1990 Connecticut Supreme Court Review
| Pages | 1 |
| Publication year | 2021 |
65 CBJ 1. 1990 CONNECTICUT SUPREME COURT REVIEW
No more Simkos. After two years of complaining about Simko and its progeny,(fn1)we are happy to report that 1990 was a good year.
Simko stands for a period hopefully now behind us when the Supreme Court routinely adopted the harshest possible reading of an ambiguous procedural statute or rule. Hughes v. Bemer,(fn2) Burton v. Planning Commission(fn3) and Small v. South Norwalk Savings Bank(fn4) are typical examples of this period. There was nothing like these cases in 1990. Instead, there were cases like Rowan Construction Corporation v. Hassane.(fn5) The plaintiff filed a late objection to a referee's report, but the defendant did not challenge the lateness of the objection until the case was on appeal. Under a Simko type analysis, the lateness of the defendant's challenge would be immaterial: the plaintiff's objection was late and that is the end of that. But that is not what the Supreme Court did. Expanding on a similar case decided in 1989,(fn6) the Court held that even though the rule stated that the plaintiff must file its objection within a certain period of time, the defendant's inaction waived the lateness of the plaintiff's objection.
Waterman v. United Caribbean, Inc.(fn7) is another example of this eminently practical approach to construing procedural provisions. Under C.G.S. § 51-183b, the 120-day period for filing decisions can be waived by written consent. Nothing in the statute expressly requires this consent to be given prior to the issuance of the decision. In Waterman, the plaintiff but not the defendant consented to waiving the 120-day rule before the decision. The trial court ruled in the defendant's favor after the 120 days. The defendant then changed its mind and consented. The Appellate Court, reading the statute literally, validated the decision.(fn8) The
Supreme Court gave an eminently fair reading to the statute when it said that, because there was no consent when the decision was issued, the trial court lacked personal jurisdiction over the parties. A new trial was ordered.
Tedesco v. Stamford(fn9) continues the new philosophy. The Appellate Court reversed a judgment for the plaintiff because of the absence of a key allegation from the complaint.(fn10) Since their defendant had not raised this issue before the judgment was entered, the Supreme Court resurrected the ancient doctrine of "aider by verdict" to hold that, as long as the complaint gives the defendant adequate notice of what the cause of action is, the lack of an essential allegation is waived unless timely raised.
In Davis v. Margolis,(fn11) a legal malpractice action in which the trial court directed verdict for the defendant after it disqualified plaintiffs expert, the Supreme Court reversed the trial court for prohibiting inquiry into plaintiff's expert's practical experience. In footnote 5, the Court noted that the plaintiff's failure to take an immediate exception did not ambush the trial court and opposing counsel. Fairness triumphed over form.
In Fengler v. Northwest Connecticut Homes, Inc.,(fn12) the trial court allowed an amendment to a complaint, but conditioned it on the payment to the defendant of its additional expenses because of the lateness of the amendment. The Appellate Court reversed, holding that there was no authority for the order.(fn13) The Supreme Court approved the conditional order and reversed the Appellate Court. This is an excellent precedent that avoids the all or nothing approach of prior case law (motion denied, so plaintiff loses case; or motion unconditionally granted, so defendant incurs substantial expenses due to plaintiff's delay).
Perhaps the most important procedural decision is LeConche v. Elligers.(fn14) It is Justice David Borden's first decision since he replaced justice Arthur Healey in the Spring of 1990, and it is a luminous exposition of the new philosophy. LeConche involves the late filing of a good faith certificate in medical malpractice cases. While C.G.S. § 52-190a says that the "complaint or initial pleading
shall contain" the certificate, the Supreme Court held that the statute is not jurisdictional or mandatory. What makes LeConche so interesting is the analogies Borden draws. He notes that a trial Judge has the discretion to dismiss a case if a timely but false certificate is filed. Since that would be a more compelling case for dismissal than an untimely but true certificate, a case involving the latter should not automatically be dismissed. The other analogy Borden draws is to amendments to the Uniform Administrative Procedure Act in 1989 showing that every presumption should be indulged in favor of the court's jurisdiction. This case more than any other convinces us that the Supreme Court has decisively turned its back on the Simko era.
1990 was also a good year for the Connecticut Constitution. State v. Marsala(fn15) got all the press, but State v. Lamme(fn16) is just as important. Marsala shows Justice David Shea at his best. Generally the leader of the conservatives, he brought along a unanimous en banc court (including justices Robert Callahan and Alfred Covello) to hold that there is no good faith exception under Article First, § 7, of the Connecticut Constitution. In so holding, the Court closely followed the dissenting opinion of Justice William Brennan in United States v. Leon,(fn17) involving the Fourth Amendment. Justice Shea makes no attempt to distinguish the majority opinion in Leon or to show that the language or history of Connecticut's provision was different from the Fourth Amendment. He simply disagrees with the reasoning of Leon.
As the U.S. Supreme Court retrenches on federal constitutional rights, the reasoning and result in Marsala should lead lawyers to change their...
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