Advance Release Opinions – April 6

Reviews of Connecticut Appellate Court advance release opinions about civil procedure, mortgage foreclosure, noncompete agreements, and vicarious liability.

Civil Procedure

Ruiz v. Victory Properties, LLC – Plaintiff brought negligence claims against D1, and derivative fraudulent transfer claims against D2 and D3. D1, and D2 and D3, filed separate summary judgment motions and the trial court granted both of them. Plaintiff appealed the summary judgment for D1, but not the summary judgment for D2 and D3. Over the next four and a half years, Appellate Court reversed the summary judgment for D1, and Supreme Court affirmed that reversal. Back in the trial court, plaintiff moved to open the summary judgment against D2 and D3, arguing that the reversal as to D1 presented good cause for reviving the derivative claims against D2 and D3. Trial court denied the motion. Appellate Court affirmed because (1) Practice Book § 17-4, CGS § 52-212a, and the doctrine of finality of judgments all precluded opening a judgment more than four months after it became final for purposes of appeal; and (2) plaintiff did not argue that the four-month period should be tolled for any equitable reason. Appellate Court also found that the appellate stay under Practice Book § 61-11(a) (1) did not toll the four-month period because it precludes only proceedings to enforce or carry out a judgment, and a motion to open is not a proceeding to enforce or carry out a judgment; and (2) did not apply to the summary judgment for D2 and D3 because plaintiff did not appeal that judgment.

Mortgage Foreclosure

Bayview Loan Servicing, LLC v. Park City Sports, LLC – Mild yawn. Even if plaintiff failed to comply with standing order about federal loss mitigation affidavit, it did not deprive trial court of subject matter jurisdiction because that depends on statutes or the constitution, and standing orders are not statutes or even rules of practice. There were no issues of fact about application of mortgage payments; date of default or propriety of the notice of default; assignment of the note to plaintiff; or the validity of the federal loss mitigation affidavit. Appellate Court declined to review defendant’s claim that the trial court should have granted his petition for foreclosure mediation because it failed to present a record adequate for review.

Nationstar Mortgage, LLC v. Mollo – Trial court granted plaintiff’s motion for summary judgment as to liability even though the motion did not address defendant’s special defenses because plaintiff filed the motion before defendant filed his answer.  Appellate Court reversed, finding that trial court lacked authority to raise and consider, sua sponte, issues that plaintiff hadn’t raised, namely whether there fact issues about the special defenses.

Noncompete Agreement

DeLeo v. Equale & Cirione, LLP – Accounting firm’s partnership agreement included noncompete clause. DeLeo left the firm and began practicing on his own. He then sued the firm, claiming essentially that he was still a partner, was improperly excluded from the firm, and the court should dissolve the firm. The firm counterclaimed for breach of the noncompete agreement. Trial court found for the firm on DeLeo’s claims and on the firm’s counterclaims. Appellate Court agreed with DeLeo’s claim that the noncompete agreement was not a liquidated damages clause, but a restraint of trade subject to a reasonableness analysis. Since the trial court did not perform that analysis, Appellate Court reversed and remanded for that purpose. Appellate Court did consider, and reject, DeLeo’s other claims that (1) trial court found he was estopped to deny enforceability of noncompete agreement (it didn’t); and (2) firm waived noncompete agreement (it didn’t). Appellate Court also rejected what might have been DeLeo’s best argument because he had not raised it in the trial court and did not meet the requirements for plain error review. More specifically, on appeal, DeLeo claimed that trial court should have dissolved the “partnership” because, after he left, there was only one partner, and there is no such thing as a one-partner partnership. In rejecting this claim, Appellate Court noted that not only had DeLeo failed to raise it in the trial court, he was contradicting himself because his position there was that he was still a partner, making it at least a two-partner partnership.

Vicarious Liability

Fiano v. Old Saybrook Fire Company No. 1, Inc. – As he was leaving firehouse to go home to change for his high school yearbook photo, seventeen-year-old junior firefighter hit plaintiff with his car (plaintiff was riding a motorcycle). Plaintiff wanted to hold Fire Company vicariously liable. Appellate Court affirmed trial court’s summary judgment for Fire Company because junior firefighter was not acting within the scope of his duties when the accident happened.