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Appellate Court Advance Release Opinions

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 – January and February

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As mentioned in my last post, I got behind with the advance released opinions in the latter half of January and all of February. This post catches me up on the Connecticut Appellate Court advance released opinions. I didn’t review the criminal or habeas decisions, one termination of parental rights decision, and one special immigrant juvenile status case.

Appellate Court

Accidental Failure of Suit

Megos v. Ranta – Officially released February 6. For accidental failure of suit purposes, plaintiff “commenced” the prior action against a non-resident driver when plaintiff served process on the Commissioner of Motor Vehicles under CGS § 52-62.

Administrative Appeal

Fagan v. Stamford – Officially released January 30. The Policemen’s Pension Trust Fund Board properly denied plaintiff’s request for an enhanced disability pension pursuant to the collective bargaining agreement between the city and the police association.

Arbitration

Toland v. Toland – Officially released February 27. Parties submitted their divorce action to arbitration. Appellate Court rejected plaintiff’s claim that arbitrator’s alimony award and property division were legal conclusions warranting a searching scope of review and confirmed the arbitrator’s findings under the limited scope of review for an arbitrator’s factual determinations. Appellate Court also rejected plaintiff’s claims that arbitrator was evidently partial; manifestly disregarded the law; and abused his discretion in awarding defendant attorney’s fees.

Choice of Law

Doctor’s Associates, Inc. v. Searl – Officially released February 6. Under the agreement containing the arbitration clause, Connecticut law governs the terms of the agreement, but federal law governs the procedures used to enforce the arbitration clause.

Civil Procedure

General Linen Service Company, Inc. v. Cedar Park Inn and Whirlpool Suites – Officially released February 6. Unless a statute mandates joinder of a particular party, failure to join that party does not implicate subject matter jurisdiction.

ASPIC, LLC v. Poitier – Officially released February 13. Trial court granted plaintiff’s application for a prejudgment remedy where defendant had asserted a breach of fiduciary duty defense. Appellate Court reversed, concluding that since there was no dispute that plaintiff owed defendant a fiduciary duty, plaintiff had the burden of establishing probable cause to believe not only that plaintiff would be successful on its underlying claims but that plaintiff engaged in fair dealing as to the matters on which its claims are based.

Alaimo v. Alaimo – Officially released February 20. Appellate Court affirmed judgment for defendant in this breach of contract action because plaintiff’s claims on appeal exceeded the scope of his complaint and, even if they didn’t, plaintiff failed to present an adequate record for appellate review.

Brady v. Bickford – Officially released February 27. Because defendant’s statements were absolutely privileged, trial court lacked subject matter jurisdiction over plaintiff’s defamation claim. For the same reason, there were no statements within the limitations period for plaintiff’s intentional infliction of emotional distress claim that could serve as the basis for a continuing course of conduct to obviate the time-bar. Reversed and remanded with instruction to render a dismissal.

ARC Capital, LLC v. Asia Pacific Limited – Officially released March 6. Trial court dismissed this action to enforce a foreign judgment for lack of subject matter jurisdiction, finding that it could be enforced, if at all, only through Chapter 15 of the federal Bankruptcy Act. Appellate Court reversed, concluding that “the present action does not fall within any of the limited situations … in which chapter 15 would apply.”

Damages for Breach of Contract

United Amusements and Vending Company v. Sabia – Officially released February 6. Trial court incorrectly calculated damages.

Dental Malpractice

Doyle v. Aspen Dental of Southern CT, PC – Officially released January 30. Appellate Court affirmed dismissal of dental malpractice action because the opinion letter plaintiff attached to the complaint was from a general dentist, not an oral and maxillofacial surgeon, like defendant. It did not matter that there was no authentic public record showing that defendant had training as an oral and maxillofacial surgeon.

Family Law

Kimberly C v. Anthony C – Officially released February 27. Prior proceeding relating to plaintiff’s application for a restraining order did not collaterally estop defendant in dissolution proceeding because court could not say relevant issue was necessarily determined in prior proceeding.

Dinunzio v. Dinunzio – Officially released March 6. Reversed and remanded for a new trial because trial court should have treated defendant’s pension, which he had already started receiving when plaintiff commenced the action, as both a source of income and as property subject to equitable distribution.

Foreclosure

US Bank National Association v. Christophersen – Officially released January 30. The only significant thing here is that CGS § 49-15 does not preclude the trial court from converting a judgment of strict foreclosure rendered before a bankruptcy to a foreclosure by sale after discharge.

