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Appellate Court Notes: Week of February 23, 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 April 4, 2016

Supreme Court Advance Release Opinions:

  • SC19408 - NPC Offices, LLC v. Kowaleski

In this case, the Supreme Court reversed the Appellate Court.  The Appellate Court had agreed with the Trial Court that a driveway easement that stated it would remain in effect so long as the servient estate continued to use its property for either residential or professional office purposes, could be terminated when the defendant’s predecessors allowed the property to be rented out to a mortgage broker, a home health care agency, and an appliance delivery coordinator.  Both the Trial Court and the Appellate Court concluded that these were not professional offices, as they were not utilized by someone whose occupation required a high level of training and proficiency.

First, the Supreme Court noted that ambiguities in deeds creating easements should be construed in favor of the grantee.  Put another way, the court noted the old rule that favored construction of deeds to support free use of land has been supplanted by a new rule that conveyances in favor of servitudes should be interpreted in favor of finding them valid whenever possible.

Turning to the contract language, the court concluded the term “Professional Offices” was ambiguous because various dictionaries defined the term “professional” in a multitude of ways to include where an office is used by one engaged in a particular pursuit, study or science for gain.  Such a broad definition of the term “professional” does not preclude offices being used by a broker, health care agency or appliance coordinator.  The matter was remanded for a new trial because of other issues not addressed on the first go-round.

  • SC19373 - Fairfield Merrittview Ltd. Partnership v. Norwalk
  • SC19373 Dissent - Fairfield Merrittview Ltd. Partnership v. Norwalk

The Supreme Court reversed the Appellate Court on this case, as well.  Property was owned by a partnership which transferred ownership to its corporate restructure successor LLC.  The LLC challenged the city’s tax assessment, and was rejected.  The partnership then filed an appeal to the Superior Court, alleging that it was the owner of the property.  One month later, the partnership amended the complaint to add the LLC as a co-plaintiff.  The defendant did not object to the amendment, nor did it challenge the jurisdiction of the court at that time.  In their post-trial brief, the defendant raised for the first time a claim that the Trial Court lacked subject matter jurisdiction because the partnership had initiated the appeal, and not the LLC which really owned the property.  The Trial Court rejected the jurisdictional claim, and reduced the assessment by $15 million.

The Appellate Court reversed, asserting the Trial Court lacked subject matter jurisdiction, and rejected the arguments that the partnership and the LLC were essentially the same entity, having only undergone a name change. 

The Supreme Court disagreed with the Appellate Court and reversed, holding that the Appellate Court ignored the prompt amendment of the tax appeal to add the LLC as a party, which effectively conferred jurisdiction upon the Trial Court, regardless of whether the appeal had been instituted by an improper party, the partnership.  Technically, the partnership should have moved to add a party plaintiff, and not simply amended its complaint, but no one challenged that procedural defect.  Thus the Motion to Amend was equivalent to a Motion to Substitute Party Plaintiff.   C.G.S. § 52-109 allows jurisdictional defects arising out of the lack of a proper party to be remedied with the substitution or addition of a correct party, in which event the claim will relate back to the original filing.

Justice McDonald and Justice Robinson Dissented and said ......not so fast.  They argued that clearly the partnership had no standing to initiate the appeal, and there was never a proper  substitution of party plaintiff as envisioned by C.G.S. § 52-109.  They claimed that this was ratified by the partnership’s continued presence in the case after the LLC was added to the tax appeal.  They should have filed a proper Motion to Substitute. 

Appellate Court Advance Release Opinions:

In order to avoid a constitutional challenge to the Recognizance Requirement for all Civil Actions, the Appellate Court held that a Trial Court has the inherent power to waive or reduce a recognizance bond for an indigent inmate.  A footnote cites to recent testimony by Judge Carroll, arguing that the requirement of recognizance bond should be eliminated because it is outdated, imposes burdens upon self-represented plaintiffs, and does not provide any realistic security for the cost of the action.

  • AC37252 - Menard v. Willimantic Waste Paper Co.

In this worker’s compensation case, the Appellate Court concluded that in determining an injured employee’s wage replacement benefit, vacation pay, as well as regular pay received during the prior year may be considered under C.G.S. § 31-310’s formula.

