Week of May 23, 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 emmccreery@pullcom.com. I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted July 1, 2016

Appellate Court Advance Release Opinions:

  • AC37813 - Santarsiero v. Planning & Zoning Commission

A planning and zoning commission (PZC) was entitled to use its discretion in waiving a landscape buffer requirement for a business use abutting a residential zone when the regulations themselves allowed for such a waiver when an existing wetlands acted as a sufficient buffer. Further, the PZC acted within its discretion in concluding the wetlands here provided such a “sufficient buffer” when it took into account existing trees, proposed additional plantings, and a proposed conservation easement. The decision also held that the plaintiff would not be allowed to challenge in these proceedings a variance granted by the Zoning Board of Appeals six years earlier, which was to allow a drive-up window for the future restaurant. Only in extremely rare cases will a late challenge be allowed such as where the permission granted not only violated the land use regulations, but had no legitimate reason whatsoever for having been granted. Not only is that not the case here, but these same plaintiff’s knew about it all along and failed to raise it all these years, including in a prior PZC appeal by them for the same proposed use.

Plaintiff sued landlord claiming he was set on fire by a defective stove. Defendant’s attorney did not respond to a Petition for Judicial Review request, nor a disclosure of assets motion. Plaintiff obtained a default. Plaintiff moved for a hearing in damages judgment. Defense attorney was suspended from the practice of law and a trustee was appointed over his files. No one showed up for the defense at the hearing in damages and the Trial Court expressed concern, the Judge noting he was aware the defense attorney had been suspended, but proceeded with the hearing in any event. The Trial Court then entered a default judgment of approximately $3 million and sent notice to the Trustee for the defense attorney. More than four months later, the defendant showed up with a new attorney who said hold on - we had no notice of a default judgment and we have a good defense - the plaintiff set himself on fire in a suicide attempt. That Trustee never appeared and was not our client’s attorney in any event. The plaintiff replied that the defendant did get notice, even if indirectly, of the judgment and so the court should hold them to the four month rule. The Trial Court refused to reopen the judgment. The Appellate Court reversed holding that there was at least a question of fact that required an evidentiary hearing whether the defendant really received notice of the judgment so as to trigger the four months to reopen rule.

Court set aside a finding of post-dissolution contempt for failure to pay half of the child’s extracurricular activities on the grounds that the language in the agreed upon order was ambiguous. It read, "the parties shall share equally the child’s agreed upon activity expenses concerning swimming, guitar, tennis and summer camps." This was deemed ambiguous because it could be interpreted to mean that the wife did not incur the obligation to pay for her child’s participation in the activities unless the defendant consulted with her and obtained her consent about the cost of each activity before the child was enrolled.

Plaintiff sued father of driver who hit him thinking he was driving the offending car, but it turned out the father was a passenger in his own car and the car was being driving by his son. The father then moved for summary judgment on the grounds he was not driving the car that night. The plaintiff’s attorney filed no objection, nor showed up for the hearing. The Summary Judgment (SJ) was granted to the father. Plaintiff’s attorney then filed a new, second lawsuit against the son, but by now the statute of limitation (SOL) had expired. The plaintiff failed to cite to the “Wrong Defendant Statute” to justify the untimely lawsuit. This time the son moved for summary judgment claiming the SOL expired. Again the Plaintiff failed to file an objection or show up for the hearing. SJ was granted to the son. Apparently thinking the third time might be the charm, the Plaintiff initiated a third lawsuit against the son and this time cited the wrong defendant statute. The son moved for summary judgment asserting the claim was now barred by the doctrine of res judicata because of the SJ ruling on the second lawsuit. This time the Plaintiff’s attorney filed an objection, but then failed to show up for the hearing. SJ was granted to the son again. The Plaintiff appealed. The Appellate Court upheld the SJ brushing aside the argument that res judicata does not apply to remedial lawsuits and also brushing aside a claim that the second lawsuit was not “decided on the merits" A decision based upon the expiration of the SOL is a decision on the merits. “Merits” does not necessarily mean a trial on the facts.

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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