Advance Release Opinions – July 5

Reviews of Connecticut Appellate Court advance release opinions about administrative law, breach of contract, civil procedure, domestic relations, and mortgage foreclosure.

Administrative Law

Starble v. Inland Wetlands Commission – Over Starble’s objection, commission granted wetlands-permit application. Trial court affirmed. Appellate Court reversed, finding that (1) statutory and regulatory provisions requiring wetlands-permit applicant to prove absence of feasible and prudent alternative was mandatory, not directory, because the provisions were substantive, having been enacted to protect inland wetlands; and (2) since commission supported its decision with explicit findings, trial court was precluded from reviewing the record for evidence supporting anything other than those explicit findings.

Breach of Contract

DAB Three, LLC v. LandAmerica Financial Group, Inc. – DAB Three sued five corporations and two individual insurance brokers for failing to obtain the correct coverage. Trial court dismissed as to LandAmerica Financial Group (“LFG”) for lack of subject matter jurisdiction because LFG had been discharged in a bankruptcy. Then, accepting the representation of one of the remaining defendants, Lawyers Title Environmental Insurance Service Agency, Inc. (“LTEISA”), that it was the only party that could be liable for a breach of a brokerage contract, trial court granted summary judgment for the other three remaining defendants. Next, accepting LTEISA’s lawyers’ representation that LTEISA did not exist because it had become defendant LandAmerica Environmental Insurance Service Agency, Inc. (“LEISA”) before the policy was issued, trial court granted the lawyers’ motion to withdraw their appearance. So, the case was to be tried only against LTEISA. But since LTEISA did not exist, DAB Three declined to go to trial, leading trial court to dismiss as to LTEISA, the last remaining defendant. Appellate Court affirmed the dismissal as to LFG, finding that although LFG’s bankruptcy discharge would not have protected LFG’s insurer from liability for LFG’s breach, DAB Three had never made any claim against any such insurer. Since LFG would have been responsible for the costs of defending DAB Three’s claims, they violated the bankruptcy discharge and deprived the court of subject matter jurisdiction. Appellate Court reversed the summary judgment as to LEISA, finding that it could not stand in the face of defendants’ admission that LTEISA was really LEISA. In other words, the issue of fact that precluded summary judgment against LTEISA also precluded summary judgment against LEISA because they were one and the same.

Civil Procedure

Speer v. Department of Agriculture – Speer appealed commissioner’s order to euthanize Speer’s dogs. Trial court nonsuited Speer for failing to appear at a pretrial conference, though her counsel appeared, she was available telephone, and she actually spoke with trial court by telephone. Trial court then denied Speer’s verified motion to open and set aside the nonsuit in a one-sentence order finding that Practice Book § 14-13 required Speer to attend the pretrial. When Appellate Court ordered trial court to articulate its reasons for denying Speer’s motion, trial court said Speer had not complied with any of Practice Book § 17-43’s requirements. Appellate Court reversed, finding that Speer had complied with all of the requirements of Practice Book § 17-43 and CGS § 52-212, and that trial court abused its discretion in denying Speer’s motion. Appellate Court also noted, in a footnote, that trial court’s initial reliance on § 14-13 was misplaced because § 14-7 exempts administrative appeals from § 14-13’s pretrial rules.

Domestic Relations

Tala E.H. v. Syed I. – Trial court granted wife two-week, ex parte order of protection against husband, which the trial court continued for six months after a hearing on notice. Appellate Court affirmed, finding that (1) the record did not disclose any bias or judicial misconduct; and (2) trial court did not make any clearly erroneous factual findings or abuse discretion.

Mortgage Foreclosure

Webster Bank v. Frasca – Trial court denied plaintiff’s motion for a deficiency judgment because plaintiff failed to establish the property’s fair market value by “credible and accurate evidence.” Appellate Court affirmed, finding no plain error in the trial court’s conclusions that (1) plaintiff’s appraisal was not credible; and (2) plaintiff failed to carry its preponderance-of-evidence burden as to value. Nor was there any plain error from alleged judicial bias, since the trial court’s comments about the substantial financial resources of defendant’s former father-in-law, and the trial court’s knowledge of real estate in the area where the property is located, though concerning, were not a manifestation of bias, but just unnecessary and unhelpful commentary. Appellate Court also confirmed that trial court did not abuse its discretion in admitting and considering the evidence, and in denying plaintiff’s motion for a protective order regarding plaintiff’s deposition.

Wells Fargo Bank, N.A. v. Lorson – The longstanding requirement in Connecticut that plaintiff must plead and prove compliance with conditions precedent contained in the note and mortgage does not apply to FHA/HUD conditions precedent referenced, but not explicitly contained, in the note and mortgage. Rather, borrower must affirmatively plead and prove failure of any such condition precedent. This passage from the opinion explains why: “There are potentially dozens of HUD requirements that a defendant could argue are necessary prerequisites to the bringing of a foreclosure action… It is inconsistent with our expectation that trials are not supposed to be a game of blindman’s bluff to expect a plaintiff in a foreclosure action to anticipate which HUD requirement a defendant will seize upon to argue after the plaintiff rests that it has failed to prove its case. Foreclosure trials, and motions for summary judgment in foreclosure actions, in which the facts are largely undisputed, would become drawn-out, expensive affairs as a plaintiff presents evidence regarding a lengthy list of requirements. Moreover, because plaintiffs typically are entitled to an award of attorney’s fees upon the entry of judgment, the parties truly harmed by imposing such requirements on foreclosing plaintiffs are the borrowers who will be required to pay the additional fees caused by such a procedure. Consequently, in this particular context, it makes much more sense to require the defendant to plead the specific requirements that have not been met and bear the burden of proving the plaintiff’s noncompliance with those requirements. Not only is this more logical and more fair to plaintiffs and the vast majority of defendants who have no interest in raising such issues, it also is consistent with the manner in which other states have addressed the issue and the guidance provided by HUD itself.” Oh, and Appellate Court also affirmed as to borrower’s other two arguments, equitable estoppel (alleged to have arisen when plaintiff added a condition to a forbearance agreement already in progress) and unclean hands (from plaintiff’s allegedly ignoring HUD requirements willfully and in bad faith).