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Advance Release Opinions

Appellate Stay Exemption Bites Foreclosure Defendant

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In an advance release opinion issued February 29, 2016, the Connecticut Appellate Court concluded that the new anti perpetual motion machine rule concerning appellate stays in foreclosure cases required it to dismiss the borrower’s appeal.

The first law day in Citigroup Global Markets Realty Corporation v. Christiansen was April 7, 2009. “The judgment was opened and the law day extended five times over the six years that followed the initial judgment of strict foreclosure as a consequence of five bankruptcy petitions filed by [one of] the [mortgagors].” Plaintiff obtained relief from stay in the final bankruptcy. On plaintiff’s motion, the trial court reset the law date for August 25, 2015.

Defendant filed three consecutive motions to open the judgment and extend the law date. The trial court denied all three motions. But, as to the first two, the court sua sponte opened the judgment and extended the law date. The court didn’t do that in respect of the third motion and left the law date at December 1, 2015.

Defendant filed his appeal on November 30, 2015. The December 1 law date came and went without redemption. On December 9, defendant moved the Appellate Court to dismiss the appeal as moot. Defendant did not respond to the motion.

Plaintiff’s Main Argument on its Motion to Dismiss the Appeal

“The plaintiff argue[d] that the court’s denial of the defendant’s third motion to open did not stay the running of the law day, that title to the property accordingly has vested in the plaintiff, and that there is no relief that this court can afford the defendant.”

Appellate Court Concludes Anti Perpetual Motion Machine Rules Rendered Appeal Moot

Practice Book § 61-11(a) is the source of the automatic appellate stay. The section provides that “proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to file an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause.” Where the judgment is a judgment of strict foreclosure, this Practice Book rule means that the law date cannot be set sooner than the time to file an appeal — twenty days from entry — because a sooner law date would deprive defendant of his right to appeal.

Defendant also has a right to appeal, within twenty days of entry, a denial of a motion to open the judgment and extend the law date. So, even if the court was denying a mortgagor’s motion to open and extend, it had to sua sponte extend the law date at least twenty-one days so as to not deprive the borrower of the right to appeal the court’s denial of his motion to open and extend. In other words, defendant was more or less guaranteed an unlimited number of twenty-one day extensions of the law date. In First Connecticut Capital, LLC v. Homes of Westport, LLC, 112 Conn. App. 750, 762, 966 A.2d 239 (2009), the Appellate Court described this process as “almost the perfect perpetual motion machine.”

To address this problem, Pratice Book § 61-11 was amended effective October 1, 2013. “Practice Book § 61-11(g) applies in this appeal and provides in relevant part: ‘In any action for foreclosure in which the owner of the equity has filed, and the court has denied, at least two prior motions to open or other similar motion, no automatic stay shall arise upon the court’s denial of any subsequent contested motion by that party, unless the party certifies under oath, in an affidavit accompanying the motion, that the motion was filed for good cause arising after the court’s ruling on the party’s most recent motion. . . .’’’

“The defendant’s third motion to open, filed on November 16, 2015, did not have an accompanying affidavit, and, thus, the motion did not meet the requirement contained in § 61-11 (g) to set forth a good cause that arose after the court’s ruling on the defendant’s most recent motion. As was the case with the prior two motions, the defendant’s third motion to open sought an extension of the law day as [defendants] pursued alternatives to foreclosure. Under § 61-11 (g), the denial of that motion to open on November 30, 2015, did not create an automatic appellate stay. Because the defendant failed to exercise his right of redemption on his law day, title to the property vested in the plaintiff after the close of business on December 1, 2015.”

Snow Plowing, Vexatious Litigation and Probable Cause

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The Connecticut appeal in Lichaj v. Sconyers involved snow plowing, vexatious litigation and probable cause. The advance release opinion, which becomes official on March 1, 2016, explains that the Welles and the Lichajes had a common driveway. The deeds included the following provision addressing maintenance of the driveway: “Responsibility for payment for said maintenance [specifically including snow plowing] shall be shared equally by the owners of Lot 1 and Lot 2.”

