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Appellate Court Notes: Week of February 2, 2016

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 8, 2016

Supreme Court Advance Release Opinions:

Appellate Court Advance Release Opinions:

  • AC37107 - NRT New England, LLC v. Jones

Plaintiff broker entered into an exclusive buyer’s agency-agreement with the defendant to help him find a residential house.  They had over twenty appointments and viewed multiple properties over the next several months.  The agreement called for a 2.5% commission on the purchase of any property.  Nonetheless, the defendant acquired a home in Guilford for $1.4 million without informing the broker.  The plaintiff-broker discovered that the defendant-buyer had entered into another exclusive agreement with a different agency that overlapped the time period of the plaintiff’s agreement.  The defendant never disclosed that he had exclusive agreements with two brokers.  The plaintiff recorded a $34,000 broker’s lien upon the recently purchased property.  The Trial Court allowed enforcement of the plaintiff’s agreement and added attorney’s fees.

On appeal, the defendant claimed that the brokerage agreement failed to substantially comply with C.G.S. § 20-325(a), and that it was inequitable to award the plaintiff the commission.  In particular, the defendant claimed that the brokerage agreement did not use capitalized bold print to notify him that the broker may be entitled to certain lien rights.  Instead, the agreement contained a sentence in regular print that referred to certain lien rights under the Statute.

The Court noted, however, that there is a saving clause in C.G.S. § 20-325(a) that a commission is still owed if it would be inequitable to deny such recovery, and there had been substantial compliance with the provisions of the Statute.  Strict compliance is not required.  First, the Court said that there is nothing that actually says the warning must be capitalized.  Just because the language in the Statute is capitalized as a sample, does not mean the Legislature intended to require all brokers to capitalize the clause.  There is no language in the Statute requiring that, and the Legislature could have easily added such a requirement.  There are other Statutes within Title 20 that require Capitalization.  Therefore, the omission of that requirement in this clause leads to the conclusion that the Legislature did not intend to require it.

Next, the defendant claimed that the brokerage agreement cited the wrong statutory subsection.  However, it would be unjust to deny a broker his lien for what was essentially a scrivener’s error, the Court said.  Interpretation of statutes should avoid absurd results.

Finally, the Appellate Court agreed with the Trial Court that it would be inequitable to deny the broker its recovery, in this case, in light of the significant services provided by the plaintiff-broker to the defendant-buyer over several months.

The Appellate Court upheld the Trial Court’s decision refusing to deny a motion to modify custody filed by the ex-husband, as well as the ex-wife’s motion for additional attorney’s fees.  The original decree had allowed the wife to return to her family in Texas with the child, with joint residency of the child in Connecticut and Texas, and appropriate visitation.  An appeal of that directive had been previously denied.

In this decision, the Appellate Court said there was insufficient evidence of a change in circumstances for the child’s custody just because upon moving to Texas, the wife lost her job to a company bankruptcy, and lost her house to a foreclosure, when she had secured alternative employment and living arrangements.  There was no evidence that the child was homeless or going without food, or that their physical needs were not being met.  The original basis for allowing the mother to relocate to Texas was because that is where her entire life and family relations were centered. That has not changed.

As to the father’s claim that he was a better parent, the Trial Court had agreed that generally, he had better patenting skills than his ex-wife, but nothing could excuse his horrible behavior for several years after the dissolution where he threatened his wife with criminal actions, threatened he would have the Courts take the child away from her, hired investigators to look into her financial situation, etc.  Further, the guardian reported that should the Court order the minor to live primarily in Connecticut, she had little doubt that the husband would destroy the mother’s relationship with the child.

Therefore, notwithstanding the mother’s obvious shortcomings as a custodial parent, there were not changes significant enough to alter the original decree.  The Appellate Court concluded that the Trial Court had not abused its discretion in making these findings.

Turning to the wife’s appeal, she claimed that although the Trial Court had awarded her $15,000 to defend the motion to modify custody, she had incurred another $22,000 in legal fees.  She claimed that her monthly expenses exceed her monthly income.  The ex-husband retorted that he already spends more than $50,000 a year to fulfill his parenting obligations in Texas with travel costs and a second Texas home.

The Trial Court justified the refusal to grant additional fees on the grounds that the ex-husband was already paying full child support and bearing all the costs of travel and living expenses to accommodate the parenting schedule ordered by the Court.  The Appellate Court noted that C.G.S. § 46(b)-62 does not require a Trial Court to award attorney’s fees even after considering the respective financial abilities of the parties.  Here, the Trial Court did not abuse its discretion in denying the request for additional attorney’s fees in light of the totality of the circumstances, even though the ex-husband had much greater income than the ex-wife.

