Connecticut Appeals

Advance Release Opinions - Review and Analysis

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Civil Procedure

Advance Release Opinions – March 9

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The Connecticut Appellate Court advance released opinions about family law and judicial disqualification, which I review below. The Appellate Court also advance released opinions about two criminal and one habeas corpus matter, which I do not review.

Family Law

Zilkha v. Zilkha – In this child custody and visitation matter, the Appellate Court rejected defendant’s claims that the trial court (i) improperly delegated it judicial function and failed to consider public policy and the children’s best interests in giving the children considerable control over defendant’s access to them; (ii) improperly denied defendant’s motions to modify custody and visitation by relying on events that happened between 2004 and 2007, which he claimed trial court had earlier indicated were too remote and insufficiently weighty; (iii) improperly adopted recommendations of the children’s guardian ad litem, whom he claimed acted as an attorney for the children instead of a guardian ad litem; and (iv) improperly based its decision on what he claimed was an erroneous factual finding that the reconciliation therapist had ended reconciliation therapy.

Judicial Disqualification

Carvalhos Masonry, LLC v. S and L Variety Contractors, LLC – After trying the case, but before rendering a decision, the trial court suggested that the parties stipulate to a judgment for a specific amount. Plaintiff accepted the trial court’s suggestion; defendant rejected it. Three weeks later, the trial court issued a memorandum of decision finding for plaintiff in the exact amount of its settlement suggestion. Appellate Court reversed and remanded for a new trial, finding that the trial court should have disqualified itself from deciding liability and damages after its failed attempt to convince the parties to stipulate to a judgment because of the concern that rejecting the court’s suggestion may result in retributive sanction or judicial displeasure.

 

Advance Release Opinions – December 15

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Connecticut Appellate Court

The Appellate Court advance released opinions about breach of contract, child custody, civil procedure, conversion, and employment law, which I review below. The Appellate Court also advance released two decisions in criminal cases and one decision in a habeas matter. I don’t review those decisions and don’t provide the syllabuses (or syllabi if you prefer) because I’m concerned about the length.

Breach of Contract

Isenburg v. Isenburg – Despite the title, this is not a matrimonial case. Plaintiff and defendant lived together but never married. Plaintiff took defendant’s last name through a legal name change. Plaintiff was self-represented and displayed a fair amount of creativity in her claims after the relationship went bad. Both the trial court and Appellate Court rejected all of the claims, but the decision is relatively short (12 pages) and worth a quick read, if only for the true flavor of the claims. The gist of the complaint was that defendant had promised plaintiff a share of his property and business income. The trial court rejected plaintiff’s claims. On appeal, plaintiff claimed that the trial court erred by: (1) excluding certain exhibits; (2) not recusing itself; (3) finding that there was no contract; (4) finding that the defendant did not owe or breach any fiduciary duty to her; and (5) failing to award her certain specific damages and property. The Appellate Court affirmed, finding as follows with respect to plaintiff’s claims: (1) the trial court did not exclude any exhibits; (2) that the trial court was a married man and the case involved unmarried persons living together was not a basis for recusal; (3) the evidence confirmed there was no contract; (4) the parties’ relationship was social, not fiduciary; and (5) there was no basis to award plaintiff the specific damages or property.

Child Custody

Baronio v. Stubbs – Trial court ordered joint legal custody and shared physical custody. Defendant-mother appealed, claiming that joint custody was not in the child’s best interests where one parent objected to it and she objected to it. Appellate Court affirmed. It found that the record showed that the parties had in fact agreed to joint custody. The Appellate Court also rejected defendant’s claim that the trial court was biased in favor of plaintiff or against defendant for the same reason – the record did not show any bias or predetermination.

Civil Procedure (Foreclosure)

Chase Home Finance, LLC v. Scroggin – This case is significant, not necessarily because of the procedural issue involved, but because it was resolved for the borrower in a foreclosure case. I think if this case was decided five or six years ago, borrower would have lost. In any event, on to the decision. Bank filed a motion for default for failure to plead and a motion for judgment of foreclosure. Borrower was defaulted for failure to plead. Before judgment entered, bank amended its complaint to add a new defendant and five new counts. The only amendment to the original count was to identify the new defendant as a subsequent encumbrancer. Three of the new counts addressed a priority issue between bank and new defendant. The other two new counts alleged that borrower’s interaction with new defendant had injured bank. Bank filed a new motion for judgment. Before the court considered that motion, borrower filed an answer to the amended complaint. The trial court granted the motion for judgment because the case was five years old, borrower never moved to open a default, and borrower could not file an answer after a motion for judgment had been filed. The Appellate Court reversed, noting that amending the complaint after a default extinguishes the default and gives the defendant the right to plead if the amendments reflected a substantial change in the pleading. Here, the new counts reflected new facts and legal theories that were substantive, not technical, changes. Judge Bear dissented, noting that the court’s focus should not have been on whether the amended complaint as a whole reflected substantive changes but on whether the foreclosure count reflected substantive changes. The borrower had not appealed the judgment as to the two new counts alleged against him and the other three new counts involved only the bank and the new defendant. Since the original count was really the only count under review and that count didn’t substantially change, the trial court’s decision should have been affirmed.

Conversion

Wiederman v. Halpert – Plaintiff sued for breach of fiduciary, fraud, conversion, bad faith and CUTPA violations arising from real estate investments she made with the defendants. Trial court defaulted defendants for failure to attend a trial management conference and awarded plaintiff compensatory for all but the CUTPA count and punitive damages for the fraud count. The trial court also separately awarded plaintiff her attorney’s fees and costs. Defendants moved to open the judgment on the ground that plaintiff, as an LLC member, lacked standing to pursue the claims she asserted as an individual. The trial court denied the motion. Defendants appealed. The Appellate Court rejected the lack of standing claim because plaintiff had alleged injuries that were direct, not remote, indirect or derivative. Defendants also claimed that the trial court’s decision “is rife with errors, and those errors are so plain that they resulted in manifest injustice.” The Appellate Court concluded that the only plain error claims that had any traction related to the the award of damages for conversion against one defendant and the punitive damages award. As to conversion, the Appellate Court reversed the judgment as to that one defendant because the conversion count did not contain any allegations against her. The Appellate Court also reversed the punitive damages award because punitive damages for common law fraud are limited to attorney’s fees and the trial court had separately awarded attorney’s fees.

Employment

Heyward v. Judicial Branch – Trial court struck plaintiff’s hostile work environment and racial discrimination claims because the complaint did not allege sufficient facts to support them. Appellate Court affirmed. As to the hostile work environment claim, the Appellate Court found that the facts alleged “are not sufficiently severe or pervasive so as to alter the conditions of [plaintiff’s] employment and to create a hostile work environment.” In fact, plaintiff alleged only two instances of racial remarks and only one of those remarks was directed at plaintiff. As to the racial discrimination claim, the Appellate Court found that plaintiff did not allege any facts showing that she was subjected to an adverse employment action.

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.