The Underlying Action

The court didn’t say so, but it seems to me that the genesis of the dispute was that Mr. Lichaj, understandably, didn’t want to pay for something he could very well do himself. He got in the habit of plowing the driveway with his tractor. The Welles didn’t like that and repeatedly asked him to stop. Mr. Lichaj continued, even though for a time Mrs. Welles’ father plowed and, after the father’s truck failed, the Welles hired a professional to plow.

Mr. and Mrs. Welles hired Sconyers and his firm to commence an action against Mr. and Mrs. Lichaj seeking to enjoin Mr. Lichaj from plowing the driveway. The trial court denied the Lichajes summary judgment motion. On the succeeding trial, the court granted an injunction in the Welles’ favor, enjoining Mr. Lichaj from plowing. The trial court found in Mrs. Lichaj’s favor as to the injunction.

The Lichajes appealed. The Appellate Court reversed and remanded.

The Vexatious Litigation Action

After the remand, the Lichajes commenced a vexatious litigation action against the Welles and Sconyers and his firm. “The Lichajes alleged, inter alia, that the underlying injunctive action was brought and maintained without probable cause.” Sconyers and his firm moved for summary judgment. “[They] maintained that there was probable cause because the Welleses had prevailed at trial in the underlying action as against [Mr.] Lichaj, their claim against [Mrs.] Lichaj survived summary judgment, and the facts known to Sconyers were sufficient for him to believe that there was probable cause to commence the injunctive action against both [Mr.] Lichaj and [Mrs.] Lichaj.”

The trial court granted summary judgment against Mr. and Mrs. Lichaj. As to Mr. Lichaj, “[t]he court reasoned that, as a matter of law, the finding of the trial court in the underlying action in favor of the Welleses, who were represented by Sconyers, as to their claim against [Mr.] Lichaj was conclusive evidence of probable cause as to him, and the reversal of that claim on appeal was not inconsistent with the existence of probable cause.”

As to Mrs. Lichaj, the trial court concluded “that the denial of the motion for summary judgment in the prior case precluded a finding that there had not been probable cause to pursue that action.” The court noted that “some jurisdictions, such as California, Georgia, Pennsylvania and the United States Court of Appeals for the Eighth Circuit, conclude that a denial of a motion for summary judgment creates a presumption of probable cause sufficient by itself to defeat a subsequent claim for vexatious litigation; others, such as Kentucky, Arizona and Vermont, conclude that a denial of a motion for summary judgment is but one factor to consider in the analysis of probable cause…. [T]here was no controlling Connecticut precedent on the issue and [the trial court] decided to follow the line of cases that hold that a previous denial of a motion for summary judgment is conclusive evidence of the existence of probable cause to bring the prior action.”

The Lichajes appealed. The Appellate Court affirmed.

Plaintiffs’ Main Argument on Appeal

“The Lichajes claim that the court erred when it granted the motion for summary judgment against [Mrs.] Lichaj. They contend that this court should hold that a prior denial of a motion for summary judgment is but one factor to consider in the analysis of probable cause.”

Defendants’ Alternative Ground for Affirmance

As an alternative ground for affirmance, Sconyers and his firm argued “that, as a matter of law, there was probable cause to include [Mrs.] Lichaj as a defendant in the prior action, regardless of the effect of the prior denial of the motion for summary judgment.”

Appellate Court Concludes Sconyers had Probably Cause Independent of Summary Judgment Denial

The Appellate Court agreed with Sconyers’ alternate ground for affirmance. The court noted that want of probable cause is an element of common law and statutory vexatious litigation. Sconyers had probable cause to name Mrs. Lichaj as a defendant in the injunction action, even though she wasn’t the one doing the plowing, because she co-owned the property with Mr. Lichaj. The injunction action involved the construction of the maintenance provision in schedule A of the deed. The construction of that provision could have affected Mrs. Lichaj’s rights as a co-owner of the property. She was a necessary, if not indispensable party.

Other Things to Note

As mentioned, the trial court noted that out-of-state decisions reflected two lines of thinking: (i) denial of plaintiff’s summary judgment motion in the underlying action is presumptive probable cause and conclusively defeats a later claim of vexatious litigation; and (ii) denial of plaintiff’s summary judgment motion is but one factor of the probable cause analysis.

