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Appellate Court Notes: Week of February 25, 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

Appellate Court Advance Release Opinions:

Trial court properly refused to hold ex-husband in contempt for not paying 50 percent of child’s surgery per the original decree.  The Trial Court could be skeptical of ex-wife’s claim that her father loaned her the $50,000 needed for the surgery when she waited three years to bring the Motion for Contempt, and produced no evidence of the loan, and the ex-husband claimed the surgery was paid for by a charitable foundation due to its experimental nature.

The right of a plaintiff to withdraw a case before a hearing under 52-80 is not absolute.  The statute only means that court permission is not required.  The right to withdraw may be “trumped” by the right of the defendant to claim injury thereby and seek restoration of the original case back to the docket.  Here, when the plaintiff missed the deadline after the pleadings were closed to claim the case to a jury, she filed a new identical lawsuit and withdrew the first lawsuit as sort of a “do-over.”  This decision held that the Trial Court abused its discretion by not granting the defendant’s Motion to Restore the first case back to the docket.  When the deadline for a jury claim lapsed, that vested rights in the defendant to have a court-side trial.  Those rights were injured by granting the plaintiff a do-over.  The Trial Court should have taken notice of an email from plaintiff’s counsel to the defendant’s counsel admitting she was filing the second lawsuit to gain a jury trial right.  The decision notes that the procedural chicanery engaged in by the plaintiff here cannot be sanctioned because it offends the orderly and due administration of justice.

In order to ensure his bid to purchase a residential property for $715,000, the buyer waived the financing contingency, even though he was only putting $30,000 down and seeking 97 percent financing.  The contract provided that the $30,000 deposit would be forfeited as liquidated damages in the event of a default.  The buyer was a sophisticated owner of many pieces of real estate.  The buyer defaulted when he could not obtain 97 percent financing on terms acceptable to him.  The seller kept the deposit and then re-sold the house for $720,000 but refused to return the deposit.  The original buyer sued.  This decision upheld the Liquidated Damage clause in the contract noting that it was less than 10 percent which is always presumptively reasonable.  But even with a valid liquidated damage clause....a breaching party may claim unjust enrichment to seek return of some of the deposit..................unless............the breach was “willful.”  Here the breach was properly deemed to be “willful,” because the buyer made a conscious decision to waive the contingency clause not knowing if he would be able to line up financing.  Therefore he knowingly engaged in a gamble......and lost.  That’s the same as if he just decided he wasn’t going to go through with the purchase.


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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