Photo of

Appellate Court Notes: Week of March 13, 2017

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 March 13 2017

Supreme Court Advance Release Opinions:

  • SC19651 - Southwest Appraisal Group, LLC v. Administrator, Unemployment Compensation Act

Appellate Court Advance Release Opinions:

  • AC38279 - Al Dente, LLC v. Consiglio

Parties agreed upon a bid procedure to sell the famous Sally’s Pizza of New Haven that provided that the seller would negotiate the terms with whomever was the highest sealed bidder.  The seller informed the plaintiff that it was the high bidder.  The plaintiff/buyer then sent a proposed contract to the seller that required both parties to sign it before it was binding.  The seller’s attorney replied he would have to review the proposed contract with his client, but provided him a list of comments to the contract, and said he would get back to the buyer’s attorney.  The buyer replied that all of the comments were accepted and returned a signed copy of the contract with a deposit check.  The seller claimed they had no deal and returned the check.  The buyer sued, claiming they had a binding deal by their acceptance of a counter-offer from the seller when they “accepted” all of the “comments” from the seller’s attorney.  The buyer’s fallback position was that they at least had an agreement to negotiate and the seller could not just call off the deal and refuse to negotiate.

This decision held that to the extent there was a “deal” to negotiate – that requirement was satisfied with the exchange and comments on a proposed contract.  As for there being an actual binding contract, this decision upheld summary judgment for the seller holding that no binding agreement was reached.

No binding contract was reached for a number of reasons.  First, an invitation to bid cannot be the basis for a binding contract with the mere submission of a bid, as the terms still have to be worked out if a bid amount is accepted.  Secondly, a reply to an offer or counteroffer with a term sheet or a list of comments will not ordinarily be deemed something that can be “accepted” so as to create a binding contract. “Requests and suggestions” to a proposal do not rise to the level of a counteroffer.  Under the “objective theory of contracts,” it does not matter that the receiving attorney claims he “perceived” the “comments” received to his proposed contract to be a counteroffer.  Subjective intent does not matter. Thirdly, the proposed underlying agreement required both parties to sign it to be binding, and nothing in the comments from the attorney indicated that requirement was being waived.  That is particularly significant when the deal involves the transfer of title to real property with the statute of frauds implications.  Fourthly, the emails of the seller’s attorney made it clear that he had yet to review all the issues with his client and was intending to possibly send further comments.  Fifthly, the comments showed there were still vague terms to be worked out like an easement, and confidentiality terms.  In a million dollar deal, one would expect all such terms to be carefully negotiated to conclusion – not left for a court to guess at.
• AC37936 - Holmes v. Safeco Ins. Co. of America
Homeowners claim for coverage due to ice dam damage was properly rejected for failing to commence suit within the 12 months (1 year) contractual limitation period contained in the policy.  There mere fact that this “all-risk” policy also covered loss in the event of a fire, did not mean that the policy had to incorporate the statutorily mandated minimum of 18 months to file a lawsuit because that statute only applies to Standard Fire Loss Policies, i.e., policies that are “named-imperil” policies that cover only the specified risk of a fire loss. 
• AC38758 - State v. Snowden
• AC37508 - Giuca v. Commissioner of Correction
• AC39746 - Ledyard v. WMS Gaming, Inc.
In this case the Town brought a personal property collection action in State court for equipment leased by the defendant to one of the Tribes.  The Tribe sued in Federal court to block the action claiming federal law preempted the state tax.  The 2nd Circuit ruled for the Town.   Back in State court the Town now claimed that CGS 12-161 allowed it to recover its attorney fees, not only for the State court collection action,  but also for defending the Federal lawsuit and appeal.  Each side filed for summary judgment.  The Trial Court ruled for the Town and the defendant appealed, without waiting for the actual hearing to set the amount of the attorney fees.  To make matters worse, the defendant never amended its appeal after the hearing was held and the fees were set.  The Town moved to dismiss the appeal as not being filed from a final judgment.  The Appellate Court agreed and held that the defendant should have waited for the fees to be set.  The rule that a judgment is final and must be appealed even though an attorney fee award has not been held applies to judgments on the merits, not to a judgment that is only awarding the attorney fees.  That sub-portion of a court ruling is not appealable until the fees are set.  It would be like trying to appeal a finding of liability alone in the underlying case.  You can’t do that.
• AC37366 - Duncan v. Commissioner of Correction
• AC38575 - Ampero v. Commissioner of Correction
• AC38238 - Rojas v. Commissioner of Correction

Back to Top