Stratek Plastics, Limited v. Ibar – Officially released February 20. Appellate Court affirmed trial court’s award of attorney’s fees to plaintiff in this action to foreclose a judgment lien. In rejecting defendant’s claims, Appellate Court concluded that the trial court had conducted a hearing on attorney’s fees as required by CGS § 52-249; and defendant waived any right to require plaintiff to present a statement of fees requested and description of services rendered.

Cliff’s Auto Body, Inc. v. Grenier – Officially released February 27. Trial court lacked subject matter jurisdiction to foreclose a judgment lien because the judgment on which the lien was based was not a final judgment.

Land Use

Lane v. Cashman – Officially released January 30. Property owners failed to exhaust administrative remedies regarding their claim of permitted nonconforming use by failing to appeal the order to discontinue the zoning board of appeals.

Personal Guaranty

Valley National Bank v. Private Transerve, LLC – Officially released January 30. Per curiam decision rejecting guarantor’s claims that plaintiff lacked standing to prosecute underlying foreclosures, trial court improperly granted plaintiff permission to amend complaint, and trial court made improper evidentiary rulings at hearing in damages.

Personal Injury

Rutter v. Janis – Officially released March 6. Under CGS § 14-60, car dealer can loan a license plate to an insured car buyer for thirty days without incurring financial responsibility for any car accident. The thirty day period begins the day after the day the loan is actually made. Said another way, the day loan is made is not included in calculating the thirty-day period. Calculated this way, accident occurred within thirty days of loan. Since dealer complied with all other statutory requirements, trial court properly granted dealer’s summary judgment motion.

Right to Privacy

Davidson v. Bridgeport – Officially released March 6. Police department did not violate officer’s right to privacy by ordering him to submit to a psychiatric exam because the exam was reasonable to department’s evaluation of officer’s fitness for duty and a reasonable person would not have been offended by submitting to the exam. As to officer’s emotional distress claims, requiring him to have the exam did not create an unreasonable risk of emotional distress that resulted in illness or bodily harm.

Worker’s Compensation

Frantzen v. Davenport Electric – Officially released February 27. Commission has subject matter jurisdiction to resolve disputes about attorney’s fees between attorneys who serially represented the same claimant and there is no right to a jury trial for such claims.

 

 

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 – January 11 – Part Two

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The Connecticut Appellate Court advance released an opinion about personal injury law that I review below. The Court also released two opinions about criminal law that I do not review.

FYI, in prior posts, I said “which I review below.” I started to think it should be “that I review below.” Strunk and White seems to confirm it, so I changed it.

This is Part Two of the post for January 11 advance releases. Part One is the immediately preceding post that deals with a Supreme Court opinion released the same day.

Personal Injury

Pettiford v. State – State van hit UPS driver when he was crossing the street to deliver a package. UPS driver claimed that State owed him a heightened duty because he was in or very near an unmarked crosswalk. Trial court found, and Appellate Court agreed, that by statute an unmarked crosswalk exists only where a sidewalk meets an intersection. Since there was no sidewalk, there was no unmarked crosswalk. Appellate Court also found that, even if there was an unmarked crosswalk, the trial court made no finding that the UPS driver was in or very near it when he got hit and other findings suggested he wasn’t. Appellate Court reversed, but only because the trial court had dismissed the action when it should have entered judgment for State.

Advance Release Opinions – January 5

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The Connecticut Appellate Court advance released opinions about administrative law, civil procedure and personal injury, which I review below. The Court also advance released opinions about criminal law and habeas corpus, which I do not review.

Administrative Law

Tirado v. Torrington – In 2010, Torrington added Tirado’s car to its 2004 grand list. Tirado claimed that was improper and sued for damages. Trial court dismissed for lack of subject matter jurisdiction because plaintiff failed to exhaust administrative remedies under CGS § 12-117a and failed to file her claim within one year of the assessment as required by CGS § 12-119. Appellate Court rejected the § 12-119 basis because that section applies when a town assesses property it doesn’t have the authority to assess, as in the case where the taxpayer doesn’t live in the taxing town. Since Tirado conceded that she was living in Torrington in 2004, she effectively conceded that Torrington had the authority to assess. But, as to the § 12-117a basis, Appellate Court affirmed because that section requires a plaintiff complaining about an assessment to exhaust administrative remedies with the board of assessment appeals before starting an action in Superior Court and Tirado didn’t do that.

