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Advance Release Opinions - Review and Analysis

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Connecticut Supreme Court Opinions - Analysis and Impact

Advance Release Opinions – April 27

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Reviews of Connecticut Supreme Court advance release opinions about attorney discipline and trespass.

Attorney Discipline

Disciplinary Counsel v. Hickey – In 2008, Hickey voluntarily resigned from the bar and waived his right to seek reinstatement. But in 2012, he nonetheless applied for reinstatement, saying that the waiver did not preclude a present determination of his present fitness to practice law. Disciplinary counsel moved to dismiss the application because of the waiver. The motion to dismiss still had not been acted on as of 2014, when Practice Book § 2-53(b) was amended to provide that an attorney who resigns and waives reinstatement is ineligible to apply for reinstatement. The trial court granted the motion to dismiss in 2016, concluding that the addition to § 2-53(b) was retroactive since it was really a codification of existing practices and procedures. Supreme Court affirmed, finding that § 2-53(b)’s retroactivity was irrelevant because an attorney’s voluntary resignation and knowing and intentional waiver of the right to seek reinstatement rendered the attorney permanently ineligible to seek reinstatement under the common law. Supreme Court also found that trial court had the authority to dismiss the application without referring it to the standing committee because the court determines eligibility to apply for reinstatement, and the committee determines the fitness to practice of those eligible to apply.

Trespass

Firstlight Hydro Generating Company v. Stewart –  Stewart has a house on Candlewood Lake. He wanted to add some things to his yard, and that required doing some things on the Utility’s property. Utility (I’m not sure if it’s an official utility but that’s the best word to describe it) gave him permits for some limited work. He did more than he was allowed. Trial court ordered Stewart to remove everything (including the hot tub) that was not authorized by the permits. Supreme Court affirmed, finding that the trial court properly determined that Stewart’s improvements were in fact on the Utility’s property, and the scope of its order was not an abuse of discretion.

Advance Release Opinions – April 13

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Review of the Connecticut Supreme Court’s advance release opinion about an award of attorney’s fees under CGS § 42-150bb.

Attorney’s Fees

Meadowbrook Center, Inc. v. Buchman – Trial court rejected defendant’s claim for attorney’s fees under CGS § 42-150bb as untimely under Practice Book § 11-21. Appellate Court reversed, finding that the 30-day time limit under Practice Book § 11-21 is directory, not mandatory, so the court has discretion to consider motions filed after 30 days. Because the trial court failed to exercise its discretion, Appellate Court remanded the case with direction to conduct a hearing on defendant’s motion for attorney’s fees. Supreme Court affirmed for the same reasons.

Advance Release Opinions – April 5

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Review of the Connecticut Supreme Court’s advance release opinion about a breach of contract.

Breach of Contract

AMICA Mutual Insurance Company v. Muldowney – This case involves a subrogation claim for property damage by the landlord’s insurer against the tenant who caused it. Supreme Court has already confirmed that the default rule is that there is no subrogation right absent a “specific agreement” to the contrary, but didn’t spell out what the “specific agreement” must say to overcome the default rule. DiLullo v. Joseph, 259 Conn. 847 (2002). Trial court and Appellate Court both concluded that since the lease here made tenant liable for any property damage tenant caused and required tenant to buy insurance to cover it, there was a specific agreement otherwise that overcame the default rule. Supreme Court affirmed, essentially concluding that any agreement that puts the tenant on notice that tenant will be responsible for property damage, and needs to buy insurance to cover it, suffices to overcome the default rule; the agreement need not specifically mention subrogation.

Advance Release Opinions – March 26

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Review of the Connecticut Supreme Court’s advance release opinion about election law.

Election Law

Keeley v. Ayala – Nobody should have needed the Connecticut Supreme Court to confirm that the impropriety of the absentee-ballot shenanigans that occurred in this primary election for two seats on the Bridgeport City Council. The shenanigans included: (1) the candidate (the one that ended up with the most votes) instructed a police officer to go to certain locations to pick up absentee ballots; (2) the officer didn’t confirm the identities of the people giving him the ballots; (3) the officer, more than once, accepted multiple ballots from a single person; and (4) absentee ballots that the officer didn’t pick up and that weren’t postmarked were nonetheless counted in the result. Trial court invalidated the election and directed that a new primary be conducted. Supreme Court affirmed.

