Connecticut Appeals

Advance Release Opinions - Review and Analysis

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Archives for June 2018

Advance Release Opinions – June 15

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Reviews of Connecticut Appellate Court advance release opinions about debt collection, divorce, eviction, medical malpractice, and municipal law.

Debt Collection

Sikorsky Financial Credit Union, Inc. v. Pineda – If a note provides for postmaturity interest, and the lender has not waived it, lender is entitled to postjudgment interest at the rate specified, and if no rate is specified, at the legal rate. This is true regardless of whether the judgment expressly provides for postjudgment interest.

Divorce

Hall v. Hall – Trial court held plaintiff in contempt for withdrawing money from a bank account in violation of court order, and denied a joint motion to open and set aside the contempt judgment. Appellate Court rejected plaintiff’s claim that he relied on counsel’s advice in withdrawing the money as unsupported by the record. For the same reason, Appellate Court also rejected plaintiff’s claim that vacating the contempt judgment served substantial justice because it could interfere with his employment prospects – there was no evidence of any such interference in the record.

Eviction

Lyons v. Citron – If a landlord withdraws a summary process action for nonpayment of rent, intending to start the process all over again with a new notice to quit, landlord must wait the nine statutory grace period before serving the new notice to quit because the withdrawal reinstates the tenancy.

Medical Malpractice

Peters v. United Community and Family Services, Inc. – Doctor who wrote opinion letter was board certified in defendant’s specialty, but his letter did not say so. Plaintiff tried to correct the deficiency with an affidavit in opposition to defendant’s motion to dismiss. Trial court dismissed because plaintiff submitted the affidavit after the limitations period had expired, making the affidavit too late to fix the problem. Appellate Court affirmed.

Municipal Law

Nichols v. Oxford – Nichols petitioned under CGS § 13a-103 for an order directing Town to repair and maintain unimproved sections of highway. Trial court denied the petition, finding that the sections had been abandoned if they had ever even been part of a highway. Appellate Court affirmed.

 

Advance Release Opinions – June 8

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Reviews of Connecticut Appellate Court advance release opinions about breach of contract, condemnation, professional negligence (legal malpractice), and reformation.

Breach of Contract

Murallo v. United Builders Supply Co., Inc. – Parties testified that they had a telephone conversation in which they reached an agreement resolving a dispute they were having over construction materials. Defendant confirmed the terms in a follow up email. Plaintiff later alleged that defendant refused to honor the agreement. After a courtside trial, trial court concluded that defendant’s email was not a contract but an unaccepted offer, and found for defendant. Appellate Court reversed, finding the unaccepted-offer conclusion clearly erroneous as defendant had admitted that the email memorialized the telephonic agreement.

Condemnation

Gartrell v. Hartford – Not technically condemnation, but close. Doesn’t really matter because the issue was not preserved for appeal, so Appellate Court declined to review it. After a fire at Gantrell’s building, Hartford tore it down. Gantrell sued. Jury trial. After the close of evidence, Hartford moved for a directed verdict. Court reserved decision, pending jury’s answer to a single interrogatory asking whether Hartford could have believed there was an imminent danger allowing it to tear down the building. Jury answered “Yes.” Court then asked parties if they had anything to add to the motion for directed verdict. When they said “No,” court directed verdict for Hartford. On appeal, Gantrell argued that jury’s finding that Hartford could have believed there was imminent danger did not support directed verdict; jury would have had to have found that Hartford did believe there was imminent danger. Appellate Court affirmed, finding that Gantrell failed to preserve the issue for appellate review since he “failed to raise the issue to the trial court on the record, either before or after the jury was charged, or as a basis for denying the city’s motion for a directed verdict.”

