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Advance Release Opinions - Review and Analysis

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Appellate Court Advance Release Opinions

Advance Release Opinions – May 18

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Review of an advance release opinion about breach of a real-estate brokerage contract.

Breach of Contract

Reyher v. Finkeldey – In this dispute over a real-estate brokerage commission,  seller had rejected buyer’s counteroffer, which included financing and inspection contingencies, and buyer testified that it was not ready, willing, or able to close unless those contingencies were fulfilled. In a rare per curiam reversal, the Appellate Court found that the trial court wrongly determined that the broker had obtained a buyer ready, willing, and able to buy seller’s property.

Advance Release Opinions – May 11 – Appellate Court

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Reviews of Connecticut Appellate Court advance release opinions about child support, civil procedure, divorce, insurance, medical malpractice, and underinsured motorist benefits.

Child Support

Asia A. M. v. Geoffrey M. – This is one that I normally would not review, but I found it interesting. Geoffrey executed a written acknowledgment of paternity under CGS § 46b-172(a)(1). More than two years later, state filed a petition for support against Geoffrey in Asia’s name. Geoffrey then moved to open the paternity acknowledgment under § 46b-172(a)(2) for fraud, mistake of act, and duress, claiming essentially that he signed it only because Asia had lied to him that he was the father; a DNA test proved that he was not the biological father; and it was in the child’s best interests to establish the biological father. Family support magistrate concluded that Geoffrey failed to establish any of the statutory bases for opening the acknowledgment – fraud, mistake, or duress – because the evidence showed that he knew that he was not the biological father when he signed it. But, magistrate nonetheless opened the judgment, concluding that magistrates have the inherent authority to open judgments in the child’s best interests. Trial court affirmed on the state’s appeal. Appellate Court reversed because (1) the statutory grounds are the only grounds for opening a judgment deriving from a § 46b-172(a)(1) paternity acknowledgment; and, redundantly in my view, (2) magistrate did not have authority to open the acknowledgment in the best interests of the child. Judge Keller concurred to suggest amending the paternity acknowledgment statute to require DNA testing before an acknowledgment could be accepted.

Battistotti v. Suzanne A. – Trial court awarded Suzanne sole custody; gave Battistotti, a New York resident, parenting time that had to be spent in Greenwich; and ordered Battistotti to pay child support in the amount suggested by the guidelines. On appeal, Battistotti claimed that the trial court should have deviated from the support guidelines to account for his additional expenses in maintaining a Greenwich apartment to comply with the visitation order. Appellate Court agreed, and remanded for a new hearing on child support. Battistotti also claimed that the trial court abused its discretion in restricting his parenting time to Greenwich. Appellate Court disagreed, and affirmed on that point.

Civil Procedure

Plainville v. Almost Home Animal Rescue and Shelter, Inc. – Town seized animals from defendant under a criminal search and seizure warrant and tried recover its animal care expenses from defendant under negligence per se and unjust enrichment theories. Trial court granted defendant’s motion to strike both counts. Appellate Court affirmed, finding that (1) Town was not an intended beneficiary of CGS § 53-247 so that statute was not a basis for Town’s negligence per se claim; (2) CGS § 22-329a provided Town with an adequate remedy for recouping its animal care costs so it could not recover in unjust enrichment; and (3) trial court did not apply an improper standard in deciding the motion to strike.

Divorce

Thomasi v. Thomasi – Wife and husband had separate appeals. In wife’s appeal, parties could not agree on the QDRO giving wife half of the “marital portion” of husband’s pension because they could not agree on the method of calculation. Even though both methods were acceptable, and the dissolution agreement did not specify which one to use, trial court found the agreement unambiguous, and accepted the coverture method favored by husband, instead of the subtraction method favored by wife. Appellate Court found that although “marital portion” was not a patent ambiguity since everyone understood generally what it meant, it was a latent ambiguity since there are multiple ways to calculate it. In other words, just because everyone agreed that the cat was to be skinned, didn’t mean that they agreed on how to skin it. The latent ambiguity required reversal

In husband’s appeal, trial court found that husband’s job loss was his own fault and denied his motion to reduce alimony. Appellate Court reversed on that point, finding that the record did not support the trial court’s conclusion. But Appellate Court affirmed trial court’s determination that husband’s obligation to pay pension benefits to wife started on the date of dissolution, and was not delayed by the delay in determining the marital-portion calculation method.

