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Advance Release Opinions – September 15

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Connecticut Appellate Court

Family Law

Fuller v. Baldino – Man sought visitation with a child of a woman with whom he had been in a relationship for some time. Trial court dismissed for lack of jurisdiction. Appellate Court affirmed, finding that although there was no dispute that man had a parent-like relationship with child, man had failed to plead or prove that the child would suffer any real or substantial harm other than emotional harm that stems from denial of visitation itself.

Franchise Law

Aldin Associates Limited Partnership v. Hess Corporation – Franchisee claimed that franchisor improperly charged too high a wholesale price for gas, which stifled franchisee’s ability to compete. Trial court denied trial by jury based on written jury waivers and found for franchisor, concluding that franchisee had failed to prove damages with sufficient certainty. Appellate Court affirmed the jury trial waiver but reversed on the damages issue.

Insurance

Amica Mutual Insurance Company v. Piquette – Declaratory judgment action about the scope of an insurance policy. Trial court granted summary judgment for insurer. Appellate Court framed the issue on appeal as “whether, under the terms of an automobile insurance contract providing coverage for bodily injury, a loss of consortium claim is entitled to a separate per person liability limitation from the principal bodily injury claim of another person from which the loss of consortium claim arises.” Appellate Court concluded that the policy language in Izzo was substantially similar so Izzo applies and Izzo says there is only one limit for the bodily injury and the loss of consortium.

Landlord-Tenant

Presidential Village, LLC v. Perkins – Trial court dismissed summary process action against Section 8 tenant because the pretermination notice was defective under federal and state law in that it specified an incorrect cure amount to avoid termination of the tenancy and included non-rent charges in the total past due rental obligation.  Appellate Court reversed, noting that only federal law applied to determining the sufficiency of the notice and the notice complied with federal law.

Medical Malpractice

Wilkins v. Connecticut Childbirth and Women’s Center – Defense verdict. Plaintiff appealed, claiming that the threshold interrogatory, which the jury answered in the negative, was confusing and overly restrictive given the allegations in the complaint and the proof elicited at trial.  Appellate Court essentially rejected each of those claims and affirmed.

Personal Injury

Gostyla v. Chambers – Car accident. Defense verdict. Plaintiff appealed because trial court permitted defense’s biomechanical expert to offer an opinion on causation, which was beyond his expertise. Appellate Court agreed that trial court improperly admitted the causation testimony but affirmed because plaintiff failed to provide an adequate record to determine whether the error affected the outcome of the trial.

Zoning

St. Joseph’s High School, Inc. v. Planning and Zoning Commission of the Town of Trumbull – High school wanted to install lights on its football field. P&Z denied special application because of a deadlock (2 votes in favor, 2 votes against, 1 abstention). High school appealed to Superior Court. Superior Court sustained the appeal, finding that the application satisfied the known and definite standards in the regulation, and could not be trumped by the general standard of “detrimental to the character of a residential district. The Appellate Court reversed. After a lengthy discussion, the Appellate Court concluded that “[u]nder Connecticut law, a zoning commission may deny a special permit application due to noncompliance with general standards contained in the zoning regulations.” So, Superior Court had applied an improper legal standard. The Appellate Court then concluded that, using the proper standard, there was substantial evidence in the record to support a denial. Said another way, there was substantial evidence that the high school had not met its burden of demonstrating that the lights would not be detrimental to the character of the neighborhood.

Advance Release Opinions – September 8

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Connecticut Appellate Court

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

Arbitration

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

Breach of Contract

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

Fraud

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

Mortgage Foreclosure

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

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

Personal Injury

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

 

 

 

Advance Release Opinions – August 31

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Connecticut Appellate Court

Medical Malpractice

Simmons v. Weiss – First judge dismissed medical malpractice action for failure to file a written opinion of a similar healthcare provider. More than four months later, plaintiff filed a motion to open the dismissal. Second judge concluded that first judge’s dismissal was improper because complaint included a claim for lack of informed consent, which did not require a written opinion of a similar healthcare provider. Second judge opened the dismissal as to the lack of consent claim. Appellate Court reversed, concluding that no exception to the four month limitation on opening judgments applied, including the equitable exception because the judgment did not “shock the conscience.”

