Connecticut Appeals

Advance Release Opinions - Review and Analysis

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Archives for January 2018

Advance Release Opinions – January 19

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The Connecticut Appellate Court advance released an opinion about breach of contract that I review below. The Court also released opinions about criminal law and habeas corpus that I do not review. There were also nine memorandum decisions that I don’t review because there isn’t anything to review.

Breach of Contract

Finney v. Cameron’s Auto Towing Repair – Nothing particularly interesting in this one. Finney sued Cameron’s claiming Cameron’s breached a contract to fix his car. Cameron’s denied there was any agreement to fix Finney’s car and counterclaimed for towing and storage charges. Trial court granted Cameron’s summary judgment on Finney’s claim and Cameron’s counterclaim. The Appellate Court affirmed summary judgment as to Finney’s claim, but reversed as to Cameron’s counterclaim because Cameron’s summary judgment papers did not demonstrate entitlement to recovery.

Advance Release Opinions – January 11 – Part Two

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The Connecticut Appellate Court advance released an opinion about personal injury law that I review below. The Court also released two opinions about criminal law that I do not review.

FYI, in prior posts, I said “which I review below.” I started to think it should be “that I review below.” Strunk and White seems to confirm it, so I changed it.

This is Part Two of the post for January 11 advance releases. Part One is the immediately preceding post that deals with a Supreme Court opinion released the same day.

Personal Injury

Pettiford v. State – State van hit UPS driver when he was crossing the street to deliver a package. UPS driver claimed that State owed him a heightened duty because he was in or very near an unmarked crosswalk. Trial court found, and Appellate Court agreed, that by statute an unmarked crosswalk exists only where a sidewalk meets an intersection. Since there was no sidewalk, there was no unmarked crosswalk. Appellate Court also found that, even if there was an unmarked crosswalk, the trial court made no finding that the UPS driver was in or very near it when he got hit and other findings suggested he wasn’t. Appellate Court reversed, but only because the trial court had dismissed the action when it should have entered judgment for State.

Advance Release Opinions – January 11

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The Connecticut Supreme Court advance released an opinion about privacy law, which I review below.

Privacy Law

Byrne v. Avery Center for Obstetrics and Gynecology, P.C. – Who would have thought that a patient didn’t already have a right to sue a doctor for disclosing the patient’s medical records without the patient’s consent? Certainly not me. Thankfully, this decision confirms that Connecticut law recognizes such claims. Byrne had had a personal relationship with Mendoza that ended in 2004. In 2005, Mendoza started a paternity action against Byrne and subpoenaed Byrne’s medical records from Avery. Without obtaining Byrne’s consent or resisting the subpoena, Avery produced Byrne’s records to Mendoza. Byrne sued Avery for negligence and negligent infliction of emotional distress, among other things. The trial court granted Avery summary judgment on these two claims, concluding that no Connecticut court had yet recognized them and that recognition was better left to the appellate courts or legislature. The Supreme Court “conclude[d] that a duty of confidentiality arises from the physician-patient relationship and that unauthorized disclosure of confidential information obtained in the course of that relationship for the purpose of treatment gives rise to a cause of action sounding in tort against the health care provider, unless the disclosure is otherwise allowed by law.” The Court then said that, absent a court order, producing documents in response to a subpoena was not a disclosure otherwise allowed by CGS § 52-146o, but might be a disclosure allowed by HIPAA. Reversed and remanded because “there is a genuine issue of material fact as to whether the defendant violated the duty of confidentiality by the manner in which it disclosed the plaintiff’s medical records in response to the subpoena.”

Advance Release Opinions – January 10

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The Connecticut Supreme Court advance released an opinion about divorce law, which I review below. The Court also advance released an opinion about termination of parental rights, which I do not review.