Insurance

General Ins. Co. of America v. Okeke – Some cases break your heart not because of the court’s ruling, but because of the facts that led the parties to litigation. This is one of those cases. Fifteen year old Michael allegedly assaulted, stabbed, and beat an elderly woman, in her home. The woman sued Michael and his mother, Agatha, in separate actions. Agatha’s homeowner’s insurer initially appeared for Michael, but then withdrew his appearance. It appeared for Agatha under a reservation of rights. Michael was defaulted for failure to appear. After a hearing in damages, the court awarded the woman more than $407,000 in Michael’s case. While the woman’s actions were pending, Agatha’s homeowner’s insurer brought this declaratory judgment action seeking a decree that it has no duty to defend or indemnify Michael or Agatha. Trial court granted the insurer’s motion for summary judgment, and decreed that it had no duty to defend or indemnify either defendant. Appellate Court affirmed in a per curiam opinion adopting the trial court’s memorandum of decision.

Medical Malpractice

Ugalde v. Saint Mary’s Hospital, Inc. – Appellate Court found that trial court (1) properly dismissed claim for lack of personal jurisdiction because opinion letter was deficient for want of doctor’s qualifications and plaintiff could not amend it because statute of limitations had expired; and (2) properly denied plaintiff’s motion to re-argue the denial of her motion to set aside the nonsuit that entered for her failure to comply with discovery.

Underinsured Motorist Benefits

Puente v. Progressive Northwestern Ins. Co. – Puente had an LLC, and the LLC had an auto insurance policy. Puente was hit after exiting the LLC’s truck. Trial court granted insurer summary judgment, finding that there was no dispute that Puente was not a named insured, and that he was not “occupying” the truck when he was hit because he wasn’t in physical contact with it. Appellate Court affirmed.

Advance Release Opinions – May 4

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Reviews of the Connecticut Appellate Court’s advance release opinions about divorce and personal injury.

Divorce

Murphy v. Murphy – Judgment says alimony terminates on cohabitation. Defendant cohabited with boyfriend. Trial court denied plaintiff’s motion to terminate alimony because there was no evidence under CGS § 46b-86(b) that boyfriend’s contributions to defendant’s support altered her financial needs. Appellate Court reversed, finding that the proper question is how much the cohabiting saved defendant financially, not how much the boyfriend was contributing. The evidence was that defendant’s move into boyfriend’s house cut her financial needs in half, regardless of boyfriend’s contributions to her support. That was all that was necessary to terminate alimony. The dissent asserts that the majority decision implicitly overturns precedent and is contrary to the legislative intent of § 46b-86(b).

Personal Injury

Micalizzi v. Stewart – Jury awarded economic damages, but not noneconomic damages. Trial court denied plaintiff’s motion to set aside the verdict or for additur. Appellate Court affirmed, finding: (1) Jury’s interrogatory response that defendant was a proximate cause of “the injuries sustained by the plaintiff” was not necessarily inconsistent with awarding zero noneconomic damages because the jury could have determined that plaintiff was injured, but failed to prove noneconomic damages; (2) Jury’s award of economic damages does not require, as a matter of law, an automatic award of noneconomic damages; (3) On this record, jury could reasonably have concluded that plaintiff’s noneconomic damages were not compensable; and (4) trial court did not create any procedural irregularity constituting an abuse of discretion.

