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Advance Release Opinions – Appellate Court – September 28

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Reviews of Connecticut Appellate Court advance release opinions about divorce, a spite fence, and standing.

Divorce

Brochard v. Brochard – I’m not giving you much detail on this one – the second time in the Appellate Court for the Brochards – because the opinion is long and most of it is ho-hum. This quote from one of the many trial court judges gives you the idea: “[T]he enmity between the two of you has continued. . . . I mean, you’re both so adamant about who’s right about everything that you just keep, you know, wasting time and money and taking ridiculous positions.” Appellate Court affirmed, finding that (1) plaintiff was not in contempt of the non-emergency medical expenses or extracurricular activities provisions of the co-parenting agreement because defendant did not notify him of, or obtain his consent to, the proposed expenses in advance; (2) it would sua sponte invoke res judicata (prior appeal) to decline to consider defendant’s claim that plaintiff was in contempt of certain orders dealing with modification of the mortgage on the marital home (this part of the opinion was interesting because res judicata is not normally invoked sua sponte); (3) plaintiff was not in contempt of any order requiring him to reimburse defendant for mortgage payments because there was no such order; (4) plaintiff was not in contempt of an order requiring him to give defendant half of a refund on a joint income tax return because there was no such refund (plaintiff received a refund for a married-filing-separately return, but when the court ordered that corrected with amended married-filing-jointly return, there was tax owed); (5) trial court properly declined to modify the order directing the split for payment of guardian ad litem’s fees because there was no substantial change in either party’s finances since the court entered order; (6) there was no error in trial court’s orders modifying child support downward, and not modifying it upward; and (7) trial court did not miscalculate in granting defendant’s motion for contempt for failure to pay the correct amount of provisional alimony (defendant claimed that the trial court’s “correct amount” was too little).

Fredo v. Fredo – Defendant moved for modification of child support, claiming that child was living with an aunt, and asking the court to order that child support be paid directly to the aunt. Trial court granted plaintiff’s motion to dismiss for lack of subject matter jurisdiction because the motion for modification improperly asked for payment of child support to the aunt, a non-party to the action. Trial court simultaneously denied the motion for modification. Appellate Court reversed the dismissal for lack of subject matter jurisdiction because “[CGS] § 46b-1(4) vested the court with plenary and general jurisdiction over child support in the underlying matter, and § 46b-86(a) vested the court with continuing jurisdiction to modify the child support orders.” Appellate Court declined to consider the propriety of the denial of modification as moot because, by the time the parties argued the motion in the trial court, defendant had already abandoned her request that child support be paid to the aunt. Defendant’s claim for an accounting on an unrelated financial issue also was moot because plaintiff had since provided an accounting. And, since the motions to modify and for an accounting were moot, so was defendant’s claim that the trial court improperly quashed her subpoena of plaintiff related to those motions. Appellate Court reversed the award of attorney’s fees for having to deal with the motions to modify and for an accounting, and having to file a motion to quash the subpoena because trial court made no finding that any of defendant’s actions were taken in bad faith.

Peixoto v. Peixoto – Trial court granted plaintiff’s motion to increase her alimony. On appeal, defendant argued that the Supreme Court’s decision in Dan v. Dan precluded increasing alimony based on nothing more than a postdissolution increase in the payor’s income. Appellate Court affirmed, finding that Dan permits increasing alimony on an increase in the payor’s income if there are exceptional circumstances, as there were in this case: At the time of dissolution, trial court had minimum knowledge of defendant’s financial circumstances because he did not appear in the action, provide a financial affidavit, or appear at the dissolution hearing, and the parties did not present a written agreement to the court.

Spite Fence

Errichetti v. Botoff – Botoffs put up a fence through a low lying wooded/wetland area separating their property from Errichetti’s. The fence didn’t keep the Botoffs’ kids, or anyone else, in or out of the Botoffs’ yard because it didn’t connect to anything – anyone in the Botoffs’ yard could just walk around the fence into Errichetti’s yard and vice versa. The fence did not provide any privacy because it was lower than Errichetti’s house – if Errichetti was standing in his yard, he could see over the fence and into the Botoffs’ yard. The fence impaired Errichetti’s use and enjoyment of his property because, though it was not ugly as far as stockade fences go, it wasn’t as enjoyable as the natural scenery Errichetti had before. Trial court found the fence to be a “malicious erection … intended to annoy and injure any owner or lessee of adjacent land in respect to his use or disposition of the same” and granted an injunction under CGS § 52-480 requiring the Botoffs to remove it and restore the area to its previous condition. Appellate Court affirmed.

