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Advance Release Opinions - Review and Analysis

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Analysis and Impact of Connecticut Appellate Level Opinions Involving Contract Issues

Advance Release Opinions – January 19

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The Connecticut Appellate Court advance released an opinion about breach of contract that I review below. The Court also released opinions about criminal law and habeas corpus that I do not review. There were also nine memorandum decisions that I don’t review because there isn’t anything to review.

Breach of Contract

Finney v. Cameron’s Auto Towing Repair – Nothing particularly interesting in this one. Finney sued Cameron’s claiming Cameron’s breached a contract to fix his car. Cameron’s denied there was any agreement to fix Finney’s car and counterclaimed for towing and storage charges. Trial court granted Cameron’s summary judgment on Finney’s claim and Cameron’s counterclaim. The Appellate Court affirmed summary judgment as to Finney’s claim, but reversed as to Cameron’s counterclaim because Cameron’s summary judgment papers did not demonstrate entitlement to recovery.

Advance Release Opinions – December 21

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The Connecticut Appellate Court advance released opinions about arbitration and underinsured motorist benefits, which I review below. The Court also advance released opinions about criminal law and habeas corpus matters, which I do not review.

Arbitration

Henry v. Imbruce – The Appellate Court affirmed trial court’s decision granting plaintiffs’ motion to confirm arbitration award and denying defendants’ motion to vacate the award. In doing so, the Appellate Court rejected defendants’ claims that arbitrator (i) had a nontrivial conflict of interest because she had arbitrated the divorce of an attorney who had previously represented some of the defendants in an unrelated matter; (ii) denied defendants fundamental fairness in (a) declining to order plaintiff to produce certain information and (b) permitting plaintiff to add new claims for which discovery was not permitted; and (iii) exceeded her authority in (a) rendering an award against one of the defendants individually even though he didn’t sign an arbitration agreement and (b) apportioning costs and awarding attorney’s fees. I note that the Appellate Court described defendants’ argument (iii)(a) as “close to frivolous” because the individual defendant repeatedly had identified himself as a party to the arbitration and thus assumed the obligation to arbitrate.

Stack v. Hartford Distributors, Inc. – Trial court granted employee’s application to proceed with arbitration under the parties’ employment agreement. Employer appealed, claiming that the arbitration clause did not apply because a corporate merger rendered the employment agreement void and a different agreement, corporate bylaws and our corporate governance statutes gave employer a basis for firing employee that was independent of the employment agreement. Appellate Court affirmed because employee claimed that employer breached employment agreement, the agreement required arbitration of claims of breach, and under our law if the employer says the whole employment agreement is void, not just the arbitration clause, the arbitrator decides validity.

Underinsured Motorist Benefits

Doyle v. Universal Underwriters Ins. Co. – Plaintiff went to high/low confidential arbitration with tortfeasor, with a high of tortfeasor’s $100,000 policy limit. Arbitrator found the damages were some $106,000. Torfeasor’s carrier paid its policy limit. Plaintiff commenced action against his own carrier for underinsured motorist benefits but apparently wanted to relitigate damages. Trial court granted carrier’s motion for summary judgment on collateral estoppel grounds but awarded plaintiff the $6,000 difference between the arbitrator’s damages and the torteasor’s policy limit. Plaintiff appealed. Appellate Court affirmed.

Advance Release Opinions – December 11

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Connecticut Supreme Court

The Supreme Court advance released an opinion about insurance coverage for false imprisonment, which I review below. The Court did not release any other opinions.

Nationwide Mut. Ins. Co. v. Pasiak – Pasiak had a home office for his construction company. He hired Socci to do office work at the home office. During Socci’s second week, a masked intruder entered the office and demanded that Socci open the safe. Socci didn’t know there was a safe and certainly didn’t have the combination. The intruder tied her up and threatened to kill her family if she didn’t give him the combination. The intruder was still there when Pasiak returned and the two had a struggle. Pasiak pulled off the intruder’s mask and it turned out that the intruder was Pasiak’s lifelong friend. Pasiak wouldn’t let Socci leave or call the police. He didn’t call the police either. A little later, Pasiak let his friend leave. After that, Pasiak drove Socci to Greenwich to discuss the incident with a mutual friend, who said they should call the police. Pasiak let Socci go, but did not call the police until later that day after Socci and her husband went to Pasiak’s house.

