Connecticut Appeals

Advance Release Opinions - Review and Analysis

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Archives for May 2018

Advance Release Opinions – May 18

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Review of an advance release opinion about breach of a real-estate brokerage contract.

Breach of Contract

Reyher v. Finkeldey – In this dispute over a real-estate brokerage commission,  seller had rejected buyer’s counteroffer, which included financing and inspection contingencies, and buyer testified that it was not ready, willing, or able to close unless those contingencies were fulfilled. In a rare per curiam reversal, the Appellate Court found that the trial court wrongly determined that the broker had obtained a buyer ready, willing, and able to buy seller’s property.

Advance Release Opinions – May 11 – Appellate Court

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Reviews of Connecticut Appellate Court advance release opinions about child support, civil procedure, divorce, insurance, medical malpractice, and underinsured motorist benefits.

Child Support

Asia A. M. v. Geoffrey M. – This is one that I normally would not review, but I found it interesting. Geoffrey executed a written acknowledgment of paternity under CGS § 46b-172(a)(1). More than two years later, state filed a petition for support against Geoffrey in Asia’s name. Geoffrey then moved to open the paternity acknowledgment under § 46b-172(a)(2) for fraud, mistake of act, and duress, claiming essentially that he signed it only because Asia had lied to him that he was the father; a DNA test proved that he was not the biological father; and it was in the child’s best interests to establish the biological father. Family support magistrate concluded that Geoffrey failed to establish any of the statutory bases for opening the acknowledgment – fraud, mistake, or duress – because the evidence showed that he knew that he was not the biological father when he signed it. But, magistrate nonetheless opened the judgment, concluding that magistrates have the inherent authority to open judgments in the child’s best interests. Trial court affirmed on the state’s appeal. Appellate Court reversed because (1) the statutory grounds are the only grounds for opening a judgment deriving from a § 46b-172(a)(1) paternity acknowledgment; and, redundantly in my view, (2) magistrate did not have authority to open the acknowledgment in the best interests of the child. Judge Keller concurred to suggest amending the paternity acknowledgment statute to require DNA testing before an acknowledgment could be accepted.

Battistotti v. Suzanne A. – Trial court awarded Suzanne sole custody; gave Battistotti, a New York resident, parenting time that had to be spent in Greenwich; and ordered Battistotti to pay child support in the amount suggested by the guidelines. On appeal, Battistotti claimed that the trial court should have deviated from the support guidelines to account for his additional expenses in maintaining a Greenwich apartment to comply with the visitation order. Appellate Court agreed, and remanded for a new hearing on child support. Battistotti also claimed that the trial court abused its discretion in restricting his parenting time to Greenwich. Appellate Court disagreed, and affirmed on that point.

Civil Procedure

Plainville v. Almost Home Animal Rescue and Shelter, Inc. – Town seized animals from defendant under a criminal search and seizure warrant and tried recover its animal care expenses from defendant under negligence per se and unjust enrichment theories. Trial court granted defendant’s motion to strike both counts. Appellate Court affirmed, finding that (1) Town was not an intended beneficiary of CGS § 53-247 so that statute was not a basis for Town’s negligence per se claim; (2) CGS § 22-329a provided Town with an adequate remedy for recouping its animal care costs so it could not recover in unjust enrichment; and (3) trial court did not apply an improper standard in deciding the motion to strike.

Divorce

Thomasi v. Thomasi – Wife and husband had separate appeals. In wife’s appeal, parties could not agree on the QDRO giving wife half of the “marital portion” of husband’s pension because they could not agree on the method of calculation. Even though both methods were acceptable, and the dissolution agreement did not specify which one to use, trial court found the agreement unambiguous, and accepted the coverture method favored by husband, instead of the subtraction method favored by wife. Appellate Court found that although “marital portion” was not a patent ambiguity since everyone understood generally what it meant, it was a latent ambiguity since there are multiple ways to calculate it. In other words, just because everyone agreed that the cat was to be skinned, didn’t mean that they agreed on how to skin it. The latent ambiguity required reversal

In husband’s appeal, trial court found that husband’s job loss was his own fault and denied his motion to reduce alimony. Appellate Court reversed on that point, finding that the record did not support the trial court’s conclusion. But Appellate Court affirmed trial court’s determination that husband’s obligation to pay pension benefits to wife started on the date of dissolution, and was not delayed by the delay in determining the marital-portion calculation method.