Standing

Bongiorno v. Capone – Bongiorno and Capone each owned 50% of an LLC. After they agreed that Bongiorno would buy Capone’s interest, Capone withdrew $17,000 from the LLC’s bank account. Bongiorno sued for breach of contract and statutory theft. Trial court found for Bongiorno on both claims and awarded him $17,000 for breach of contract and treble that for statutory theft (less $17,000 to avoid double recovery for breach of contract). Appellate Court affirmed as to the breach of contract claim, but only for $8,500, finding that since Bongiorno was buying only a 50% interest in the LLC, he was buying only a 50% interest in the $17,000 Capone withdrew. Appellate Court reversed as to the statutory theft claim because that injury was to the LLC, not Bongiorno, so Bongiorno lacked standing to bring the claim in his individual capacity. Appellate Court declined to consider Capone’s claim that waiver-of-suit provisions in the buy-sell documents protected him from Bongiorno’s claims because Capone did not raise it at trial.

Advance Release Opinions – Supreme Court – September 28

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Review of a Connecticut Supreme Court advance release opinion about taxation.

Taxation

Dish Network, LLC v. Commissioner of Revenue Services – Dispute over whether earnings from DVR services and sale/lease/installation/maintenance of equipment were subject to taxation under the statute taxing gross earnings from transmitting satellite TV programming, and whether Dish Network, after failing to challenge audit results, could nonetheless challenge the amount of the tax for the audited periods using a tax overpayment procedure. Trial court said that the overpayment procedure was appropriate notwithstanding Dish Network’s failure to challenge the audit; earnings from DVR services were subject to taxation; and earnings from sale/lease/installation/maintenance of equipment were not. Dish Network appealed and commissioner cross-appealed. Supreme Court affirmed the conclusions that (1) a taxpayer can seek a refund through the overpayment procedure even if taxpayer failed to challenge audit; and (2) earnings from sale/lease/installation/maintenance of equipment are not taxable. Supreme Court reversed the conclusion that earnings from DVR services are taxable.

Advance Release Opinions – Appellate Court – September 21

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Reviews of Connecticut Appellate Court advance release opinions about divorce, professional negligence (legal malpractice), and worker’s compensation.

Divorce

Varoglu v. Sciarrino – Appellate Court affirmed trial court’s finding that Varoglu bought a condominium in Colorado for herself with proceeds of a loan secured by the marital home in Westport and trial court’s division of the equity in the marital home.

Professional Negligence (Legal Malpractice)

Dubinsky v. Black – Dubinsky claimed that Black failed to inform him that accepting a plea deal in his criminal case would preclude him from suing the police for malicious prosecution. Black denied any failure to inform, and asserted that Dubinsky could not win any malicious prosecution claim in any event because the police had probable cause for the arrest. Trial court granted Black summary judgment. Appellate Court affirmed, finding that (1) malicious prosecution depends on absence of probable cause; (2) the police had probable cause; and (3) the fact that Dubinsky might have been able to successfully defend the criminal charges does not mean that the police lacked probable cause.

Worker’s Compensation

Dahle v. The Stop and Shop Supermarket Company, LLC – Dahle claimed that she was entitled to temporary total disability benefits without the social security offset because an improper prior decision and negligence in handling her claim had delayed her treatment, which was the only reason she was subject to the offset. Appellate Court affirmed board, finding that (1) board properly declined to consider “past incorrect evidence” and “new evidence” about the prior decision because that decision became final when Dahle failed to appeal it to the Appellate Court; (2) contrary to Dahle’s contention, commissioner never found that her treatment had been delayed; and (3) social security offset cannot be waived.

Advance Release Opinions – Supreme Court – September 21

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Review of a Connecticut Supreme Court advance release opinion about personal injury (wrongful death).

