Appellate Court Notes

by Pullman & Comley, LLC

Welcome to our Supreme and Appellate Court summary.  Here, 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 based on my own particular field of practice, so you will not find distillations of the many criminal and matrimonial law decisions on this page.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my opinion . . . and when mistakes of trial counsel are highlighted because they triggered a particular outcome, I will try to be mindful of the adage . . . “There but for the grace of God . . ..”  I hope the reader finds these summaries helpful. – Edward P. McCreery

August 18, 2014

The doctrine of equitable conversion did not apply when the decedent contracted to sell real property to the buyer which he had already bequeathed to his church in his will when he died leaving a solvent estate before the closing happened and before the mortgage contingency in the contract had been fulfilled.  Therefore the executors should not have been allowed to proceed with the closing on the sale after his death as the title had automatically passed to the church upon the decedent’s death.   

The Connecticut Appellate Court held that equity prevented the allowance of a foreclosure of an old mortgage when several years earlier a prior mortgagee omitted naming the current plaintiff as a subsequent mortgagee - lien holder.  At the time of the first foreclosure, there was absolutely no equity for the subsequent mortgagee (current plaintiff)  but no one ever filed a corrective 49-30 action to eliminate the leftover lien.   After the first foreclosure,  that plaintiff took title and then sold the property to the current defendant - owner.  Years later, the leftover mortgagee raised its head and tried to foreclose its lien.  With the prior liens out of the way, the plaintiff’s lien had now percolated to the top.  This decision held that equity would not allow that to happen.  Had the first mortgagee followed the law and named the current plaintiff as a defendant years before, it would have been foreclosed out.   Equity will not let the passage of time enhance the plaintiff’s lien position better than had the original first mortgagee followed the law during the first foreclosure.   It did not matter if the first mortgagee intentionally left the current plaintiff out of the first foreclosure ……nor whether the new owner took title knowing there had been an error in the first foreclosure by omitting a required party-defendant.

It is not enough for the plaintiff’s expert to testify that the defendant attorney in a malpractice action breached the standard of care, as they must also lay out exactly what the standard required and how a reasonable attorney under the circumstances would have met those requirements.

  • AC35867 - Chief Disciplinary Counsel v. Zelotes

Attorney violated Rule 1.7 (a) (2) and 8.4(4) when he represented his client in a divorce action while at the same time dating her on an intimate basis, causing him to lose all the detached objectivity required of a lawyer in contested matrimonial action.  The decision notes the lawyer continues to fail to recognize the seriousness and disturbing nature of his conduct.

  • AC35246 - Hardison v. Commissioner of Correction
  • AC35576 - In re Probate Appeal of Cadle Co. (vs D’Addario)

A prior unsuccessful appeal from the refusal of the probate court to remove the estate fiduciaries for, amongst other things, dragging out the estate for more than 20 years to avoid paying off the creditor’s claim, did not bar a later appeal by the same creditor over the refusal of probate court to declare void as a sham the liens covered by an agreement subsequently entered into by those fiduciaries that facilitated the other liens to be purchased at a deep discount by a friend of the estate with an agreement that the buyer of those liens would not take action to enforce them.  The creditor claimed the subsequent agreement was all part of the same ploy to delay payment to them.  The operative facts of each claim were different so res judicata did not apply.

  • AC34612 - NPC Offices, LLC v. Kowaleski

Use of commercial premises for a mortgage brokerage, a home health care agency and an appliance delivery coordination service did not qualify as ‘‘professional offices’’ as required under a condition in the driveway easement serving the premises.   To make use of the driveway for these purposes amounted to an automatic suspension of the easement that stated it was in effect so long as the property was used for professional offices.  The use of the easement was not merely suspended, it was terminated automatically.  It did not matter whether the breach of the easement condition was material or not when it is an express condition of the easement.   The doctrine of disproportionate forfeiture   (‘‘[t]o the extent that the non-occurrence of a condition would cause disproportionate forfeiture, a court may excuse the non-occurrence of that condition unless its occurrence was a material part of the agreed exchange’’) did not apply to this fact pattern.

Defendants asserted special defenses to foreclosure action.  Plaintiff moved for and was granted summary judgment on liability.  Defendants then moved to Dismiss the action claiming the plaintiff did not have standing because it could not locate the original promissory note.  When plaintiff showed up at the Motion to Dismiss evidentiary hearing with the original promissory note to establish it had “standing” to bring the foreclosure action, the trial court properly precluded the defendants from offering testimony to deny it was their signatures on the note because summary judgment as to liability had already been granted against them and denial of signature is a defense to liability which should have been raised at that time….not in a subsequent Motion to Dismiss hearing over standing.

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.  

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Pullman & Comley, LLC

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