Insurance

General Ins. Co. of America v. Okeke – Some cases break your heart not because of the court’s ruling, but because of the facts that led the parties to litigation. This is one of those cases. Fifteen year old Michael allegedly assaulted, stabbed, and beat an elderly woman, in her home. The woman sued Michael and his mother, Agatha, in separate actions. Agatha’s homeowner’s insurer initially appeared for Michael, but then withdrew his appearance. It appeared for Agatha under a reservation of rights. Michael was defaulted for failure to appear. After a hearing in damages, the court awarded the woman more than $407,000 in Michael’s case. While the woman’s actions were pending, Agatha’s homeowner’s insurer brought this declaratory judgment action seeking a decree that it has no duty to defend or indemnify Michael or Agatha. Trial court granted the insurer’s motion for summary judgment, and decreed that it had no duty to defend or indemnify either defendant. Appellate Court affirmed in a per curiam opinion adopting the trial court’s memorandum of decision.

Medical Malpractice

Ugalde v. Saint Mary’s Hospital, Inc. – Appellate Court found that trial court (1) properly dismissed claim for lack of personal jurisdiction because opinion letter was deficient for want of doctor’s qualifications and plaintiff could not amend it because statute of limitations had expired; and (2) properly denied plaintiff’s motion to re-argue the denial of her motion to set aside the nonsuit that entered for her failure to comply with discovery.

Underinsured Motorist Benefits

Puente v. Progressive Northwestern Ins. Co. – Puente had an LLC, and the LLC had an auto insurance policy. Puente was hit after exiting the LLC’s truck. Trial court granted insurer summary judgment, finding that there was no dispute that Puente was not a named insured, and that he was not “occupying” the truck when he was hit because he wasn’t in physical contact with it. Appellate Court affirmed.

Advance Release Opinions – May 11

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Reviews of Connecticut Supreme Court advance release opinions about civil procedure and worker’s compensation.

Civil Procedure

Meribear Productions, Inc. v. Frank – Reversed. Connecticut couple hired California company to stage their Connecticut home for sale. Payment dispute arose. Company obtained default judgment against couple in California. Company then started Connecticut action to enforce the foreign judgment, and for breach of contract and quantum meruit. Trial court found for Company against husband on the California judgment, for wife against Company on the foreign judgment, and for Company against wife on the breach of contract claim. Appellate Court affirmed. Supreme Court found that Appellate Court should have dismissed the appeal for lack of a final judgment against husband since the trial court did not determine the breach of contract or quantum meruit claims against him. Those claims are legally inconsistent, or mutually exclusive, with each other, but not with the foreign judgment claim. So, the judgment against wife on the breach of contract claim automatically disposed of the quantum meruit claim against her. But, the judgment against husband on the foreign judgment did not dispose of either breach of contract or quantum meruit against him, meaning there was no final, appealable judgment against husband.

Worker’s Compensation

MacDermid, Inc. v. Leonetti – Affirmed. While MacDermid’s employee, Leonetti suffered an on-the-job injury and filed a worker’s compensation claim. Five years later, and before the worker’s compensation claim was finally resolved, MacDermid discharged Leonetti. The parties entered into a severance agreement, under which MacDermid paid Leonetti some $70,000, and Leonetti released all claims against MacDermid. The worker’s compensation commission ruled that the release did not include Leonetti’s worker’s compensation claim. Supreme Court affirmed. While that appeal was pending, MacDermid started the instant action against Leonetti, essentially claiming through a variety of theories that if Leonetti wanted his worker’s compensation claim, he would have to give back the $70,000 severance payment. Jury found for MacDermid on its unjust enrichment claim. Supreme Court affirmed, finding that (1) MacDermid’s claim not barred by collateral estoppel because there was no identity of issues between the worker’s compensation matter and the unjust enrichment claim; (2) Leonetti failed to preserve for appeal his claim that the worker’s compensation act, the severance agreement, or public policy barred MacDermid’s claim; (3) Leonetti failed to adequately brief the harm that he claims to have suffered from improper jury instructions; (4) the general verdict rule bars Leonetti’s argument about the jury instructions in any event; and (5) Leonetti failed to challenge all of the trial court’s bases for excluding certain exhibits, and failed to adequately brief the harm he supposedly suffered from its exclusion of another.

Advance Release Opinions – May 4

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Reviews of the Connecticut Appellate Court’s advance release opinions about divorce and personal injury.

Divorce

Murphy v. Murphy – Judgment says alimony terminates on cohabitation. Defendant cohabited with boyfriend. Trial court denied plaintiff’s motion to terminate alimony because there was no evidence under CGS § 46b-86(b) that boyfriend’s contributions to defendant’s support altered her financial needs. Appellate Court reversed, finding that the proper question is how much the cohabiting saved defendant financially, not how much the boyfriend was contributing. The evidence was that defendant’s move into boyfriend’s house cut her financial needs in half, regardless of boyfriend’s contributions to her support. That was all that was necessary to terminate alimony. The dissent asserts that the majority decision implicitly overturns precedent and is contrary to the legislative intent of § 46b-86(b).