Professional Negligence (Legal Malpractice)

Kuehl v. Koskoff – Mr. Kuehl had car accident on his way from his home office to a business meeting. He later discovered an injury that he believed was tied to the car accident. He filed a worker’s comp claim, but the employer and insurer contested whether the accident happened in the scope of employment. Mr. Kuehl signed up with Koskoff to pursue claims against the other driver. Mrs. Kuehl signed up with Koskoff to pursue any claims arising out of the accident. Mr. Kuehl then died, and Koskoff and Mrs. Kuehl believed it was a result of the accident. Mrs. Kuehl missed the deadline for filing a claim for worker’s comp survivor benefits, and the commissioner would not let her proceed. She blamed Koskoff and started a legal malpractice action. Jury found for Mrs. Kuehl. Though there was no expert testimony as to causation, trial court denied Koskoff’s motion to set aside the verdict. Appellate Court reversed, finding that expert testimony was necessary to establish causation, i.e. that it was more likely than not that Mrs. Kuehl would have been awarded survivor’s benefits if she had made her claim on time. Since Mrs. Kuehl failed to present that testimony, trial court should have set aside the verdict.

Reformation

Kaplan v. Scheer – Kaplan has owned her home since 1970. The Scheers became her neighbors in 1999. The Scheers’ house stands between Kaplan’s house and the Long Island Sound. The Scheers have a walkway and stairs that provide access to the water, which Kaplan had a right to use under a water easement granted in an 1882 deed. Kaplan and the Scheers had a contentious relationship and ended up in a dispute about whether Kaplan’s driveway was on the Scheers’ property. They settled that dispute with a written agreement calling for two quitclaim deeds and an easement. One deed, labelled “A” in the settlement agreement, conveyed to the Scheers any interest that Kaplan had in the Scheers’ property. The other deed, labelled “B” in the settlement agreement, conveyed to Kaplan any interest the Scheers had in Kaplan’s property. The easement, labeled “C” in the settlement agreement, gave Kaplan an easement over Scheers’ property – but only as necessary for Scheer to access her property. The documents were recorded in reverse order of their letter designations: Easement first, Scheer-to-Kaplan deed second, and Kaplan-to-Scheer deed third. Sometime after that, the Scheers made their walkway and stairs off limits to Kaplan. Kaplan sued, claiming that (1) the letter designations dictated the recording order, and she would still have her water easement if they had been recorded in that order; and (2) her deed to the Scheers should be reformed to reserve the water easement. Trial court found that (1) the letter designations were a matter of convenience and not intended to specify a recording order (there was also expert testimony that the recording order did not matter); and (2) Kaplan failed to prove a basis for reformation by clear and convincing evidence. Appellate Court affirmed.

 

Advance Release Opinions – June 1

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Reviews of Connecticut Appellate Court advance release opinions about breach of contract, child support, custody and visitation, divorce, medical malpractice, and mortgage foreclosure.

Breach of Contract

Bracken v. Windsor Locks – Breach of a settlement agreement. In 1994, Town settled an employment dispute with Bracken by reinstating him as a cop as of June 1993, and giving him a seniority date of September 1987. Bracken understood that to mean that he was entitled to pension credit for the period between his September 1987 seniority date and his June 1993 reinstatement date. Town had the right to buy pension credit for Bracken for that period from the Connecticut Municipal Employee Retirement System any time up until Bracken started receiving benefits. Under the pension plan, Bracken would not be eligible to receive benefits until October 2017. In late 2002 or early 2003, Bracken learned that the Town had not purchased pension credit. Over the ensuing years, Bracken tried to get Town to buy the credit, but Town seemed to prefer to wait. As of 2014, Town still had not bought the credit. Bracken started the action, claiming that the Town had breached the express terms of the settlement agreement and the implied covenant of good faith and fair dealing. Trial court concluded that the 6-year statute of limitations, and laches, barred the action because the breach occurred with reinstatement in 1993. Appellate Court reversed, noting that since Town could buy pension credit up until October 2017, Bracken’s 2014 action was for anticipatory breach, and Town had not established laches.

