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Appellate Court Notes: Week of May 16, 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 May 24, 2016

Appellate Court Advance Release Opinions:

Ex-wife filed a motion for contempt when ex-husband stopped paying the mortgage (that was solely in his name) on the house she was awarded and the lender started a foreclosure.  Trial Judge #1 ordered the husband to sign an authorization for the wife to take all actions necessary to negotiate with the lender through foreclosure mediation.  The husband would only sign a halfhearted authorization, and the wife moved for contempt.   Trial Judge #2 heard oral argument on the contempt motion and started to say she would not require the husband to sign anything that expanded his liabilities, but then stopped herself and said, "this is a complex issue, so let’s have an evidentiary hearing." When the hearing was finally scheduled, a third judge was assigned to hear it.  During that hearing, the husband’s side argued to judge #3 that the issue was already resolved because judge #2 had already ruled that his proposed authorization was sufficient.  Judge #3 bought that argument and denied the wife’s motion for contempt.  Judge #3 also denied the wife’s request for reargument wherein she asserted she was entitled to an evidentiary hearing on the dispute.  The Appellate Court reversed, noting that Judge #2 had not in fact ruled on the issue and was only musing out loud before scheduling a hearing and that Judge #3 committed an error when he did not hold that evidentiary hearing to determine whether the husband had complied with the court order of Judge #1 that he execute an authorization granting full authority to the wife.

  • AC37328 - Bridgeport Dental, LLC v. Commissioner of Social Services

A dental practice group was audited by the state agency for payments made on behalf of state (Medicaid) aid recipients.  Utilizing the “extrapolation method” from a sampling, it determined that the practice had been paid $800,000 over two years of which approximately $100,000 was an overpayment.  The auditor asserted the practice had used incorrect codes (such as where a code showed work by a dentist vs. a technician but no corresponding doctor notes were made to prove that) and documentation was “missing” (which category really meant x-rays in the files were deemed of poor quality).  The practice appealed (without the assistance of counsel at this stage) and the agency sustained the auditor’s report after exchanging emails with the practice and without a hearing.

Pursuant to CGS 17b-99 the dental practice appealed to the Superior Court under UAPA.  The trial court upheld the agency’s conclusion that there was substantial evidence to support the auditor’s decision.  Upon further appeal, the Appellate Court noted that the “substantial evidence rule” does not allow a re-trial of the agency’s decision and in fact the appellant was required to show there “was not substantial evidence” for the agency to rule the way it did.  Thus it was not sufficient for the practice to claim the auditor’s report (and subsequent agency decision) was full of conclusory statements without any reference to underlying evidentiary support.  Nor was it enough to simply claim that the x-rays were in fact taken when at least one was proven of poor quality, nor was it enough to claim a dentist did in fact see the sample patients and just not know they had to enter notes to prove it.  The decision held that the burden was upon the practice to prove by documentation and evidence to the agency at the 1st appeal level that each sampled patient file had been handled fully in accordance with the regulations.

Challenges that the agency should have considered some of the matters as “clerical errors” or no error at all absent regulations the agency was supposed to have drafted....were not considered as they had not been raised in the underlying appeal (when the practice tried to handle the appeal on its own).  The court discussed when a matter may be considered on appeal when it was not raised before an administrative agency below and analogized to court proceedings where its allowed for: ....constitutional issues.....jurisdictional issues.....and plain error issues.   Finally - the court addressed a challenge to the use of the “extrapolation method” which the practice claimed was totally unfair and distorted the truth.  The court held that case law and statute allow that method to be used after a sampling of files shows errors because individual audits of every file are just not practical.

  • AC37771 - Vermont Mutual Ins. Co. v. Fern

Son was hired to install a new boiler and asked his father to help him.  But neither were licensed plumbers.  They installed it incorrectly and the flue became dislodged, setting the house on fire.  The insurance company paid the homeowner and then sued the son and his father under a subrogation claim.  This decision held that the father and son were both held jointly liable.  It did not matter that the father claimed he was only helping his son out and did not get paid.  Both should have known this was an installation and occupation that required specialized knowledge, training, and licensure from the state which is designed to avoid just this circumstance of inexperienced contractors installing dangerous equipment.  Their lack of knowledge of how the system was to be installed and operated is discussed extensively.  It was deemed negligence per se to have performed such an installation without the proper licensing.  It was also plain negligence to have installed the unit without following the National Fire Code.