  • AC36736 - M.U.N. Capital, LLC v. National Hall Properties, LLC

Tenant of a commercial property in Westport, Connecticut filed a motion to reopen the foreclosure judgment against its landlord, even though it was not a party to the foreclosure proceedings.  It hoped that if it could reopen the foreclosure judgment upon an argument that the plaintiff did not have standing to commence the action, then the follow-up summary process action by the creditor against the tenant could be defeated.

The Appellate Court concluded that it did not have subject matter jurisdiction to hear the appeal.  While the tenant had initially been named a defendant at the initiation of the foreclosure, the plaintiff withdrew the lawsuit against it before proceeding to judgment.  Thus, when the tenant subsequently filed a motion to open and vacate the foreclosure judgment, it was simply not a party to the judgment it was seeking to have opened.  Not being a party to the underlying judgment, it had no standing to appeal the denial of its motion to reopen the judgment.

The plaintiff sued the defendants, arguing that the defendant’s attorney and his clients had previously brought a meritless vexatious action against them.  In that prior action, the defendants survived a summary judgment and went on to win their claim that the plaintiff was abusing the easement to its rear lot, but were reversed on appeal.  The rear lot owner then turned around and sued the original plaintiff and their attorney. 

In this vexatious litigation case, the Trial Court granted summary judgment to the defendants, finding that the mere fact that they prevailed an opposition to a summary judgment effort during the first trial established probable cause to have brought the lawsuit in the first instance.

On appeal, the Appellate Court noted that in assessing probable cause in vexatious litigation actions against attorneys and their law firms, the critical question is whether or not, on the basis of the facts known by the law firm, a reasonable attorney, familiar with Connecticut law would believe they had probable cause to bring the lawsuit.  It is an objective standard.  Without squarely addressing the ramifications of the summary judgment, the Appellate Court concluded that there can be no doubt that there was probable cause for the commencement of the action, as there was a dispute over the use of the right-of-way, and that there was further probable cause to name the original defendant’s wife as a co-defendant because she was a co-owner of the property and would be affected by the outcome of the case.  As a co-owner of the property, the wife was certainly a necessary party to the action, if not an indispensable party.

  • AC37269 - Salisbury Bank & Trust Co. v. Christophersen

This decision held the Trial Court could conclude that one of two lots securing a loan with a balance of $5 million was unbuildable due to a building restriction, making the two lots’ combined valuation only $3 million, not $6 million, and thereupon entering a judgment of strict foreclosure.  Borrower was not entitled to claim that because he offered rebuttal evidence to argue the second lot was buildable that the court should order to a foreclosure by sale to see how it played out in the auction.

  • AC37437 - Ippolito v. Olympic Construction, LLC

Contractor sued homeowner for lost profits when the owner terminated the contractor’s ongoing work.  The contract provided for mandatory binding arbitration.  In the arbitration, the homeowner asserted a defense that the contractor could not recover because the contract failed to include a Notice of Right of Cancellation in the correct location, and failed to include a start and end date, and thus, did not comply with Connecticut’s Home Improvement Act (“HIA”).  The arbitrator rejected the defenses, and awarded the contractor $46,000.  The Trial Court refused to set aside the arbitrator’s award upon a claim that it violated public policy to enforce a contract that did not comply with HIA.  The Trial Court concluded that there was no clearly defined indication that public policy was violated when the Right of Cancellation was in the contract, but in the wrong spot required by the statute.  Further - the AIA contract had to read as a whole and when one referred to the General Conditions Provisions, Start Date and Completion Date were Defined Terms.  By reviewing the totality of the contract, those conditions were fulfilled.  It did not matter that the “Completion Date” was defined as a series of events, and not as a particular date.

The Appellate Court agreed that the Supreme Court has not ever required perfect compliance with the statute.  HIA is a remedial statute.  Technical perfection with compliance is not mandated to pursue the interest of public policy.  Accordingly the arbitrator’s award did not violate public policy.


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.  © 2016 Pullman & Comley, LLC. All Rights Reserved.

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