Advance Release Opinions – April 27

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Reviews of the Appellate Court’s advance release opinions about deed restrictions, divorce, foreclosure, and governmental immunity and procedure.

Deed Restrictions

Jepsen v. Camassar – Long, fact-specific opinion about modifying restrictions in a deed conveying beach rights to all of the property owners in a subdivision. Trial court ruled that modification was valid. Appellate Court reversed and remanded with direction to render judgment declaring modification invalid, finding that: (1) association failed to give notice of the vote on the modification to all who were entitled to notice; and (2) the modifications were not approved by a majority of property owners as the deed required.

Divorce

Steller v. Steller – In modifying alimony, trial court properly determined that defendant’s earning capacity could be less than his current income because earning capacity is what defendant can be expected to earn in the future, not what he earns now. But, Appellate Court reversed because the evidence did not support the trial court’s determination of the amount of defendant’s earning capacity.

Foreclosure

Wells Fargo Bank, N.A. v. Melahn – Per curiam opinion. Trial court struck borrower’s counterclaims and special defenses and then granted bank’s motion for judgment on the counterclaims. Appellate Court dismissed the appeal as to the special defenses for lack of a final judgment, and affirmed the striking of the counterclaims, finding that trial court did not abuse its discretion in concluding that they were either legally insufficient or did not meet the transaction test. Appellate Court also affirmed the judgment on the counterclaim because borrower’s attempt to replead merely added conclusory statements to some of the counterclaims, and those additions did not correct the legal insufficiency.

Governmental Immunity and Procedure

Carter v. Watson – Governmental immunity barred inmate’s claims for money damages against Attorney General and four state employees, sued in their official capacities for failing to timely restore inmate to his proper status after an overturned drug test. Inmate’s claim for declaratory relief arising from the same incident was properly dismissed as moot since it did not fall within the mootness exception for matters capable of repetition, yet evading review.

Advance Release Opinions – April 20

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Reviews of Connecticut Appellate Court advance release opinions about civil procedure, divorce, mortgage foreclosure, and professional negligence.

Civil Procedure

Anderson v. Ocean State Job Lot -Trial court dismissed because plaintiff failed to appear for a court-ordered deposition. Plaintiff moved to open, saying that he missed the deposition because he was incarcerated. Trial court denied the motion. On appeal, plaintiff claimed that defendant obtained the dismissal by fraud. Appellate Court affirmed because plaintiff did not raise his fraud claim before the trial court, and because he did not verify his motion to open by oath as CGS § 52-212 requires.

Bridgeport v. Grace Building, LLC – Tenant’s lawyer withdraw and trial court continued the trial so tenant could get a new one. Tenant had a new lawyer lined up, but the day before trial, the new lawyer said he would not appear for tenant. Trial court defaulted tenant for failure to appear for trial. Tenant moved to open the default, saying that the debacle with new lawyer was reasonable cause and there were good defenses, as reflected in his already-filed answer and special defenses. Trial court denied the motion. After tenant appealed, trial court granted landlord’s motion to terminate appellate stay, and landlord took possession. Appellate Court found that turnover of possession did not moot appeal since lease was for 98 years, meaning that court could restore property to tenant. Appellate Court also found that denying motion to open was an abuse of discretion. Tenant’s answer included meritorious defenses; delays in the action were at landlord’s door, not tenant’s; and tenant’s new lawyer sandbagged him the day before trial.

Packard v. Packard – Appellate Court declined to review this appeal in a divorce case because “[t]he defendant, in her lengthy and detailed brief, present[ed] no legal analysis and cite[d] virtually no case law.”