  • AC37747 - State v. Barriga
  • AC37723 - Axela New Britain Group, LLC v. LHBP Realty, LLC

(A poorly worded deed restriction did the defendant in on this one).  The defendant operated a grocery store on its parcel.  The plaintiff’s predecessor wished to build a Caldor's department store in its abutting property but needed an easement from the defendant.  The defendant agreed only if in return the plaintiff’s predecessor entered into an easement agreement that included a provision “critically important to the defendant” that the plaintiff’s property would not allow the sale of groceries for a minimum of 20 years or until the building on the plaintiff’s property was no longer used as a discount department store.  Plaintiff’s predecessor built its building for Caldor's but it eventually went out of business and was replaced by a new tenant, Wal-Mart.  Wal-Mart then closed that store and the plaintiff’s building remained vacant for several years.  Plaintiff sued for the court to declare the restriction expired.  The defendant objected, claiming when read as a whole, it was clearly intended that the restriction would remain in place so long as it operated a grocery store upon its property.   The Appellate Court agreed with the trial court that there was no way to get around the facts that the 20 year minimum had passed and now, since the plaintiff’s building was vacant,...it was no longer being used as a discount department store.   Thus under the language as drafted, the restriction had lapsed.

It was proper for the trial court to grant a Motion for Non-Suit against a pro-se plaintiff who three times filed amended complaints that failed to address the defendant’s original Request to Revise. 

  • AC37511 - Ridgaway v. Mount Vernon Fire Ins. Co

Father sued a bar when his son was killed by an intoxicated patron.  Bar sued its broker for not obtaining sufficient coverage and the insurance carrier sued the bar to deny coverage.  The bar settled with the father by assigning its claims against the insurer and the broker to the father.  Father then brought a bad faith insurance claim against the insurer and an assigned negligence claim against the broker.  Insurer sought discovery of the settlement agreements in the underlying proceedings from the father.  The father’s attorney objected, citing a confidentiality provision in the settlement agreements (forgetting to mention that they also had an out for any disclosure required by court order).  A judge trial referee who heard the matter wasn’t buying it and ordered the father to “file” the settlement with the court and redact the dollar amounts.  The attorney continued to resist, claiming it was confidential, and one month later the father’s attorney had still not complied, and so, the attorney for the insurer filed a Motion for Nonsuit.  By then, however, the father’s attorney had stuck a copy of the settlement in the mail to the insurer’s attorney.  The trial referee granted the nonsuit.  The father’s attorney filed a Motion to Reargue claiming that he had now provided it to the other side.  Before the motion was heard....and now two months past the deadline.... he finally also filed a copy with the court as ordered.  The insurer’s attorney objected to reargument pointing out the “except by court order provision” proved this was a frivolous objection and a willful refusal to comply with the court’s order, that in turn had delayed discovery and cost legal fees.  The trial referee agreed and denied reargument.

On appeal the Appellate Court brushed aside an argument that trial referee judges do not have the jurisdiction to grant nonsuits.  They have the same powers as a non-retired judge.  Next, the court brushed aside an argument that the referee did not have authority  to enter the nonsuit as the case was not “assigned” to him.  There mere fact he was hearing it meant it was “assigned.”

But then...while agreeing the trial court’s order was clear; that it was willfully disobeyed; that the refusal to turn over the document was ridiculous; and that a related refusal to turn over depo transcripts on the grounds of work product was nonsense....held that the punishment was disproportionate to the crime because it was only the client-father who would suffer the loss of his claim, and there was no evidence that he was complicit in his attorney’s actions....and there had been no delay of the trial.  The decision held that the proper remedy would have been to sanction the attorney who was violating the court’s order, while simultaneously paying lip service to the concepts that clients are responsible for the actions of their attorneys, and trial courts have the right to enter nonsuits when confronted with such blatant violations of its orders.


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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