Pasiak’s friend was arrested, prosecuted and convicted. Socci prosecuted a personal injury action for false imprisonment against Pasiak and was awarded compensatory and punitive damages. Pasiak sought indemnification under a personal umbrella policy. The insurer brought a declaratory judgment action.

The umbrella policy covered “personal injury”, which was broad enough to cover Socci’s injuries, but the policy had a business pursuits exclusion. The exclusion precluded coverage for occurrences “arising out of” Pasiak’s “business pursuits.”

The trial court concluded that the exclusion did not apply. Though Socci testified that Pasiak said he didn’t want to call the police because he was trying to protect his friend and because calling the police would be bad for business, there was a lack of proof of any negative impact on the business from calling the police. So, in the trial court’s view, Pasiak was really just protecting his friend, which was not a business pursuit.

The Appellate Court reversed, finding that the exclusion applied essentially because everything that happened while Socci was at work necessarily “arose out of” Pasiak’s business pursuits – if she wasn’t at work doing her job, she would not have been victimized by Pasiak or his friend. Pasiak’s subjective motivations for his conduct were irrelevant.

The Supreme Court concluded that the trial court was too restrictive, and the Appellate Court too broad, about the scope of the exclusion. Specifically, Pasiak’s apparent desire to help his friend did not necessarily trump his concern about the impact on his business. And the mere fact that Socci was at work did not necessarily mean that the false imprisonment arose out of that work. In the end, the Supreme Court found the record insufficient to determine whether the exclusion applied as a matter of law and reversed and remanded to the trial court for further proceedings.

The Supreme Court also rejected all of the insurer’s alternate grounds for affirmance: (i) worker’s compensation exclusion did not apply because (a) Pasiak was sued in his personal capacity, not as Socci’s employer, and (b) there was no proof that Socci’s injuries would have been compensable under the worker’s compensation act in any event; (ii) physical or mental abuse exclusion did not apply because “abuse” is something different from false imprisonment; and (iii) public policy did not preclude coverage for punitive damages because those punitive damages arose from the intentional tort of false imprisonment, which the policy covers.

Advance Release Opinions – December 1

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The Supreme Court advance released an opinion in a criminal case that I review below. The Appellate Court advance released opinions about civil procedure, family law, indemnification, and vexatious litigation that I review below. The Appellate Court also released three opinions in criminal matters which I do not review.

Connecticut Supreme Court

Criminal Law

State v. Damato-Kushel – I don’t normally review opinions in criminal cases but this one is a little different. The defendant was accused of sexual misconduct. Her alleged victim brought this writ of error, claiming that he, either personally or through his attorney, had a constitutional right under the victim’s rights amendment to be present during plea negotiations and other in-chambers pretrial disposition conferences between the prosecutor, the court and defense counsel. Supreme Court dismissed the writ, concluding that the alleged victim has no right to attend because the defendant herself has no right to attend. A concurring opinion notes that even though the defendant has no right to attend, her attorney does and the majority did not explain why the same right is not extended to the alleged victim’s counsel. The reason is that the language of the victim’s rights amendment does not allow it.

Connecticut Appellate Court

Civil Procedure

Law Offices of Frank N. Peluso, P.C. v. Cotrone – This case confirms, if we didn’t already know it, that failure to follow proper procedure can really ruin your day. Law firm sued former client for unpaid legal fees. Former client counterclaimed. Law firm filed a withdrawal of its action. Two days later, law firm filed what it thought was a withdrawal of its withdrawal. Trial court rejected former client’s argument that you can’t withdraw a withdrawal. Case went to trial. Law firm won on its claim and the counterclaim. Appellate Court reversed the judgment on law firm’s claim because you can’t withdraw a withdrawal. You have to move to restore the case to the docket within four months of the withdrawal. Painful lesson.

