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Appellate Court Notes: Week of June 12, 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 June 20, 2017

Appellate Court Advance Release Opinions:

  • AC38945 - Shook v. Bartholomew
  • AC38945 - Shook v. Eastern Connecticut Health Network, Inc.

Defendants could not appeal plaintiff’s verdict in this motor vehicle accident case for the refusal of the Trial Court to charge a jury with comparative negligence because they had (a) failed to plead some version of comparative negligence as a special defense; and (b) failed to cite to the Trial Court the same authority they were now basing their appeal upon to show that even if the plaintiff had gone through a red light (as defendants had argued), a jury might still have found for the plaintiff, so a comparative charge was called for. An argument seeking a jury instruction must cite both the relevant authority, and to evidence in the record to support the charge. Lastly, the decision dismissed an objection over the Trial Court’s allowing the plaintiff to testify he had an impeccable driving record up to that point. The defendants objected citing “relevance.” The proper objection should have been “improper character testimony.”  A catch-all relevance objection will not preserve an issue on appeal that should have been based upon a different objection.

Yet another decision refusing to set aside the divorce judgment based upon a claim of fraud when the defendant based the value of his pension as the amount he contributed as opposed to the discounted value of the likely payout over time.  The court found that the defendant had truthfully testified about what he knew about his potential future pension from the IRS where he was employed.

  • AC39309 - State v. Ellis
  • AC37719 - Grovenburg v. Rustle Meadow Associates, LLC

An important common interest community law decision in Connecticut analyzing the discretions of associations to approve or reject unit owner requests in common interest communities.  Here the association denied the unit owner’s request to put a fence around their pool because they would not honor an unwritten rule to keep a green buffer between the units meant as a horse riding community.  The Trial Court refused to allow any evidence from the association about the purported buffer areas, (saying it had to be in writing), and then concluded that the association had acted unreasonably in withholding the approval and awarded the unit owner $80,000 in attorney fees and the right to build the fence.  Deeming it a temporary injunction, the Trial Court also refused to impose a stay on appeal.  Wrong…wrong….wrong… on so many levels was the outcome of this decision.  First off – you can’t keep someone from appealing by calling it a “temporary injunction” when it is issued at the end of the trial.  That is a final and appealable judgment. Secondly – CT courts are to apply a two part test in deciding whether common interest associations are reasonably exercising their discretion to withhold approvals or whether they are acting arbitrary and capricious.  The burden to show they acted arbitrary should be on the unit owner and the courts should be deferring to the discretion of the associations.  The criteria used by the association does not have to be spelled out in a writing here as the Trial Court assumed.  It is also significant if the unit owner knew of the criteria used when they bought into the project as all CIOA owners give up some degree of freedom that private homeowners do not.  How was the association here to defend itself and show that it relied upon reasonable criteria of requiring green buffer zones and that the unit owner was aware that was a purpose of the association as a horse property trying to maximize open space in a wooded environment?  This decision also rejected the Trial Court’s wholesale declaration that fines assessed by the association for clearing land without permission were “null & void.”  The case was remanded for a new trial.

Trial Court properly refused to open a default judgment of strict foreclosure when owners raised claim for the first time on the eve of law days that the mortgage had been procured by fraud due to the loan officer falsely assuring them that they could afford the loan.  One must show evidence of actual fraud by clear evidence to reopen a judgment more than four months after judgment where no appeal had been taken.  The dissent argued that the owners by way of their affidavits and other proof had at least raised the issue beyond mere speculation and should have been afforded an evidentiary hearing to try and establish their claim.

  • AC38505 - Rogers v. Commissioner of Correction
  • AC37693 - Pires v. Commissioner of Correction
  • AC38167 - Reserve Realty, LLC v. Windemere Reserve, LLC
  • AC38440 - Reserve Realty, LLC v. BLT Reserve, LLC
  • AC38442 - Reserve Realty, LLC v. Windemere Reserve, LLC

A prominent real estate broker in the Danbury market signed an exclusive listing agreement with a development company seeking to acquire and develop over 500 acres of land.  The brokerage contract required the developer to impose the same obligations upon anyone it sold the land to, i.e, to require any buyer to likewise enter into an exclusive listing agreement with the same broker.  The development company ended up selling off two large parcels from the tract to two buyers, and in order to satisfy its obligations to the broker, required each buyer to sign an exclusive listing agreement with the same broker.  Both buyers agreed to do so, but neither had any desire to use that broker.  Buyer #1 developed its tracts into apartments and condos.  Buyer #2 started to develop its parcel into commercial space.  Both buyers refused to honor the brokerage agreement.  This decision upheld the Trial Court’s conclusion that the brokerage agreement was an invalid “tying agreement” in violation of CT’s Antitrust Act CGS 35-29 and could not be enforced.  The tying party (here the original developer) does not have to have a monopoly, nor even be a dominant economic player in the field.  Rather the tying party need only have a not insignificant role in that market.  Here the development involved 500 acres of land worth millions of dollars that had received special land use approvals for a mix of residential and commercial development and as such would have a significant economic impact on the Danbury market.  The Trial Court could easily find those facts sufficient to implicate antitrust concerns.


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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