Divorce

Hirschfeld v. Machinist – Latest installment of what seems to be a never-ending divorce. In this installment, Appellate Court rejected all four of plaintiff’s contentions and affirmed. First, plaintiff claimed that defendant was in contempt for underpaying her for certain investments that were supposed to have been divided. Appellate Court found defendant could not be in contempt because there was no order to pay plaintiff any share of the investments. That’s just what defendant did in good faith after he learned that an in kind division was impossible. Second, plaintiff claimed that defendant was in contempt for underpaying alimony in the first year of the divorce because of a questionable interpretation of the effect of an income tax issue. Appellate Court found that although defendant’s interpretation did not have a reasonable basis, he made it in good faith and it was not frivolous. Third, plaintiff claimed that defendant was in contempt for violating a minimum alimony provision and that the trial court had improperly accepted parole evidence on the meaning of that provision. Appellate Court found that the provision could not be reasonably interpreted any other way. Fourth, plaintiff claimed she was entitled to her attorney’s fees in bringing the other three matters to the trial court’s attention. Appellate Court found that she was not entitled to attorney’s fees because the trial court properly declined to hold defendant in contempt.

Schimenti v. Schimenti – Parties agreed to amend original judgment by requiring defendant to pay 50% of plaintiff’s initiation fee for a country club golf membership. Defendant did not pay, and by way of excuse wanted to offer evidence about the parties’ intent for the provision. Trial court declined that request, and ordered defendant to pay as agreed. Certain of the trial court’s comments in doing so suggested a personal bias based on her own experiences with country club golf memberships. Relying on the plain error doctrine, defendant appealed. Appellate Court reversed, finding that it would be a manifest injustice to defendant to do anything else.

Mortgage Foreclosure

Aurora Loan Services, LLC v. Condron – My case. Under most residential mortgages, notice of default is given when mailed by first class mail or when actually delivered if sent by any other means. Bank sent default notice by certified mail, but failed to prove actual delivery. Trial court ruled that actual delivery was not required because certified mail was the same thing as first class mail, and certified mail substantially complied with the notice provision in any event. Appellate Court reversed, finding that certified mail requires actual delivery, and substantial compliance does not apply where there is no notice, as opposed to a technically deficient notice.

Professional Negligence

Windsor v. Loureiro Engineering Associates – Seven year statute of limitations of CGS § 52-584a barred plaintiff’s claim against architects and engineers for allegedly negligently preparing a Comparable-to-New report that plaintiff used to obtain state funding for a school renovation project.

 

Advance Release Opinions – April 13

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Reviews of Connecticut Appellate Court advance release opinions about administrative law, breach of contract, business dissolution, civil procedure, eviction, mortgage foreclosure, personal injury, and worker’s compensation.

Administrative Law

Berka v. Middletown – Trial court found that it lacked subject matter jurisdiction over Berka’s appeal of notice of violations issued by city’s department of health because Berka named only city, and not department of health, as the defendant. Appellate Court concluded that failure to name department of health did not deprive court of subject matter jurisdiction, but affirmed because his failure to serve department did.

Breach of Contract

Randazzo v. Sakon – Parties resolved blow up over development of shopping center with global settlement that had several inter-related pieces, including an easement from plaintiff to defendant. Though everyone signed the global agreement, defendant never signed the easement itself. Every year after that, in accordance with the easement, plaintiff sent defendant a bill for the taxes on the easement portion of the property. And every year defendant refused to pay. Plaintiff sued. Case was tried to an attorney trial referee. Trial court accepted referee’s recommendation to enter judgment for plaintiff. Appellate Court affirmed, finding that (1) plaintiff’s claim was for breach of contract, not indemnification, and thus had a 6-year, not a 3-year, statute of limitations; (2) statute of frauds did not apply to the easement because defendant had accepted the conveyance, and the global settlement validated the easement in any event; and (3) holding defendant responsible for the part of the taxes that he voluntarily agreed to pay was merely holding defendant to his agreement, and was not (a) an impermissible, separate tax on the property subject to the easement; (b) an impermissible double tax on top of the additional tax he had to pay because the easement increased the value of his property; or (c) something to be shared by another tenant who also used the easement but had not agreed to pay any portion of the taxes.

