Advance Release Opinions – January 5

The Connecticut Appellate Court advance released opinions about administrative law, civil procedure and personal injury, which I review below. The Court also advance released opinions about criminal law and habeas corpus, which I do not review.

Administrative Law

Tirado v. Torrington – In 2010, Torrington added Tirado’s car to its 2004 grand list. Tirado claimed that was improper and sued for damages. Trial court dismissed for lack of subject matter jurisdiction because plaintiff failed to exhaust administrative remedies under CGS § 12-117a and failed to file her claim within one year of the assessment as required by CGS § 12-119. Appellate Court rejected the § 12-119 basis because that section applies when a town assesses property it doesn’t have the authority to assess, as in the case where the taxpayer doesn’t live in the taxing town. Since Tirado conceded that she was living in Torrington in 2004, she effectively conceded that Torrington had the authority to assess. But, as to the § 12-117a basis, Appellate Court affirmed because that section requires a plaintiff complaining about an assessment to exhaust administrative remedies with the board of assessment appeals before starting an action in Superior Court and Tirado didn’t do that.

Recycling, Inc. v. Commissioner of Energy & Environmental Protection – Commissioner denied application for a new permit and revoked an existing permit. Superior Court dismissed Recycling’s appeal. Appellate Court rejected Recycling’s claims that (i) Commissioner’s decision was arbitrary and capricious; (ii) Commissioner applied the wrong standard of review; (iii) improperly excluded relevant evidence; and (iv) “[C]ommissioner improperly engaged in ex parte communications with the town of Milford and then publicly issued an official statement which harshly criticized Plaintiff and in effect directed DEEP to rule against plaintiff.”

Civil Procedure

Estela v. Bristol Hospital, Inc. – Estela is a doctor who claimed that the hospital had improperly restricted his privileges and stole his patients. Trial court dismissed Estela’s first action for failure to comply with deadlines set in two court orders. Estela started a second action relying on the accidental failure of suit statute, CGS § 52-592(a). Hospital moved for summary judgment on statute of limitations grounds but not explicitly challenging the applicability of § 52-592(a). Then, before Estela objected to the summary judgment motion, Hospital filed a motion to bifurcate Estela’s claim that his action was not time-barred from his underlying claims. Trial court granted bifurcation and, after an evidentiary hearing on the timeliness issue, found that § 52-592(a) did not apply because the first action was dismissed for serious disciplinary reasons, not because of mistake, inadvertence or excusable neglect. Appellate Court rejected Estela’s claim that Hospital waived objection to accidental failure of suit by failing to raise it before the motion to bifurcate, noting that Supreme Court precedent confirmed that accidental failure of suit may be addressed through a motion to bifurcate. Appellate Court also rejected Estela’s claim that trial court applied the wrong standard – “mistake, accident or reasonable cause” instead of “mistake, inadvertence or excusable neglect” – in determining whether the first action was an accidental failure. Whatever the trial court said about the standard at the evidentiary hearing, it applied the proper standard in its memorandum of decision.

Personal Injury

Boykin v. State – Plaintiff, hit by a car while in crosswalk, claimed that the State was negligent in failing to install or repair a crosswalk button or otherwise provide a safe crosswalk. Trial court dismissed the action for lack of subject matter jurisdiction, finding that the notice of claim was patently defective and so did not invoke the waiver of sovereign immunity in CGS § 13a-144. Appellate Court reversed, concluding that “plaintiff’s notice was not patently defective, as it ‘both informed the defendant of the plaintiff’s intent to file a claim and furnished the defendant with a guide as to how to conduct further inquiries to protect its interests.'”