In footnote 5, the Appellate Court decided not to deal with this split of authority : “We express no opinion as to whether a denial of a motion for summary judgment, without more, is sufficient to negate the lack of probable cause for the purpose of a subsequent action in vexatious litigation.”

Non-party Lacks Standing to Appeal

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The Connecticut Appellate Court dismissed an appeal because the appellant, who was not a party to the underlying judgment, lacked standing.  The appellant in M.U.N. Capital, LLC v. National Hall Properties, LLC, an advance release opinion to be officially released March 1, 2016, was a lessee of the property plaintiff was foreclosing in the underlying action. Appellant was a named defendant, along with the property owner.  Appellant “claimed, however, that it was not a proper party to the foreclosure action, and, before the judgment of strict foreclosure was rendered … the plaintiff withdrew the action as to [appellant] and proceeded only against the [property owner].”

Subsequently, appellant was defaulted in a summary process action, which terminated its leasehold interest in the property. Appellant apparently believed that it could not undo the summary process default judgment unless it first undid the foreclosure judgment. So, appellant filed, in the foreclosure action, a motion to open and vacate the foreclosure judgment on the ground that plaintiff lacked standing to foreclose.

The trial court dismissed appellant’s motion to open and vacate the foreclosure judgment. Appellant appealed. The Appellate Court dismissed the appeal.

Out of the Ordinary

Normally, this is where I would describe the appellant’s main arguments on appeal. This appeal is different. As the court explained:

Following oral argument in this appeal, we asked the parties to submit simultaneous supplemental briefs addressed to the following: ‘‘1. Whether [appellant], a nonparty to the underlying foreclosure action, had standing to file a motion to open the foreclosure judgment? 2. Whether a nonparty can appeal the dismissal of a motion to open a judgment in a case in which it was not a party? 3. What practical relief can this court provide to [appellant], in this appeal?’’

Appellate Court Concludes Non-party Lacks Standing to Appeal

The court noted that under CGS § 52-263 and Practice Book § 61-1 only a “party” may appeal. ‘‘Ordinarily, the word party has a technical legal meaning, referring to those by or against whom a legal suit is brought . . . the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons. . . . This definition of party . . . includes only those
who are parties to the underlying action’’ (emphasis original).

“Consequently, because the [appellant] is not a party to the underlying foreclosure judgment in this case, it does not have standing to appeal, and we do not have subject matter jurisdiction over the appeal.”

Workers’ Comp Average Wage Includes Paid Vacation

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In this Connecticut Appeal, the Appellate Court concluded that an employee’s vacation time should be included in determining his average weekly wage for workers’ compensation purposes.  The decision in Menard v. Willimantic Waste Paper Company, to be officially released on March 1, 2016, involved the interpretation of CGS § 31-310.

More specifically, the statute provides that an employee’s average weekly wage is his total weekly wages for the 52 calendar weeks preceding his injury, divided by the number of weeks the employee was actually employed by the employer during those 52 calendar weeks. “[A]bsence[s] for seven consecutive calendar days” are excluded when determining the number of weeks the employee was employed.

Plaintiff took two weeks of paid vacation in the 52 calendar weeks preceding his injury. He claimed that, because he was not present at work during those two weeks, his average weekly wage was his total weekly wages for the preceding 52 weeks divided by 50 weeks, not 52 weeks. The Workers’ Compensation Commissioner rejected that argument and the Workers’ Compensation Review Board affirmed. Plaintiff appealed to the Appellate Court, which affirmed the Board.

Plaintiff’s Main Argument on Appeal

Plaintiff “argue[d] that the phrase ‘absence for seven consecutive days’ in § 31-310 (a) is not ambiguous and dictates that his vacation related seven consecutive day absences should be subtracted, leaving the total amount of wages received during the fifty-two calendar weeks preceding his injury to be divided by fifty.”