Child Support

Bolat v. Bolat – Judgment entered on parties’ agreement which gave sole legal and primary physical custody of three children to husband, and required no child support from wife. Wife later moved to modify custody. Trial court denied that motion, but found that wife’s income had increased substantially since the original judgment. Husband then filed a motion to modify child support based on the trial court’s finding as to wife’s income and his own loss of employment. His motion asked the court to “see attached,” which appeared to be a motion for child support that included a child support worksheet and wife’s financial affidavits. While that motion was pending, wife filed a motion for contempt, asserting that husband had failed to pay his share of agreed expenses for children’s extracurricular activities. In denying husband’s motion to modify, trial court found that defendant had not properly raised anything other than his own loss of income and declined to consider evidence of the change in wife’s income. Trial court granted wife’s motion. Appellate Court reversed as to both, finding that (1) husband had properly raised wife’s increase in income by asking the court to see the motion for child support attached to his motion to modify; and (2) husband did not wilfully disobey order about extracurricular expenses because they weren’t “agreed expenses” – he had told wife that he could not agree because he could not afford them.

Custody and Visitation

Kyle S. v. Jayne K. – Appellate Court affirmed trial court’s orders granting Jayne K custody of T (the child) and a relief from abuse restraining order against Kyle S, finding that the evidence was sufficient to establish that Kyle S presented an immediate and present risk of physical danger or psychological harm to T, and that a change in custody was warranted. But, Appellate Court reversed the trial court’s order, that the child psychologist was to determine the scope of Kyle S’s visitation with T, as an improper delegation of judicial authority.

Divorce

Hamburg v. Hamburg – Divorce decree required husband to pay into education accounts for the two children. He did, but later raided the accounts for his own purposes. While he and wife were fighting about that and other things in court, wife was murdered. Trial court granted her administrator’s motion to substitute as plaintiff. Trial court then ordered husband to pay some $324,000 to wife’s estate to replace the money he took from the education accounts. Trial court also later granted daughter’s motion to intervene. Husband then moved to dismiss, arguing that neither administrator nor daughter had standing to pursue claims for the education money. Trial court denied the motion. Appellate Court reversed as to the administrator’s standing, but affirmed as to the daughter’s. The administrator lacked standing because the claim for education money belonged to the children, not the estate. For the same reason, daughter had standing to intervene.

Zilkha v. Zilkha – This is actually a tale of two appeals. In the first one, trial court found that husband fraudulently failed to disclose an employment dispute and ordered him to escrow the settlement money he received. Trial court later ordered some of that money be disbursed to pay the fees and retainers of the guardian ad litem, children’s attorney, and experts. Husband appealed claiming that trial court lacked authority to issue that order since it wasn’t in connection with a motion to open. Appellate Court agreed and vacated the order. But Appellate Court did not order any of the recipients to return any money. In the second appeal, trial court denied husband’s request that the recipients return the money. Husband appealed, arguing that by refusing to order return of the money, trial court had violated the Appellate Court’s ruling in the first appeal. Appellate Court affirmed because it had not ordered anyone to return anything – it just vacated the order directing payments that had already been made. Appellate Court also found that husband had failed to show that any equitable basis for ordering the money returned.

Medical Malpractice

Labissoniere v. Gaylord Hospital, Inc. – Defendant doctors were board certified internists. Opinion letter was by a board certified surgeon. Trial court granted defendants’ motion to dismiss because a surgeon and internists are not similar health care providers, and the complaint did not allege that internists were acting outside the scope of their specialty. Appellate Court affirmed.

Mortgage Foreclosure

Deutsche Bank National Trust Company v. Pollard – Yawn. Per curiam decision affirming the trial court’s conclusion that Pollard’s eight-count counterclaim was legally insufficient because it did not go to the making, validity, or enforcement of the note or mortgage.

