Appellate Notes: Week of April 18th

by Pullman & Comley, LLC

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 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

  • SC18872 - Tine v. Zoning Board of Appeals

This case resolves an issue that often comes up in zoning.  The issue is whether the three-year statute of limitations applies to ancillary structures.  Ordinarily, if you erect a building that accidentally violated a setback, C.G.S. § 8-13a allows the town up to three years to bring an enforcement action.  In this case, the issue was whether or not a deck added to an existing building was a building, and thus, entitled to that statute of limitations protection.  The homeowners had obtained a variance to build their house up to thirty-five feet into a setback area designed to protect the water quality of the existing lake.  The plans submitted to the town did not include a deck.  After municipal inspections were done, the homeowners added a deck to the back of their house, and did not notify the town.  When they subsequently applied for a C.O. after the three-year statute of limitations, the town discovered the deck and issued a cease and desist order.  The Superior Court held that the three-year statute of limitations precluded enforcement by the town, but the Supreme Court reversed.  A deck is not an integral component of a house, and therefore is not a building.  The deck was never shown on the original construction plans.  By adding the deck, the owners were violating the terms of their variance without showing any hardship to justify the encroachment into the setback.  To deem the deck immune from enforcement action here would encourage a property owner to try and trick a town and build something that was never allowed.  In a footnote, the Court noted that it was not addressing the issue of when the three-year statute of limitations begins to run, i.e., when the offending structure is built, or when the town first discovers it.  Another footnote distinguishes an Appellate Court decision where the town actually gave permission to construct the disputed item.

  • SC18823 - Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC

Plaintiff entered into three contracts with the defendant for the sale of its oil business, two of which had provisions allowing recovery of attorney fees to the defendant in the event of the plaintiff - seller’s breach.  The plaintiff sued, and the defendant counterclaimed for breach of contract and non-contractual claims.  The jury found the plaintiff breached all three contracts but only awarded damages to the defendant on the contract that did not allow attorney fees.  The Trial Court refused to allow the defendant to recover damages, because it only recovered damages under a contract without an attorney’s fees clause.

The Appellate Court reversed, claiming that the defendant's prevailing on all three contracts entitled it to attorney fees, even though it did not recover damages under the contract that allowed attorney fees.  It was remanded to the Trial Court to set the fees, but at the Trial Court level, the defendant could not identify which portions of its fees were attributable to which claim.  The defendant offered unopposed expert testimony that an attorney should not be expected to apportion their legal bills in one lawsuit amongst various intertwined claims when its it is not practical.  The Trial Court again denied the request for attorney fees, due to the inability of the attorney to allocate them to the claims he prevailed on.  This time, the Appellate Court upheld the denial of the attorney fees, holding that prior precedent does not entitle on the recovery of attorney fees incurred for litigating any and all related claims.

On further appeal, the Supreme Court reversed and held that the Trial Court improperly declined to award any attorney fees when the defendant was unable to apportion them.  Here, the defendant had been arguing all along about the difficulty of apportioning his fees.  When an action involves several claims and the recovery of attorney fees is only allowed for some, the Trial Court must apportion the fees accordingly.  The issue of first impression here is how to properly allocate fees when there were causes of action not governed by the contract which allowed recovery of attorney fees and the actions and efforts of counsel are all comingled.  The Court looked at prior decisions that talked about whether the issues and the facts were closely interwoven, and witnesses were the same.  Looking at District Court precedent, the Court declared that from now on in Connecticut when certain claims allow for the recovery of contractual attorney fees, but others do not, the party is nonetheless entitled to a full recovery of reasonable attorney’s fees in situations where apportionment between the covered and non-covered claims is impractical, because the claims arise out of a common factual nucleus and are intertwined.  Also, as a matter of first impression, was whether or not a provision for contractual attorney fees entitles a party to recover appellate attorney fees.  The Court held that contractual provisions authorizing attorney fees apply to both trial and appellate fees.  A footnote noted that the Appellate Court had already reached the same conclusion.

  •  AC33571 - AFSCME, Council 4, Local 2663 v. Dept. of Children & Families

DCF fired an employee when her adopted baby died due to shaken baby syndrome.  For offensive conduct towards the public and engaging in activities detrimental to the best interest of the agency, an arbitrator found that the department had just cause for her termination, but a Superior Court judge set aside the arbitration award because it was based on negligence against the employee for which she had never been charged.  The Appellate Court reinstated the arbitration decision.  As an unrestricted submission, the arbitrator was empowered to decide both factual and legal questions.  Here, the question of whether or not the employee’s termination was justified was unrestricted, and did not preclude the arbitrator finding negligence as a just cause for termination.  So long as the arbitrator is even arguably construing or applying the contract within the scope of their authority, the award must be enforced.  Here, the collective bargaining agreement provided that no employee could be dismissed, except for just cause, which could include incompetency, inefficiency, neglect or misconduct.  The arbitrator found that the employee was at least inattentive to the care of her baby that caused her to be injured.  The termination letter did not restrict the basis upon which the arbitrator could rule.  The arbitrator found a nexus between the employee’s off-duty misconduct and her employment with the Department, which is charged with the welfare of the State’s children.

  • AC34489 - Little v. Mackeyboy Auto, LLC

When defendant repossessed a motor vehicle, the owner sued, claiming violations of the Retail Installment Sales and Financing Act.  The plaintiff obtained a default against the defendant, and the defendant claimed improper service and moved to set aside the default.  Upon denial, the defendant appealed.  Although the agent of the defendant LLC had been properly served, the return of service identified the service as being upon him in his capacity as general manager.  C.G.S. § 34-105 is not the sole means of serving an LLC.  Service upon a general manager will suffice, as well.  Defendant also failed to claim that it did not receive the complaint or the subsequent motion for default mailed to its address.  (A footnote adds that a court should not open a default judgment where the defendant admits they received actual notice, and simply chose to ignore the Court’s authority.) 

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.  ©2013 Pullman & Comley, LLC. All Rights Reserved.

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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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