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Advance Release Opinions - Review and Analysis

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Appellate Court Advance Release Opinions

Advance Release Opinions – November 24

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Connecticut Appellate Court

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

Breach of Contract

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

Foreclosure

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 Ford claimed that under Jesinoski the foreclosure action could not proceed because he had rescinded the loan by mailing a notice within the three year period.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

Advance Release Opinions – November 17

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Connecticut Appellate Court

The Appellate Court advance released opinions involving collections (attorney’s fees) and sanctions, which I review below. It also released opinions involving summary process (housing authority as landlord), criminal prosecution (2 opinions), habeas corpus, and termination of parental rights (2 opinions), which I do not review.

Beck and Beck, LLC v. Costello – Nothing to see here folks. Law firm sued for its fee. Defendant counterclaimed. Trial court struck counterclaims. Defendant appealed. While that appeal was pending, defendant filed for bankruptcy but did not list the counterclaims as contingent or unliquidated claims. Bankruptcy trustee issued a report of no distribution and bankruptcy case was closed. Appellate Court reversed the striking of the counterclaims. On remand, the trial court granted law firm’s motion to dismiss the counterclaims for lack of standing because the bankruptcy trustee had not abandoned the counterclaims. Appellate Court affirmed, finding that the trustee’s report of no distribution was not an abandonment because defendant had not listed the counterclaims as assets.

Picard v. The Guilford House, LLC – Not much to see here either. Plaintiff’s former attorney brought a writ of error challenging the trial court’s imposition of financial sanctions for former attorney’s misconduct while conducting an out-of-state deposition in the underlying matter. Trial court granted underlying defendants’ application for sanctions against former attorney in the form of the attorney’s fees defendants incurred in dealing with former attorney’s misconduct. Trial court also referred the matter to the statewide grievance committee who reprimanded former attorney.  Appellate Court affirmed, concluding that grievance was not res judicata of the sanctions because grievance committee and underlying defendants were not in privity and because trial court awarded sanctions before grievance committee issued reprimand. Appellate Court also concluded that the amount of the sanction – some $60,000 – was not an abuse of discretion.

 

Advance Release Opinions – November 9

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Connecticut Appellate Court

The Appellate Court advance released one opinion and it was in the area of foreclosure.

Foreclosure

Sovereign Bank v. Licata – Sometimes you read an opinion and you wonder how the case could ever get to where it is. This is one of those. But on reflection you can kind of understand it. The important events are 10 years old, a lot of different lawyers and judges involved over time, no formal orders for some things – you get the idea. Here’s what happened: Bank sought foreclosure and defendant counterclaimed. Foreclosure was tried to the court and the counterclaim was tried to a jury. Court found for bank on the foreclosure claim and orally set law days to commence on February 6, 2007. Jury found for defendant on counterclaim and awarded damages. There was some post-judgment wrangling about the counterclaim judgment. The bank appealed the counterclaim judgment and the defendant cross-appealed the decision on one of the post-judgment motions about the counterclaim judgment. This is where it all broke down. Even though the appeals related only to the counterclaim, everyone – lawyers and judges alike – assumed that the appellate stay had gone into effect as to the foreclosure judgment such that the law days never passed. Though the trial court purported to terminate that stay, no new law days were ever set. Years later – in 2016 – defendant was still living in the house and started groaning that the bank was acting like it owned the joint (trying to sell it) even though no law day had ever passed. That led to motion practice, which led to another appeal. The Appellate Court’s opinion is thorough, detailed and acknowledges that the confusion about the whole thing was justified. But the inescapable conclusion is this: Because no one appealed the foreclosure judgment, the law days passed in February 2007 and the bank has owned the house ever since. Huh, who knew?

Advance Release Opinions – November 3

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Connecticut Appellate Court

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

Breach of Contract

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

Declaratory Judgment

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

Employment

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

Personal Injury

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

Zoning

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

Advance Release Opinions – October 27

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Connecticut Appellate Court

The Appellate Court advance released opinions in the areas of family law, foreclosure and sanctions.