Personal Injury

Micalizzi v. Stewart – Jury awarded economic damages, but not noneconomic damages. Trial court denied plaintiff’s motion to set aside the verdict or for additur. Appellate Court affirmed, finding: (1) Jury’s interrogatory response that defendant was a proximate cause of “the injuries sustained by the plaintiff” was not necessarily inconsistent with awarding zero noneconomic damages because the jury could have determined that plaintiff was injured, but failed to prove noneconomic damages; (2) Jury’s award of economic damages does not require, as a matter of law, an automatic award of noneconomic damages; (3) On this record, jury could reasonably have concluded that plaintiff’s noneconomic damages were not compensable; and (4) trial court did not create any procedural irregularity constituting an abuse of discretion.

Advance Release Opinions – April 27

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Reviews of the Appellate Court’s advance release opinions about deed restrictions, divorce, foreclosure, and governmental immunity and procedure.

Deed Restrictions

Jepsen v. Camassar – Long, fact-specific opinion about modifying restrictions in a deed conveying beach rights to all of the property owners in a subdivision. Trial court ruled that modification was valid. Appellate Court reversed and remanded with direction to render judgment declaring modification invalid, finding that: (1) association failed to give notice of the vote on the modification to all who were entitled to notice; and (2) the modifications were not approved by a majority of property owners as the deed required.

Divorce

Steller v. Steller – In modifying alimony, trial court properly determined that defendant’s earning capacity could be less than his current income because earning capacity is what defendant can be expected to earn in the future, not what he earns now. But, Appellate Court reversed because the evidence did not support the trial court’s determination of the amount of defendant’s earning capacity.

Foreclosure

Wells Fargo Bank, N.A. v. Melahn – Per curiam opinion. Trial court struck borrower’s counterclaims and special defenses and then granted bank’s motion for judgment on the counterclaims. Appellate Court dismissed the appeal as to the special defenses for lack of a final judgment, and affirmed the striking of the counterclaims, finding that trial court did not abuse its discretion in concluding that they were either legally insufficient or did not meet the transaction test. Appellate Court also affirmed the judgment on the counterclaim because borrower’s attempt to replead merely added conclusory statements to some of the counterclaims, and those additions did not correct the legal insufficiency.

Governmental Immunity and Procedure

Carter v. Watson – Governmental immunity barred inmate’s claims for money damages against Attorney General and four state employees, sued in their official capacities for failing to timely restore inmate to his proper status after an overturned drug test. Inmate’s claim for declaratory relief arising from the same incident was properly dismissed as moot since it did not fall within the mootness exception for matters capable of repetition, yet evading review.

Advance Release Opinions – April 27

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Reviews of Connecticut Supreme Court advance release opinions about attorney discipline and trespass.

Attorney Discipline

Disciplinary Counsel v. Hickey – In 2008, Hickey voluntarily resigned from the bar and waived his right to seek reinstatement. But in 2012, he nonetheless applied for reinstatement, saying that the waiver did not preclude a present determination of his present fitness to practice law. Disciplinary counsel moved to dismiss the application because of the waiver. The motion to dismiss still had not been acted on as of 2014, when Practice Book § 2-53(b) was amended to provide that an attorney who resigns and waives reinstatement is ineligible to apply for reinstatement. The trial court granted the motion to dismiss in 2016, concluding that the addition to § 2-53(b) was retroactive since it was really a codification of existing practices and procedures. Supreme Court affirmed, finding that § 2-53(b)’s retroactivity was irrelevant because an attorney’s voluntary resignation and knowing and intentional waiver of the right to seek reinstatement rendered the attorney permanently ineligible to seek reinstatement under the common law. Supreme Court also found that trial court had the authority to dismiss the application without referring it to the standing committee because the court determines eligibility to apply for reinstatement, and the committee determines the fitness to practice of those eligible to apply.

Trespass

Firstlight Hydro Generating Company v. Stewart –  Stewart has a house on Candlewood Lake. He wanted to add some things to his yard, and that required doing some things on the Utility’s property. Utility (I’m not sure if it’s an official utility but that’s the best word to describe it) gave him permits for some limited work. He did more than he was allowed. Trial court ordered Stewart to remove everything (including the hot tub) that was not authorized by the permits. Supreme Court affirmed, finding that the trial court properly determined that Stewart’s improvements were in fact on the Utility’s property, and the scope of its order was not an abuse of discretion.