Business Dissolution

Chioffi v. Martin – Law firm disintegrated. Trial court found that Martin breached two sections of the partnership agreement by taking out too much money during the windup and awarded Chioffi damages and attorney’s fees. Trial court denied Chioffi’s claims for breach of fiduciary duty and an accounting. Both parties appealed. Appellate Court found that Martin did breach one section of the partnership agreement, but it was not the section that would give Chioffi attorney’s fees. Appellate Court also found that (1) Martin breached a fiduciary duty, which can give rise to attorney’s fees because it is a tort; (2) either Chioffi had waived his claim to an accounting, or trial court did not abuse discretion in denying Chioffi’s claim for one; and (3) trial court did not miscalculate Chioffi’s damages. Remanded to trial court to determine whether to award Chioffi attorney’s fees for Martin’s breach of fiduciary duty, and if so, how much.

Civil Procedure

McMahon v. Middletown – In this municipal employment case, trial court denied former deputy police chief’s request to ask leading questions on his direct examination of current and former city officials. On appeal, McMahon claimed that he had an absolute right under CGS § 52-178 to lead these witnesses. Appellate Court declined to review the claim, and affirmed, finding that McMahon had failed to preserve the issue for appeal because he did not distinctly raise the statute, or the absolute right he claimed it conferred, before the trial court.

Eviction

Altama, LLC v. Napoli Motors, Inc. – Commercial tenant claimed that summary process complaint did not allege that lease had terminated by lapse of time, and that it had timely exercised its right to renew. Trial court found for landlord. Appellate Court affirmed.

Mortgage Foreclosure

GMAC Mortgage, LLC v. Demelis – Appellate Court affirmed judgment of foreclosure by sale, finding that trial court did not abuse its discretion in refusing dismissal: (1) for failure to comply with conditional order for dismissal for failure to prosecute; or (2) for failure to prosecute despite a delay of more than two years. Appellate Court declined to review borrower’s claim that trial court abused its discretion in denying motion for articulation, reconsideration and/or reargument, because borrower did not file a motion for review of that denial, which was her only remedy.

Personal Injury

Osborn v. Waterbury – Fifth grader was assaulted at recess by other students. Trial court found for plaintiff, concluding that ‘‘one . . . student intern and three . . . or four . . . staff members were not sufficient to exercise proper control over perhaps as many as . . . (400) students.’’ Appellate Court reversed with direction to render judgment for defendants because the number of staff necessary for proper control required expert testimony and plaintiff failed to offer any.

Worker’s Compensation

Desmond v. Yale-New Haven Hospital, Inc. – Interesting procedural issue for starters. Trial court granted defendant’s motion to strike because plaintiff’s claims were barred by the worker’s compensation exclusivity provision. Plaintiff filed a substitute complaint. Defendant requested revisions seeking deletion of all of the allegations of the substitute complaint as not materially different from the complaint that was struck, and did not cure its deficiencies. Trial court overruled plaintiff’s objections and dismissed the action. Appellate Court noted that, by filing the amended complaint, plaintiff waived the right to appeal the issue whether the original complaint was properly struck. Instead, all plaintiff could appeal was whether the amended complaint was materially different from the original complaint and cured its deficiencies. Appellate Court declined to review that issue because plaintiff had inadequately briefed it. But, Appellate Court did reverse the trial court’s ruling denying plaintiff’s request for leave to amend her substitute complaint to add a retaliatory discrimination claim, finding that the trial court based its denial on the wrong proposed amended substitute complaint.

 

Advance Release Opinions – April 6

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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.

Advance Release Opinions – March 29

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Review of the Connecticut Appellate Court’s advance release opinion about employment, which also touches on procedure.

