Connecticut Appeals

Advance Release Opinions - Review and Analysis

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Archives for September 2018

Advance Release Opinions – Supreme Court – August 17

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Review of a Connecticut Supreme Court decision about class actions.

Class Actions

Standard Petroleum Co. v. Faugno Acquisition, LLC – Dispute between gasoline supplier and buyers. Trial court granted buyers class certification. Supreme Court affirmed, finding that trial court did not abuse its discretion in concluding that all of the class certification prerequisites were met, having performed the required “rigorous analysis” to the prerequisites of Practice Book § 9-7 (numerosity, commonality, typicality, and adequacy of representation) and § 9-8(3) (predominance and superiority).

Advance Release Opinions – Appellate Court – August 17

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Reviews of Connecticut Appellate Court advance release opinions about administrative law, civil procedure, and custody and visitation.

Administrative Law

Landmark Development Group, LLC v. Water and Sewer Commission – Commission denied Landmark’s application for 118,000 gallons per day of sewer treatment capacity. On Landmark’s appeal, Superior Court remanded to commission to clarify the capacity it would allocate to Landmark. Commission said 13,000 gallons per day. Superior Court remanded again, finding 13,000 gallons inappropriately low under the Forest Walk factors. Commission, using the Forest Walk factors, upped the allocation to 14,434 gallons. Landmark appealed again. Superior Court granted Landmark’s motion to supplement the record with evidence showing that commission had recently approved a sewer connection for someone else, Gateway, that had a contemplated capacity of 160,000 gallons per day. Superior Court remanded again, finding commission abused its discretion in allowing Landmark only 14,434 gallons when it had allowed Gateway 160,000 gallons. Commission appealed that remand. Appellate Court affirmed, finding Superior Court did not abuse its discretion by (1) supplementing the record with the Gateway evidence; (2) disregarding the Forest Walk factors when remanding for the third time; or (3) considering the Gateway evidence in reaching its third decision to remand.

Civil Procedure

Carson v. Allianz Life Insurance Company of North America – Trial court granted Allianz summary judgment because the statute of limitations barred Carson’s claim. Appellate Court affirmed, finding that Carson failed to demonstrate a genuine issue of material fact that the fraudulent concealment or continuing course of conduct doctrines applied to toll the limitations period. Appellate Court noted that there was no evidence that Allianz knew that the agent that sold the policy had fraudulently concealed anything as required for fraudulent concealment, or that Allianz had a fiduciary relationship with Carson as required for a continuing course of conduct.

Custody and Visitation

Doyle v. Chaplen – Appellate Court affirmed, finding that trial court properly granted mother’s motion to open judgment of paternity by acknowledgment because of a material mistake of fact (mother miscalculated the conception date), genetic testing showed another man to be the father, and acknowledged father did not have a parent-child relationship with the child. In doing so, trial court properly rejected acknowledged father’s claims of laches and equitable estoppel from the delay in moving to open.

 

Advance Release Opinions – Supreme Court – August 9

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Reviews of Supreme Court advance release opinions about medical malpractice.

Medical Malpractice

Gagliano v. Advanced Specialty Care – There was sufficient evidence for jury to find that surgical resident was hospital’s actual agent, making hospital vicariously liable for resident’s malpractice.

Levin v. State – While on an approved home visit from a state mental-health facility, patient stabbed his mother to death. Claims commissioner granted mother’s administratrix permission to sue state for medical malpractice. Trial court struck the complaint. Supreme Court affirmed, finding that plaintiff’s claim violated Jarmie, which bars medical malpractice claims by nonpatients. And, even if plaintiff’s claim sounded in ordinary negligence as opposed to medical malpractice, it exceeded the scope of permission to sue that the claims commissioner had granted and thus the court lacked subject matter jurisdiction over it.

Advance Release Opinions – Appellate Court – August 9

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Reviews of Appellate Court opinions about custody and visitation, governmental immunity, and personal injury.