Advance Release Opinions – March 9

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The Connecticut Supreme Court advance released an opinion about redistributing an asset of the marital estate after a divorce judgment, which I review below.

Divorce

Reinke v. Sing – CGS § 46b-86(a) precludes a trial court from modifying an estate distribution unless one of the exceptions in CGS § 52-212a, or some other exception, applies. Here, the parties both consented to modifying the judgment to redistribute the husband’s pension entirely to the husband. Since that is one of the § 52-212a exceptions, the trial court had the authority to open and modify. In reaching this conclusion, the Supreme Court confirmed that § 46b-86(a) is not subject matter jurisdictional, but rather a restriction on the court’s authority to act. Since it is not subject matter jurisdictional, the fact that § 46b-86(a) does not authorize the court to redistribute the estate does not prevent the court from doing if some other statute authorizes it.

Advance Release Opinions – January and February

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I fell behind in reviewing decisions because I was tied up writing briefs during the back half of January and most of February. This post catches me up on the Connecticut Supreme Court’s advance release opinions. I will catch up on the Appellate Court’s advance release opinions in a separate post.

Supreme Court

Officially Released January 17 – Constitutionality of Education System

Connecticut Coalition for Justice in Education Funding, Inc. v. Rell – Voluntary membership organization, schoolchildren, and their parents sought a declaratory judgment that defendants failed to provide suitable and substantially equal educational opportunities in violation of the Connecticut constitution. Supreme Court confirmed that (i) the individual plaintiffs had standing because the complaint raised a colorable claim that their specific, personal, and legal interest was being specially and injuriously affected by the defendants’ acts or omissions; (ii) voluntary membership organization had associational standing; (iii) trial court applied an incorrect constitutional standard in concluding state’s educational system was unconstitutional; (iv) defendants did not fail to provide plaintiffs with a minimally adequate educational opportunity based on an alleged inadequate level of teaching; and (v) plaintiffs failed to establish that the disparities between the funding of the neediest and least needy school districts was unconstitutional. Three justices concurred and dissented in a single opinion.

Officially Released January 18 – Worker’s Comp Exception for Subjective Belief of Certain Injury; Identifiable Persons Exception to Govt Immunity

Lucenti v. Laviero – In this worker’s compensation case, summary judgment for employer was proper because worker failed to establish a genuine issue of material fact about the applicability of the exception to the worker’s compensation act for the employer’s subjective belief of a substantial certainty of injury. The official syllabus indicates that the evidence “fell short of demonstrating that [the employer] subjectively believed that an injury was substantially certain to result, as there was no evidence of prior accidents involving the excavator, a protracted history of workplace safety violations, or any deception on the part of the [employer] with respect to any dangers presented by the excavator.” There was one concurrence, and a first and second dissent.

Martinez v. New Haven – Supreme Court reversed trial court’s conclusion that plaintiff proved the imminent harm to identifiable persons exception to the defense of governmental immunity with respect to injuries that he sustained when other students ran with safety scissors in his school’s auditorium. One justice dissented.

Officially Released January 26 – Attorney’s Fees for Consumer for Commercial Party’s Withdrawal of Action

Connecticut Housing Finance Authority v. Alfaro – The Supreme Court stated the issue as follows: “[W]hether, pursuant to General Statutes § 42-150bb, a defendant may be awarded attorney’s fees when the plaintiff withdraws an action as a matter of right pursuant to General Statutes § 52-80.” Under § 42-150bb, if a consumer contract gives the commercial party the right to recover attorney’s fees from the consumer, the consumer has the right to recover his or her attorney’s fees from the commercial party. Under § 52-80, a plaintiff may withdraw an action without court approval if no hearing on the merits has commenced, or with court approval if a hearing has commenced. With two justices dissenting, the Supreme Court concluded:

“[T]he trial court is permitted to make findings regarding the reasons for the plaintiff’s withdrawal of an action. The findings need not be made after a full evidentiary hearing. Instead, once a
defendant moves for an award of attorney’s fees pursuant to § 42-150bb after a termination of proceedings that in some way favors the defendant, there exists a rebuttable presumption that the defendant is entitled to such fees unless the plaintiff can show, by a preponderance of the evidence, that the withdrawal occurred because of some reason other than the actions taken by the defendant’s counsel. The plaintiff can show its reasons for withdrawing the action through affidavits, and it is for the trial court to determine whether an award of attorney’s fees is proper in light of the totality of the circumstances. The trial court, after reviewing the affidavits, may wish to conduct a hearing to resolve any questions created; however, the trial court is not required to do so.”