Family Law

Bruno v. Bruno – Quite a saga. Three rulings. First, since the Appellate Court had earlier reversed trial court orders reducing alimony and setting a valuation date for a financial account, trial court did not exceed its authority on remand by eliminating the interest originally awarded based on the orders the Appellate Court had reversed. Second, the trial court did not make a mistake in determining the start dates or the rate for the new postjudgment interest awards. Third, trial court properly held defendant in contempt because the violated order was clear and unambiguous.

Garvey v. Valencis – The statute providing for an emergency ex parte custody order – CGS § 46b-56f – does not require the court to allow the respondent to be heard prior to ordering emergency relief. Nor does the statute require the court, having ordered emergency ex parte relief, to complete a hearing within 14 days; the statute just requires that a hearing be scheduled, not completed, within 14 days.  Even though the hearing was not complete until some 112 days later, the original ex parte order did not expire after 30 days under Practice Book § 4-5 because following each day of the hearing the trial court found good cause for the ex parte order to remain in place.

Ray v. Ray – Contrary to plaintiff’s claim, the record shows that the trial court did find defendant’s net salary in making a child support determination and properly awarded the presumptive minimum support.

Spencer v. Spencer – Agreement that alimony terminated on “cohabitation” did not require defendant to prove that the cohabitation was romantic or sexual. Unclean hands is not a recognized basis for declining to terminate alimony based on cohabitation and, even if it were, defendant did not have unclean hands.

Foreclosure

U.S. Bank National Association, Trustee v. Blowers – Because the parties never reached a binding mortgage modification, the trial court properly struck counterclaims and special defenses based on conduct occurring during modification negotiations and foreclosure mediation as not having a sufficient nexus with, or relating to, the making, validity, or enforcement of the note or mortgage. In his dissent, Judge Prescott explained that he thought the trial court too narrowly construed and applied the making, validity, or enforcement test and failed to construe the counterclaims and special defenses in a light most favorable to upholding their legal sufficiency.

Sanctions

Emerick v. Glastonbury – Trial court properly dismissed action based on self-represented litigant’s conduct during trial. This one is worth reading if only to get the details of what the trial judge had to deal with.

Advance Release Opinions – October 20

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Connecticut Appellate Court

Fraud

McLeod v. A Better Way Wholesale Autos, Inc. – Trial court found used car dealer committed fraud by recording that the car had fewer miles than it actually did so as to impair the 3,000 mile warranty. Affirmed.

 

Advance Release Opinions – October 13

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Connecticut Appellate Court

The Appellate Court issued opinions in the areas of adverse possession (but not really), foreclosure, personal injury, and tax appeals.

Adverse Possession (but not really)

Zhang v. 56 Locust Road, LLC – Trial court quieted title to property plaintiffs obtained by adverse possession but gave the defendant an easement by necessity over a portion. Appellate Court affirmed saying, “The trial court fully and accurately addressed the issues relevant to the parties’ appeals and, in its memorandum of decision, set forth a proper statement of both the facts and the applicable law. Any further discussion by this court would serve no useful purpose.”

Foreclosure

Bank of New York Mellon v. Mauro – Hohum. Even if borrowers’ affidavits created a fact issue as to their counterclaims, they did not create a fact issue as to any element of a prima facie foreclosure case or any special defense so as to preclude summary judgment as to liability on plaintiff’s claim in chief. And, the counterclaims were properly dismissed in any event because they failed the transaction test requiring that they be related to the making, validity or enforcement of the note.

Personal Injury

Smith v. Redding – Plaintiff was injured when he fell from a retaining wall built without a fence on top of it. He claimed that the wall was an absolute public nuisance. On appeal, he claimed that the trial court erred in failing to admit evidence under an exception to the rule against evidence subsequent remedial measures if such measures were not voluntary. Appellate Court declined to consider this claim because the record did not allow the Court to evaluate whether the ruling harmed plaintiff. Plaintiff also claimed that the trial court did not properly instruct the jury on the town’s zoning regulations. Appellate Court concluded plaintiff had failed to preserve this claim for appeal. Affirmed.