Family Law

Kent v. DiPaola –  Trial court did not include the present value of Spouse 2’s pensions (which were in pay status) in the division of assets because it used the income stream from the pensions to eliminate what would have been Spouse 1’s child support obligation. Trial court divided the martial assets two-thirds / one-third in favor of Spouse 2. Appellate Court affirmed, concluding that trial court did not abuse its discretion in excluding the pensions from the marital asserts because the income offset Spouse 1’s support obligation. Nor was there any abuse of discretion in the property division.

Indemnification

O’Brien v. New Haven – Plaintiff was the city’s tax collector. A third party sued plaintiff for misconduct. Plaintiff asked city to defend him. City declined but said that it would indemnify plaintiff under CGS § 7-101a(b) for financial loss, including attorney’s fees, if plaintiff won the case and was acting in the discharge of his duties. Plaintiff hired his own lawyer and won. City refused to pay his attorney’s fees. Plaintiff filed a notice of intention to bring an action for indemnification with the city clerk and commenced the action soon after. City claimed that notice was late. Trial court found that notice was proper and timely; plaintiff was entitled to his attorney’s fees in defending against the misconduct claims; but plaintiff was not entitled to his attorney’s fees in prosecuting the indemnification action. Plaintiff and city appealed. After some extensive statutory analysis, Appellate Court agreed that the notice was proper and timely. Appellate Court also agreed that plaintiff was not entitled to his attorney’s fees in the indemnification action because there was no statute or contract authorizing it.

Vexatious Litigation

Rockwell v. Rockwell – In the underlying action, wife sued husband on an investment agreement and lost. Husband then sued wife and wife’s attorney for vexatious litigation. Wife was dismissed for lack of personal jurisdiction. Husband claimed a jury. After bifurcating the issue since it involved a question of law, the trial court found that there was probable cause to commence the underlying action and entered judgment for attorney. Appellate Court affirmed, concluding that trial court did not abuse discretion in bifurcating the probable cause issue; husband did not have a constitutional right to have the jury decide that issue; and trial court properly determined there was probable cause for the underlying action.

 

Advance Release Opinions – November 24

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Connecticut Appellate Court

The Appellate Court advance released opinions in the areas of breach of contract (involving a collective bargaining agreement) and foreclosure, which I review below. The Court also advance released opinions in three habeas matters and three criminal matters, which I do not review.

Breach of Contract

Rosenthal v. Bloomfield – Retired cops claimed that Town breached collective bargaining agreement because new health insurance plan, which increased co-pays, was not “comparable”to old plan. Trial court dismissed claim for failure to make out a prima facie case. Appellate Court affirmed, finding that there was no evidence of a breach. Though the new plan increased co-pays, it did so only for some services, while lowering or eliminating them for others. So, as a whole, the new plan was comparable to the old plan.

Foreclosure

GMAC Mortgage, LLC v. Ford – Not to be confused with the 2013 Appellate Court decision involving the same parties and mortgage, in this one the borrower claimed that the United States Supreme Court’s 2015 decision in Jesinoski v. Countrywide Home Loans, Inc. (135 S. Ct. 790) resuscitated his TILA-rescission defense and that the substituted plaintiff lacked standing because it never had any legal existence. Jesinoski confirms that under TILA a borrower need only mail a rescission notice within three years of consummating the loan transaction – the borrower does not also have to start a lawsuit to confirm the rescission within that same three year period. Ford claimed that under Jesinoski the foreclosure action could not proceed because he had rescinded the loan by mailing a notice within the three year period. The Appellate Court rejected this claim, concluding that Jesinoski merely confirms that mailing is the only required mechanism for providing notice of a rescission; it does not say that timely mailing the notice is itself a rescission. I’m not so sure that I agree with that but there you have it. The Appellate Court also rejected Ford’s lack of standing claim, finding that Ford never suggested any evidence that the substituted plaintiff had no legal existence.