Divorce

Dejana v. Dejana – Postjudgment motion for contempt for failure to pay the correct amount of unallocated alimony and child support under separation agreement incorporated into dissolution judgment. At the time of judgment, defendant had three sources of income: base salary, bonus and a stock incentive plan. Settlement agreement gave plaintiff a percentage of base salary and bonus and gave defendant the right to use stock incentive plan to pay for the minor child’s college education. After defendant fully paid for the education with the stock incentive plan, plaintiff claimed that “bonus” included the stock incentive plan such that defendant could pay tuition from the plan only after paying plaintiff her share. Trial court denied the claim. Appellate Court affirmed, concluding that the separation agreement unambiguously excluded the stock incentive plan from the unallocated alimony and child support calculation.

Lugo v. Lugo – Postjudgment motion to modify child custody. Trial court awarded sole custody to plaintiff. Defendant appealed, claiming lack of due process because there was insufficient notice of a claim for, or that the court might award, sole custody to plaintiff. Appellate Court affirmed, finding that defendant had sufficient notice that custody was in issue.

Advance Release Opinions – August 25

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Connecticut Appellate Court

Rockhill v. Danbury Hospital – Plaintiff was injured when she tripped on an obstacle in a pedestrian walkway and fell. Judgment for plaintiff after a trial to the court. The Appellate Court rejected defendant’s invitation to impose a firm “trivial defect” rule. The Appellate Court also rejected defendant’s claims that plaintiff had failed to prove the defect actually caused her injuries and that not all of plaintiff’s bills were related to the fall. Affirmed.

Advance Release Opinions – August 18

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Connecticut Appellate Court

Child Support

Commissioner of Social Services v. Zarnetski – Family support magistrate dismissed petition for child support because the commissioner did not submit the putative father’s acknowledgment of paternity that was executed in Massachusetts. Commissioner appealed to the Superior Court, which affirmed for the same reason. Appellate Court reversed, finding that family support magistrate acted in contravention of CGS §§ 46b-172 and 46b-215 by requiring the commissioner to submit the acknowledgment.

Summary Judgment Procedure / Appellate Procedure

Windsor Federal Savings and Loan Association v. Reliable Mechanical Contractors, LLC – In this action to collect on a note and guarantee, the Appellate Court reversed the trial court’s order granting summary judgment to plaintiff, concluding that the defendant had presented evidence sufficient to create a fact issue as to whether defendant had signed the loan documents. As to the trial court’s order dismissing defendant’s counterclaims, the Appellate Court dismissed the appeal because the trial court specified two independent grounds for its decision and defendant challenged only one ground. Absent challenge to both grounds, the Appellate Court could not afford the defendant any meaningful relief.

Renaissance Management Company, Inc. v. Barnes – Summary process action to evict a tenant, who asserted a defense of retaliatory eviction under CGS § 47a-20. Trial court granted tenant summary judgment on that ground. Landlord appealed. After oral argument but before the Appellate Court rendered a decision, the parties advised the court that the tenant had surrendered possession. Since landlord was seeking possession, and had obtained it, Appellate Court dismissed the appeal as moot, finding that the circumstances did not fit the mootness exceptions for “capable of repetition, yet evading review” or “collateral consequences.”

Medical Malpractice

Procaccini v. Lawrence and Memorial Hospital, Inc. – Plaintiff alleged that his decedent presented to the hospital with a methadone overdose, which, according to plaintiff, required the hospital to monitor her for at least 24 hours for signs of potentially fatal methadone toxicity. The hospital discharged decedent after four and a half hours. She subsequently died from methadone toxicity within what would have been the 24 hour period. Verdict for plaintiff. Defendant claimed that there was insufficient evidence that the decedent had initially presented with a methadone overdose so there was insufficient evidence that the defendant had a 24 hour monitoring duty. Defendant also claimed that there is no duty to monitor unless the patient is admitted to the hospital and there was insufficient evidence that the decedent met the hospital’s admission criteria. Appellate Court affirmed in a lengthy opinion too factually detailed to summarize here.

