Advance Release Opinions – Appellate Court – July 20

Reviews of Connecticut Appellate Court advance release opinions about civil procedure, contracts (third-party beneficiary), easement, and worker’s compensation.

Civil Procedure

Magee Avenue, LLC v. Lima Ceramic Tile, LLC – Action for breach of lease agreement and unjust enrichment against Lima and Lima’s manager. Lima’s manager moved for summary judgment on the breach of contract counts but did not file a supporting affidavit until the day before the hearing. At the hearing, Magee objected to the affidavit because it was filed too late to be considered and was not based on personal knowledge. Trial court permitted Lima’s manager to testify. It then granted Lima’s manager summary judgment on the breach of contract counts and the unjust enrichment count (trial court’s decision said the complaint is “stricken” as to Lima’s manager, but Appellate Court concluded it was really summary judgment). Appellate Court reversed, finding that trial court (1) improperly considered Lima’s manager’s affidavit because it was filed too late under Practice Book § 17-45; (2) improperly permitted and considered Lima’s manager’s live testimony because that necessarily required trial court to make credibility determinations and factual findings, which necessarily precluded summary judgment; and (3) improperly rendered summary judgment on the unjust enrichment count because Lima’s manager’s written motion did not request summary judgment on that count.

Contracts (Third-Party Beneficiary)

Hilario’s Truck Center, LLC v. Rinaldi – Appellate Court affirmed trial court’s decision that Hilario’s lacked standing to sue Nationwide directly for towing and storage services it rendered for Rinaldi after she crashed her car because Hilario’s was not a third-party beneficiary of the insurance contract between Nationwide and Rinaldi.

Easement

Davis v. Property Owners Association at Moodus Lake Shores, Inc. – Appellate Court affirmed (1) trial court’s decision to permit defense experts to testify despite the arguably late disclosure because plaintiffs failed to show any prejudice; and (2) trial court’s denial of an easement by implication because the evidence showed that plaintiffs could access their property without crossing defendant’s (Appellate Court actually adopted the trial court’s memorandum of decision on this point, but Appellate Court’s decision earlier references the access evidence).

Worker’s Compensation

Barker v. All Roofs by Dominic – Bridgeport was “principal employer” under CGS § 31-291 and thus responsible for benefits for the employee of an uninsured subcontractor who was injured while repairing a roof on a Bridgeport-owned building because (1) our Supreme Court had already confirmed that a municipality can be a principal employer under § 31-291; (2) the statute creating the Second Injury Fund, which compensates injured employees of uninsured employers, did not expressly or implicitly repeal or modify § 31-291; and (3) commissioner properly concluded that the roofing repairs to the Bridgeport-owned building were part of Bridgeport’s “business” under § 31-291, since CGS § 7-148 obligated Bridgeport to repair its property.