Advance Release Opinions – November 14

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Connecticut Supreme Court

The Supreme Court advance released a single opinion, which deals with breach of contract.

CCT Communications, Inc. v. Zone Telecom, Inc. – This opinion results from something that I don’t recall ever happening before (though I know it must have): The Supreme Court granted reargument and effectively reversed itself. Plaintiff’s claim and defendant’s counterclaim each asserted that the other breached the contract. The trial court found that it was plaintiff who breached. But the trial court’s decision was unclear as to whether plaintiff breached by filing for bankruptcy, which seemed to be the trial court’s conclusion, or that plaintiff breached by providing inadequate service, which defendant cited as an alternate ground for affirmance. On the first go ’round, after oral argument the Supreme Court ordered the trial court to articulate. After the articulation, the Supreme Court affirmed, its original opinion accepting the alternate ground for affirmance. On reargument, the Supreme Court reversed the trial court, finding that the record did not support the alternative ground for affirmance and that plaintiff’s bankruptcy filing was not a breach.

Advance Release Opinions – November 3

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Connecticut Appellate Court

The Appellate Court advance released opinions in the areas of breach of contract, declaratory judgment, employment, personal injury, and zoning.

Breach of Contract

Frauenglass and Associates, LLC v. Enagbare – Law firm sued former dissolution client for unpaid fees and won. Client appealed and Appellate Court affirmed. Law firm then moved for postjudgment interest and attorney’s fees for prosecuting the collection action (fee agreement had attorney’s fees provision). Former client’s objection related to the law firm’s fees in the dissolution proceeding, not the collection action. Trial court granted law firm’s motion because the dissolution fee issue had already been finally resolved. Appellate Court affirmed.

Declaratory Judgment

21st Century North American Ins. Co. v. Perez – Insurer had properly terminated defendants’ car insurance for not fully paying a premium installment (before defendants had a fatal crash). Though defendants had made a partial payment, the doctrine of substantial performance did not save them because payment of premiums is an essential and material condition to car insurance and there can be no substantial performance when the performance owed is the payment of money and time is of the essence.

Employment

Samakaab v. Dept of Social Services – “[P]laintiff alleged that he was denied a promotion because of his age, sex, national origin, and his prior opposition to unlawful employment practices”. Trial court granted defendant summary judgment because plaintiff’s self-serving affidavit and deposition testimony did not demonstrate a fact issue. Affirmed.

Personal Injury

Burke v. Mesniaeff – Husband was giving a tour of his historic second home to three people when wife arrived in an agitated state. Husband forcibly escorted wife out of the house and down the driveway. Wife alleged assault and battery. Husband asserted justification because he acted in defense of others – the tour guests. Defense verdict. Appellate Court affirmed, finding that the trial court properly instructed the jury on justification. Judge Bishop dissented because in his view defendant’s evidence at trial and the jury instructions were tainted by the improper notion that wife could have been a trespasser in a house her husband owned (majority found this inconsequential because jury did not find wife was a trespasser) and the evidence did not support the defense of others justification.

Zoning

Griswold v. Computaro – Defendants filed motions to cite in new defendants and to open and modify an 18 year old stipulated judgment for the operation of an asphalt manufacturing facility. Those motions were assigned to the November 23 short calendar. On November 9, the town, the defendants, and the yet to be cited-in defendants agreed to modify the stipulated judgment. On November 12, the town, the defendants, and the yet to be cited-in defendants filed a joint motion to open and modify the stipulated judgment, together with a caseflow request to have all of the motions heard on the November 16 short calendar. The trial court granted the caseflow request and opened and modified the judgment on November 16. The proposed intervenors showed up on November 23 to file their motion to intervene and be heard on the motion to open and modify only to learn that the trial court had already done it without them on November 16. The trial court denied intervention. The Appellate Court reversed, concluding that (i) it was a violation of our rules of practice to proceed on November 16 when the matters had been published to the November 23 short calendar; (ii) because of (i), the intervenors were denied their statutory right to intervene; and (iii) because of (ii), the hearing on the stipulated settlement failed to conform to CGS § 8-8(n).