Personal Jurisdiction / Promissory Estoppel

TD Bank, N.A. v. Salce – Action to recover on a promissory note. Defendant owned property in Connecticut but lived in Florida. He claimed that service was improper because, although the marshal left the process with the secretary of state and mailed it to defendant by certified mail, he had to actually receive the mailing for service to be good and he never had. Trial court denied his motion to dismiss for lack of personal jurisdiction. Later, defendant claimed that his promissory estoppel special defense – asserting that plaintiff had reneged on a promise to modify the loan – required the court to deny plaintiff’s summary judgment motion. Trial court granted summary judgment. Appellate Court affirmed, noting that under CGS § 52-59b(c) sufficiency of service did not depend on receipt. Plaintiff complied with the statute when the marshal left the process with the secretary of state and sent it by certified mail to defendant’s Florida address. As to the promissory estoppel special defense, the Appellate Court noted that the defendant had not established a genuine issue of material fact as to reliance because defendant had stopped paying the note three years before there was any discussion of a modification.

Foreclosure

Rockstone Capital, LLC v. Sanzo – This case, involving cross-appeals, has a messy factual and procedural background. In a nutshell, plaintiff first obtained a judgment of personal liability against the defendants and filed a judgment lien against their home. Defendants later defaulted on their payments and the parties entered into a forbearance agreement that was secured by a mortgage on the home. Defendants defaulted on the forbearance agreement and plaintiff commenced an action to foreclose the judgment liens. Plaintiff later amended its complaint to foreclose only on the mortgage. The trial court concluded that the mortgage was void as against public policy because it eliminated the statutory homestead exemption where the judgment liens did not. The trial court also concluded that plaintiff could foreclose the judgment liens as they were subject to the homestead exemption. As to plaintiff’s appeal of the invalidity of the mortgage, the Appellate Court reversed, finding that the mortgage was not void because it was a consensual lien not subject to the homestead exemption. The Appellate Court also reversed as to defendants’ appeal of the ruling allowing plaintiff to foreclose the judgment liens, finding that the complaint limited the issues in the case to foreclosure of the mortgage, not the judgment liens.

 

CT Appeals: AC Reverses Foreclosure for Standing Issue

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In this Connecticut appeal, Deutsche Bank National Trust Company, Trustee v. Thompson, the Appellate Court reversed the judgment of foreclosure because the trial court did not make any factual findings as to plaintiff’s standing.

Plaintiff alleged in the complaint that it was the holder of the note. Defendant was defaulted for failure to plead. The trial court entered a judgment of foreclosure but made no factual findings as to whether plaintiff was the holder or owner of the note at the time it commenced the action. The Appellate Court reversed, concluding that, absent such factual findings, it could not answer “[t]he key question … [of] when the note came into the plaintiff’s possession.”

Plaintiff argued on appeal that if it had not presented the note to the trial court, the trial court could not have entered the foreclosure judgment. Plaintiff claimed, in other words, that it’s implicit from the judgment that the trial court had the note before it at the time of entry. The Appellate Court rejected this contention because there was no evidence that plaintiff ever presented the original note to the trial court. Plus, the copy of the note in the record was payable to the original lender, not plaintiff, and was not endorsed. Without an endorsement, plaintiff could not be the holder.

Plaintiff also argued that it had established holder status because it alleged that status in the complaint and defendant was defaulted for failure to plead. The Appellate Court rejected this argument.  Finding standing by a default in pleading would be akin to finding standing by waiver or consent, which the law expressly precludes.

The Appellate Court also “reject[ed] the plaintiff’s argument that an inadequate record precludes our review of its standing.” Though the appellant has the burden of presenting a record adequate for review, plaintiff has the burden of proving standing whenever the issue is raised, including on appeal. Because it is not the Appellate Court’s function to find facts, “[t]he judgment [was] reversed and the case [was] remanded for a determination of the jurisdictional issue and for further proceedings according to law.”

Technical Deficiencies in Appeal Form? No Problem

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In this Connecticut appeal (Levine v. 418 Meadow Street Associates, LLC), the Appellate Court concluded that technical deficiencies in the appeal form did not deprive it of jurisdiction.

