Advance Release Opinions – Appellate Court – November 7, 2019

Reviews of Connecticut Appellate Court advance release opinions about civil procedure and appellate subject matter jurisdiction.

Civil Procedure

AC Consulting, LLC v. Alexion Pharmaceuticals, Inc. – The opinion affirms the trial court’s decision striking a three-count complaint that claimed to allege breach of contract, negligent misrepresentation, and breach of the covenant of good faith and fair dealing. There’s nothing remarkable about the opinion – tough case for plaintiff from the get go – but I am going to address the breach of contract piece because it’s a good reminder of something that seems to be often abused, at least in many foreclosure cases.

The contract provided that defendant could terminate it “upon five (5) days written notice.” Plaintiff alleged that defendant terminated without providing “sufficient notice under the contract.” The Appellate Court recited the standard stuff about fact pleading, it’s fundamental that a plaintiff’s right to recover is limited to the allegations in the complaint, conclusions of law without supporting facts do not suffice, and the complaint must allege all of the elements of the cause of action.

It then concluded that plaintiff’s allegation of lack of “sufficient notice under the contract” was legally insufficient to state a breach of contract claim, in part because plaintiff failed to allege why the notice was not sufficient. That’s a lot of “sufficiency” so let me clarify: The contract’s notice provision required five days’ written notice. The problem was that the complaint did not specify whether notice was late, not written, or both.

In affirming, the Appellate Court found this failure to allege facts supporting the conclusory allegation of insufficient was fatal: “The purpose of fact pleading is to put the defendant and the court on notice of the important and relevant facts claimed and the issues to be tried…. Those facts are lacking here.”

Appellate Subject Matter Jurisdiction

Ciccarelli v. Ciccarelli – Defendant was in a tough spot. He and plaintiff jointly owned a property. Plaintiff sued him for partition and an accounting. The court granted summary judgment on the partition claim, which defendant appealed. The Appellate Court dismissed the appeal for lack of a final judgment.

The trial court then entered a judgment directing that the property be sold on a specified date. Defendant appealed again ‘‘[t]o overturn the summary judgment in order to stop the sale of the house.’’ The Appellate Court noted that there was still no final judgment because the accounting claim remained pending against defendant. Absent a final judgment, the Appellate Court does not have subject matter jurisdiction, so it dismissed the appeal again.

That seems unfair, which makes me question whether it’s right, even though it appears to be. If the sale occurs, the property could be irretrievably lost before the Appellate Court could decide whether the summary judgment was proper in the first place. In fact, if sale was completed, the appeal on the propriety of the summary judgment would be moot before it ever could be filed.

Though defendant had other options for trying to stop the sale pending appeal, with one exception, they are trial court options, meaning that the property still could be lost before appellate review. And the one exception – writ of error – may not even be available because it generally does not apply where the ruling is otherwise subject to review by appeal. As I said, defendant was in a tough spot.