Alert06.20.2017

Week of June 19, 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

Supreme Court Advance Release Opinions:

  • SC19799 - Middlebury v. Connecticut Siting Council

Neighbors unsuccessfully challenged the modification of an approval for a new power plant before the Siting Council claiming the Council had failed to consider their “neighborhood concerns” per CGS 16-50p.  But in its decision the Council acknowledged the public opposition and said it tried to incorporate those concerns into its decision. It concluded the modified project would actually be better than what was originally approved due to improved design and advances in technology since the original approval date. The Court said that the Council satisfied the dictates of 16-50p and does not have to go down the list of the neighbors’ concerns and rebut them one by one.

Appellate Court Advance Release Opinions:

  • AC38604 - Pajor v. Administrator, Unemployment Compensation Act
  • AC37632 - State v. Smith
  • AC37928 - Redding Life Care, LLC v. Redding

Addressing a matter of first impression, the Court held that Connecticut’s common law recognizes a qualified immunity that an unretained expert cannot be compelled to testify against their will, absent a showing of extraordinary need.  Here, the town, in a tax appeal, sought to depose an appraiser previously hired by the assessment appellant, but for purposes of a bank loan, not the pending tax appeal.  When the Trial Court ordered the deposition to proceed, the appraiser filed a Writ of Error.  The matter was remanded to the Trial Court to determine if the town can show extraordinary need for the testimony and for the Trial Court to examine whether the expert should have assumed his appraisal report (for a bank loan) might come into play in other proceedings (such as the tax appeal).  In issuing its decision, the Court noted it had previously compelled some treating physicians to testify against their will, but sought to clarify that was because they improperly tried to claim the immunity was “absolute” and did not properly object on the grounds of “qualified” immunity.

  • AC38497 - Valley National Bank v. Marcano

Purchaser from the FDIC of all assets of a failed bank had standing to sue the guarantor of a promissory note without the need to show that one asset was on a schedule of transferred assets from the failed bank, and without the need for the note to have been physically endorsed to the plaintiff, since it produced the note and thus was clearly the “holder” in accordance with the UCC.

  • AC38178 - Access Agency, Inc. v. Second Consolidated Blimpie Connecticut Realty, Inc.

Blimpies would lease space and then pass it through to its franchisee as a subtenant and make the owner of the franchise execute a guarantee of the lease back to the original landlord.  Said guarantee would apply to all renewals and extensions of the lease.  After the expiration of one of these Blimpie’s leases, the franchise was sold.  Blimpies entered into a sublease renewal with the new franchise owner.  The new owner signed his own personal guarantee in favor of the landlord.  When there was a default in the rent, the landlord sued the first original guarantor.  This decision held that the new sublease to the new franchisee from Blimpies was not a renewal or extension of the first lease and as such the first guarantor was not liable for the default by the new franchise owner. 

  • AC38599 - Healey v. Haymond Law Firm, P.C.

Employee sued law firm when it failed to pay him agreed upon commissions.  While the case was pending, the applicable statute (31-72) pertaining to unpaid wages was amended from a discretionary doubling of damages to a mandatory doubling, absent the employer demonstrating good faith.   Both sides proposed request to charge to the jury that relied upon the amended statutory language instead of the discretionary language in effect when the wages were due and owing.  After the jury returned a plaintiff’s verdict in excess of $400k, the law firm appealed claiming “plain error” and argued the Trial Court should not have charged under the new statute.   Too late.  The Appellate Court refused to offer any help to the defendant under these circumstances. 

  • AC38333 - Williams Ground Services, Inc. v. Jordan

Homeowners “acknowledgement” of the landscaper’s debt tolled the statute of limitations for collection purposes. Here the owner would pay the bill sporadically accumulating a large AR.  When the landscaper saw the house for sale, he confronted the homeowner who assured him that upon the sale he would get a “fat check” after the closing.  That was a sufficient statement of acknowledgement for tolling purposes. 

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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