Officially Released January 30 – Nonsuit as Sanction for Failing to Comply with Order to File Confidential Settlement Agreement

Ridgaway v. Mount Vernon Fire Insurance Company – Ridgaway settled a dram shop case against a nightclub and several of its liability insurers. As part of that settlement, he took an assignment of  the nightclub’s rights against Mt. Vernon, who was a non-settling insurer in the dram shop case. In Ridgaway’s subsequent action against Mt. Vernon, the trial court resolved a discovery dispute by ordering Ridgaway to file the settlement agreement from the dram shop action, which was confidential. When Ridgawway did not file it, the trial court nonsuited him. The Appellate Court reversed, finding that the sanction of nonsuit was disproportionate to the misconduct. The Supreme Court found that the trial court improperly based its nonsuit on facts that were not in the record and remanded for determination of an appropriate sanction based on the record – which still could include a nonsuit.

Officially Released January 31 – Independent Contractor vs. Employee for Compensation Fund Purposes

Kirby of Norwich v. Administrator, Unemployment Compensation – Strange as it may seem in 2018, Kirby is a company that sold vacuum cleaners door-to-door. It claimed it was exempt from contributing to the unemployment compensation fund because, in its view, its sales people were independent contractors, not employees. The administrator rejected that idea. So did the trial court. And so did the Supreme Court.

Officially Released February 2 – Calculation of State Employee Retirement Benefits

Bouchard v. State Employees Retirement Commission – For this one, I’m going to give the question and answer as framed by the Supreme Court:

Question: “[W]hether all state employees, irrespective of when they retired, are entitled to have their benefits recalculated in accordance with Longley.”

Answer: “[P]laintiffs’ claims for recalculation of benefits were time barred, and for the reasons supporting that conclusion neither they nor the class is entitled to relief.”

Officially Released February 27 – Saving Untimely Action by Timely Delivering Process to Marshal

Doe v. West Hartford – Marshal’s return indicated service after statute of limitations expired. Return did not recite date process was delivered to marshal as contemplated by CGS § 52-593a(b). Plaintiff opposed summary judgment with evidence that process was delivered to the marshal for service before the limitations period expired. Trial court granted summary judgment, finding plaintiff’s evidence was not admissible to create a genuine issue of fact about whether he had timely delivered process to the marshal to invoke the 30-day savings provision of CGS § 52-593a(a). The Supreme Court reversed, finding that the record contained sufficient evidence to create a fact issue about the application of the savings provision, and rejecting defendants’ claim that the marshal’s failure to recite the date he received process was fatal to the savings provision.

Officially Released March 6 – Personal Jurisdiction over State Employees sued Individually; Identifiable Person/Imminent Harm and Govt Immunity

Harnage v. Lightner – Supreme Court confirmed that former inmate’s action against state employees for violation of his constitutional rights was properly dismissed for lack of personal jurisdiction. Plaintiff conceded that he sued defendants only in their individual capacities, which rendered ineffectual his attempt to serve them by leaving process with the Attorney General.

Brooks v. Powers –  Police did not dispatch anyone in response to a call that a woman was standing in a field during a severe thunderstorm and possibly needed medical attention. The next morning, a fisherman found the woman, drowned, in a body of water a half-mile away from the field. The Supreme Court directed that judgment enter for defendants because death by drowning a half-mile away the next day was an unforeseeable result of standing in a field during a thunderstorm, and the connection between those events was too attenuated to abrogate governmental immunity under the “imminent harm” exception. One justice dissented.

Advance Release Opinions – January 11

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The Connecticut Supreme Court advance released an opinion about privacy law, which I review below.