Plaintiff and her husband were the only members of the LLC, until husband sold his interest to two others. The LLC owned a single commercial property. Plaintiff’s husband remained associated with some of the tenants in the property and continued to deal with the two members in respect of the property after selling them his interest in the LLC. The LLC ultimately lost the property through foreclosure.

Plaintiff later brought suit seeking to dissolve the LLC “and claimed money damages, alleging [among other things] that [the other two members] breached fiduciary duties owed to her, and that as a result she suffered damages.” The defendant-members counterclaimed against plaintiff and her husband for essentially the same things.

The jury found against plaintiff on her claims in chief and for the defendant-members on their counterclaims. It awarded the defendant-members some $264,000, which was the same amount that the defendant-members paid plaintiff’s husband for his membership interest in the LLC. Plaintiff and her husband moved to set aside the verdict and for remittitur of the verdict. Defendants objected to both motions. The trial court denied both motions without issuing a memoranda of decision.

Plaintiff and her husband appealed. The Appellate Court affirmed.

Technical Deficiencies in the Appeal Form did Not Deprive Appellate Court of Jurisdiction

Plaintiff’s and her husband’s “appeal form, JD-SC-28, indicate[d] that the appeal is taken from the ‘motion to dismiss granted in favor of defendants (see jury verdict (#174), memorandum of decision (#196); and judgment of dismissal (#197).'” However, their “preliminary statement of issues [said], in … part: ‘Did the trial court err in failing to set aside the jury verdict where the damages awarded to the counterclaim plaintiffs … were not supported by the evidence at trial, and were not in conformance with Connecticut law of damages.'”

“[D]efendants assert[ed] that [the Appellate] [C]ourt lacks jurisdiction because [plaintiff and her husband] did not file an appeal form indicating that they sought review of the court’s decisions denying their motions to set aside the verdict and for remittitur of the verdict.”

The Appellate Court noted that the Supreme Court has a policy of not exalting form over substance. “[T]he forms for appeals and amended appeals do not in any way implicate appellate subject matter jurisdiction. They are merely the formal, technical vehicles by which parties seek to invoke that jurisdiction. Compliance with them need not be perfect; it is the substance that matters, not the form.”

“[Plaintiff and her husband] referenced the jury verdict itself on the appeal form, which can be interpreted as an intention to appeal from the judgment.” Moreover, the preliminary statement of issues is a better representation of the substance of the appeal than the appeal form.

Consequently, “[d]espite the imprecise language used on the appeal form, viewing the substance of [plaintiff and her husband’s] amended appeal, they have sufficiently invoked this court’s jurisdiction, and we will review their claims on appeal.”

Plaintiff’s Main Argument on Appeal

“The essence of the [plaintiff’s and her husband’s] claim briefed on appeal is that the jury could not have awarded damages for defendants’ capital contributions to [the LLC] because the complaint only referenced, in all of its counts, losses due to the foreclosure of [the LLC’s] property by People’s Bank, and the value of the property at the time of foreclosure was less than the amount of the mortgage at the time of foreclosure.” In other words, plaintiff and her husband claimed that the defendant-members lost their investment not because of anything plaintiff or her husband did but because the property was underwater.

Appellate Court Concludes there was No Error

“[I]t was possible for the jury to have found that [the LLC’s] property became less valuable, not enough rent was collected to satisfy mortgage payments, and the property was subsequently foreclosed because of the self-dealing and obstructive behavior of [plaintiff and her husband]. The jury also could have concluded that the [defendant-members] … lost the entire amount of their
investments in Meadow when the property was foreclosed. Therefore, it would have been reasonable for the jury to conclude that absent the self-dealing and obstructive behavior of [plaintiff and her husband], [the LLC’s] property might not have been foreclosed, and the [defendant-members] would not have lost their investments in [the LLC].”

“Therefore, on the basis of our review of the limited record provided to us, we conclude that the [plaintiff and her husband] have not shown that the court acted unreasonably or abused its discretion in denying their motions to set aside, and for remittitur of, the verdict thereby rendering judgment in favor of the [defendant-members] on their counterclaims, in accordance with the jury verdict.”