Employment/Procedure

Sempey v. Stamford Hospital – CHRO gave Sempey a right to sue Hospital for discrimination within 90 days. Sempey timely started a three-count lawsuit, but none of the none of the counts was expressly for discrimination. Trial court granted Hospital’s motion to strike all three counts. Sempey repleaded a three-count complaint, but this time one of the counts was for discrimination.  Hospital filed a motion to strike all three counts, and a motion to dismiss for lack of subject matter jurisdiction directed at only the discrimination count. Before Sempey’s time to file another substitute complaint had expired, trial court dismissed not only the discrimination count, but the other two counts as well. Appellate Court affirmed as to the discrimination count, finding that (1) since the motion to dismiss was subject matter jurisdictional, trial court was correct to decide it before Sempey’s time to substitute complaint expired; (2) Sempey had asserted her discrimination claim outside the 90 day window of her right-to-sue letter, and made no claim that a tolling doctrine applied; and (3) relation back doctrine did not apply since Sempey’s original complaint did not put Hospital on notice of a discrimination claim. But, Appellate Court reversed as to the other two counts because (1) Hospital directed its motion to dismiss solely at the discrimination count; and (2) Hospital did not show, and trial court did not find, that repleading could not cure any deficiencies in the two counts.

Advance Release Opinions – March 23

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Reviews of Connecticut Appellate Court’s advance release opinions about administrative law, civil procedure, contracts, deed restriction, governmental immunity, visitation, and worker’s compensation. I do not review the Court’s advance release opinions about criminal law and habeas corpus. I also do not review the Court’s per curiam decision affirming summary judgment for defendant in a spoliation of evidence and CUTPA case because there isn’t anything in the opinion to review (if you want to see for yourself, the case is Traylor v. Gambrell).

Administrative Law

Metropolitan District v. Commission on Human Rights and Opportunities – District is a municipal entity the legislature created in 1929 for water supply, waste management and regional planning. Commission is a state agency charged with enforcing statutes barring discrimination. District sought a declaratory judgment, injunction and writ of mandamus on allegations that Commission engaged in improper rulemaking and violated District’s due process rights regarding District’s alleged discriminatory hiring practices at issue in five proceedings before Commission. Trial court dismissed the action for lack of subject matter jurisdiction for failure to exhaust administrative remedies. Appellate Court affirmed, finding that District could not yet pursue declaratory relief in Superior Court because it had to first seek that relief before Commission under CGS § 4-176, and it could not yet seek that relief before Commission because three of the five discriminatory hiring claims were still pending before Commission. Appellate Court also confirmed that the exhaustion requirement applied even when challenging Commission’s jurisdiction; the exception for futility or inadequacy of administrative remedy did not apply since there was no showing of futility or inadequacy; and the exception for due process claims under 42 USC 1983 did not apply because lack of an adequate legal remedy remains a condition to injunctive relief even when claim is made under that statute.

Civil Procedure

Ryan v. Cassella – Plaintiff brought collection action against “Paul Cascella dba CIA Integrated Marketing Systems” and trial court entered a judgment for plaintiff on defendant’s failure to appear. In attempting to examine the judgment debtor, plaintiff learned that, though the marshal had served defendant at the correct address, defendant’s name was actually Cassella, with a second “s” instead of a second “c”, and that his company’s name was actually Integrated Marketing Systems, Inc., with an “Inc.” and without “CIA.” Trial court granted plaintiff’s motion to correct the names. After the trial court’s articulations, Appellate Court affirmed, finding that (1) judgment was against Cassella individually, not against his company, so that correcting the company name did not add a new party; (2) CGS § 52-123 gave the trial court the authority to correct the misspellings because correcting names did not substitute a new party and neither party was prejudiced; (3) the four month limit for opening judgments did not preclude the trial court from correcting the misspellings; (4) trial court did not abuse its discretion in denying defendant’s motion to open and vacate the trial court’s decision on the motion to correct.