Appellate Court Concludes Workers’ Comp Average Wage Includes Paid Vacation

The Appellate Court noted that § 31-310 was ambiguous because plaintiff’s and defendants’ interpretations were both superficially plausible.”The legislative history of § 31-310 [was] not helpful.” The court ultimately affirmed the Board on the following rationale:

[Plaintiff’s] interpretation leads to bizarre results: for instance, not performing work related tasks for one’s employer during paid vacation increases the average weekly wage, while performing activities benefiting the employer during that time decreases the compensation rate. The plaintiff’s proffered interpretation unduly complicates the determination of the average weekly wage. Under the plaintiff’s interpretation, the amount of pay received by him from his employer for the two weeks of paid vacation would be included in the dividend, but the same two weeks would be subtracted from the divisor, thereby artificially inflating the average. A logical interpretation of the phrase ‘‘average weekly wage’’ contemplates that all wages earned by the plaintiff in the relevant time period are to be included in the dividend and that all weeks in which the plaintiff was ‘‘actually employed’’ and earning wages are to be included in the divisor.

Interpretive Gloss Saves Recognizance Statute’s Constitutionality

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The Connecticut Appellate Court applied interpretive gloss to save the recognizance statute’s constitutionality in an opinion to be officially released on March 1, 2016. The main issue in this appeal, Harnage v. Lightner, was whether an inmate had to post a recognizance bond for his action challenging the conditions of his confinement — namely that defendants were deliberately indifferent to his medical needs. A recognizance bond insures that a prevailing defendant can actually collect costs taxed against plaintiff.

“[T]he trial court found that the plaintiff was indigent and granted him a fee waiver for the entry fee, the filing fee, and the cost of service of process.” Plaintiff commenced his action against defendants in their official and individual capacities. He did not post a recognize bond. Defendants moved to dismiss on the grounds that plaintiff did not properly serve them and for failure to post the recognizance bond. In opposition, defendant claimed, among other things, “that the requirement of posting a recognizance bond pursuant to § 52-185 and Practice Book § 8-3 did not apply to him and, even if it did, the amount of the recognizance bond was in the court’s discretion and should be limited to the nominal amount of one dollar, which, in essence, is a request for a waiver.”

The trial court granted the motion to dismiss but only as to plaintiff’s failure to properly serve defendants in their individual capacities. The court ordered plaintiff to post a $250 recognize bond within ten days. “Because the plaintiff could not afford to post the $250 recognizance bond and desired to appeal from the court’s decision, … he filed a motion for judgment, which the court subsequently granted.”

Plaintiff appealed. The Appellate Court “reversed only as to the dismissal of the plaintiff’s causes of action against the defendants in their in official capacities and the case is remanded for a hearing consistent with this opinion to consider the plaintiff’s request for a waiver of his obligation to post a recognizance bond.”

Plaintiff’s Main Arguments on Appeal

“[T]he plaintiff argue[d] that the recognizance bond requirement does not apply to him, or if it does, it is unconstitutional because it deprives him of his rights to due process and equal protection of the law under the federal constitution.”

Plaintiff also claimed that he did not have to serve defendants in their individual capacities via in hand or abode service pursuant to CGS § 52-57(a). Rather, plaintiff argued that “in a civil action against state employees in their individual capacities, § 52-64(a) permits service of process to be made by a proper officer leaving a copy of process with the attorney general at the Office of the Attorney General in Hartford.”

Appellate Court Concludes Interpretive Gloss Saves Recognizance Statute’s Constitutionality

As to the recognizance bond, the court “conclude[d] that it is necessary to place an interpretive gloss on §§ 52-185 and 52-186 in order to avoid placing them in constitutional jeopardy. Accordingly, we construe these provisions as authorizing the court to waive the plaintiff’s obligation to post, or to reduce significantly the amount of, a recognizance bond in light of a party’s indigency and status as an inmate.” Without the interpretive gloss, the statutes were in constitutional jeopardy because “prisoners have a fundamental constitutional right of access to the courts.” “In civil cases in which a fundamental right is implicated and judicial recourse is the sole manner of resolving the dispute, there cannot be a total deprivation of access to the courts, and a statute conditioning access to the courts on paying court fees or costs raises significant constitutional concerns.” The gloss was necessary to provide a “safety-valve” for those who cannot afford the recognizance bond.

The court rejected plaintiff’s claim that he properly served defendants in their individual capacities by leaving process with the Attorney General. “Decisions of this court have repeatedly held that a plaintiff, who serves a state defendant pursuant to § 52-64 (a) by leaving a copy of the process with the attorney general at the Office of the Attorney General, has properly served the defendant only in his or her official capacity and has failed to properly serve the defendant in his or her individual capacity.”