Advance Release Opinions – October 6

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Connecticut Appellate Court

The Appellate Court advance released opinions about foreclosure, matrimonial, personal injury, professional negligence, receivership and trusts and estates matters.

Foreclosure

JPMorgan Chase Bank, N.A. v. Essaghof – Borrower originally had a negative amortization adjustable rate note and claimed that lender fraudulently or with unclean hands induced a modification to a fixed rate by misrepresenting that interest rates were rising when they were actually falling. The trial court rejected borrower’s claim, concluding that interest rates were in fact rising leading into the modification even if they fell after the modification. The trial court also ordered borrowers to reimburse lender for real estate taxes and hazard insurance lender paid during pendency of appeal and until the conclusion of litigation. Appellate Court affirmed.

Matrimonial

Puff v. Puff – Parties resolved a post-dissolution motion to modify alimony with a stipulated agreement that the court approved as an order. Appellate Court rejected plaintiff’s claims that (i) there was no “agreement” that could be accepted as an order – there was only an agreement to agree; and (ii) the trial court did not conduct an adequate canvass before accepting the agreement as an order. But the Appellate Court reversed the trial court’s contempt order for plaintiff’s failure to comply with a term of the agreement/order, finding it unwarranted since it was undisputed that plaintiff had made “at least some effort” to comply.

Personal Injury

McFarline v. Mickens – Trial court granted defendant summary judgment, finding that municipality had not shifted responsibility for sidewalk maintenance to adjoining landowners so, absent proof of a positive act by landowner that contributed to plaintiff’s fall on allegedly defective sidewalk, landowner did not owe plaintiff any duty.  Appellate Court affirmed.

Professional Negligence – What it is Not

Pellet v. Keller Williams Realty Corporation – Homeowners sued realtor on a host of contract and tort claims about realtor’s conduct in selling house. Trial court equated all eight counts of the complaint with professional negligence and directed verdict for realtor because homeowners did not present expert testimony as to the professional standard of care. Trial court also granted realtor’s motion for a special finding that homeowners brought the action in bad faith and without merit, which entitled realtor to its attorney’s fees. Appellate Court reversed the judgment and special finding, concluding that (i) rolling an allegation about what realtor knew or should have known about house’s market value into all eight counts did not make all eight counts professional negligence claims; (ii) the jury was actually provided with necessary expert testimony as to the standard of care even if it did not come from homeowners’ witness and did not expressly opine a breach of the standard; and (iii) special finding could not stand in the face of the other rulings.

Receivership

Seaport Capital Partners, LLC v. Speer – Receiver appointed in a nine-property commercial foreclosure action brought writ of error challenging trial court’s denial of approval of receiver’s reports and order of payment. Appellate Court rejected receiver’s claim that trial court lacked subject matter jurisdiction to appoint a receiver because lender never fully funded the loans. Not surprisingly, Appellate Court also rejected receiver’s claim that the order of payment was improper because the underlying borrower had collected certain rents and so receiver did not have the money to comply with the order of payment.

Trusts and Estates

Eder’s Appeal from Probate – This case is really only interesting because its name seems archaic. Appellate Court noted that the case had been captioned Eder v. Appeal from Probate in the Superior Court and that on appeal the parties had called it Eder v. Eder. Appellate Court changed it to Eder’s Appeal from Probate to “conform[ ] to the convention our appellate courts use for appeals from probate.” In any event, the gist of the appeal was that father had set up a trust that upon termination was to be distributed equally to “each child of the [father] then living.” Father and biological son had a falling out. Father later adopted the two adult sons of a woman with whom he had had a long term relationship. Biological son claimed it was a sham adoption undertaken solely to reduce his share of the trust corpus. Probate Court concluded adopted sons were entitled to share equally with biological son. Same result in Superior Court. Appellate Court affirmed.