Privacy Law

Byrne v. Avery Center for Obstetrics and Gynecology, P.C. – Who would have thought that a patient didn’t already have a right to sue a doctor for disclosing the patient’s medical records without the patient’s consent? Certainly not me. Thankfully, this decision confirms that Connecticut law recognizes such claims. Byrne had had a personal relationship with Mendoza that ended in 2004. In 2005, Mendoza started a paternity action against Byrne and subpoenaed Byrne’s medical records from Avery. Without obtaining Byrne’s consent or resisting the subpoena, Avery produced Byrne’s records to Mendoza. Byrne sued Avery for negligence and negligent infliction of emotional distress, among other things. The trial court granted Avery summary judgment on these two claims, concluding that no Connecticut court had yet recognized them and that recognition was better left to the appellate courts or legislature. The Supreme Court “conclude[d] that a duty of confidentiality arises from the physician-patient relationship and that unauthorized disclosure of confidential information obtained in the course of that relationship for the purpose of treatment gives rise to a cause of action sounding in tort against the health care provider, unless the disclosure is otherwise allowed by law.” The Court then said that, absent a court order, producing documents in response to a subpoena was not a disclosure otherwise allowed by CGS § 52-146o, but might be a disclosure allowed by HIPAA. Reversed and remanded because “there is a genuine issue of material fact as to whether the defendant violated the duty of confidentiality by the manner in which it disclosed the plaintiff’s medical records in response to the subpoena.”

Advance Release Opinions – January 10

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The Connecticut Supreme Court advance released an opinion about divorce law, which I review below. The Court also advance released an opinion about termination of parental rights, which I do not review.

Divorce Law

Cohen v. Cohen – If Dan v. Dan affects you, seems like you should read this case. In 2012, trial court granted defendant’s motion to reduce alimony because his income had substantially decreased. In 2015, trial court granted plaintiff’s motion to increase alimony because defendant’s income had substantially increased. Supreme Court affirmed in a four part opinion. First, Supreme Court agreed with defendant that, when considering “substantial change in circumstances” and in fashioning a modified order, the trial court’s task was to compare 2015 income with income at the time of the 2012 modification, not at the time of the original alimony order. But, Supreme Court found that’s what the trial court did and, even if the trial court had improperly considered income at the time of the original order, it was harmless error because the trial court would have reached the same conclusion if it had considered income at the time of the 2012 modification. Supreme Court also found that trial court did not impermissibly consider the purpose of the original alimony award instead of the purpose of the 2012 modification when ordering the 2015 modification. Rather, once the trial court concluded that the circumstances justifying the 2012 modification no longer existed, the purpose of the original award controlled and the trial court was bound to consider it. Second, the Supreme Court rejected defendant’s claim that plaintiff’s motion was “legally insufficient” because it did not allege that the 2012 modification did not fulfill the purpose of the original award or some exceptional circumstance. The motion was sufficient because it alleged a substantial change in circumstances. There has never been a requirement to specify in the motion all of the reasons why the change in circumstances justifies a modification. Third, Supreme Court rejected defendant’s claims that trial court should not have (i) considered parol evidence of the parties’ intent when they entered into the separation agreement that became the original decree; or (ii) taken judicial notice of the plaintiff’s 2002 financial affidavit. Parol evidence was necessary to clarify the purpose of the alimony provision in the separation agreement. And, the court always has the power to take judicial notice of the court file. In this case, the 2002 affidavit was relevant to determining the purpose of the original alimony award. Fourth, Supreme Court rejected defendant’s claim that the 2015 modification was an “impermissible lifetime profit sharing award.” Though alimony ordinarily does not allow the supported spouse to share in the supporting spouse’s post-divorce good fortune, the parties can vary that by agreement, which they did in this case.

Advance Release Opinions – December 27

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The Connecticut Supreme Court advance released an opinion about marshal’s fees for a postjudgment levy of an execution, which I review below.