Personal Injury (Wrongful Death)

Angersola v. Radiologic Associates of Middletown, P.C. – Though CGS § 52-555 provides a limitation period for a wrongful death claim, it is a statute of repose, not a statute of limitations, meaning that the court lacks subject matter jurisdiction over a wrongful death claim that is not brought within the limitations period. The continuing course of treatment and continuing course of conduct doctrines apply to the wrongful death limitations period. As in other cases where there is a dispute about the facts that determine whether the court has subject matter jurisdiction, there must be an evidentiary hearing, or at least discovery, to resolve the dispute. Here, Supreme Court concluded that there was a factual dispute about a continuing course of conduct, reversed the trial court’s dismissal for lack of subject matter jurisdiction, and remanded for an evidentiary hearing or limited discovery.

Advance Release Opinions – Appellate Court – September 14

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Reviews of Connecticut Appellate Court advance release opinions about civil procedure, divorce, easements, foreclosure, and personal injury. I know that I said that I hoped to be caught up by mid-October but this particular batch of opinions took a while to summarize – there were a lot, and they were complicated.

Civil Procedure

Kaye v. Housman – Breach of contract action for unpaid rent. Housman answered and asserted twelve special defenses. Kaye requested revision of eight special defenses. When Housman did not revise, trial court defaulted him for failure to plead. Kaye claimed the matter for a hearing in damages. Trial court denied Housman’s motion to strike the case from the hearing in damages list, conducted the hearing, and rendered judgment for Kaye. Appellate Court reversed, finding that even though Housman did not respond to request to revise, his answer precluded default for failure to plead and entitled him to contest liability.

Rocco v. Shaikh – Action to quiet title and discharge a purchaser’s lien, among other claims. Shaikh claimed that Rocco lacked standing because, after Rocco commenced the action, she transferred title to the property from herself individually to herself as trustee of her living trust. Trial court found for Rocco. Shaikh appealed. While appeal was pending, trial court terminated the appellate stay to permit Rocco to market and sell the property, which she ultimately did. Appellate Court affirmed, finding that the appeal was moot because reversing the trial court would not take title away from Rocco’s buyer. Appellate Court declined Shaikh’s invitation to “exercise supervisory authority over the administration of justice and reverse the trial court’s judgment because the judgment was procured by fraud,” saying that it could not “conclude that traditional protections available to the defendants were not and are not adequate, thereby warranting the rare and extreme exercise of our supervisory powers.”

Divorce

Keusch v. Keusch – Appellate Court reversed financial orders, finding that trial court (1) should have used actual income, not earning capacity, in calculating child support; (2) improperly deviated from the child support guidelines without first finding that applying the guidelines would be inequitable or inappropriate; and (3) abused its discretion in making its unallocated alimony and child support order nonmodifiable because it should be modifiable every time one of the couple’s three children reached the age of majority.

Easements

57 Broad Street Stamford, LLC v. Summer House Owners, LLC – Picture two commercial buildings, both units in a condominium, separated by an alley. The alley is part of Unit 2, and Unit 1 has an easement on it for access to Unit 1, the garbage area on Unit 2, and parking spaces inside Unit 2. After granting the easement, Unit 2 built a service access structure on the alley. Unit 1 claimed that the structure interfered with its reasonable use and enjoyment of the easement. Trial court found that, given the easement’s specific purposes, the structure did not interfere with Unit 1’s use or enjoyment because the structure did not block the access rights the easement provides. Appellate Court affirmed, concluding that Unit 1’s argument (1) that the structure might cause congestion within the easement was speculative; (2) that the structure restricted garbage area access was inconsistent with evidence that other units were accessing the garbage area without issue; (3) that the structure prevented large trucks from getting any closer than 100 feet to Unit 1 did not interfere with the easement because the easement did not guaranty closer access for large trucks and the other units were accepting deliveries from large trucks without issue; and (4) that, by allowing the structure to remain, trial court had given Unit 2 the unilateral right to determine when, where, and how Unit 1 could use the easement was inconsistent with trial court’s actual decision, which was that Unit 1 was not entitled to the entirety of the easement – the other units had a right to use it too and the only restriction on Unit 2’s use was that it be reasonable and as least burdensome as possible, which it was.

