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Appellate Court Notes: Week of December 1, 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 I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted December 21, 2016

Appellate Court Advance Release Opinions:

  • AC37979 - Meadowbrook Center, Inc. v. Buchman

Nursing home sued son/guarantor of patient and obtained a judgment for $45,000.  The guarantee agreement allowed the nursing home to seek attorney fees.  The son appealed and the Appellate Court reversed.  CGS 42-150bb allows any consumer to a contract that allows the service provider to recover attorney fees to turn around and claim their attorney fees against the provider if they win the lawsuit.  But P.B. 11-21 also says any request for attorney fees “shall” be filed within 30 days of the final judgment.  So the son, who was now deemed the “winner," filed a motion to be awarded $75,000 in legal fees for defending the case, but he filed it five days after the 30-day deadline.  The Trial Court denied the motion for being late.  The Appellate Court reversed and held that despite the use of the word “shall," the rule in this Practice Book section was only directory, not mandatory, because it did not go to the “substance of the rule," and there is no language invalidating a late action.   To get around rulings where the courts have held “shall” means “shall," the decision adds that it is an important public policy to let consumers recover their fees if unjustly sued.   The commentary and footnotes all but imply that five days late should be forgiven as it does not cause any injustice, but noted in the past five months late and 20 months late was deemed to be too late.  So the matter was remanded to the Trial Court to exercise its discretion whether to allow the five day late filing, but with almost a mandate that it must.

  • AC37238 - Bush v. Commissioner of Correction
  • AC37496 - Giattino v. Commissioner of Correction
  • AC38172 - Nieves v. Commissioner of Correction
  • AC38023 - Parillo Food Group, Inc. v. Board of Zoning Appeals

This case held that the Superior Court incorrectly concluding that zoning boards do not have an independent right to proscribe the hours of operation under a special permit requested by a restaurant with a liquor license.  The plaintiff argued unsuccessfully that under the Liquor Control Act the only way a municipality could limit the hours of operation of an establishment with a state issued license was to pass an ordinance.

  • AC37947 - State v. Norman P.
  • AC38332 - Monroe v. Discover Property & Casualty Ins. Co.

This case is a postscript to our partner Rick’s win last year when he successfully defended our client the Town of Monroe in a claim that it had promised to allow a developer to build a cell phone tower on town-owned property.  Rick won on appeal when the Appellate Court held that such contract claims are void absent approval by the municipal body authorized to enter into such transactions.  In this case, the Town was suing its insurer claiming it should have paid for the defense and appeal of the developer’s lawsuit that Rick won.  The insurer pointed to its policy exclusion for any claims arising out of contracts.  The Appellate Court agreed with the Town that the plaintiff’s inclusion of negligent misrep claims in his complaint, in addition to the otherwise non-covered “contract claims”  triggered a duty to defend that the insurer breached.  Although the count for negligent misrepresentation incorporated the claims under the contract counts, the negligent misrep claim could not be deemed to have arisen solely out of the (non-covered) contract claims because the plaintiff added another paragraph to that count making references to promises and statements that the Town officials purportedly made that was not in the counts sounding in breach of contract.  Thus it was possible for the Town to have been found liable on just the negligence claims without the jury finding there had been a contract.  Negligent claims were covered under the policy and so the insurer should have paid for the defense of the entire lawsuit.

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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