Tax Appeals

Faile v. Stratford – Two separate property owners appealed tax assessments on three properties. Same law firm represented both property owners. Pretrial order directed that the person with ultimate authority to settle must attend and bring the evidence intended to be submitted at trial. Property Owner One and Property Owner Two had agreed to a hardline settlement position not to exceed a certain fair market assessment. Since Property Owner One was unexpectedly hospitalized at time of pretrial, attorney from law firm and Property Owner Two attended. Attorney had Property Owner One’s authority to settle for the hardline settlement number. Attorney also had electronic copies of the evidence on his laptop, which was with him in the courtroom. Trial court entered nonsuits as to all three matters, finding noncompliance with the pretrial because (i) no one present had ultimate settlement authority because Property Owner Two was deferring to Property Owner One and attorney had authority only up the the hardline number; and (ii) evidence must be in hard copy, not electronic copies on a laptop. Appellate Court reversed as to Property Owner Two because he was present and nothing precluded him from taking a hardline settlement position, and nothing in the pretrial order required the evidence to be in hard copy. Appellate Court also reversed as to Property Owner One but for a different reason. Upon repeated questioning by the trial court, attorney eventually “conceded” that he did not have Property Owner One’s “ultimate authority” to settle because he could not go above the hardline number. Appellate Court concluded that it could not find ultimate authority in the face of that concession. But, the nonsuit was an abuse of discretion because Property Owner One was in the hospital and could not attend.

Advance Release Opinions – October 6

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Connecticut Appellate Court

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

Foreclosure

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

Matrimonial

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

Personal Injury

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

Professional Negligence – What it is Not

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

Receivership

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

Trusts and Estates

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

Advance Release Opinions – September 29

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Connecticut Appellate Court

The Appellate Court advance released one civil opinion on September 29, which deals with foreclosure procedure.

CitiMortgage, Inc. v. Tanasi – This was my case and I lost so of course I think the Appellate Court got it wrong. But I won’t let that color my objectivity. The Appellate Court concluded that, at oral argument of a motion to dismiss, plaintiff could switch its claimed basis for standing to foreclose and offer a document produced in foreclosure mediation as proof of that new status.

Advance Release Opinions – September 22

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Connecticut Appellate Court

The Appellate Court issued advance release decisions about civil protection orders, family law, and personal injury (but really appellate procedure).

Civil Protection Order

Sabrina C. v. Fortin – Civil protection order entered. On appeal, defendant claimed that trial court improperly (1) denied his motion to vacate or modify the protection order; (2) changed the basis for its denial in its subsequent articulation; (3) awarded plaintiff her attorney’s fees under the bad faith exception to the American Rule; and (4) granted plaintiff’s motion for a one-year extension of the protection order. The Appellate Court “agree[d] with the defendant’s third and fourth claims, and, accordingly, … remand[ed] the matter to the trial court with direction to vacate the award of attorney’s fees and to vacate the order extending the civil protection order to November 24, 2017.”

Family Law

Mason v. Ford – Defendant moved for postjudgment modification of child support to zero based on loss of income. Trial court modified support to zero, effective retroactively to a date preceding defendant’s service of the motion to modify, and found a 16 week arrearage terminating on the retroactive effective date. Defendant appealed. Appellate Court reversed, finding that under CGS § 46b-86(a) the retroactive effective date could not be earlier than the date of service of the motion to modify, and remanded to recalculate the arrearage.

Personal Injury (but really appellate procedure)

Pecher v. Distefano – Defense verdict in an action for personal injuries plaintiff sustained when she fell off her horse during a riding lesson. Plaintiff appealed claiming that trial court committed harmful error in improperly admitting a release and hold harmless agreement, and a picture of a sign, purporting to relieve defendant from liability. The Appellate Court concluded that plaintiff had failed to carry her burden of presenting an adequate record for the Court to review her claim that she was harmed by the allegedly improper evidentiary rulings.  More specifically, the Court explained that a harm determination requires, among other things, evaluation of the relationship of the improper evidence to the central issues in the case, particularly as highlighted in closing arguments. This evaluation is done in the context of the totality of the evidence. Since plaintiff did not provide the Appellate Court with the totality of the evidence or the closing arguments, the Appellate Court could not conduct a full and complete analysis of harm and had to affirm.