Connecticut Appeals

Advance Release Opinions - Review and Analysis

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Archives for March 2018

Advance Release Opinions – March 29

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Review of the Connecticut Appellate Court’s advance release opinion about employment, which also touches on procedure.

Employment/Procedure

Sempey v. Stamford Hospital – CHRO gave Sempey a right to sue Hospital for discrimination within 90 days. Sempey timely started a three-count lawsuit, but none of the none of the counts was expressly for discrimination. Trial court granted Hospital’s motion to strike all three counts. Sempey repleaded a three-count complaint, but this time one of the counts was for discrimination.  Hospital filed a motion to strike all three counts, and a motion to dismiss for lack of subject matter jurisdiction directed at only the discrimination count. Before Sempey’s time to file another substitute complaint had expired, trial court dismissed not only the discrimination count, but the other two counts as well. Appellate Court affirmed as to the discrimination count, finding that (1) since the motion to dismiss was subject matter jurisdictional, trial court was correct to decide it before Sempey’s time to substitute complaint expired; (2) Sempey had asserted her discrimination claim outside the 90 day window of her right-to-sue letter, and made no claim that a tolling doctrine applied; and (3) relation back doctrine did not apply since Sempey’s original complaint did not put Hospital on notice of a discrimination claim. But, Appellate Court reversed as to the other two counts because (1) Hospital directed its motion to dismiss solely at the discrimination count; and (2) Hospital did not show, and trial court did not find, that repleading could not cure any deficiencies in the two counts.

Advance Release Opinions – March 26

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Review of the Connecticut Supreme Court’s advance release opinion about election law.

Election Law

Keeley v. Ayala – Nobody should have needed the Connecticut Supreme Court to confirm that the impropriety of the absentee-ballot shenanigans that occurred in this primary election for two seats on the Bridgeport City Council. The shenanigans included: (1) the candidate (the one that ended up with the most votes) instructed a police officer to go to certain locations to pick up absentee ballots; (2) the officer didn’t confirm the identities of the people giving him the ballots; (3) the officer, more than once, accepted multiple ballots from a single person; and (4) absentee ballots that the officer didn’t pick up and that weren’t postmarked were nonetheless counted in the result. Trial court invalidated the election and directed that a new primary be conducted. Supreme Court affirmed.

Advance Release Opinions – March 23

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Reviews of Connecticut Appellate Court’s advance release opinions about administrative law, civil procedure, contracts, deed restriction, governmental immunity, visitation, and worker’s compensation. I do not review the Court’s advance release opinions about criminal law and habeas corpus. I also do not review the Court’s per curiam decision affirming summary judgment for defendant in a spoliation of evidence and CUTPA case because there isn’t anything in the opinion to review (if you want to see for yourself, the case is Traylor v. Gambrell).

Administrative Law

Metropolitan District v. Commission on Human Rights and Opportunities – District is a municipal entity the legislature created in 1929 for water supply, waste management and regional planning. Commission is a state agency charged with enforcing statutes barring discrimination. District sought a declaratory judgment, injunction and writ of mandamus on allegations that Commission engaged in improper rulemaking and violated District’s due process rights regarding District’s alleged discriminatory hiring practices at issue in five proceedings before Commission. Trial court dismissed the action for lack of subject matter jurisdiction for failure to exhaust administrative remedies. Appellate Court affirmed, finding that District could not yet pursue declaratory relief in Superior Court because it had to first seek that relief before Commission under CGS § 4-176, and it could not yet seek that relief before Commission because three of the five discriminatory hiring claims were still pending before Commission. Appellate Court also confirmed that the exhaustion requirement applied even when challenging Commission’s jurisdiction; the exception for futility or inadequacy of administrative remedy did not apply since there was no showing of futility or inadequacy; and the exception for due process claims under 42 USC 1983 did not apply because lack of an adequate legal remedy remains a condition to injunctive relief even when claim is made under that statute.

Civil Procedure

Ryan v. Cassella – Plaintiff brought collection action against “Paul Cascella dba CIA Integrated Marketing Systems” and trial court entered a judgment for plaintiff on defendant’s failure to appear. In attempting to examine the judgment debtor, plaintiff learned that, though the marshal had served defendant at the correct address, defendant’s name was actually Cassella, with a second “s” instead of a second “c”, and that his company’s name was actually Integrated Marketing Systems, Inc., with an “Inc.” and without “CIA.” Trial court granted plaintiff’s motion to correct the names. After the trial court’s articulations, Appellate Court affirmed, finding that (1) judgment was against Cassella individually, not against his company, so that correcting the company name did not add a new party; (2) CGS § 52-123 gave the trial court the authority to correct the misspellings because correcting names did not substitute a new party and neither party was prejudiced; (3) the four month limit for opening judgments did not preclude the trial court from correcting the misspellings; (4) trial court did not abuse its discretion in denying defendant’s motion to open and vacate the trial court’s decision on the motion to correct.