Divorce Law

Cohen v. Cohen – If Dan v. Dan affects you, seems like you should read this case. In 2012, trial court granted defendant’s motion to reduce alimony because his income had substantially decreased. In 2015, trial court granted plaintiff’s motion to increase alimony because defendant’s income had substantially increased. Supreme Court affirmed in a four part opinion. First, Supreme Court agreed with defendant that, when considering “substantial change in circumstances” and in fashioning a modified order, the trial court’s task was to compare 2015 income with income at the time of the 2012 modification, not at the time of the original alimony order. But, Supreme Court found that’s what the trial court did and, even if the trial court had improperly considered income at the time of the original order, it was harmless error because the trial court would have reached the same conclusion if it had considered income at the time of the 2012 modification. Supreme Court also found that trial court did not impermissibly consider the purpose of the original alimony award instead of the purpose of the 2012 modification when ordering the 2015 modification. Rather, once the trial court concluded that the circumstances justifying the 2012 modification no longer existed, the purpose of the original award controlled and the trial court was bound to consider it. Second, the Supreme Court rejected defendant’s claim that plaintiff’s motion was “legally insufficient” because it did not allege that the 2012 modification did not fulfill the purpose of the original award or some exceptional circumstance. The motion was sufficient because it alleged a substantial change in circumstances. There has never been a requirement to specify in the motion all of the reasons why the change in circumstances justifies a modification. Third, Supreme Court rejected defendant’s claims that trial court should not have (i) considered parol evidence of the parties’ intent when they entered into the separation agreement that became the original decree; or (ii) taken judicial notice of the plaintiff’s 2002 financial affidavit. Parol evidence was necessary to clarify the purpose of the alimony provision in the separation agreement. And, the court always has the power to take judicial notice of the court file. In this case, the 2002 affidavit was relevant to determining the purpose of the original alimony award. Fourth, Supreme Court rejected defendant’s claim that the 2015 modification was an “impermissible lifetime profit sharing award.” Though alimony ordinarily does not allow the supported spouse to share in the supporting spouse’s post-divorce good fortune, the parties can vary that by agreement, which they did in this case.

Advance Release Opinions – January 5

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The Connecticut Appellate Court advance released opinions about administrative law, civil procedure and personal injury, which I review below. The Court also advance released opinions about criminal law and habeas corpus, which I do not review.

Administrative Law

Tirado v. Torrington – In 2010, Torrington added Tirado’s car to its 2004 grand list. Tirado claimed that was improper and sued for damages. Trial court dismissed for lack of subject matter jurisdiction because plaintiff failed to exhaust administrative remedies under CGS § 12-117a and failed to file her claim within one year of the assessment as required by CGS § 12-119. Appellate Court rejected the § 12-119 basis because that section applies when a town assesses property it doesn’t have the authority to assess, as in the case where the taxpayer doesn’t live in the taxing town. Since Tirado conceded that she was living in Torrington in 2004, she effectively conceded that Torrington had the authority to assess. But, as to the § 12-117a basis, Appellate Court affirmed because that section requires a plaintiff complaining about an assessment to exhaust administrative remedies with the board of assessment appeals before starting an action in Superior Court and Tirado didn’t do that.

Recycling, Inc. v. Commissioner of Energy & Environmental Protection – Commissioner denied application for a new permit and revoked an existing permit. Superior Court dismissed Recycling’s appeal. Appellate Court rejected Recycling’s claims that (i) Commissioner’s decision was arbitrary and capricious; (ii) Commissioner applied the wrong standard of review; (iii) improperly excluded relevant evidence; and (iv) “[C]ommissioner improperly engaged in ex parte communications with the town of Milford and then publicly issued an official statement which harshly criticized Plaintiff and in effect directed DEEP to rule against plaintiff.”

Civil Procedure

Estela v. Bristol Hospital, Inc. – Estela is a doctor who claimed that the hospital had improperly restricted his privileges and stole his patients. Trial court dismissed Estela’s first action for failure to comply with deadlines set in two court orders. Estela started a second action relying on the accidental failure of suit statute, CGS § 52-592(a). Hospital moved for summary judgment on statute of limitations grounds but not explicitly challenging the applicability of § 52-592(a). Then, before Estela objected to the summary judgment motion, Hospital filed a motion to bifurcate Estela’s claim that his action was not time-barred from his underlying claims. Trial court granted bifurcation and, after an evidentiary hearing on the timeliness issue, found that § 52-592(a) did not apply because the first action was dismissed for serious disciplinary reasons, not because of mistake, inadvertence or excusable neglect. Appellate Court rejected Estela’s claim that Hospital waived objection to accidental failure of suit by failing to raise it before the motion to bifurcate, noting that Supreme Court precedent confirmed that accidental failure of suit may be addressed through a motion to bifurcate. Appellate Court also rejected Estela’s claim that trial court applied the wrong standard – “mistake, accident or reasonable cause” instead of “mistake, inadvertence or excusable neglect” – in determining whether the first action was an accidental failure. Whatever the trial court said about the standard at the evidentiary hearing, it applied the proper standard in its memorandum of decision.

Personal Injury

Boykin v. State – Plaintiff, hit by a car while in crosswalk, claimed that the State was negligent in failing to install or repair a crosswalk button or otherwise provide a safe crosswalk. Trial court dismissed the action for lack of subject matter jurisdiction, finding that the notice of claim was patently defective and so did not invoke the waiver of sovereign immunity in CGS § 13a-144. Appellate Court reversed, concluding that “plaintiff’s notice was not patently defective, as it ‘both informed the defendant of the plaintiff’s intent to file a claim and furnished the defendant with a guide as to how to conduct further inquiries to protect its interests.'”