Advance Release Opinions – September 8

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Connecticut Appellate Court

The Appellate Court issued advance release opinions dealing with arbitration, breach of contract, fraud, mortgage foreclosure and personal injury.

Arbitration

A Better Way Wholesale Autos, Inc. v. Rodriguez – Car purchase gone bad. Arbitrator ordered the finance company to return the car to the dealer, among other things. Trial court denied dealer’s application to vacate arbitration award and granted purchaser’s and finance company’s motions to confirm it. Trial court also ordered dealer to pay finance company’s attorney’s fees in defending the arbitrator’s award. On appeal, dealer claimed arbitrator exceeded the scope of the submission in ordering the finance company to return the car because title was never at issue. Appellate Court affirmed, finding that the submission was unrestricted and title was at issue from the get go.  Dealer also challenged the award of attorney’s fees but Appellate Court declined to review these claims because dealer inadequately briefed them.

Breach of Contract

Luongo Construction and Development, LLC v. MacFarlane – What a mess. LLC sued customer for failure to pay on a contract to erect a modular home in separate actions – one in New Haven and one in Middletown. In the Middletown action, customer counterclaimed against LLC and cited in individual contractor for faulty workmanship and other claims. Middletown denied motion to dismiss based on prior pending action doctrine. LLC withdrew New Haven action. Middletown denied LLC’s motion for summary judgment. After courtside trial in Middletown, but before decision, LLC filed a second motion to dismiss based on prior pending action doctrine, claiming that New Haven action had been commenced first and customer could have litigated there before withdrawal. Court denied motion and issued judgment for customer on LLC’s claims and customer’s counterclaims. Appellate Court affirmed. Decision addresses prior pending action doctrine; summary judgment obligations; and punitive damages. Judge Flynn concurred with everything, except to the punitive damages award, as to which he dissented.

Fraud

Kenneson v. Eggert – In Action 1, plaintiff sued X and Y in tort. X tendered the claim to his Insurer who hired Lawyer to defend him. Jury returned a verdict for plaintiff against X for $67,556.07 and against Y for $380,037.38. Y did not appear at trial. Lawyer filed post-trial motions for X. Plaintiff and Lawyer later appeared for a hearing on the motions and a settlement conference. Plaintiff accepted $67,000 in settlement against X and signed a release and withdrawal as to X. Plaintiff later learned that she could not collect anything from Y because he was uninsured and had died earlier without assets. Plaintiff then moved to open the judgment to reinstate X as defendant, claiming that Lawyer was unfair and deceptive when she instructed plaintiff to sign the release without explaining its impact. Court denied the motion. Plaintiff started Action 2 against Lawyer for intentional misrepresentation and intentional nondisclosure and Insurer for vicarious liability. Trial court granted Lawyer and Insurer summary judgment. Appellate Court affirmed as to nondisclosure because Lawyer had no duty to plaintiff. Appellate Court reversed as to misrepresentation, finding that the denial of the motion to open did not collaterally estop plaintiff; there was a question of fact about whether the misrepresentation related to a past or existing fact, which could support a misrepresentation claim, or a future fact, which could not; and, though Connecticut has not yet recognized the sham affidavit rule (affidavit contradicting prior deposition testimony cannot support or defeat summary judgment), it would not be triggered in this case in any event.

Mortgage Foreclosure

McClancy v. Bank of America, N.A. – Borrowers sued bank on a host of theories surrounding a failed attempt to modify a mortgage loan. Trial court granted bank summary judgment as to all claims. Appellate Court affirmed, concluding that bank’s promise to review the borrowers’ modification application was not a promise to modify, a misrepresentation or a CUTPA violation.