Contracts

Micek-Holt v. Papageorge – Lease-to-buy contract blew up for landlord-seller when tenant-buyer failed to close – in 2011 – but remained in the property without paying anything. Trial court ordering a closing on certain terms, and failing that, judgment to enter for plaintiff extinguishing defendant’s property interest, quieting title in plaintiff, and requiring defendant to pay $150/day use and occupancy. Appellate Court affirmed in a per curiam decision essentially adopting the trial court’s reasoning.

Deed Restriction

Bueno v. Firgeleski – A 1941 deed included a restrictive covenant limiting construction on the property to one house, within specified setbacks, and only if approved by grantor or his successors. Plaintiffs acquired the land in 2008, intending to subdivide into two lots – one for their own home and one for development. The deed into plaintiffs contains the restriction. Trial court declared the restrictions unenforceable because (1) its purpose had been frustrated by a permanent and substantial change in circumstances; (2) it had been abandoned by lack of enforcement; and (3) it benefits no land. Appellate Court affirmed, rejecting defendants’ claims that (1) the evidence did not support certain of the trial court’s factual findings; and (2) the trial court improperly went beyond the four corners of the deeds in interpreting them and misapplied the substantial change of circumstances test.

Governmental Immunity

McCarroll v. East Haven – Child fell from the ladder of a playscape at kindergarten allegedly because of a missing or loose bolt securing one of the rungs. Trial court granted defendant summary judgment, finding that the identifiable victim-imminent harm exception to governmental immunity did not apply because although the child was in identifiable class of victims, the harm was not imminent absent evidence that the missing or loose bolt was apparent to East Haven. Appellate Court affirmed, noting that “[w]hether the bolt was missing or loose, the plaintiffs failed to demonstrate that the probability of the child being injured was so high that the defendant had a clear and unequivocal duty to act to prevent harm.”

Visitation

Nassra v. Nassra – Supervised-visitation provider started collection action in small claims court to recover unpaid fees. Small claims court found that it lacked jurisdiction and dismissed the action. Service provider then filed an appearance in the dissolution action and moved for an order of payment, which the trial court granted. Appellate Court affirmed, finding that (1) service provider had standing because service provider had an oral contract with defendant and was injured when defendant did not pay; (2) six-year statute of limitations applied to the oral contract because the three-year statute applies only to executory oral contracts (neither party has fully performed and this oral contract was executed (service provider fully performed); and (3) trial court acted within its discretion in ordering defendant to pay service provider.

Worker’s Compensation

Binkowski v. Board of Education – Students assaulted Teacher and injured her. Teacher sued Board, alleging that Board acted “willfully and maliciously,” and intentionally inflicted emotional distress, by instituting a policy that led to the assault because it denied assistance to teachers confronted by violent and disruptive students. Trial court struck the complaint because it did not allege conduct to bring the action within an exception to worker’s compensation exclusivity. Appellate Court affirmed, finding that the complaint failed to allege conduct to bring her claim into the intentional tort exception under either the actual intent standard or the substantial certainty standard.

Advance Release Opinions – March 16

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The Appellate Court advance released opinions about a probate appeal and worker’s compensation, which I review below.  The court also released two criminal law opinions, which I do not review.

Probate

Bassford v. Bassford – Nothing to see here. Plaintiff lost his probate court claims that the decedent lacked testamentary capacity, was unduly influenced, could not revoke his trust, and lacked capacity to accept a deed. Plaintiff appealed to Superior Court, which found for defendants on all issues. Plaintiff appealed to the Appellate Court, which affirmed by adopting Superior Court’s decision.

Worker’s Compensation

Melendez v. Fresh Start General Remodeling and Contracting, LLC – Claimant, who had been paid for various jobs at the individual respondent’s home over 11 weeks, was hurt in a car accident on his way to the home. Claimant brought claims against the business and the individual respondent. Appellate Court affirmed the commission’s benefit award, concluding that the commissioner properly determined that claimant was the individual respondent’s employee and did not deny the individual respondent due process in holding him personally liable.

Advance Release Opinions – March 9

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The Connecticut Supreme Court advance released an opinion about redistributing an asset of the marital estate after a divorce judgment, which I review below.