No Lost Profit Damages in Failed Law Firm Case

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

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

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

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

Defendant’s Argument on Appeal Concerning Lost Profits

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

Appellate Court Concludes it was Error to Award Lost Profits

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

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

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

Appellate Court Rejects Plaintiff’s Cross-Appeal

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

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

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

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

Other Things to Note

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

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

Two Part Test for Admitting Computerized Business Records

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In this Connecticut Appeal (Midland Funding, LLC v. Mitchell-James), the Appellate Court confirmed that there’s a two part test for admitting computerized business records into evidence.

Plaintiff claimed to have purchased defendant’s credit card account from the card issuer, JPMorgan Chase Bank, N.A. Plaintiff moved for summary judgment and submitted an affidavit that it claimed laid the foundation for the admission of two documents into evidence: a bill of sale for unspecified loans and a “field data sheet” reflecting, among other things, defendant’s name and the amount she owed.

Defendant opposed, claiming that the two documents were inadmissible hearsay and plaintiff had not demonstrated that it was the “bona fide owner of the account in question.” Plaintiff replied with another affidavit. This second affidavit “averred that Chase sold a ‘pool of charged-off accounts’ to the plaintiff, and, as part of the sale, ‘electronic records and other records on individual accounts included in the [pool of charged-off accounts] were transferred to [the plaintiff].’ [The affiant] affirmed that he was ‘aware of the process of the sale and assignment of electronically stored business records,’ and averred, without elaborating as to the basis for his averment, that he was ‘not aware of any errors in the [pool of charged-off accounts].'”

The trial court granted plaintiff summary judgment. Defendant appealed. The Appellate Court reversed.

Defendant’s Main Argument on Appeal

“On appeal, … the defendant argue[d] that Stayton’s affidavit failed to provide the ‘evidentiary foundation for the documents submitted [by the plaintiff] as business records.’ Consequently, the defendant argue[d], the plaintiff ‘never established that it was the successor in interest to the account in question’; thus, the court erred in rendering summary judgment because a genuine issue of material fact existed as to whether the plaintiff owned the defendant’s charged-off account.”

Appellate Court Confirms Two Part Test for Admitting Computerized Business Records

“When the proffered business records are computer generated, … the proffering party must satisfy a two part test. First, the proponent must satisfy … the three conditions set forth in General Statutes § 52-180. The court must determine, before concluding that it is admissible, that the record was made in the regular course of business, that it was in the regular course of such business to make such a record, and that it was made at the time of the act described in the report, or within a reasonable time thereafter…. Second, the proponent of the computer generated business records must establish that the basic elements of the computer system are reliable…. The genesis of the second part of the test dates back to American Oil Co. v. Valenti, 179 Conn. 349, 358–59, 426 A.2d 305 (1979), in which our Supreme Court noted that ‘[b]usiness records that are generated by computers present structural questions of reliability that transcend the reliability of the underlying information that is entered into the computer. Computer machinery may make errors because of malfunctioning of the hardware, the computer’s mechanical apparatus. Computers may also, and more frequently, make errors that arise out of defects in the software, the input procedures, the data base, and the processing program…. In view of the complex nature of the operation of computers and general lay unfamiliarity with their operation, courts have been cautioned to take special care to be certain that the foundation is sufficient to warrant a finding of trustworthiness and that the opposing party has full opportunity to inquire into the process by which information is fed into the computer.'”

Plaintiff’s Field Data Sheet Inadmissible because Plaintiff Failed to Demonstrate Computer System Reliability

The Appellate Court concluded that plaintiff’s “affidavit did not establish that the basic elements of the computer system [were] reliable…. Heeding our Supreme Court’s caveat that [c]omputers may … make errors that arise out of defects in the ‘software,’ the input procedures, the data base, and the processing program[,] … we conclude that it was incumbent on the plaintiff to produce an affidavit from a person who is familiar with computerized records not only as a user but also as someone with some working acquaintance with the methods by which such records are made … to
establish the reliability of the plaintiff’s computer system.”

Appellate Court Concludes Plaintiff Failed to Establish Standing

The field data sheet was inadmissible hearsay and thus did not support plaintiff’s claimed ownership of the account. The problem with the bill of sale seems to have been that it did not specifically identify defendant’s account as one of the accounts Chase sold to plaintiff. In other words, there was no evidence that the sale to plaintiff actually included defendant’s account.