Custody and Visitation

In re Joheli V. – Trial court terminated father’s parental rights because he failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of Joheli, he could assume a responsible position in her life. Father appealed, claiming that trial court based its decision solely upon father’s incarceration and pending trial for allegedly sexually assaulting Joheli. Appellate Court affirmed, finding that father’s incarceration was one factor (and properly so), but not the sole factor, in the trial court’s decision.

Governmental Immunity

Drabik v. Thomas – AT&T notified the FCC that it was thinking about putting a cell tower on Drabik’s property. FCC notified the Mohegan Tribe of Indians of Connecticut. The tribe objected because the tower would “impact the view shed” for “substantial stone groupings” that were of “traditional religious and cultural significance to the tribe.” Drabik asked the tribe for more information about the stone groupings but the tribe did not respond. So, Drabik filed a petition for a bill of discovery, a device to obtain evidence for use in an action other than the one in which the discovery is sought. Trial court granted the tribe’s motion to dismiss Drabik’s petition on the ground of tribal sovereign immunity. Appellate Court affirmed, finding that tribal sovereign immunity applied to a prelitigation bill of discovery just as it did to an actual litigation, and that the immunity extended to the individual members of the tribe from whom Drabik sought the discovery because they were acting within the scope of their tribal authority.

Palosz v. Greenwich – Board of Education not entitled to sovereign immunity for claims alleging failure to comply with antibullying policy because sovereign immunity protects the state alone, and Board acts for the municipality, not the state, in enforcing antibullying policy. More specifically, a board of education acts for the state when it performs duties delegated to it by the state, and for the municipality when it performs duties delegated to it by the municipality. Though the state delegated creation of an anti-bullying policy to the boards of education, it delegated enforcement to the municipalities. Greenwich delegated its enforcement duties to Board.

Personal Injury

Farmer-Lanctot v. Shand – Farmer-Lanctot jumped out of the way of Shand’s car and was injured. Shand denied he was negligent and asserted contributory negligence. Trial court denied Farmer-Lanctot’s request for certain charges. General verdict for Shand. Appellate Court affirmed, finding that (1) under the general verdict rule, the verdict stands if any ground for the verdict is proper; (2) Shand’s denial of negligence was possibly a ground for the verdict; (3) Farmer-Lanctot’s only attack on that ground was her claim that the trial court should have charged the jury on the driver’s duty to yield to pedestrians when making a right turn; (4) trial court properly declined to give that charge because the facts did not support it; and (5) since the trial court properly declined to give the charge, the general verdict rule required Appellate Court to presume that the jury found Shand not negligent, which was sufficient to affirm.

 

Advance Release Opinions – Appellate Court – August 3

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Reviews of Connecticut Appellate Court decisions about defamation, foreclosure, and professional malpractice (legal). Yes, I’m far behind but plan to catch up by mid-October.

Defamation

Crismale v. Walston – Walston called DEEP to report that he had seen Crismale poaching his clams. DEEP officers responded, did their own investigation, and arrested Crismale. After the arrest, Walston told a newspaper reporter that he had “nailed” Crismale. Crismale was acquitted and sued Walston for defamation based on Walston’s statements to DEEP and the reporter, and for malicious prosecution. Trial court granted Walston summary judgment on his special defenses of privilege and opinion, and probable cause. Appellate Court affirmed, finding (1) Walston’s statements to DEEP enjoyed a qualified privilege, there being no evidence of malice to abrogate it; (2) though Crismale was correct that Walston’s statement to the reporter was one of fact, not opinion, the statement was true – Walston had nailed Crismale by reporting what he had seen to DEEP, which led to Crismale’s arrest – and thus not defamatory; and (3) there was no malicious prosecution because Walston demonstrated that he acted with probable cause and without malice in reporting to DEEP. Judge Lavine concurred, but wrote separately to express his disagreement that Walston’s statement to the reporter could not be anything other than a statement of fact.

