Connecticut Appeals

Advance Release Opinions - Review and Analysis

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Archives for September 2017

Advance Release Opinions – September 22

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Connecticut Appellate Court

The Appellate Court issued advance release decisions about civil protection orders, family law, and personal injury (but really appellate procedure).

Civil Protection Order

Sabrina C. v. Fortin – Civil protection order entered. On appeal, defendant claimed that trial court improperly (1) denied his motion to vacate or modify the protection order; (2) changed the basis for its denial in its subsequent articulation; (3) awarded plaintiff her attorney’s fees under the bad faith exception to the American Rule; and (4) granted plaintiff’s motion for a one-year extension of the protection order. The Appellate Court “agree[d] with the defendant’s third and fourth claims, and, accordingly, … remand[ed] the matter to the trial court with direction to vacate the award of attorney’s fees and to vacate the order extending the civil protection order to November 24, 2017.”

Family Law

Mason v. Ford – Defendant moved for postjudgment modification of child support to zero based on loss of income. Trial court modified support to zero, effective retroactively to a date preceding defendant’s service of the motion to modify, and found a 16 week arrearage terminating on the retroactive effective date. Defendant appealed. Appellate Court reversed, finding that under CGS § 46b-86(a) the retroactive effective date could not be earlier than the date of service of the motion to modify, and remanded to recalculate the arrearage.

Personal Injury (but really appellate procedure)

Pecher v. Distefano – Defense verdict in an action for personal injuries plaintiff sustained when she fell off her horse during a riding lesson. Plaintiff appealed claiming that trial court committed harmful error in improperly admitting a release and hold harmless agreement, and a picture of a sign, purporting to relieve defendant from liability. The Appellate Court concluded that plaintiff had failed to carry her burden of presenting an adequate record for the Court to review her claim that she was harmed by the allegedly improper evidentiary rulings.  More specifically, the Court explained that a harm determination requires, among other things, evaluation of the relationship of the improper evidence to the central issues in the case, particularly as highlighted in closing arguments. This evaluation is done in the context of the totality of the evidence. Since plaintiff did not provide the Appellate Court with the totality of the evidence or the closing arguments, the Appellate Court could not conduct a full and complete analysis of harm and had to affirm.

 

Advance Release Opinions – September 15

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Connecticut Appellate Court

Family Law

Fuller v. Baldino – Man sought visitation with a child of a woman with whom he had been in a relationship for some time. Trial court dismissed for lack of jurisdiction. Appellate Court affirmed, finding that although there was no dispute that man had a parent-like relationship with child, man had failed to plead or prove that the child would suffer any real or substantial harm other than emotional harm that stems from denial of visitation itself.

Franchise Law

Aldin Associates Limited Partnership v. Hess Corporation – Franchisee claimed that franchisor improperly charged too high a wholesale price for gas, which stifled franchisee’s ability to compete. Trial court denied trial by jury based on written jury waivers and found for franchisor, concluding that franchisee had failed to prove damages with sufficient certainty. Appellate Court affirmed the jury trial waiver but reversed on the damages issue.

Insurance

Amica Mutual Insurance Company v. Piquette – Declaratory judgment action about the scope of an insurance policy. Trial court granted summary judgment for insurer. Appellate Court framed the issue on appeal as “whether, under the terms of an automobile insurance contract providing coverage for bodily injury, a loss of consortium claim is entitled to a separate per person liability limitation from the principal bodily injury claim of another person from which the loss of consortium claim arises.” Appellate Court concluded that the policy language in Izzo was substantially similar so Izzo applies and Izzo says there is only one limit for the bodily injury and the loss of consortium.

Landlord-Tenant

Presidential Village, LLC v. Perkins – Trial court dismissed summary process action against Section 8 tenant because the pretermination notice was defective under federal and state law in that it specified an incorrect cure amount to avoid termination of the tenancy and included non-rent charges in the total past due rental obligation.  Appellate Court reversed, noting that only federal law applied to determining the sufficiency of the notice and the notice complied with federal law.

Medical Malpractice

Wilkins v. Connecticut Childbirth and Women’s Center – Defense verdict. Plaintiff appealed, claiming that the threshold interrogatory, which the jury answered in the negative, was confusing and overly restrictive given the allegations in the complaint and the proof elicited at trial.  Appellate Court essentially rejected each of those claims and affirmed.

Personal Injury

Gostyla v. Chambers – Car accident. Defense verdict. Plaintiff appealed because trial court permitted defense’s biomechanical expert to offer an opinion on causation, which was beyond his expertise. Appellate Court agreed that trial court improperly admitted the causation testimony but affirmed because plaintiff failed to provide an adequate record to determine whether the error affected the outcome of the trial.

Zoning

St. Joseph’s High School, Inc. v. Planning and Zoning Commission of the Town of Trumbull – High school wanted to install lights on its football field. P&Z denied special application because of a deadlock (2 votes in favor, 2 votes against, 1 abstention). High school appealed to Superior Court. Superior Court sustained the appeal, finding that the application satisfied the known and definite standards in the regulation, and could not be trumped by the general standard of “detrimental to the character of a residential district. The Appellate Court reversed. After a lengthy discussion, the Appellate Court concluded that “[u]nder Connecticut law, a zoning commission may deny a special permit application due to noncompliance with general standards contained in the zoning regulations.” So, Superior Court had applied an improper legal standard. The Appellate Court then concluded that, using the proper standard, there was substantial evidence in the record to support a denial. Said another way, there was substantial evidence that the high school had not met its burden of demonstrating that the lights would not be detrimental to the character of the neighborhood.