  • AC34601 - R.S. Silver Enterprises, Inc. v. Pascarella

First, the Court rejected the defendant’s claim that the plaintiff lacked standing to prosecute the claim, because it had assigned away its rights to the contract to a third party.  The Court reviewed the contractual language and found that the claimed interpretation of the contract to suggest there had been an assignment was “absurd.”  Next, the Court decided the defendant had no standing to assert as a defense a claim that the Secretary of State should not have allowed the plaintiff to reinstate its corporate standing in order to be able to file the lawsuit against him.  Just because a reinstated company then files a lawsuit against a defendant does not give standing to the defendant to challenge the Secretary of State’s actions.  The defendant simply has no standing.  The assertion of a claim by the defendant that the reinstated company perpetrated a fraud upon the Secretary of State does not enhance its lack of aggrievement, and thus lack of standing.

Next, the Court addressed the defendant’s argument that the plaintiff should have been precluded from asserting its claim due to bankruptcy fraud.  The defendant contended that the plaintiff had used funds to enter into the transaction that it had previously pledged to its creditors under a bankruptcy plan.  The Court noted that committing bankruptcy fraud can be the basis to deny a  plaintiff’s claim in State Court, but the party asserting the defense in State Court must have a direct connection to the alleged Bankruptcy fraud, or the fraud must cause some harm to the party asserting the defense.  Here the fact that the plaintiff might have used funds to enter into the agreement with the State-court defendant, where said funds might have been previously pledged to someone else, only harms the pledgee(s) of those funds.  It does not harm the defendant directly, and there was no showing to the Trial Court how the defendant’s contract with the plaintiff was impacted by where the plaintiff’s funds came from.  Therefore, the Court rejected that defense, as well.

Finally, the Court rejected the argument that the Trial Court’s decision being rendered over 900 days after the trial   was untimely and void.  The parties had agreed by e-mail that the Court could issue its decision after the 120-day statutory deadline, but failed to impose any time limits upon their approval to the Court. 

[I always wondered if you could put time limits once you granted an extension to the Trial Court to issue its decision.  This case implies that the parties could have done that.]

When the plaintiff was assaulted outside of a bar owned by the defendant, he brought a Dram Shop Act claim.  Thereafter, plaintiff’s counsel filed seven motions to amend the complaint. The defendants filed a motion for nonsuit, claiming that each one failed to comply with a Trial Court’s order that the complaint be revised.  During the hearing on the motion for nonsuit, the Trial Court imposed a nominal $500 sanction on the plaintiff’s attorney.  The Trial Court did not specify when the sum was to be paid.  Plaintiff’s counsel responded that it would be paid in a week.  Several weeks later, the defendant filed another motion for nonsuit, claiming the $500 had not been paid.  Plaintiff’s counsel responded that it had mailed a check, but it must have gotten lost in the mail, so it was replacing it with a money order being sent out by Federal Express that day.

Despite these representations, the Trial Court granted the motion for nonsuit, reasoning that it had been lenient already in only ordering a $500 sanction, and then for the attorney not have paid it more than two months after the Court’s order, was unforgiveable.  The Court said it would reconsider its ruling if the plaintiff’s attorney could show he tried to pay the fine promptly.  Plaintiff filed a motion for reconsideration of the nonsuit with an affidavit, describing the efforts to put the check in the mail and to send a replacement payment by Federal Express. The Trial Court still denied the motion for reconsideration.

The Appellate Court reversed, noting that notwithstanding its sensitivity to the Trial Court’s evident frustration with the conduct of plaintiff’s counsel, and his failure to comply with its modest sanction order, under the totality of the circumstances, the judgment of nonsuit was a disproportionate punishment for counsel’s untimeliness.  The Court also expressed concern with punishing the client for the transgressions of their attorney, reminding Superior Court judges that they may take action directly against the responsible attorney without harming the innocent litigant.  Here, there was no suggestion that the plaintiff himself was involved in the conduct of his counsel.   A Footnote added that, for example, the Trial Court could have ordered plaintiff’s counsel to pay a larger fine and conditioned the right of counsel to continue the practice of law in Connecticut upon payment when he failed to pay the first fine.


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 2016 Pullman & Comley, LLC. All Rights Reserved.

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