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Appellate Court Notes: Week of February 11, 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 30, 2016

Appellate Court Advance Release Opinions:

AC36946 - Edgewood Street Garden Apartments, LLC v. Hartford

Property owner sued the City when the City Building Inspector noticed on a Sunday the owner’s unoccupied apartment building with a collapsed roof was bulging and ordered it summarily demolished that day for fear it was about to collapse.  The Trial Court rendered judgment for the City and the owner appealed.  After dispensing with the owner's attempt to challenge the factual conclusions of the trial judge, this court turned to the dismissal of the 1983 claims of the owner.  The owner claimed the building code itself established a “policy” that was intended to violate his constitutional rights.  This decision held that a building code is not the same as “a policy to demolish buildings.”  Local governments are only liable for the acts of their employees in violation of 1983 when done pursuant to a municipal policy.  Even had the plaintiff proven the building inspector incorrectly concluded the building was about to collapse, that’s a long way off from an intentional constitutional violation pursuant to a policy to randomly tear down buildings.  Finally the court rejected the owner’s claim that the Trial Court was obligated to draw an adverse inference due to the allegation that the City committed spoliation of evidence by not taking measurements and photos of the demo process.  It is always discretionary, not mandatory, for the Trial Court to draw such an inference.

  • AC37013 - Stevens v. Carlton Helming

Owner of closed oil company sued the court-appointed receiver who filed a proof of claim in the owner’s bankruptcy asserting the owner had diverted company funds to his own use for a period of 5 to 10 years.  The receiver repeated those statements to a news reporter and added he was 99% sure he could prove those claims.  The complaint only asserted the 99% statement was defamatory.  The receiver moved for summary judgment claiming his comments were fair comment on a matter of public concern.  The owner retorted, "Well what about the 5 to 10 year comment?"  The Judge responded, "You did not plead that," and granted the summary judgment to the receiver.  The owner appealed and this decision held that defamation claims must be pled with specificity (see footnote 3).  The Trial Court properly refused to consider a claim of defamation that had not been specifically pled.   This court found it unnecessary to consider the receivers cross appeal which argued that both truth and the absolute litigation privilege were defenses to the claim.

Company brought a “slapp suit” against neighbors that had been objecting to its operations.  The defendants moved for summary judgment claiming lack of defamatory comment and no evidence of any damages.  The plaintiff opposed but pointed to no evidence.  The Trial Court demanded plaintiff file a more detailed response.  A new memo of law and affidavits followed from the plaintiff’s counsel, but the memo still failed to cite to specific evidence as ordered by the Trial Court. Instead it made generic references to the exhibits.  The Trial Judge scolded counsel for not following its orders and expecting the court to do his work and granted the summary judgment of the defendant.  The Appellate Court reversed.  Acknowledging that the plaintiff’s attorney failed to follow the Trial Court’s orders, this decision held the real issue was whether summary judgment should have been granted to the defendants.  There was no requirement for the plaintiff to present any evidence until the defendant made a prima facia showing with its own evidence first in its summary judgment papers.  Since the Trial Court never considered that issue, the matter was remanded for the Trial Court to make that determination.  It can’t however grant one party’s motion for summary judgment just because of the failures of the respondent to file a proper reply.

An attorney whose fee agreement with the client on a personal injury matter that fails to comply with the “fee cap” statutory provisions may not recover any fees from the client, even under an alternate theory of quantum meruit.  CGS 52-251c by its own language bars alternate (non-contract) avenues of recovery of any fee.

Appellate Court reversed the Trial Court’s denial of the City’s Motion for Summary Judgment.  The City claimed a current lawsuit alleging the City denied access to plaintiff’s property was barred under the “transactional test” of res judicata because claims of denial of access were previously raised in a 1997 lawsuit.  The Appellate Court agreed and said it did not matter that the plaintiff was attempting to raise the claim under new legal theories and seeking different relief.  Nor can the plaintiff claim that the 1997 lawsuit was really a 13a-49 appeal from the discontinuance of a road.  As such they argued no monetary damages could have been awarded under the earlier lawsuit, so res judicata did not apply.  This decision noted that the problem with the argument was the first lawsuit was never pled that way. 

  • AC37495 - Davis v. Davis-Henriques

Brother claimed deceased parent had in fact executed a will and produced it to the Probate Court, but the other brother / fiduciary objected on the grounds it was not witnessed.   The Probate Court refused to admit the will due to lack of witnesses on the document.  No appeal was taken.  Later, with the aid of counsel, the brother once again attempted to offer the will to the Probate Court, this time with affidavits of witnesses who saw it signed.  The Probate Court denied the Motion.  This time the brother appealed.  The Appellate Court said the second attempt to admit the will should have been viewed as if it were a Motion to Reargue.  Absent an appeal of the first Probate Court Order, such a Motion may only be granted if the original Court Order were obtained by fraud, mistake, or inequitable conduct, according to 45a-24.  This Motion amounted to a collateral attack on the original decree of the Probate Court and contained no such claims.  Therefore the Motion was properly denied.  The decision further declined the appellant’s invitation to ignore the statute and prior SCt precedent to do “what was right.”  Claims of substantial compliance with the statutory requirements for the execution of a will is not a relevant factor in this outcome, the court added.


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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