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Appellate Court Notes: Week of August 8, 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 August 23, 2016

Supreme Court Advance Release Opinions:

  • SC19248 - Western Dermatology Consultants, P.C. v. VitalWorks, Inc.

This decision partially upheld an Appellate Court decision I previously summarized for you where a Connecticut software vendor sold a bad program to a medical group in New Mexico, causing their system to go haywire.  The Supreme Court agreed that the Trial Court incorrectly applied Connecticut’s CUTPA to the claim as asserted in the plaintiff’s complaint.  The Trial Court should have applied New Mexico’s unfair trade practices act ("NMUTPA") because that state had the most significant relationship with the events. But the Supreme Court disagreed with the Appellate Court's decision to order judgment on the CUTPA count in favor of the Connecticut vendor. Instead, the Supreme Court said the proper remedy was to remand for a new trial just on a NMUTPA claim, even though nobody asked for that! 

The Court said the general remedy when the wrong law is applied is to remand for a retrial applying the correct law. Here, the defendant was partially blamed for the new trial because it did not challenge the plaintiff’s application of Connecticut law until the close of evidence. Therefore the plaintiff was never put on notice to argue that alternatively NMUTPA applied. Had the defendant properly raised the choice of law question at the start of evidence, the Trial Court might have applied the correct law, and if it failed to do so, a remand for a new trial would have been in order anyway. Then the Court turned around and also blamed the plaintiff by suggesting it should have raised a claim at the Appellate Court level that the defendant’s challenge to the application of Connecticut law had been raised too late in the Trial Court below. The Supreme Court suggested that a good argument could have been made that the defendant failed to preserve the claim for the Appellate Court when it sat on its hands during the trial.

Appellate Court Advance Release Opinions:

  • AC37516 - Porto v. Petco Animal Supplies Stores, Inc.

The “mode of operation” is an exception to the general rule that premises liability can only be found if the owner had reasonable notice of the defective condition. So far it seems to only apply to self-service salad bars at grocery stores. This case held the exception cannot be extended to pet food stores that allow patrons to enter with their dogs. The plaintiff slipped on a puddle of dog pee and argued unsuccessfully that advance notice of the condition was not a prerequisite for her claim.

Mom and dad got off the hook. They had signed a guarantee of a one year lease for their son and his girlfriend which was labeled Non-tenant Co-signers and said they guaranteed the lease obligations through its term. The kids stayed beyond the end of the term and failed to pay the post-term month to month rent and they damaged the property before they left. The Court held that the “hold over” created a new month to month tenancy and was not an extension of the term of the original lease they had guaranteed. Therefore due to poor draftsmanship of the guaranty the parents were not liable for the unpaid month to month rent or the damages. Both occurred after the original lease term ended.


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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