Jordan v. Biller – Thinking that a view easement granted to prior owners ran with his newly acquired property, Biller cut down some 80 trees on Jordan’s property. Trial court found that the easement was personal to the prior owners, so it did not run with the land, and awarded Jordan $446,660 in damages. Appellate Court affirmed. Ouch.

Foreclosure

U.S. Bank National Association v. Eichten – This is the most significant foreclosure decision in 2018, and probably since Bank of America, N.A. v. Aubut in 2016. If foreclosure is in your bailiwick, I encourage you to read the decision. Here’s the summary: Trial court granted plaintiff summary judgment as to liability. Appellate Court reversed, finding that (1) special defense of unclean hands arising out of a pre-commencement trial modification went to the making, validity or enforcement of the note and mortgage and was thus legally valid; (2) there were genuine issues of material fact about the unclean hands special defense that precluded summary judgment; (3) Eichten’s counterclaim, alleging that plaintiff breached a contract to provide a permanent modification after Eichten completed the trial modification and satisfied all other conditions, met the transaction test; and (4) there were genuine issues of material fact about whether (a) the parties had formed a contract for a permanent modification, (b) plaintiff breached any such contract, (c) any such contract came within the statute of frauds, and (d) any exception to the statute of frauds applied. Judge Alvord issued a concurring opinion in which she agreed that there were fact issues, but as to the breach of contract special defense (the majority found this defense legally insufficient), not the unclean hands defense.

Personal Injury

Farrell v. Johnson & Johnson – Lot of stuff happened in this case about lack of informed consent and misrepresentation for a mesh surgery. Farrell originally sued a number of defendants on a number of theories. After jury selection, Farrell withdrew against all of the parties except the surgeon and his medical practice. Trial court granted Farrell’s in limine motion to preclude surgeon from referring to any of the prior defendants. On Farrell’s direct examination, she testified that she had a contingency fee arrangement with her lawyers. On cross, over Farrell’s objection based on the successful in limine motion, trial court permitted her to testify that the contingency fee applied to recovery from any defendant, even the prior defendants. Trial court directed verdict on innocent misrepresentation. Defense verdict on all other claims. Appellate Court affirmed, finding (1) the cross examination about the contingency fee did not violate the in limine ruling because Farrell had opened the door on direct, and the testimony did not otherwise run afoul of CGS § 52-216a (Appellate Court said in a footnote that it would have been harmless error anyway); (2) trial court properly excluded as hearsay journal articles about the risks of the mesh operation (Farrell said she offered the articles to show that the surgeon had notice of the risks but courts said the issue was whether the mesh operation was in fact risky, not whether the surgeon knew or should have known); (3) trial court properly directed a defense verdict because “claims of innocent misrepresentation are based on commercial relationships between the parties and, because [Farrell] did not allege products liability claims against [surgeon] or [his practice], the court properly directed a verdict in their favor;” and (4) there was no error in the trial court’s jury charge on negligent misrepresentation because even though the trial court did not adopt Farrell’s exact wording, the court’s charge fairly and substantially conveyed its substance. As a side note, Appellate Court concluded that Farrell had preserved the jury charge issue for appeal even though she did not except or object to the court’s charge because she had submitted a written request to charge.

Advance Release Opinions – Supreme Court – September 14

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Review of a Connecticut Supreme Court advance release opinion about worker’s compensation.

Worker’s Compensation

Filosi v. Electric Boat Corporation – Filosi filed claims under the state Worker’s Compensation Act and the federal Longshore and Harbor Workers’ Compensation Act. While his worker’s comp claim was pending, a federal administrative law judge awarded Filosi benefits under the Longshore Act. Back in the worker’s comp proceeding, Filosi argued that the federal decision collaterally estopped Electric Boat from contesting worker’s comp eligibility. Electric Boat argued that it was not collaterally estopped because the causation standard under the Longshore Act is less stringent than the standard under the Worker’s Compensation Act. So, Electric Boat argued, it should be allowed to defend the claim under the more stringent worker’s comp standard. Commissioner dismissed Filosi’s claim on findings that Electric Boat was not collaterally estopped and Filosi had failed to establish causation. Board reversed. Supreme Court affirmed board, finding Electric Boat “collaterally estopped from relitigating the issue of causation under the state act because the record of the Longshore Act proceedings indicates that the administrative law judge employed the substantial factor standard that governs in the state forum.”

