.   A correct reading of the first judge’s ruling was that it was a finding of current salary - not earning capacity.   Therefore the ex-husband should only have been forced to prove a substantial change in income.


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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