Financial Freedom Acquisition, LLC v. Griffin – Reverse mortgage borrower’s executor made two claims on appeal. First, executor claimed that substitute plaintiff had failed to make out a prima facie case at trial because the substitute plaintiff’s own evidence showed that someone other than the substitute plaintiff owned the loan. Appellate Court affirmed, concluding that under federal and state banking law, and state corporation law, a series of corporate transactions only resulted in a name change of the substitute plaintiff, not a change in loan ownership. In other words, the substitute plaintiff still owned the loan; it’s just that the substitute plaintiff had a new name. Second, executor claimed that substitute plaintiff breached covenant of good faith and fair dealing by declining to extend the repayment date so that the executor could take advantage of the option of selling the house to repay the loan. Appellate Court affirmed, concluding that the covenant applied only to a discretionary application or interpretation of a contract term and there was no discretionary application or interpretation of the repayment date.

Personal Injury

Dinino v. Federal Express Corporation – Worker sued employer and co-worker for injuries sustained when he fell into a gap between the loading dock and the truck he was unloading. He claimed that the motor vehicle exception to worker’s compensation exclusivity applied to his claim against his co-worker, who had parked the truck; and that the intentional creation of a dangerous work condition exception applied to his claim against his employer. Trial court granted summary judgment as to both defendants, finding that there was no genuine issue of material fact that neither exclusion applied. Appellate Court affirmed in a detailed 18-page opinion.

 

 

 

No Lost Profit Damages in Failed Law Firm Case

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The Connecticut appeal in Adler v. Rosenthal involved two lawyers who talked about starting a firm together. They got close enough to sign a “Preliminary Partnership Agreement” which set out draws and profit shares for the two members. They also filed organizational documents with the Secretary of the State and agreed on a starting date for the partnership.

To be ready for the start date, plaintiff “met with landlords to discuss potential office space, negotiated with payroll, telephone, and insurance companies, interviewed and negotiated with prospective staff members, put an advertisement in the yellow pages, set up e-mail accounts and a computer system, opened bank accounts, purchased office supplies, and arranged for a construction crew to construct an office space ….”

Then defendant said he didn’t want to do it. Plaintiff sued him for breach of contract, seeking lost profits, among other things. After a bench trial, “[t]he court awarded the plaintiff $38,786.93 as damages for lost profits and $3678.79 as reliance damages for costs that the plaintiff incurred prior to the breach.”

Defendant appealed. Plaintiff cross-appealed. The Connecticut Appellate Court affirmed everything, except the lost profits award as to which it remanded with an instruction to vacate that part of the judgment.

Defendant’s Argument on Appeal Concerning Lost Profits

Defendant advanced three reasons why the trial court erred in awarding plaintiff lost profits. The Appellate Court found one of those reasons dispositive so it did not address the other two. The dispositive reason was that plaintiff and the trial court based there conclusions on the notion that defendant would have contributed a certain amount of revenue to the firm. But, defendant argued, “there was no support in the evidence for the court’s finding that the defendant would have contributed $250,000 to the firm’s annual revenue.”

Appellate Court Concludes it was Error to Award Lost Profits

The court noted that plaintiff has the “burden of proving lost profits to a reasonable certainty.” This must be done with evidence that “is not merely subjective or speculative . . . but which allows for some objective ascertainment of the amount…. Evidence is considered speculative when there is no documentation or detail in support of it and when the party relies on subjective opinion.”

In awarding lost profits in this case, “[a] crucial piece of evidence upon which the court relied consisted of the defendant’s alleged representation to the plaintiff during the formation of the preliminary agreement that he regularly brought in $250,000 a year to his own law firm ….” But, “plaintiff did not present, to a degree of reasonable certainty, expert testimony or statistical evidence regarding lost profits that resulted from the defendant’s failure to join the law firm. Instead, the plaintiff only produced his own law firm’s profit and loss statement for the … time period
following the defendant’s failure to join the firm. The plaintiff supplemented this data with his own testimony that the defendant had given him a confident projection, orally, that he would bring $250,000 in business to the law firm…. Despite the facts that the defendant had an established law practice and that he continued to practice law after failing to join the plaintiff’s firm, the plaintiff failed to submit any of the defendant’s financial statements into evidence in support of his lost profits claim.”