Advance Release Opinions – Appellate Court – September 7

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Reviews of Connecticut Appellate Court advance release opinions about breach of contract, civil procedure, mortgage foreclosure, and personal injury.

Breach of Contract

Ajluni v. Chainani – Statute of limitations did not bar this breach of guaranty claim because the limitations period commenced anew when Chainani reaffirmed the debt.

Downing v. Dragone – Dragone hired Downing to auction cars. Dragone said he agreed to pay Downing $2,500. Downing said she had a contract for 1% of the gross sales. Trial court admitted into evidence an unsigned “contract” supporting Downing’s claim. Trial court concluded that the unsigned contract created an implied-in-fact contract because even though Dragone did not read it until four months after the auction, Downing had given it him before the auction. Trial court found for Downing on her breach of contract claim. Appellate Court reversed because the implied-in-fact contract finding was clearly erroneous: Dragone’s testimony was that he did not receive the contract until four months after the auction, not that he did not read it until four months after the auction.

Civil Procedure

A Better Way Wholesale Autos, Inc v. Gause – Used-car transaction. Arbitrator found for Gause and the award included punitive damages. Appellate Court found that trial court properly denied plaintiff’s motion to vacate arbitration award, and properly granted Gause’s motion to confirm it, because the arbitration was an unrestricted submission and arbitrator did not manifestly disregard the law in awarding punitive damages.

Mortgage Foreclosure

Christiana Trust v. Lewis – Trial court granted plaintiff summary judgment as to liability only. Appellate Court reversed, finding that Lewis’ affidavit swearing that the mortgage was forged was sufficient to create an issue of fact about the mortgage’s validity.

Hirsch v. Woermer – Appellate Court affirmed, reaching two conclusions: (1) Allegations of one year loan term, 15% interest, and 5 points, were insufficient to overcome motion to strike unconscionability special defense; and (2) Trial court did not abuse its discretion in denying Woermer’s motion to open the judgment so that he could particularize the special defense because he failed to amend after trial court granted Hirsch’s motion to strike and there was nothing new in his proposed amendment.

Personal Injury

Bisson v. Wal-Mart Stores, Inc. – Slip and fall on water on the floor inside the store on a snowy day. Trial court granted Walmart summary judgment because Walmart did not have constructive notice of the water in time to do anything about it. Appellate Court affirmed, finding that (1) Walmart’s evidence showed that it had inspected the spot and didn’t see any water 40 seconds before Bisson fell, and (2) Bisson failed to counteract that evidence with evidence creating an issue of fact (Bisson’s evidence included Walmart’s video surveillance, which both courts found supported Walmart’s claim).

 

Advance Release Opinions – Supreme Court – September 7

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Reviews of Connecticut Supreme Court advance release opinions about eminent domain and governmental immunity.

Eminent Domain

Hartford v. CBV Parking Hartford, LLC – Supreme Court confirmed that Hartford underpaid – by some $2.8 million – for property it condemned near what was to become Dunkin Donuts Park. Supreme Court did reverse the trial court’s post-judgment interest award, finding that because the trial court did not award interest in its original judgment, CGS § 37-3c allowed interest only at the default rate, not a “reasonable and just” rate.

Governmental Immunity

Smith v. Rudolph – Plaintiff does not have a right to a jury trial for a car accident with a state-owned vehicle because the statute waiving sovereign immunity for such claims (CGS § 52-556) does not expressly provide for it.

 

Advance Release Opinions – Appellate Court – August 31

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Reviews of Connecticut Appellate Court advance release opinions about divorce, insurance, and worker’s compensation.

Divorce

Merk-Gould v. Gould – Appellate Court reversed alimony award and division of certain investments because trial court’s finding as to defendant’s earning capacity was clearly erroneous and trial court abused its discretion in valuing the investments at acquisition cost, rather than value at date of dissolution. Because the alimony award was interwoven with everything else, the remand requires the trial court to reconsider all financial and property orders.