Foreclosure

Goodwin Estate Association, Inc. v. Starke – In this action to foreclose a lien for unpaid condominium common charges, trial court denied Starke’s motion to open the judgment and his motion to dismiss for the Association’s failure to notify him of its standard foreclosure policy. Appellate Court affirmed, (1) declining to review as inadequately briefed Starke’s claim that trial court improperly considered equitable principles in deciding his motion to dismiss as opposed to his motion to open; and (2) finding that denial of motion to dismiss was proper since Starke had admitted to receiving the standard foreclosure policy.

Professional Malpractice (Legal)

Taylor v. Wallace – Taylor pleaded guilty to murder, got 25 years, and then brought at least 12 habeas petitions. Wallace was appointed to represent Taylor in one of the habeas proceedings. Taylor sued Wallace for legal malpractice and for using Taylor as “an unwitting and unwilling participant” in fraud against the state. Trial court dismissed the action. Appellate Court affirmed. As to legal malpractice, Appellate Court applied US Supreme Court precedent and concluded that “if success in a tort action would necessarily imply the invalidity of a conviction, the action is to be dismissed unless the underlying conviction has been invalidated.” Since Wallace could be guilty of legal malpractice only if Taylor was invalidly incarcerated, and Taylor remained validly incarcerated because his conviction had not been overturned, the action had to be dismissed as unripe, an aspect of subject matter jurisdiction. As to being a participant in a fraud against the state, Taylor lacked standing because he had no injury – any harm he suffered was wholly derivative of harm to the state.

 

Advance Release Opinions – Supreme Court – August 3

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Reviews of Connecticut Supreme Court decisions about divorce, employment, and underinsured motorist benefits.

Divorce

Shirley P. v. Norman P. – Plaintiff sought a divorce after accusing defendant of sexually assaulting her. While the action was pending, defendant was convicted of several criminal offenses arising from the alleged assault. Though those convictions were on appeal, the matrimonial court gave them preclusive effect under collateral estoppel, and entered a property division award that heavily favored plaintiff. Defendant appealed the property award, claiming that the convictions were not preclusive because they were still on appeal. While the appeal of the property award was pending, the Appellate Court reversed the convictions and the Supreme Court affirmed. Supreme Court then reversed the property award, finding that under United States Supreme Court precedent, a second judgment based on the preclusive effect of a first judgment must be reversed if the first judgment is reversed.

Employment

Trinity Christian School v. Commission on Human Rights and Opportunities – Former female employee filed a claim with CHRO alleging that Trinity unlawfully terminated her employment on the basis of  her sex, marital status, and pregnancy. Trinity moved to dismiss, claiming that it was immune from suit under CGS § 52-571b, which bars the state from burdening any religious belief. CHRO denied the motion. Trinity appealed to Superior Court, re-asserting its immunity argument and adding that its immunity permitted an interlocutory appeal of what would otherwise be a nonfinal order of the CHRO. Superior Court disagreed, finding that the statute provided a special defense, not immunity from suit. Supreme Court affirmed for the same reason.

Underinsured Motorist Benefits

Tannone v. Amica Mutual Insurance Company – This is a good one. Two pedestrians hit by an authorized driver of a rental car. Driver and lessee were underinsured. Rental agency was self-insured. Pedestrians made an underinsured claim on their policy. Amica denied it because the policy, as permitted by state agency regulation, excluded underinsured benefits when the owner of the car is self-insured. The Supreme Court in 1999 had concluded that the regulation was not against public policy because self-insureds had to prove their ability to pay judgments when liable, making underinsurance unnecessary. In other words, the exclusion was valid because a “self-insured” could not be underinsured. In this case, the Supreme Court noted that Congress had passed the Graves Amendment, which makes rental car companies immune from vicarious liability for injuries caused by their underinsured lessees. So, since the injured party no longer can recover from a self-insured car rental agency, the exclusion is invalid because it leaves the injured party without a remedy. Supreme Court reversed the trial court’s summary judgment for defendant and remanded for further proceedings.