Civil Protection Order Stands

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A civil protection order stands if the court finds reasonable grounds to believe that respondent committed sexual abuse, sexual assault or stalking under one, but not all three, of the statutes enumerated in CGS § 46b-16a(a). The Connecticut Appellate Court reached this conclusion in Kayla M. v. Greene, officially released on February 18, 2016 (the court’s website did not make the Advance Release available until February 22).

Section 46b-16a(a) provides in part that “[a]ny person who has been the victim of sexual abuse, sexual assault or stalking, as described in sections 53a-181c, 53a-181d and 53a-181e, may make and application to the Superior Court for [a civil protection order] ….” Section 53a-181c is stalking in the first degree; section 53a-181d is stalking in the second degree; and section 53a-181e is stalking in the third degree.

The husband and wife respondents did not contest any of the trial court’s factual findings. From those factual findings, the “[trial] court concluded that there were reasonable grounds to believe that the defendants had engaged in conduct that constituted the crime of stalking in the second and third degrees and that they would continue to engage in such conduct in the absence of civil protection orders.” The trial court entered protection orders. Respondents appealed. The Appellate Court affirmed.

Respondents’ Arguments on Appeal

Respondents claimed the trial court erred in entering the civil protection orders because (i) no such order could enter unless they committed stalking in the first, second and third degrees, as opposed to just the second and third degrees; and (ii) their conduct did not rise to the level of second or third degree stalking.

Appellate Court Concludes  Civil Protection Order Stands

The Appellate Court rejected respondents’ first argument because it would lead to absurd results:

If we were to construe the legislature’s use of the word “and” in the conjunctive, as the defendants argue, the inclusion of § 53a-181d in the statutory language would be rendered meaningless…. If an applicant for a civil protection order on the basis of stalking always had to prove that there were reasonable grounds to believe that the defendant had committed stalking in the first, second, and third degrees, this means all applicants would be required to show that they were the victim of stalking in the first degree pursuant to § 53a-181c. The elements necessary to prove stalking in the first degree by definition include the elements of stalking in the second degree…. In other words, a defendant can only be convicted of stalking in the first degree if he or she committed stalking in the second degree. Thus, if the term ‘‘and’’ in § 46b-16a (a) is conjunctive, then the phrase ‘‘as described in sections 53a-181c, 53a-181d and 53a-181e’’ is synonymous with ‘‘as described in §§ 53a-181c and 53a-181e.’’ Such an interpretation of the term ‘‘and’’ would render the inclusion of § 53a-181d superfluous. Only the construction of ‘‘and’’ in the disjunctive makesthe inclusion of all three stalking statutes logically consistent. Therefore, we conclude that the only reasonable interpretation of the term ‘‘and’’ in § 46b-16a (a) is in the disjunctive. Accordingly, an applicant for a civil protection order on the basis of stalking is required to prove only that there are reasonable grounds to believe that a defendant stalked and will continue to stalk, as described in §§ 53a-181c, 53a-181d or 53a-181e.

As to respondents’ second argument, the Appellate Court noted that this was not a criminal proceeding so petitioner was not required to prove all elements of the crime beyond a reasonable doubt. Rather, § 46b-16a requires only that there be “reasonable grounds to believe that the respondent has” violated one of the enumerated statutes. “Reasonable grounds” is probable cause. The Appellate Court went on to apply the facts the trial court found to the elements of the crimes. It concluded that the trial court properly found that there were reasonable grounds to believe respondents’ conduct met each element.

No Relaxation of Will Execution Formalities

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It was proper for a Probate Court to reject a proponent’s second attempt to proffer a will where the Probate Court already had rejected it as invalid, according to a Connecticut Appellate Court opinion to be officially released on February 23, 2016.

In Davis v. Davis-Henriques, plaintiff proffered for admission into probate what he claimed was his mother’s will. The Probate Court rejected the proffer because the putative will “was not attested by two witnesses, as required by General Statutes § 45a-251.” Plaintiff did not appeal the ruling. The Probate Court appointed defendant, plaintiff’s sister, administratrix of their mother’s estate.

