Connecticut Appeals

Advance Release Opinions - Review and Analysis

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Archives for August 2017

Advance Release Opinions – August 31

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Connecticut Appellate Court

Medical Malpractice

Simmons v. Weiss – First judge dismissed medical malpractice action for failure to file a written opinion of a similar healthcare provider. More than four months later, plaintiff filed a motion to open the dismissal. Second judge concluded that first judge’s dismissal was improper because complaint included a claim for lack of informed consent, which did not require a written opinion of a similar healthcare provider. Second judge opened the dismissal as to the lack of consent claim. Appellate Court reversed, concluding that no exception to the four month limitation on opening judgments applied, including the equitable exception because the judgment did not “shock the conscience.”

Divorce

Dejana v. Dejana – Postjudgment motion for contempt for failure to pay the correct amount of unallocated alimony and child support under separation agreement incorporated into dissolution judgment. At the time of judgment, defendant had three sources of income: base salary, bonus and a stock incentive plan. Settlement agreement gave plaintiff a percentage of base salary and bonus and gave defendant the right to use stock incentive plan to pay for the minor child’s college education. After defendant fully paid for the education with the stock incentive plan, plaintiff claimed that “bonus” included the stock incentive plan such that defendant could pay tuition from the plan only after paying plaintiff her share. Trial court denied the claim. Appellate Court affirmed, concluding that the separation agreement unambiguously excluded the stock incentive plan from the unallocated alimony and child support calculation.

Lugo v. Lugo – Postjudgment motion to modify child custody. Trial court awarded sole custody to plaintiff. Defendant appealed, claiming lack of due process because there was insufficient notice of a claim for, or that the court might award, sole custody to plaintiff. Appellate Court affirmed, finding that defendant had sufficient notice that custody was in issue.

Advance Release Opinions – August 30

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Connecticut Supreme Court

Maio v. New Haven – Police officer sought indemnification under CGS § 53-39a for economic loss sustained in successfully defending charges of sexual assault and unlawful restraint alleged to have occurred while he was on extra duty at a nightclub. The statute provides indemnification if an officer is acquitted of crimes alleged to have occurred “in the course of his duty.” Trial court borrowed the “course of employment” definition from worker’s compensation law in defining “course of duty.” Trial court excluded the criminal trial testimony of the two complaining witnesses, finding that they were not “unavailable” to testify at the indemnification trial because defendant had not taken their depositions. Verdict for the officer. City appealed, arguing that “course of duty” and “course of employment” were not the same and that the complaining witnesses were indeed unavailable. Supreme Court affirmed as to the “course of duty” definition but reversed as to the unavailability of the complaining witnesses.

Advance Release Opinions – August 25

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Connecticut Appellate Court

Rockhill v. Danbury Hospital – Plaintiff was injured when she tripped on an obstacle in a pedestrian walkway and fell. Judgment for plaintiff after a trial to the court. The Appellate Court rejected defendant’s invitation to impose a firm “trivial defect” rule. The Appellate Court also rejected defendant’s claims that plaintiff had failed to prove the defect actually caused her injuries and that not all of plaintiff’s bills were related to the fall. Affirmed.

Advance Release Opinions – August 18

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Connecticut Appellate Court

Child Support

Commissioner of Social Services v. Zarnetski – Family support magistrate dismissed petition for child support because the commissioner did not submit the putative father’s acknowledgment of paternity that was executed in Massachusetts. Commissioner appealed to the Superior Court, which affirmed for the same reason. Appellate Court reversed, finding that family support magistrate acted in contravention of CGS §§ 46b-172 and 46b-215 by requiring the commissioner to submit the acknowledgment.

Summary Judgment Procedure / Appellate Procedure

Windsor Federal Savings and Loan Association v. Reliable Mechanical Contractors, LLC – In this action to collect on a note and guarantee, the Appellate Court reversed the trial court’s order granting summary judgment to plaintiff, concluding that the defendant had presented evidence sufficient to create a fact issue as to whether defendant had signed the loan documents. As to the trial court’s order dismissing defendant’s counterclaims, the Appellate Court dismissed the appeal because the trial court specified two independent grounds for its decision and defendant challenged only one ground. Absent challenge to both grounds, the Appellate Court could not afford the defendant any meaningful relief.

Renaissance Management Company, Inc. v. Barnes – Summary process action to evict a tenant, who asserted a defense of retaliatory eviction under CGS § 47a-20. Trial court granted tenant summary judgment on that ground. Landlord appealed. After oral argument but before the Appellate Court rendered a decision, the parties advised the court that the tenant had surrendered possession. Since landlord was seeking possession, and had obtained it, Appellate Court dismissed the appeal as moot, finding that the circumstances did not fit the mootness exceptions for “capable of repetition, yet evading review” or “collateral consequences.”