Advance Release Opinions – September 8

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Connecticut Appellate Court

The Appellate Court issued advance release opinions dealing with arbitration, breach of contract, fraud, mortgage foreclosure and personal injury.

Arbitration

A Better Way Wholesale Autos, Inc. v. Rodriguez – Car purchase gone bad. Arbitrator ordered the finance company to return the car to the dealer, among other things. Trial court denied dealer’s application to vacate arbitration award and granted purchaser’s and finance company’s motions to confirm it. Trial court also ordered dealer to pay finance company’s attorney’s fees in defending the arbitrator’s award. On appeal, dealer claimed arbitrator exceeded the scope of the submission in ordering the finance company to return the car because title was never at issue. Appellate Court affirmed, finding that the submission was unrestricted and title was at issue from the get go.  Dealer also challenged the award of attorney’s fees but Appellate Court declined to review these claims because dealer inadequately briefed them.

Breach of Contract

Luongo Construction and Development, LLC v. MacFarlane – What a mess. LLC sued customer for failure to pay on a contract to erect a modular home in separate actions – one in New Haven and one in Middletown. In the Middletown action, customer counterclaimed against LLC and cited in individual contractor for faulty workmanship and other claims. Middletown denied motion to dismiss based on prior pending action doctrine. LLC withdrew New Haven action. Middletown denied LLC’s motion for summary judgment. After courtside trial in Middletown, but before decision, LLC filed a second motion to dismiss based on prior pending action doctrine, claiming that New Haven action had been commenced first and customer could have litigated there before withdrawal. Court denied motion and issued judgment for customer on LLC’s claims and customer’s counterclaims. Appellate Court affirmed. Decision addresses prior pending action doctrine; summary judgment obligations; and punitive damages. Judge Flynn concurred with everything, except to the punitive damages award, as to which he dissented.

Fraud

Kenneson v. Eggert – In Action 1, plaintiff sued X and Y in tort. X tendered the claim to his Insurer who hired Lawyer to defend him. Jury returned a verdict for plaintiff against X for $67,556.07 and against Y for $380,037.38. Y did not appear at trial. Lawyer filed post-trial motions for X. Plaintiff and Lawyer later appeared for a hearing on the motions and a settlement conference. Plaintiff accepted $67,000 in settlement against X and signed a release and withdrawal as to X. Plaintiff later learned that she could not collect anything from Y because he was uninsured and had died earlier without assets. Plaintiff then moved to open the judgment to reinstate X as defendant, claiming that Lawyer was unfair and deceptive when she instructed plaintiff to sign the release without explaining its impact. Court denied the motion. Plaintiff started Action 2 against Lawyer for intentional misrepresentation and intentional nondisclosure and Insurer for vicarious liability. Trial court granted Lawyer and Insurer summary judgment. Appellate Court affirmed as to nondisclosure because Lawyer had no duty to plaintiff. Appellate Court reversed as to misrepresentation, finding that the denial of the motion to open did not collaterally estop plaintiff; there was a question of fact about whether the misrepresentation related to a past or existing fact, which could support a misrepresentation claim, or a future fact, which could not; and, though Connecticut has not yet recognized the sham affidavit rule (affidavit contradicting prior deposition testimony cannot support or defeat summary judgment), it would not be triggered in this case in any event.

Mortgage Foreclosure

McClancy v. Bank of America, N.A. – Borrowers sued bank on a host of theories surrounding a failed attempt to modify a mortgage loan. Trial court granted bank summary judgment as to all claims. Appellate Court affirmed, concluding that bank’s promise to review the borrowers’ modification application was not a promise to modify, a misrepresentation or a CUTPA violation.

Financial Freedom Acquisition, LLC v. Griffin – Reverse mortgage borrower’s executor made two claims on appeal. First, executor claimed that substitute plaintiff had failed to make out a prima facie case at trial because the substitute plaintiff’s own evidence showed that someone other than the substitute plaintiff owned the loan. Appellate Court affirmed, concluding that under federal and state banking law, and state corporation law, a series of corporate transactions only resulted in a name change of the substitute plaintiff, not a change in loan ownership. In other words, the substitute plaintiff still owned the loan; it’s just that the substitute plaintiff had a new name. Second, executor claimed that substitute plaintiff breached covenant of good faith and fair dealing by declining to extend the repayment date so that the executor could take advantage of the option of selling the house to repay the loan. Appellate Court affirmed, concluding that the covenant applied only to a discretionary application or interpretation of a contract term and there was no discretionary application or interpretation of the repayment date.

Personal Injury

Dinino v. Federal Express Corporation – Worker sued employer and co-worker for injuries sustained when he fell into a gap between the loading dock and the truck he was unloading. He claimed that the motor vehicle exception to worker’s compensation exclusivity applied to his claim against his co-worker, who had parked the truck; and that the intentional creation of a dangerous work condition exception applied to his claim against his employer. Trial court granted summary judgment as to both defendants, finding that there was no genuine issue of material fact that neither exclusion applied. Appellate Court affirmed in a detailed 18-page opinion.