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To the dismay of defense lawyers, a Connecticut appellate court panel has concluded that a judge in a complex litigation court did not have the power to decide a complex case based solely on the written briefs. Such summary judgment, wrote appellate Judge Sidney S. Landau, is generally “an inappropriate way to conclude complex litigation.” The three-judge panel criticized the trend toward placing complex matters before trial judges for a legal ruling without trial, contending that motions to strike are a preferred tool to streamline a case. Landau, who was joined by Socrates H. Mihalakos and Edward Y. O’Connell, wrote that teachings of the Connecticut Supreme Court “instruct us that summary judgment is generally disfavored in complex cases.” In reversing the ruling of Judge Julia L. Aurigemma in a complicated legal malpractice case, the appellate justices also faulted her for going beyond her role of deciding whether there were any material facts in dispute, and that she “actually decided certain factual issues,” without the case getting a hearing. The case is one brought by a group of unhappy investors in a late 1980s real estate deal against the New Canaan, Conn., firm of Mellick & Sexton. The would-be investors in a 32-acre development in Rancho, Calif., sued the lawyers for the deal, alleging they did not properly inform the investors and contributed to the deal’s failure. The venture, Wildomar Associates, planned to sell 45 limited partnership shares at $100,000 each, consisting of 10 percent cash and 90 percent notes, to collateralize a $4.5 million bank loan. The promoters allegedly only raised half the amount, but the lawyers and developers released some $2 million in escrow improperly without telling the investors and used it to pay their own fees, and then lost the land. Aurigemma ruled in favor of the law firm, finding that the investors were not clients and were not owed a duty of care. The reversal of Aurigemma’s judgment is a significant setback in the progress of this 10-year-old dispute. COURT DISARRAY Appellate lawyer Mark R. Kravitz, of New Haven, Conn.-based Wiggin & Dana, has not had professional involvement with the case, Gould v. Mellick & Sexton, but has extensive experience with the use of summary judgment in complex matters. He considers the ruling distinctly at odds with other appellate decisions, and a setback for efficient litigation. “The court refused to decide whether Judge Aurigemma was right on the law because they concluded that she was wrong to even rule on a cross-motion of summary judgment that both parties supported. There is, as far as I can see, no support whatsoever for such a determination,” said Kravitz. Indeed, the appellate court’s rulings are becoming contradictory, he said. On Oct. 30, the same day that it issued Gould, the appellate court also issued Golden v. Johnson, upholding a summary judgment decision in a complex case involving significant medical malpractice issues. Golden doesn’t follow the Gould edict against the use of summary judgment in complex matters, Kravitz noted. If summary judgment is now considered improper in the complex litigation courts’ matters, much of the role of the complex litigation courts is undermined, Kravitz said. “The supreme court should take this case, because there is potential for great mischief here — and it should right the ship.” ABUSE OF PROCESS Robert B. Cohen, of Farmington, Conn.’s Levy & Droney, represents plaintiffs in Gould, and was happy to see Aurigemma’s ruling against his clients reversed. If defense lawyers are unhappy with this case, he said, it is because “many defense counsel wanted — up until now — to have cases go to the complex litigation docket. They filed huge, huge briefs encompassing every factual and legal question in the world, and hoped to get a fast decision without going to trial.” Asked if he thought the new specialty court is being abused, Cohen replied, “Abused? I think it is being over-abused, tremendously.” He agreed with the appellate panel that the narrower motion to strike is a better tool. If counts are struck, the plaintiff can still proceed with a more focused case, repleading on fewer issues. A motion for summary judgment may keep a plaintiff from ever having a hearing in which all the facts are aired. Jack G. Steigelfest, of Hartford, Conn.’s Howard, Kohn, Sprague & Fitzgerald, is in charge of amicus curiae issues on appeal for the Connecticut Defense Lawyers’ Association. In light of the issues of Gould, he said “There are older supreme court cases that talk about how a motion for summary judgment leaves a court ill-equipped to rule in complex cases, but I hoped we were beyond that.” Steigelfest, who is not involved in the Gould case, said deciding a case on cross motions of summary judgment is “an important and significant procedural tool to dispose of cases.” And it’s not just beneficial to defendants, he said. “If there is a dispositive issue of law” pivotal to the case, “everybody benefits to have that decided at the outset.” In the Gould decision, Landau wrote that the remedy of summary judgment has been available in Connecticut since 1928, and is an outgrowth of the Old World courts merchant, which allowed commercial litigants to have business matters settled quickly. Historically it was limited to cases where the facts were simple and the remedy was clear — such as a set amount of liquidated damages. “In recent years,” Landau wrote, “this court has noted that parties increasingly resort to motions for summary judgment when the proper procedural vehicle is a motion to strike.”

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