Connecticut Appeals

Advance Release Opinions - Review and Analysis

Home » Archives for November 2017

Archives for November 2017

Advance Release Opinions – November 24

by

Connecticut Appellate Court

The Appellate Court advance released opinions in the areas of breach of contract (involving a collective bargaining agreement) and foreclosure, which I review below. The Court also advance released opinions in three habeas matters and three criminal matters, which I do not review.

Breach of Contract

Rosenthal v. Bloomfield – Retired cops claimed that Town breached collective bargaining agreement because new health insurance plan, which increased co-pays, was not “comparable”to old plan. Trial court dismissed claim for failure to make out a prima facie case. Appellate Court affirmed, finding that there was no evidence of a breach. Though the new plan increased co-pays, it did so only for some services, while lowering or eliminating them for others. So, as a whole, the new plan was comparable to the old plan.

Foreclosure

GMAC Mortgage, LLC v. Ford – Not to be confused with the 2013 Appellate Court decision involving the same parties and mortgage, in this one the borrower claimed that the United States Supreme Court’s 2015 decision in Jesinoski v. Countrywide Home Loans, Inc. (135 S. Ct. 790) resuscitated his TILA-rescission defense and that the substituted plaintiff lacked standing because it never had any legal existence. Jesinoski confirms that under TILA a borrower need only mail a rescission notice within three years of consummating the loan transaction – the borrower does not also have to start a lawsuit to confirm the rescission within that same three year period. Ford claimed that under Jesinoski the foreclosure action could not proceed because he had rescinded the loan by mailing a notice within the three year period. The Appellate Court rejected this claim, concluding that Jesinoski merely confirms that mailing is the only required mechanism for providing notice of a rescission; it does not say that timely mailing the notice is itself a rescission. I’m not so sure that I agree with that but there you have it. The Appellate Court also rejected Ford’s lack of standing claim, finding that Ford never suggested any evidence that the substituted plaintiff had no legal existence.

Advance Release Opinions – November 17

by

Connecticut Appellate Court

The Appellate Court advance released opinions involving collections (attorney’s fees) and sanctions, which I review below. It also released opinions involving summary process (housing authority as landlord), criminal prosecution (2 opinions), habeas corpus, and termination of parental rights (2 opinions), which I do not review.

Beck and Beck, LLC v. Costello – Nothing to see here folks. Law firm sued for its fee. Defendant counterclaimed. Trial court struck counterclaims. Defendant appealed. While that appeal was pending, defendant filed for bankruptcy but did not list the counterclaims as contingent or unliquidated claims. Bankruptcy trustee issued a report of no distribution and bankruptcy case was closed. Appellate Court reversed the striking of the counterclaims. On remand, the trial court granted law firm’s motion to dismiss the counterclaims for lack of standing because the bankruptcy trustee had not abandoned the counterclaims. Appellate Court affirmed, finding that the trustee’s report of no distribution was not an abandonment because defendant had not listed the counterclaims as assets.

Picard v. The Guilford House, LLC – Not much to see here either. Plaintiff’s former attorney brought a writ of error challenging the trial court’s imposition of financial sanctions for former attorney’s misconduct while conducting an out-of-state deposition in the underlying matter. Trial court granted underlying defendants’ application for sanctions against former attorney in the form of the attorney’s fees defendants incurred in dealing with former attorney’s misconduct. Trial court also referred the matter to the statewide grievance committee who reprimanded former attorney.  Appellate Court affirmed, concluding that grievance was not res judicata of the sanctions because grievance committee and underlying defendants were not in privity and because trial court awarded sanctions before grievance committee issued reprimand. Appellate Court also concluded that the amount of the sanction – some $60,000 – was not an abuse of discretion.

 

Advance Release Opinions – November 14

by

Connecticut Supreme Court

The Supreme Court advance released a single opinion, which deals with breach of contract.

CCT Communications, Inc. v. Zone Telecom, Inc. – This opinion results from something that I don’t recall ever happening before (though I know it must have): The Supreme Court granted reargument and effectively reversed itself. Plaintiff’s claim and defendant’s counterclaim each asserted that the other breached the contract. The trial court found that it was plaintiff who breached. But the trial court’s decision was unclear as to whether plaintiff breached by filing for bankruptcy, which seemed to be the trial court’s conclusion, or that plaintiff breached by providing inadequate service, which defendant cited as an alternate ground for affirmance. On the first go ’round, after oral argument the Supreme Court ordered the trial court to articulate. After the articulation, the Supreme Court affirmed, its original opinion accepting the alternate ground for affirmance. On reargument, the Supreme Court reversed the trial court, finding that the record did not support the alternative ground for affirmance and that plaintiff’s bankruptcy filing was not a breach.

Advance Release Opinions – November 9

by

Connecticut Appellate Court

The Appellate Court advance released one opinion and it was in the area of foreclosure.