Divorce

Reinke v. Sing – CGS § 46b-86(a) precludes a trial court from modifying an estate distribution unless one of the exceptions in CGS § 52-212a, or some other exception, applies. Here, the parties both consented to modifying the judgment to redistribute the husband’s pension entirely to the husband. Since that is one of the § 52-212a exceptions, the trial court had the authority to open and modify. In reaching this conclusion, the Supreme Court confirmed that § 46b-86(a) is not subject matter jurisdictional, but rather a restriction on the court’s authority to act. Since it is not subject matter jurisdictional, the fact that § 46b-86(a) does not authorize the court to redistribute the estate does not prevent the court from doing if some other statute authorizes it.

Advance Release Opinions – March 9

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The Connecticut Appellate Court advance released opinions about family law and judicial disqualification, which I review below. The Appellate Court also advance released opinions about two criminal and one habeas corpus matter, which I do not review.

Family Law

Zilkha v. Zilkha – In this child custody and visitation matter, the Appellate Court rejected defendant’s claims that the trial court (i) improperly delegated it judicial function and failed to consider public policy and the children’s best interests in giving the children considerable control over defendant’s access to them; (ii) improperly denied defendant’s motions to modify custody and visitation by relying on events that happened between 2004 and 2007, which he claimed trial court had earlier indicated were too remote and insufficiently weighty; (iii) improperly adopted recommendations of the children’s guardian ad litem, whom he claimed acted as an attorney for the children instead of a guardian ad litem; and (iv) improperly based its decision on what he claimed was an erroneous factual finding that the reconciliation therapist had ended reconciliation therapy.

Judicial Disqualification

Carvalhos Masonry, LLC v. S and L Variety Contractors, LLC – After trying the case, but before rendering a decision, the trial court suggested that the parties stipulate to a judgment for a specific amount. Plaintiff accepted the trial court’s suggestion; defendant rejected it. Three weeks later, the trial court issued a memorandum of decision finding for plaintiff in the exact amount of its settlement suggestion. Appellate Court reversed and remanded for a new trial, finding that the trial court should have disqualified itself from deciding liability and damages after its failed attempt to convince the parties to stipulate to a judgment because of the concern that rejecting the court’s suggestion may result in retributive sanction or judicial displeasure.

 

Advance Release Opinions – January and February

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As mentioned in my last post, I got behind with the advance released opinions in the latter half of January and all of February. This post catches me up on the Connecticut Appellate Court advance released opinions. I didn’t review the criminal or habeas decisions, one termination of parental rights decision, and one special immigrant juvenile status case.

Appellate Court

Accidental Failure of Suit

Megos v. Ranta – Officially released February 6. For accidental failure of suit purposes, plaintiff “commenced” the prior action against a non-resident driver when plaintiff served process on the Commissioner of Motor Vehicles under CGS § 52-62.

Administrative Appeal

Fagan v. Stamford – Officially released January 30. The Policemen’s Pension Trust Fund Board properly denied plaintiff’s request for an enhanced disability pension pursuant to the collective bargaining agreement between the city and the police association.

Arbitration

Toland v. Toland – Officially released February 27. Parties submitted their divorce action to arbitration. Appellate Court rejected plaintiff’s claim that arbitrator’s alimony award and property division were legal conclusions warranting a searching scope of review and confirmed the arbitrator’s findings under the limited scope of review for an arbitrator’s factual determinations. Appellate Court also rejected plaintiff’s claims that arbitrator was evidently partial; manifestly disregarded the law; and abused his discretion in awarding defendant attorney’s fees.

Choice of Law

Doctor’s Associates, Inc. v. Searl – Officially released February 6. Under the agreement containing the arbitration clause, Connecticut law governs the terms of the agreement, but federal law governs the procedures used to enforce the arbitration clause.

Civil Procedure

General Linen Service Company, Inc. v. Cedar Park Inn and Whirlpool Suites – Officially released February 6. Unless a statute mandates joinder of a particular party, failure to join that party does not implicate subject matter jurisdiction.

ASPIC, LLC v. Poitier – Officially released February 13. Trial court granted plaintiff’s application for a prejudgment remedy where defendant had asserted a breach of fiduciary duty defense. Appellate Court reversed, concluding that since there was no dispute that plaintiff owed defendant a fiduciary duty, plaintiff had the burden of establishing probable cause to believe not only that plaintiff would be successful on its underlying claims but that plaintiff engaged in fair dealing as to the matters on which its claims are based.