Recycling, Inc. v. Commissioner of Energy & Environmental Protection – Commissioner denied application for a new permit and revoked an existing permit. Superior Court dismissed Recycling’s appeal. Appellate Court rejected Recycling’s claims that (i) Commissioner’s decision was arbitrary and capricious; (ii) Commissioner applied the wrong standard of review; (iii) improperly excluded relevant evidence; and (iv) “[C]ommissioner improperly engaged in ex parte communications with the town of Milford and then publicly issued an official statement which harshly criticized Plaintiff and in effect directed DEEP to rule against plaintiff.”

Civil Procedure

Estela v. Bristol Hospital, Inc. – Estela is a doctor who claimed that the hospital had improperly restricted his privileges and stole his patients. Trial court dismissed Estela’s first action for failure to comply with deadlines set in two court orders. Estela started a second action relying on the accidental failure of suit statute, CGS § 52-592(a). Hospital moved for summary judgment on statute of limitations grounds but not explicitly challenging the applicability of § 52-592(a). Then, before Estela objected to the summary judgment motion, Hospital filed a motion to bifurcate Estela’s claim that his action was not time-barred from his underlying claims. Trial court granted bifurcation and, after an evidentiary hearing on the timeliness issue, found that § 52-592(a) did not apply because the first action was dismissed for serious disciplinary reasons, not because of mistake, inadvertence or excusable neglect. Appellate Court rejected Estela’s claim that Hospital waived objection to accidental failure of suit by failing to raise it before the motion to bifurcate, noting that Supreme Court precedent confirmed that accidental failure of suit may be addressed through a motion to bifurcate. Appellate Court also rejected Estela’s claim that trial court applied the wrong standard – “mistake, accident or reasonable cause” instead of “mistake, inadvertence or excusable neglect” – in determining whether the first action was an accidental failure. Whatever the trial court said about the standard at the evidentiary hearing, it applied the proper standard in its memorandum of decision.

Personal Injury

Boykin v. State – Plaintiff, hit by a car while in crosswalk, claimed that the State was negligent in failing to install or repair a crosswalk button or otherwise provide a safe crosswalk. Trial court dismissed the action for lack of subject matter jurisdiction, finding that the notice of claim was patently defective and so did not invoke the waiver of sovereign immunity in CGS § 13a-144. Appellate Court reversed, concluding that “plaintiff’s notice was not patently defective, as it ‘both informed the defendant of the plaintiff’s intent to file a claim and furnished the defendant with a guide as to how to conduct further inquiries to protect its interests.'”

Advance Release Opinions – December 28

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The Connecticut Appellate Court advanced released an opinion about an easement by implication, which I review below. The Court also advance released an opinion about criminal law, for which I provide the syllabus but no review.

Easement by Implication

Deane v. Kahn – Picture three parcels in a row along the northern shore of the Connecticut River. Going from west to east, the first parcel is Gorman’s, the second is Kahn’s, and the third is Deane’s. The Kahn and Deane properties were once one property, separated by conveyance in 1960. A road runs along the northern border of the properties and provides access to each of the properties. Deane’s property, however, is bisected by a steep slope that effectively divides it into an upper portion and a lower portion. The lower portion is closest to the river. Because of the slope, Deane can’t really access the lower portion from the upper portion. Though to the west of the properties the road curves sharply to the south and east and runs along the river, it dead-ends at the southern portion of Gorman’s property near the river (it actually dead ends to the west of Gorman’s property but the case is easier to understand if you picture the road dead-ending at  Gorman’s property).  The trial court concluded that Dean had an implied right to access the lower portion of his property from the dead-end of this lower road by crossing the Gorman and Kahn properties. The Appellate Court affirmed, noting that an easement by implication typically arises where a conveyance separates what was once one piece of land “and at the time of the conveyance a permanent servitude exists as to one part of the property in favor of another which servitude is reasonably necessary for the fair enjoyment of the latter property.” It differs from an easement by necessity in the following ways: (i) easement by necessity requires a landlocked parcel, but easement by implication does not; and (ii) easement by necessity does not require an apparent preexisting servitude at the time of the conveyance, but an easement by implication does. The Appellate Court concluded that there was sufficient evidence supporting an easement by implication for Deane to access the lower portion of his property by crossing the Gorman and Kahn properties.