Other Things to Note

In footnote 8, the court addressed plaintiff’s argument “that because the ‘defendant failed to produce any evidence to controvert the plaintiff’s motion or . . . [submit a counteraffidavit],’ there was no genuine issue of material fact, thereby affording the court ‘little choice but to grant’ its motion for summary judgment. To be sure, when the moving party seeking summary judgment meets its burden, ‘the opposing party must present evidence that demonstrates the existence of  some disputed factual issue.’ (Internal quotation marks omitted.) Marinos v. Poirot, 308 Conn. 706, 712, 66 A.3d 860 (2013). However, ‘[w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.’ (Emphasis added; internal quotation marks omitted.) Id.”

Ho-Hum, Another Foreclosure Plaintiff has Standing

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Some Connecticut appeals seem doomed to fail from the outset. The challenge to plaintiff’s standing to foreclose in Property Asset Management, Inc. v. Lazarte is one of those.

Plaintiff’s motion for summary judgment included an affidavit asserting that plaintiff received delivery of the note, endorsed in blank, on a specific date that was prior to commencement of the action. The trial court didn’t have to rule on the summary judgment motion because it later defaulted defendant for failing to comply with court-ordered discovery. The trial court ultimately entered a judgment of strict foreclosure and set a law date.

After a couple of dismissed bankruptcies later, the parties were back in court to reset the law date. Defendant filed a motion to dismiss, arguing that plaintiff lacked standing to foreclose. The trial court denied the motion to dismiss and reset the law date. Defendant appealed. The Appellate Court affirmed.

Defendant’s Main Arguments on Appeal

“[D]efendant first argue[d] that the court improperly denied her motion to dismiss on the basis of its finding that she had failed to counter the rebuttable presumption that the original plaintiff had standing to initiate this action.”

“[D]efendant also claim[ed] that the trial court improperly failed to conduct an evidentiary hearing on the motion to dismiss.”

Appellate Court Concludes Plaintiff had Standing to Foreclose

A “holder” is a person in possession of a note (assuming it’s a negotiable instrument) endorsed in blank. Under Supreme Court precedent, in a mortgage foreclosure action, the holder is rebuttably presumed also to be the owner of the debt. Since the owner of the debt on the date the action is commenced has standing to foreclose, so too does a person rebuttably presumed to be the owner of the debt, like the holder of the note, on the date the action is commenced.

“[A]lthough the court did not state the basis for its finding that the original plaintiff was in possession of the note when it initiated the foreclosure action, that finding is supported by the record, namely, the affidavit submitted with the motion for summary judgment indicating that the note [endorsed in blank] was delivered to the original plaintiff on or before October 6, 2008. The defendant presented no evidence that the original plaintiff transferred or lost possession of the note prior to commencing the foreclosure action on October 14, 2008.”

“Because the defendant presented the court with nothing to rebut the evidence in the record that the original plaintiff possessed the mortgage note endorsed in blank at the time that it commenced this action, and thus that it had standing, we conclude that the court properly denied the motion to dismiss.”

Appellate Court Concludes No Evidentiary Hearing Required

“A court is required to hold an evidentiary hearing before adjudicating a motion to dismiss only if there is a genuine dispute as to some pertinent jurisdictional fact…. In the present case, there was no jurisdictional fact in dispute necessary to determine whether the original plaintiff had standing to bring the present action. The record before the court revealed that the original plaintiff was in possession of the note, endorsed in blank, at the time it commenced the action, and, thus, there was a rebuttable presumption of standing. Because the defendant failed to demonstrate the existence of any relevant jurisdictional fact that was in dispute, the court was not required to hold an evidentiary hearing before ruling on the defendant’s motion to dismiss.”

Other Things to Note

In footnote 5, the Appellate Court rejected plaintiff’s arguments that defendant had waived standing and public policy militated against raising the standing argument at such a late stage in the proceedings. “As we have indicated, … a party may raise a lack of subject matter jurisdiction at any time, and subject matter jurisdiction cannot be conferred on the court by waiver or consent of the parties…. The defendant’s claim that the original plaintiff lacked standing implicates subject matter jurisdiction and, therefore, is not waivable and is properly before this court.”