Insurance

Vaccaro v. D’Angelo – Vaccaro was Boileau’s lawyer in a personal injury action. D’Angelo was Boileau’s chiropractor who had a letter of protection. After the case settled, Boileau disputed whether he had to pay D’Angelo for treatments that exceeded the maximum number under Boileau’s health insurance plan. Boileau said that he didn’t have to pay because the provider contract between D’Angelo and Boileau’s health insurance plan required D’Angelo to obtain Boileau’s acknowledgment of financial responsibility before each extra treatment and D’Angelo did not do that. Vaccaro started an interpleader action. Trial court found for D’Angelo. Appellate Court affirmed, concluding that the acknowledgment form was only required for non-covered services, and treatments that exceeded the maximum number were not “non-covered services.” Boileau had some other claims too, but Appellate Court declined to consider them as inadequately briefed.

Worker’s Compensation

Diaz v. Department of Social Services – Dueling doctors on the question of whether lack of proper ergonomics at the workplace, or pre-existing conditions unrelated to the employment, triggered Diaz’s back surgery. Commissioner dismissed. Board affirmed. Appellate Court also affirmed, finding that (1) board was bound to accept commissioner’s decision as to which medical evidence he found more persuasive; (2) board properly affirmed commissioner’s denial of Diaz’s motion to correct his findings because Diaz really just asked the commissioner to substitute her conclusions for his own; and (3) board did not abuse its discretion in denying Diaz’s motion to submit additional evidence because that additional evidence was not new.

Advance Release Opinions – Appellate Court – August 24

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Reviews of Connecticut Appellate Court advance release opinions about administrative law, civil procedure, and foreclosure.

Administrative Law

Blossom’s Escort Service, LLC v. Administrator, Unemployment Compensation Act – It’s not what you think – or at least it wasn’t what I first thought. The escorts are actually flag cars for oversized vehicles. One of the flag car drivers asserted that Blossom’s failed to pay him the proper amount of unemployment. Blossom’s had not reported any wages for the driver. Administrator found that Blossom’s owed some $27,000 for unpaid unemployment compensation contributions. Administrative and judicial appeals ensued. Issue was whether an amendment to the Act exempting escort car drivers from the definition of “employee” applied retroactively. Appellate Court found that it did not, so trial court properly dismissed Blossom’s appeal from the board’s decision.

Civil Procedure

GEICO v. Barros – Statutes of limitation did not apply to GEICO’s equitable subrogation claim because statutes of limitation do not apply to equitable claims.

Teodoro v. Bristol – Part I of the opinion explains what you need to do to have deposition excerpts considered on a summary judgment motion. In sum, you are all set if you submit the excerpts, the “deposition cover page, the page on which the court reporter certified the accuracy of the entire deposition transcript as he transcribed it, and the page on which the deponent swore that she had read the entire deposition transcript and certified to its truth and accuracy, so transcribed ….” Part II of the opinion confirms that the judge has discretion to decline to consider surreply submissions, even after the judge set a deadline for such submissions.

Sovereign Bank v. Harrison – This one is a little difficult to summarize clearly so you may have to read it to get a full understanding. Withdrawal of an action disposes of special defenses, but any counterclaim remains pending. In this mortgage foreclosure action, Harrison asserted a special defense that Sovereign did not properly account for her payments. After Sovereign withdrew the action before trial, Harrison filed a motion to amend her answer to assert a counterclaim. Trial court concluded that it had no jurisdiction to consider that motion since there was no counterclaim pending at the time of Sovereign’s withdrawal. Harrison then moved to restore the special defense to the docket, arguing that it was properly considered a counterclaim. Trial court granted that motion. Appellate Court reversed because the special defense could not be considered a counterclaim.

Foreclosure

Glastonbury v. Sakon – Trial court did not abuse its discretion in awarding Glastonbury more than $140,000 in attorney’s fees for prosecuting a tax foreclosure. Nice work if you can get it.

Real Estate Mortgage Network, Inc. v. Squillante – Trial court did not impermissibly shorten the appeal period by making the law date the same day as the last day to appeal. The time to appeal terminates when the appellate clerk’s office closes at 5 pm, but the law date continues to run until midnight. So, defendant had her full twenty-day period to appeal before the law date expired.