Criminal Law

State v. Grant – Syllabus:

“Convicted, after a jury trial, of the crimes of manslaughter in the first degree with a firearm and assault in the first degree in connection with an incident in which the defendant shot two witnesses at a restaurant, the defendant appealed. During the defendant’s trial, the court admitted into evidence a digital video recording of an interview of the defendant by the police following his arrest and a written statement in which the defendant had admitted to being the shooter and that he sold drugs to make money. The state also presented forensic evidence and testimony from various eyewitnesses, including V, who testified, inter alia, that he had personal knowledge that the defendant sold drugs and had possessed a firearm prior to the time of the shooting. Following V’s testimony, the trial court gave a limiting instruction to the jury regarding prior misconduct evidence. On the defendant’s appeal, held:
“1. The defendant could not prevail on his claim that the trial court abused its discretion in admitting V’s testimony and the portions of the defendant’s statements to the police that indicated that he was involved in the sale of drugs, as any alleged error in the admission of that evidence was harmless: the defendant failed to demonstrated that the admission of the subject evidence had a significant impact on the jury’s verdict, as the state’s case against the defendant was strong, the state having presented an abundance of independent evidence that substantiated the jury’s verdict, including eyewitness testimony identifying the defendant as the shooter, forensic evidence indicating that a firearm recovered near the restaurant fired the bullets that were recovered from the victims’ bodies, documentary and testimonial evidence that the defendant’s DNA was present on that firearm and the written and recorded statements made by the defendant, in which he admitted his involvement in the shooting and the manner in which it transpired; moreover, the evidence that the defendant sold drugs was not a prominent part of the state’s case or more egregious in nature than the evidence related to the shooting incident, the record was barren of any evidence that contradicted V’s testimony and the court provided the jury with a limiting instruction regarding prior misconduct evidence immediately following V’s testimony.
“2. The defendant’s claim that the trial court abused its discretion in permitting the state to elicit testimony from V that he had observed the defendant carrying a firearm on a prior occasion was unavailing, as any alleged error in the admission of V’s statement was harmless; in light of the various factors discussed in this court’s analysis of the defendant’s first claim, this court was left with a fair assurance that the admission of V’s statement did not substantially affect the jury’s verdict.”

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 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 8

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Connecticut Appellate Court

The Appellate Court advance released opinions about administrative law, employment law, personal injury (three opinions) and trusts and estates, which I review below. The Appellate Court also released opinions about criminal law (three opinions) and habeas corpus, which I do not review.

Administrative Law

Lawrence v. Dept of Energy & Environmental – Superior Court dismissed the appeal because plaintiff was not classically or statutorily aggrieved by commissioner’s decision granting an application to construct a residential dock and pier, except as to his claim for visual degradation but the record supported the commissioner’s decision in that regard. Appellate Court affirmed by adopting Superior Court’s decision.

Employment Law

Horvath v. Hartford – Trial court granted city summary judgment on former assistant police chief’s claim of constructive discharge. Appellate Court affirmed, finding that the alleged adverse conditions even taken collectively “were not so objectively intolerable that a reasonable person would have felt compelled to resign.”

Personal Injury

Cuozzo v. Orange – Trial court granted municipal defendants summary judgment because there was no issue of fact that the pothole that allegedly caused the injuries was not on their property. Appellate Court affirmed.

Cusano v. Lajoie – Jury awarded medical expenses but nothing for non-economic damages. Trial court granted motion for additur because it was inconsistent to award substantial medical expenses but deny pain and suffering. Appellate Court reversed because (i) the trial court failed to “state the specific facts relied upon … to justify its decision to award the extraordinary relief of additur”; and (ii) there was “conflicting evidence and credibility issues concerning the extent, if any, of the plaintiff’s pain and suffering.”

Tara S v. Charles J – Father was prosecuted sexually abusing his daughter, who was four years old at the time. Daughter, now 36, started this action against father to recover for personal injuries resulting from the sexual abuse. Father moved to dismiss, arguing that CGS § 52-577d, which extends the limitations period for claims by those sexually abused as minors to 30 years after majority, was unconstitutional as applied to him because (i) legislative history shows extension is constitutional only for repressed memories and daughter did not have any; (ii) violated his rights to a speedy trial and confrontation, and his protection against double jeopardy (he argued this civil action was quasi-criminal); and (iii) and statute is unconstitutionally overbroad and unconstitutionally infringes on a property interest. Appellate Court affirmed, finding (i) statute clearly and unambiguously not limited to repressed memories so no basis for considering legislative history; (ii) the action is purely civil, not quasi-criminal; and (iii) statute isn’t overbroad because it doesn’t prohibit any constitutionally protected conduct and doesn’t impact any property right.

Trusts and Estates

Geci v. Boor – There was no confidential relationship between father and daughter that would have shifted burden of proof to daughter on issue of ownership of joint bank accounts; there were no facts suggesting that father intended anything other than leaving the joint accounts to daughter alone; trial court was free to conclude that daughter did not conceal survivorship aspect of accounts from father or his attorney; and daughter did not undervalue assets such that she should be removed as executrix.

 

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.