Medical Malpractice

Procaccini v. Lawrence and Memorial Hospital, Inc. – Plaintiff alleged that his decedent presented to the hospital with a methadone overdose, which, according to plaintiff, required the hospital to monitor her for at least 24 hours for signs of potentially fatal methadone toxicity. The hospital discharged decedent after four and a half hours. She subsequently died from methadone toxicity within what would have been the 24 hour period. Verdict for plaintiff. Defendant claimed that there was insufficient evidence that the decedent had initially presented with a methadone overdose so there was insufficient evidence that the defendant had a 24 hour monitoring duty. Defendant also claimed that there is no duty to monitor unless the patient is admitted to the hospital and there was insufficient evidence that the decedent met the hospital’s admission criteria. Appellate Court affirmed in a lengthy opinion too factually detailed to summarize here.

Personal Jurisdiction / Promissory Estoppel

TD Bank, N.A. v. Salce – Action to recover on a promissory note. Defendant owned property in Connecticut but lived in Florida. He claimed that service was improper because, although the marshal left the process with the secretary of state and mailed it to defendant by certified mail, he had to actually receive the mailing for service to be good and he never had. Trial court denied his motion to dismiss for lack of personal jurisdiction. Later, defendant claimed that his promissory estoppel special defense – asserting that plaintiff had reneged on a promise to modify the loan – required the court to deny plaintiff’s summary judgment motion. Trial court granted summary judgment. Appellate Court affirmed, noting that under CGS § 52-59b(c) sufficiency of service did not depend on receipt. Plaintiff complied with the statute when the marshal left the process with the secretary of state and sent it by certified mail to defendant’s Florida address. As to the promissory estoppel special defense, the Appellate Court noted that the defendant had not established a genuine issue of material fact as to reliance because defendant had stopped paying the note three years before there was any discussion of a modification.

Foreclosure

Rockstone Capital, LLC v. Sanzo – This case, involving cross-appeals, has a messy factual and procedural background. In a nutshell, plaintiff first obtained a judgment of personal liability against the defendants and filed a judgment lien against their home. Defendants later defaulted on their payments and the parties entered into a forbearance agreement that was secured by a mortgage on the home. Defendants defaulted on the forbearance agreement and plaintiff commenced an action to foreclose the judgment liens. Plaintiff later amended its complaint to foreclose only on the mortgage. The trial court concluded that the mortgage was void as against public policy because it eliminated the statutory homestead exemption where the judgment liens did not. The trial court also concluded that plaintiff could foreclose the judgment liens as they were subject to the homestead exemption. As to plaintiff’s appeal of the invalidity of the mortgage, the Appellate Court reversed, finding that the mortgage was not void because it was a consensual lien not subject to the homestead exemption. The Appellate Court also reversed as to defendants’ appeal of the ruling allowing plaintiff to foreclose the judgment liens, finding that the complaint limited the issues in the case to foreclosure of the mortgage, not the judgment liens.

 

Advance Release Opinion – August 17

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Connecticut Supreme Court

Williams v. General Nutrition Centers, Inc. – Supreme Court addressed the question of how to determine the overtime pay rate for retail workers who are paid partly on an hourly basis and partly on a commission basis. In a nutshell, you determine the base rate by dividing the the pay for the given week by the “usual” number of hours worked in a week, not the actual number of hours worked in the given week. You then multiply the base rate by 1.5 to determine the overtime rate.

Supreme Court Reverses Decision Vacating Arbitration Award

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Kellogg v. Middlesex Mutual Assurance Company – Trial court vacated an unrestricted arbitration award because it found the appraisal panel’s valuation to be too low and that the appraisal panel had imposed depreciation when the policy did not. Supreme Court reversed, concluding that neither of these findings warranted vacating the award under CGS § 52-418.

New Format for Connecticut-Appeals

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I started this blog with the noble idea of digesting every Connecticut Appellate Court and Supreme Court decision to make it easy for you busy practitioners to get the updates you need faster than doing it yourself. I bit off more than I could chew. That’s why there hasn’t been a post in nearly a year and a half. Since I’m still reading, or mostly reading, all of the decisions more or less as the courts post them on the judicial branch website, I figured I could do a short blurb about the main issue in each case and link to the decision so that you can read it in detail if it’s important for you. So, going forward, that’s what I’m going to do.