Contracts

Micek-Holt v. Papageorge – Lease-to-buy contract blew up for landlord-seller when tenant-buyer failed to close – in 2011 – but remained in the property without paying anything. Trial court ordering a closing on certain terms, and failing that, judgment to enter for plaintiff extinguishing defendant’s property interest, quieting title in plaintiff, and requiring defendant to pay $150/day use and occupancy. Appellate Court affirmed in a per curiam decision essentially adopting the trial court’s reasoning.

Deed Restriction

Bueno v. Firgeleski – A 1941 deed included a restrictive covenant limiting construction on the property to one house, within specified setbacks, and only if approved by grantor or his successors. Plaintiffs acquired the land in 2008, intending to subdivide into two lots – one for their own home and one for development. The deed into plaintiffs contains the restriction. Trial court declared the restrictions unenforceable because (1) its purpose had been frustrated by a permanent and substantial change in circumstances; (2) it had been abandoned by lack of enforcement; and (3) it benefits no land. Appellate Court affirmed, rejecting defendants’ claims that (1) the evidence did not support certain of the trial court’s factual findings; and (2) the trial court improperly went beyond the four corners of the deeds in interpreting them and misapplied the substantial change of circumstances test.

Governmental Immunity

McCarroll v. East Haven – Child fell from the ladder of a playscape at kindergarten allegedly because of a missing or loose bolt securing one of the rungs. Trial court granted defendant summary judgment, finding that the identifiable victim-imminent harm exception to governmental immunity did not apply because although the child was in identifiable class of victims, the harm was not imminent absent evidence that the missing or loose bolt was apparent to East Haven. Appellate Court affirmed, noting that “[w]hether the bolt was missing or loose, the plaintiffs failed to demonstrate that the probability of the child being injured was so high that the defendant had a clear and unequivocal duty to act to prevent harm.”

Visitation

Nassra v. Nassra – Supervised-visitation provider started collection action in small claims court to recover unpaid fees. Small claims court found that it lacked jurisdiction and dismissed the action. Service provider then filed an appearance in the dissolution action and moved for an order of payment, which the trial court granted. Appellate Court affirmed, finding that (1) service provider had standing because service provider had an oral contract with defendant and was injured when defendant did not pay; (2) six-year statute of limitations applied to the oral contract because the three-year statute applies only to executory oral contracts (neither party has fully performed and this oral contract was executed (service provider fully performed); and (3) trial court acted within its discretion in ordering defendant to pay service provider.

Worker’s Compensation

Binkowski v. Board of Education – Students assaulted Teacher and injured her. Teacher sued Board, alleging that Board acted “willfully and maliciously,” and intentionally inflicted emotional distress, by instituting a policy that led to the assault because it denied assistance to teachers confronted by violent and disruptive students. Trial court struck the complaint because it did not allege conduct to bring the action within an exception to worker’s compensation exclusivity. Appellate Court affirmed, finding that the complaint failed to allege conduct to bring her claim into the intentional tort exception under either the actual intent standard or the substantial certainty standard.

Advance Release Opinions – March 16

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The Appellate Court advance released opinions about a probate appeal and worker’s compensation, which I review below.  The court also released two criminal law opinions, which I do not review.

Probate

Bassford v. Bassford – Nothing to see here. Plaintiff lost his probate court claims that the decedent lacked testamentary capacity, was unduly influenced, could not revoke his trust, and lacked capacity to accept a deed. Plaintiff appealed to Superior Court, which found for defendants on all issues. Plaintiff appealed to the Appellate Court, which affirmed by adopting Superior Court’s decision.

Worker’s Compensation

Melendez v. Fresh Start General Remodeling and Contracting, LLC – Claimant, who had been paid for various jobs at the individual respondent’s home over 11 weeks, was hurt in a car accident on his way to the home. Claimant brought claims against the business and the individual respondent. Appellate Court affirmed the commission’s benefit award, concluding that the commissioner properly determined that claimant was the individual respondent’s employee and did not deny the individual respondent due process in holding him personally liable.