Week of July 9

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 July 27, 2015

Supreme Court Update:

  • SC19262 - Handsome, Inc. v. Planning & Zoning Commission
  • SC19262 Dissent - Handsome, Inc. v. Planning & Zoning Commission

I am pleased to report on this one being on the winning side.  PZC was considering the extension of corporate-developer’s special permit after being ordered to do so in a prior appeal.  Unbeknownst to the PZC, the developer lost title to the property through a foreclosure before the hearing.  The developer had entered into a side agreement with the foreclosing plaintiff allowing it to remain on the property in return for nominal payments against the judgment.  The PZC approved the permit extension with conditions and the developer appealed, asserting multiple claims, but primarily that the conditions attached were improper.  The appeal complaint asserted that the developer was aggrieved, as the owner of the property, and that its corporate officers were aggrieved as well.  Aggrievement is a prerequisite to taking an administrative appeal, and in CT, you do not have to own the land to be deemed aggrieved.  You must, however, have some interest in the land.

Before trial, the PZC discovered the foreclosure and moved to dismiss the appeal for lack of aggrievement.  In a successful opposition to the motion to dismiss, the developer asserted it was still the record owner, and in any event had the side agreement with the foreclosing plaintiff giving it a possessory interest, and that was enough for standing.  But thereafter, the developer never moved to amend his complaint to assert aggrievement based upon the possessory agreement, nor did it brief the issue in its trial brief, nor argue it in closing arguments.  The trial court made a passing comment about the side agreement in its decision, but found aggrievement only on the grounds pled in the complaint, i.e., the developer was still the record owner (due to a claimed flaw in the foreclosure), and in any event the co-plaintiff corporate officers should be deemed aggrieved as well.

The Supreme Court reversed.  It held there was no flaw in the foreclosure.  The failure of the foreclosing plaintiff to record a Certificate of Foreclosure when the law days of a strict foreclosure judgment expired, did not prevent the title to the property transferring to the plaintiff.  A Certificate of Foreclosure is not a “muniment of title.”  The Notice of Lis Pendens is what points title searchers to the fact there might be a foreclosure, and it is the Judgment of Foreclosure that transfers title, not the Certificate, (which is nothing more than the bow on the package).  Thus the developer corporation was not aggrieved as it was not the record owner of title. 

Next the Court held that corporate officers do not have standing to assert a derivative claim of the corporation.  Only a corporation may assert its own claims.   Finally, the Court turned to the alternate claim that the corporation had standing (i.e., was aggrieved) to take the appeal because of the side deal with the foreclosing plaintiff (i.e., a non-ownership possessory interest in the land).  The majority of the Court held that counsel’s failure to assert that claim in his complaint, in his trial brief, or in his oral argument’s during trial, reflected a lack of reliance upon or abandonment of that claim.  And contrary to the strong dissent, the majority held that the trial court’s decision did not rely upon the non-ownership agreement to find standing as the agreement was only mentioned once in passing.  The appeal was ordered dismissed. 

Justice Palmer filed a strong dissent suggesting it was not necessary for the plaintiff to amend its complaint to assert this alternate ground of standing when the issue already came up during the Motion to Dismiss, evidence of the agreement was introduced during trial, the PZC was claiming surprise by the issue, and he felt a generous reading of the trial court’s decision reflected that it had in fact relied upon it as well.  He noted that CT would allow standing based upon a non-ownership possessory interest in land and thus he would have allowed the appeal to proceed.

[On one level it is unfortunate that the SCT did not reach the merits of the appeal as there were several interesting issues of first impression including: (1) may a trial court subsume jurisdiction over a FOIA complaint when it is already pending before the FOIC; and (2) may a land use commission attach conditions to an original permit when the developer comes back to renew it, to take into account intervening events.] 

A thank you to my colleague Assaf Ben-Atar for all the hard work on this matter.

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.  Copyright 2015 Pullman & Comley, LLC. All Rights Reserved.

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