Alaimo v. Alaimo – Officially released February 20. Appellate Court affirmed judgment for defendant in this breach of contract action because plaintiff’s claims on appeal exceeded the scope of his complaint and, even if they didn’t, plaintiff failed to present an adequate record for appellate review.

Brady v. Bickford – Officially released February 27. Because defendant’s statements were absolutely privileged, trial court lacked subject matter jurisdiction over plaintiff’s defamation claim. For the same reason, there were no statements within the limitations period for plaintiff’s intentional infliction of emotional distress claim that could serve as the basis for a continuing course of conduct to obviate the time-bar. Reversed and remanded with instruction to render a dismissal.

ARC Capital, LLC v. Asia Pacific Limited – Officially released March 6. Trial court dismissed this action to enforce a foreign judgment for lack of subject matter jurisdiction, finding that it could be enforced, if at all, only through Chapter 15 of the federal Bankruptcy Act. Appellate Court reversed, concluding that “the present action does not fall within any of the limited situations … in which chapter 15 would apply.”

Damages for Breach of Contract

United Amusements and Vending Company v. Sabia – Officially released February 6. Trial court incorrectly calculated damages.

Dental Malpractice

Doyle v. Aspen Dental of Southern CT, PC – Officially released January 30. Appellate Court affirmed dismissal of dental malpractice action because the opinion letter plaintiff attached to the complaint was from a general dentist, not an oral and maxillofacial surgeon, like defendant. It did not matter that there was no authentic public record showing that defendant had training as an oral and maxillofacial surgeon.

Family Law

Kimberly C v. Anthony C – Officially released February 27. Prior proceeding relating to plaintiff’s application for a restraining order did not collaterally estop defendant in dissolution proceeding because court could not say relevant issue was necessarily determined in prior proceeding.

Dinunzio v. Dinunzio – Officially released March 6. Reversed and remanded for a new trial because trial court should have treated defendant’s pension, which he had already started receiving when plaintiff commenced the action, as both a source of income and as property subject to equitable distribution.

Foreclosure

US Bank National Association v. Christophersen – Officially released January 30. The only significant thing here is that CGS § 49-15 does not preclude the trial court from converting a judgment of strict foreclosure rendered before a bankruptcy to a foreclosure by sale after discharge.

Stratek Plastics, Limited v. Ibar – Officially released February 20. Appellate Court affirmed trial court’s award of attorney’s fees to plaintiff in this action to foreclose a judgment lien. In rejecting defendant’s claims, Appellate Court concluded that the trial court had conducted a hearing on attorney’s fees as required by CGS § 52-249; and defendant waived any right to require plaintiff to present a statement of fees requested and description of services rendered.

Cliff’s Auto Body, Inc. v. Grenier – Officially released February 27. Trial court lacked subject matter jurisdiction to foreclose a judgment lien because the judgment on which the lien was based was not a final judgment.

Land Use

Lane v. Cashman – Officially released January 30. Property owners failed to exhaust administrative remedies regarding their claim of permitted nonconforming use by failing to appeal the order to discontinue the zoning board of appeals.

Personal Guaranty

Valley National Bank v. Private Transerve, LLC – Officially released January 30. Per curiam decision rejecting guarantor’s claims that plaintiff lacked standing to prosecute underlying foreclosures, trial court improperly granted plaintiff permission to amend complaint, and trial court made improper evidentiary rulings at hearing in damages.

Personal Injury

Rutter v. Janis – Officially released March 6. Under CGS § 14-60, car dealer can loan a license plate to an insured car buyer for thirty days without incurring financial responsibility for any car accident. The thirty day period begins the day after the day the loan is actually made. Said another way, the day loan is made is not included in calculating the thirty-day period. Calculated this way, accident occurred within thirty days of loan. Since dealer complied with all other statutory requirements, trial court properly granted dealer’s summary judgment motion.

Right to Privacy

Davidson v. Bridgeport – Officially released March 6. Police department did not violate officer’s right to privacy by ordering him to submit to a psychiatric exam because the exam was reasonable to department’s evaluation of officer’s fitness for duty and a reasonable person would not have been offended by submitting to the exam. As to officer’s emotional distress claims, requiring him to have the exam did not create an unreasonable risk of emotional distress that resulted in illness or bodily harm.

Worker’s Compensation

Frantzen v. Davenport Electric – Officially released February 27. Commission has subject matter jurisdiction to resolve disputes about attorney’s fees between attorneys who serially represented the same claimant and there is no right to a jury trial for such claims.