The Bank of New York Mellon v. Horsey – Appellate Court affirmed, finding that (1) trial court did not abuse its discretion in opening dismissal for failure to prosecute because the record suggested a reasonable cause for plaintiff’s delay (waiting for prior counsel to return original documents necessary for judgment); (2) defendant failed to preserve for appellate review his judicial bias claim because he never raised it in the trial court; (3) defendant failed to preserve for appellate review his claim that plaintiff failed to timely file certain documents necessary for judgment because never raised in the trial court; (4) summary judgment as to liability was proper because plaintiff’s proof established a prima facie foreclosure claim and defendant did not offer any evidence that created a fact issue; (5) defendant failed to preserve, and inadequately briefed, his claim that plaintiff should have been nonsuited under Practice Book § 17-19 for failing to comply with the trial court’s deadline for filing summary judgment motion; (6) defendant inadequately briefed his claim that plaintiff rendered note and mortgage unenforceable by separating them from each other; (7) defendant could not prevail on his claim that plaintiff lacked standing because defendant failed to rebut the presumption of ownership arising from plaintiff’s holder status; and (8) there was no evidence supporting defendant’s claim of fraud on the court.

Advance Release Opinions – May 24

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Reviews of Connecticut Appellate Court advance release opinions about civil procedure, governmental immunity, mortgage foreclosure, and worker’s compensation.

Civil Procedure

Lynn v. Bosco – Board ousted chairman of privately-held company. Attempting to regain control, chairman offered to buy shares from other shareholders. No one accepted. Later, a shareholder offered to sell shares to the new chairman, not the ousted chairman. Instead of buying them directly, new chairman and board had company buy them, and turn around and sell them to the new chairman and other board members. Ousted chairman started declaratory judgment action against board members individually, essentially alleging that they violated his preemptive rights as a shareholder to buy the shares himself before the company could. Ousted chairman did not name company as a defendant. New chairman and board members moved to strike, claiming that company was a necessary party to an action asserting that company violated preemptive rights. Court granted the motion. When ousted chairman repleaded, he did name company as a defendant, but he did not allege any wrongdoing by, or seek relief from, the company. After trial, court ordered the board members to return the shares they had purchased to the company, and ordered the company to reimburse the board members for the returned shares. Appellate Court affirmed the return-the-shares order, but reversed the reimbursement order, finding that the trial court lacked authority to impose a remedy on the company because none of the pleadings contained any allegation against the company, sought any relief from it, or otherwise put the company on notice that a claim was being made against it.

Governmental Immunity

Perez v. University of Connecticut – Student fell on ice in a UConn parking lot. General Assembly waived sovereign immunity under CGS § 4-159. Student claimed action to jury list. Trial court granted state’s motion to strike the jury claim because CGS § 4-160(f) requires a bench trial when sovereign immunity is waived under § 4-159. Appellate Court affirmed, finding that (1) student had no constitutional right to a jury in action against the state; and (2) neither § 4-159 nor § 4-160 authorized a jury trial against the state.

Mortgage Foreclosure

Tedesco v. Agolli – Per curiam decision affirming judgment of foreclosure by sale. Appellate Court adopted trial court’s memorandum of decision, which Appellate Court appended to its decision. I didn’t read the trial court’s decision, but here’s what I gleaned from the Appellate Court’s: Apparently Tedesco’s pension plan loaned money to a limited liability company composed of Agolli and some others. The company secured the loan with mortgages on company property. Agolli seems to have claimed that the people who had signed the loan documents for the company did not have a meeting of the minds with Tedesco, authority to bind the company, and were under duress. Trial court and Appellate Court rejected those claims.

Worker’s Compensation

Clements v. Aramark Corporation – Not sure I completely get this one. Worker fell and hit her head on the ground after fainting due to health conditions unrelated to her job. Commissioner and board denied benefits, concluding that injuries arose out of worker’s personal infirmity, not her employment. Appellate Court reversed, finding that worker’s injuries from falling at her workplace did arise out of her employment, even though the personal infirmity that caused her to fall did not.