Connecticut Appeals

Advance Release Opinions - Review and Analysis

Home » Archives for December 2017 » Page 2

Archives for December 2017

Advance Release Opinions – December 8

by

Connecticut Appellate Court

The Appellate Court advance released opinions about administrative law, employment law, personal injury (three opinions) and trusts and estates, which I review below. The Appellate Court also released opinions about criminal law (three opinions) and habeas corpus, which I do not review.

Administrative Law

Lawrence v. Dept of Energy & Environmental – Superior Court dismissed the appeal because plaintiff was not classically or statutorily aggrieved by commissioner’s decision granting an application to construct a residential dock and pier, except as to his claim for visual degradation but the record supported the commissioner’s decision in that regard. Appellate Court affirmed by adopting Superior Court’s decision.

Employment Law

Horvath v. Hartford – Trial court granted city summary judgment on former assistant police chief’s claim of constructive discharge. Appellate Court affirmed, finding that the alleged adverse conditions even taken collectively “were not so objectively intolerable that a reasonable person would have felt compelled to resign.”

Personal Injury

Cuozzo v. Orange – Trial court granted municipal defendants summary judgment because there was no issue of fact that the pothole that allegedly caused the injuries was not on their property. Appellate Court affirmed.

Cusano v. Lajoie – Jury awarded medical expenses but nothing for non-economic damages. Trial court granted motion for additur because it was inconsistent to award substantial medical expenses but deny pain and suffering. Appellate Court reversed because (i) the trial court failed to “state the specific facts relied upon … to justify its decision to award the extraordinary relief of additur”; and (ii) there was “conflicting evidence and credibility issues concerning the extent, if any, of the plaintiff’s pain and suffering.”

Tara S v. Charles J – Father was prosecuted sexually abusing his daughter, who was four years old at the time. Daughter, now 36, started this action against father to recover for personal injuries resulting from the sexual abuse. Father moved to dismiss, arguing that CGS § 52-577d, which extends the limitations period for claims by those sexually abused as minors to 30 years after majority, was unconstitutional as applied to him because (i) legislative history shows extension is constitutional only for repressed memories and daughter did not have any; (ii) violated his rights to a speedy trial and confrontation, and his protection against double jeopardy (he argued this civil action was quasi-criminal); and (iii) and statute is unconstitutionally overbroad and unconstitutionally infringes on a property interest. Appellate Court affirmed, finding (i) statute clearly and unambiguously not limited to repressed memories so no basis for considering legislative history; (ii) the action is purely civil, not quasi-criminal; and (iii) statute isn’t overbroad because it doesn’t prohibit any constitutionally protected conduct and doesn’t impact any property right.

Trusts and Estates

Geci v. Boor – There was no confidential relationship between father and daughter that would have shifted burden of proof to daughter on issue of ownership of joint bank accounts; there were no facts suggesting that father intended anything other than leaving the joint accounts to daughter alone; trial court was free to conclude that daughter did not conceal survivorship aspect of accounts from father or his attorney; and daughter did not undervalue assets such that she should be removed as executrix.

 

Advance Release Opinions – December 1

by

The Supreme Court advance released an opinion in a criminal case that I review below. The Appellate Court advance released opinions about civil procedure, family law, indemnification, and vexatious litigation that I review below. The Appellate Court also released three opinions in criminal matters which I do not review.

Connecticut Supreme Court

Criminal Law

State v. Damato-Kushel – I don’t normally review opinions in criminal cases but this one is a little different. The defendant was accused of sexual misconduct. Her alleged victim brought this writ of error, claiming that he, either personally or through his attorney, had a constitutional right under the victim’s rights amendment to be present during plea negotiations and other in-chambers pretrial disposition conferences between the prosecutor, the court and defense counsel. Supreme Court dismissed the writ, concluding that the alleged victim has no right to attend because the defendant herself has no right to attend. A concurring opinion notes that even though the defendant has no right to attend, her attorney does and the majority did not explain why the same right is not extended to the alleged victim’s counsel. The reason is that the language of the victim’s rights amendment does not allow it.

Connecticut Appellate Court

Civil Procedure

Law Offices of Frank N. Peluso, P.C. v. Cotrone – This case confirms, if we didn’t already know it, that failure to follow proper procedure can really ruin your day. Law firm sued former client for unpaid legal fees. Former client counterclaimed. Law firm filed a withdrawal of its action. Two days later, law firm filed what it thought was a withdrawal of its withdrawal. Trial court rejected former client’s argument that you can’t withdraw a withdrawal. Case went to trial. Law firm won on its claim and the counterclaim. Appellate Court reversed the judgment on law firm’s claim because you can’t withdraw a withdrawal. You have to move to restore the case to the docket within four months of the withdrawal. Painful lesson.

Family Law

Kent v. DiPaola –  Trial court did not include the present value of Spouse 2’s pensions (which were in pay status) in the division of assets because it used the income stream from the pensions to eliminate what would have been Spouse 1’s child support obligation. Trial court divided the martial assets two-thirds / one-third in favor of Spouse 2. Appellate Court affirmed, concluding that trial court did not abuse its discretion in excluding the pensions from the marital asserts because the income offset Spouse 1’s support obligation. Nor was there any abuse of discretion in the property division.

Indemnification

O’Brien v. New Haven – Plaintiff was the city’s tax collector. A third party sued plaintiff for misconduct. Plaintiff asked city to defend him. City declined but said that it would indemnify plaintiff under CGS § 7-101a(b) for financial loss, including attorney’s fees, if plaintiff won the case and was acting in the discharge of his duties. Plaintiff hired his own lawyer and won. City refused to pay his attorney’s fees. Plaintiff filed a notice of intention to bring an action for indemnification with the city clerk and commenced the action soon after. City claimed that notice was late. Trial court found that notice was proper and timely; plaintiff was entitled to his attorney’s fees in defending against the misconduct claims; but plaintiff was not entitled to his attorney’s fees in prosecuting the indemnification action. Plaintiff and city appealed. After some extensive statutory analysis, Appellate Court agreed that the notice was proper and timely. Appellate Court also agreed that plaintiff was not entitled to his attorney’s fees in the indemnification action because there was no statute or contract authorizing it.

Vexatious Litigation

Rockwell v. Rockwell – In the underlying action, wife sued husband on an investment agreement and lost. Husband then sued wife and wife’s attorney for vexatious litigation. Wife was dismissed for lack of personal jurisdiction. Husband claimed a jury. After bifurcating the issue since it involved a question of law, the trial court found that there was probable cause to commence the underlying action and entered judgment for attorney. Appellate Court affirmed, concluding that trial court did not abuse discretion in bifurcating the probable cause issue; husband did not have a constitutional right to have the jury decide that issue; and trial court properly determined there was probable cause for the underlying action.