“The proper remedy in the present situation is to remand the case to the trial court with direction to vacate the award of lost profits. Although the court erred in awarding lost profits, the plaintiff is not entitled to further relief in the form of a new hearing related to lost profits. As our foregoing analysis demonstrates, the plaintiff failed in his burden of proving an entitlement to any amount of lost profits resulting from the defendant’s failure to join the firm. It is well established that in administrative, civil and criminal cases, when the party charged with the burden of proof fails to satisfy that burden, it is not entitled to a second ‘bite at the apple’ on remand.”

Appellate Court Rejects Plaintiff’s Cross-Appeal

“In his cross appeal, the plaintiff claims that the trial court erred by not allowing him to amend his complaint to include a claim for damages related to paralegal fees incurred as a result of the defendant’s failure to join the firm. Next, the plaintiff claims that the court erred by not awarding him damages to compensate him for the time that he personally expended addressing the defendant’s failure to join the firm. Finally, the plaintiff claims that the court erred by excluding $80,000 from his damages award, which he alleges was a cost that he incurred due to his need to hire a new associate to replace the defendant.”

As to plaintiff’s first argument, the Appellate Court concluded: “In light of the evidence considered by the court, the lateness of the plaintiff’s request made during the trial, and the likelihood that an amendment would have caused significant prejudice to the defendant, we conclude that the court’s ruling did not reflect an abuse of its discretion.”

As to plaintiff’s second argument, the Appellate Court concluded: “The [trial] court therefore ruled that there was no sufficient factual predicate for the award requested, and it refused to speculate as to the time that the plaintiff actually spent on those matters…. The court was in the best position to assess the credibility of the evidence submitted at trial and to make findings of fact based upon this assessment. On the basis of our review of the record, we conclude that the court’s findings regarding the time that the plaintiff spent in addressing the defendant’s failure to join the firm were not clearly erroneous.”

The Appellate Court also rejected plaintiff’s third argument, “observ[ing] that there was no persuasive evidence that the plaintiff’s hiring of the new associate was done for the primary purpose of ‘replac[ing]’ the defendant, given that the defendant never actually joined the firm and accordingly added nothing to the plaintiff’s caseload, which required the attention of a new associate regardless of the defendant’s actions. In this regard, the [trial] court observed that one of the reasons why the defendant did not join the firm was that, apart from his work with his own clients, he was concerned about the ‘many new files he would be assigned to by the plaintiff.'”

Other Things to Note

The trial court denied plaintiff’s application for a prejudgment remedy. Plaintiff failed to serve his signed summons and complaint within thirty days of the denial as required by CGS § 52-278j(b).  Defendant moved to dismiss, arguing that, pursuant to the statute, “the civil action effectively was withdrawn, and any action filed after the thirty day period must be dismissed for lack of subject matter jurisdiction.” The trial court denied the motion. On appeal, the Appellate Court confirmed that the statute deems withdrawn only the application for the prejudgment remedy, not the action itself.

Plaintiff also took issue, in the trial court and on appeal, with “plaintiff’s failure to include a return date on the writ of summons and his failure, in amending the writ of summons and complaint, to
include a return date that was within two months from the date on which the plaintiff had first served the defendant.” Once he learned of the omission, plaintiff attempted to cure it with two requests for leave to amend. The Appellate Court “decline[d] to decide this issue on its merits because, procedurally, it was not properly raised in the trial court. The defendant did not object to the plaintiff’s first request for leave to amend within fifteen days, as required by Practice Book §10-60(a)(3). Accordingly, the complaint as amended was deemed to have been filed with the consent of the adverse party by operation of the rule of practice sixteen days after the filing of the request …. The defendant did not file his objection until [too late], and the court never ruled on it, nor was
it required to do so, because of the lateness of the filing of the objection.”