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Appellate Court Notes: Week of April 3, 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 April 25, 2017

Supreme Court Advance Release Opinions: 

  • SC19576 - Briere v. Greater Hartford Orthopedic Group, P.C.
  • SC19576 Concurrence - Briere v. Greater Hartford Orthopedic Group, P.C.

One might argue this decision expands the “relation back” doctrine when a new claim is asserted after the expiration of the statute of limitation.  The Court said it was taking the opportunity to better define the test, but said so long as there is not a new cause of action, or contrary facts being alleged, relation back should be allowed when it’s the same parties and the same incident.  Here the original complaint asserted negligence by a doctor in preparing for and performing skull and spinal surgery which resulted in paralysis, and mentioned the misuse of a particular medical instrument.  The amended complaint added a claim that a different medical instrument was misused by the same doctor during the same medical procedure.  The key was that the defendant was on notice that the claim was based upon the misuse of a medical instrument during the surgery.  Therefore the amended claim related back.   The concurrence agreed with the outcome, but objected to that portion of the majority’s decision which held that the review of such disputes will always be “de novo.”

Appellate Court Advance Release Opinions: 

  • AC34950 - Fairfield Merrittview Ltd. Partnership v. Norwalk

This decision rejected the municipality’s challenge to a reduction of the tax assessment by over $10 million of a Merritt office building. The city’s and owner’s appraisers were almost $20 million apart, but agreed the income approach with a direct cap method was the best way to arrive at value.  The city claimed that rather than rely on the net rental area on the city’s own assessment card – the Trial Court should have believed its testimony  and evidence that the amount was much higher.  Further the city argued miscellaneous income increased the gross income per square foot.  The Trial Court had the discretion when confronted with conflicting evidence to believe the evidence of the square footage in the owners tax statement submissions to the town.  The Trial Court could also decline to consider miscellaneous additional income.  Conference room rental income was to fickle, interest income was not deemed attributable to the property, and a category of generic “other income” was too vague, to be the basis for valuation.

  • AC37766 - Connecticut Home Health Services, LLC v. Futterleib

This decision reversed the Trial Court’s ruling which had enforced an oral agreement to provide home care to the defendant’s elderly in-laws.  The defendants never signed the plaintiff’s written contract, and even that form did not comply with the provisions of CGS 20-679.  Even if the court were to find a bad faith exception to the statute’s requirements (akin to the Home Improvement Act case law), merely refusing to sign the proposed contract does not amount to “bad faith.”  Thus the Trial Court should not have made a finding of bad faith for refusing to sign the contracts.  That in turn negates the plaintiff’s ability to claim an oral contract for such services as a fall back when its contract did not comply with the Act.

Employer offered to buy his employee a house.  The employer paid $250,000 for the house.  The deal was the tenant would move in and collect rent on the second unit for the employer and pay back the employer the $250,000 over several years at 7% and when the last payment was made, the employer would deed the title to the employee.  After paying about $90,000 back to the employer, the employee defaulted.  The owner/employer started an eviction.  This decision upheld the housing court’s eviction of the employee’s family and refusing to impose a constructive trust over the property.


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.  © 2017 Pullman & Comley, LLC. All Rights Reserved.

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