Foreclosure

Sovereign Bank v. Licata – Sometimes you read an opinion and you wonder how the case could ever get to where it is. This is one of those. But on reflection you can kind of understand it. The important events are 10 years old, a lot of different lawyers and judges involved over time, no formal orders for some things – you get the idea. Here’s what happened: Bank sought foreclosure and defendant counterclaimed. Foreclosure was tried to the court and the counterclaim was tried to a jury. Court found for bank on the foreclosure claim and orally set law days to commence on February 6, 2007. Jury found for defendant on counterclaim and awarded damages. There was some post-judgment wrangling about the counterclaim judgment. The bank appealed the counterclaim judgment and the defendant cross-appealed the decision on one of the post-judgment motions about the counterclaim judgment. This is where it all broke down. Even though the appeals related only to the counterclaim, everyone – lawyers and judges alike – assumed that the appellate stay had gone into effect as to the foreclosure judgment such that the law days never passed. Though the trial court purported to terminate that stay, no new law days were ever set. Years later – in 2016 – defendant was still living in the house and started groaning that the bank was acting like it owned the joint (trying to sell it) even though no law day had ever passed. That led to motion practice, which led to another appeal. The Appellate Court’s opinion is thorough, detailed and acknowledges that the confusion about the whole thing was justified. But the inescapable conclusion is this: Because no one appealed the foreclosure judgment, the law days passed in February 2007 and the bank has owned the house ever since. Huh, who knew?

Advance Release Opinions – November 3

by

Connecticut Appellate Court

The Appellate Court advance released opinions in the areas of breach of contract, declaratory judgment, employment, personal injury, and zoning.

Breach of Contract

Frauenglass and Associates, LLC v. Enagbare – Law firm sued former dissolution client for unpaid fees and won. Client appealed and Appellate Court affirmed. Law firm then moved for postjudgment interest and attorney’s fees for prosecuting the collection action (fee agreement had attorney’s fees provision). Former client’s objection related to the law firm’s fees in the dissolution proceeding, not the collection action. Trial court granted law firm’s motion because the dissolution fee issue had already been finally resolved. Appellate Court affirmed.

Declaratory Judgment

21st Century North American Ins. Co. v. Perez – Insurer had properly terminated defendants’ car insurance for not fully paying a premium installment (before defendants had a fatal crash). Though defendants had made a partial payment, the doctrine of substantial performance did not save them because payment of premiums is an essential and material condition to car insurance and there can be no substantial performance when the performance owed is the payment of money and time is of the essence.

Employment

Samakaab v. Dept of Social Services – “[P]laintiff alleged that he was denied a promotion because of his age, sex, national origin, and his prior opposition to unlawful employment practices”. Trial court granted defendant summary judgment because plaintiff’s self-serving affidavit and deposition testimony did not demonstrate a fact issue. Affirmed.

Personal Injury

Burke v. Mesniaeff – Husband was giving a tour of his historic second home to three people when wife arrived in an agitated state. Husband forcibly escorted wife out of the house and down the driveway. Wife alleged assault and battery. Husband asserted justification because he acted in defense of others – the tour guests. Defense verdict. Appellate Court affirmed, finding that the trial court properly instructed the jury on justification. Judge Bishop dissented because in his view defendant’s evidence at trial and the jury instructions were tainted by the improper notion that wife could have been a trespasser in a house her husband owned (majority found this inconsequential because jury did not find wife was a trespasser) and the evidence did not support the defense of others justification.

Zoning

Griswold v. Computaro – Defendants filed motions to cite in new defendants and to open and modify an 18 year old stipulated judgment for the operation of an asphalt manufacturing facility. Those motions were assigned to the November 23 short calendar. On November 9, the town, the defendants, and the yet to be cited-in defendants agreed to modify the stipulated judgment. On November 12, the town, the defendants, and the yet to be cited-in defendants filed a joint motion to open and modify the stipulated judgment, together with a caseflow request to have all of the motions heard on the November 16 short calendar. The trial court granted the caseflow request and opened and modified the judgment on November 16. The proposed intervenors showed up on November 23 to file their motion to intervene and be heard on the motion to open and modify only to learn that the trial court had already done it without them on November 16. The trial court denied intervention. The Appellate Court reversed, concluding that (i) it was a violation of our rules of practice to proceed on November 16 when the matters had been published to the November 23 short calendar; (ii) because of (i), the intervenors were denied their statutory right to intervene; and (iii) because of (ii), the hearing on the stipulated settlement failed to conform to CGS § 8-8(n).

Advance Release Opinions – November 2

by

Connecticut Supreme Court

Products Liability

Bagley v. Adel Wiggins Group – In this mesothelioma case, defendant was entitled to a judgment notwithstanding the verdict because plaintiff failed to present essential expert testimony to prove that “respirable asbestos fibers in a quantity sufficient to cause mesothelioma were released from FM-37 when it was used in the manner that it was in the Sikorsky blade shop during the decedent’s tenure there. Proof of this fact was necessary to prove both that (1) FM-37 was dangerous, and (2) FM-37’s dangerous condition caused the decedent to develop mesothelioma.”