Marshal’s Fee for Levy of an Execution

Corsair Special Situations Fund, L.P. v. Engineered Framing Systems, Inc. – After obtaining a $5 million judgment in federal court in Maryland, plaintiff learned that a Connecticut company owed defendant some $3 million. Plaintiff domesticated the judgment and engaged a state marshal to levy an execution. The Connecticut company ignored the execution and paid some $2.3 million to defendant and other creditors. Plaintiff obtained a turnover order and ultimately recovered the funds. The marshal claimed a 15% fee under CGS § 52-261 (a)(F) “for the levy of an execution, when the money is actually collected and paid over, or the debt . . . is secured by the officer”. The Connecticut District Court ruled for the marshal. Plaintiff appealed to the Second Circuit who concluded the statute was ambiguous and asked our Supreme Court whether the statute entitled the marshal to 15% even though (i) the execution was ignored; (ii) the funds were paid to plaintiff, not the marshal; and (iii) the funds were paid only after plaintiff obtained a turnover order. The Supreme Court concluded the marshal was entitled to 15% because the phrase “by the officer” modifies only “the debt is secured” and not “the money is actually collected and paid over.” In other words, if the marshal properly serves the writ and the money is actually paid, the marshal is entitled to 15% regardless of whether the writ is ignored or the money paid to the judgment creditor, not the marshal.

Advance Release Opinions – December 26

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The Connecticut Supreme Court advance released an opinion about easement by necessity for utilities, which I review below. The Court also advance released an opinion about criminal law, for which I provide the official syllabus, but no review.

Easement by Necessity

Francini v. Goodspeed Airport, LLC – Fancini claimed that his right-of-way also gave him an easement by necessity to install utility lines to service his property. The Supreme Court concluded that there can be an easement by necessity for utilities in Connecticut and provided the standard for determining whether one has been established: “When an easement of physical access already exists, an expansion of that easement will be allowed so long as it is reasonably necessary for the beneficial enjoyment of the dominant estate and does not unreasonably impair the servient estate owner’s beneficial enjoyment of his or her property.” In general, “[a]n easement by necessity for utilities should be granted over an existing physical access easement when the dominant estate has a reasonable need for the utility, in accordance with the intention of the parties as to the use of the property, unless the burden interferes with that owner’s beneficial enjoyment of the property…. In the event use of the easement for utilities does impair the enjoyment of the servient estate, the court must then determine whether the need of the dominant estate is so great that the easement should still be granted or if it could be altered so as to limit the burden on the servient estate.”

Criminal Law

State v. Miranda -Syllabus:
“Convicted of the crime of murder in connection with the death of the victim, the defendant appealed to this court. At trial, the victim’s mother was asked, on direct examination by the state, whether she had heard information relating the defendant to the victim’s disappearance. The defendant objected on the basis of relevancy, and the trial court overruled that objection. The victim’s mother responded in the affirmative, and the defendant did not raise any additional objections. Subsequently, another state’s witness, D, testified that he had seen the victim get into a car on the day of her disappearance and that, although he did not see the driver’s face, that person had a light complexion, a mustache, and curly brown or black hair. D then testified that he had relied on guidance from God in identifying the driver in a photographic array presented by the police. The defendant objected, and the jury was excused. Thereafter, the trial court ruled that the testimony regarding the photographic array was inadmissible. The jury returned, and D’s testimony concluded without further discussion of his identification. Subsequently, the trial court, noting its concern that the defendant’s objection was not sustained in the jury’s presence, indicated that D’s improper testimony could be addressed in the jury charge and offered to address the matter prior to the charge if requested. Defense counsel then indicated to the court that he was working on language for an instruction. The trial court subsequently received the defendant’s request to charge and reviewed its proposed instructions with the parties. The trial court ultimately instructed the jury that it had sustained the objection to D’s testimony and that any answer given after that objection should be disregarded. On appeal, the defendant claimed that the trial court incorrectly failed to strike D’s improper testimony. The defendant further claimed that the trial court improperly permitted the victim’s mother to testify that she had heard information relating the defendant to the victim’s disappearance because that testimony constituted inadmissible hearsay. Held:
“1. The defendant expressly waived his claim that the trial court incorrectly failed to strike D’s improper testimony; the defendant had approved of the trial court’s proposed remedy for D’s improper testimony by expressing satisfaction with the trial court’s plan to use an instruction, by declining to request action by the trial court before it issued that instruction, and by ultimately approving of the trial court’s proposed instruction.
2. The defendant’s claim that the trial court improperly permitted the victim’s mother to testify that she had heard information relating the defendant to the victim’s disappearance on the ground that it constituted inadmissible hearsay was unpreserved and, accordingly, unreviewable; the defendant objected to that testimony on the basis of relevancy, and, thus, the trial court had no notice or opportunity to consider the issue of hearsay.”