Nine months later, plaintiff filed a “motion for order admitting will into probate.” It was the same putative will plaintiff previously proffered but this time plaintiff had affidavits from two people who said they witnessed the decedent signing the will. The Probate Court denied the motion, citing its prior decree rejecting the will as invalid and CGS § 45a-24, which provides that ‘‘[a]ll orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity and shall not be subject to collateral attack, except for fraud.’’

Plaintiff appealed to the Superior Court. Defendant moved to dismiss the appeal and Superior Court granted that motion. Plaintiff appealed. The Appellate Court affirmed.

Plaintiff’s Main Argument on Appeal

‘‘The plaintiff respectfully requests this Court to excuse the mistake in the will not being subscribed by two witnesses and requests the adoption in Connecticut of the provision by [1]
Restatement (Third), Property, Wills and Other Donative Transfers § 3.3 [p. 217 (1999)], that ‘a harmless error in executing a will may be excused if the proponent establishes by clear and convincing evidence that the decedent adopted the document as his or her will.’’’

Appellate Court Concludes there can be No Relaxation of Will Execution Formalities

The Appellate Court declined to adopt a “harmless error” exception to the will execution formalities for two reasons. “First, the question of what constitutes due execution of a will is a statutory issue. … Although the plaintiff invites this court to rewrite the requirements of § 45a-251, we decline to do so, as that remains properly the province of our General Assembly.”

“Second, the plaintiff’s request asks us to depart from the precedent of this state’s highest court…. It is axiomatic that, as an intermediate appellate tribunal, this court is not free to depart from or modify the precedent of our Supreme Court…. Because our Supreme Court has articulated a ‘rule of strict compliance with the wills act'[,] … we cannot depart from that rule and adopt the harmless error exception proposed by the plaintiff.”

Other Things to Note

The Appellate Court noted that plaintiff appealed to Superior Court within the time prescribed by CGS § 45a-186, which meant that Superior Court had subject matter jurisdiction over the probate appeal. While this would have required Superior Court to deny the motion to dismiss, the Appellate Court concluded that Superior Court “viewed the substance of that filing as a challenge to the legal sufficiency of the plaintiff’s pleading.” In other words, defendant called it a motion to dismiss but Superior Court properly treated it as a motion to strike.

The Appellate Court then considered the legal sufficiency of plaintiff’s pleading, which was his “motion for order admitting will into probate.” “Because no appeal was taken from the Probate Court’s … decree declaring the will invalid, that decree remained conclusive upon the parties. As such, the plaintiff’s … motion to admit the will into probate more properly is characterized as a motion to open and set aside the … decree.”

“To mount a collateral attack on the … decree of the Probate Court, the plaintiff thus was obligated to allege, in his complaint before the Superior Court, that the decree was procured by ‘fraud, mistake or like equitable ground.’… That he has not done.” Instead, plaintiff admitted that there was no problem with the initial decree and asked the Appellate Court to adopt the harmless error exception, which it declined to do.

Attorney Who Violates Contingency Fee Statute Cannot Recover in Quantum Meruit

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An attorney who violates the contingency fee statute cannot recover in quantum meruit. The Connecticut Appellate Court reached this conclusion in Parnoff v. Yuille, to be officially released on February 23, 2016.

Plaintiff and defendant entered into a contingent fee agreement that would have paid plaintiff 40% of any recovery, exceeding the contingency fee cap in CGS § 52-251c. After an arbitration panel awarded defendant nearly $1.1 million, defendant objected to plaintiff’s fee.

Plaintiff commenced an action alleging three counts: breach of contract, quantum meruit and bad faith. “Following a jury trial, the jury found in favor of the plaintiff on the first and third count…. As to the second count, quantum meruit, the jury was instructed that it need not reach the claim should the jury find the existence of a contract and a subsequent breach, which it did.”

Plaintiff appealed and defendant cross-appealed. The Appellate Court concluded “that a fee agreement that required payment of fees greater than permitted by the fee cap statute is not enforceable and against public policy.” It reversed and remanded with instructions to dismiss the first and third counts. The Appellate Court “did not address count two, quantum meruit, because neither party asked that the matter be remanded for a hearing.”

“On remand to the trial court, the defendant filed a ‘Motion for Judgment’ and moved for judgment as a matter of law on count two. The trial court rendered judgment in favor of the defendant on count two, quantum meruit.”

Plaintiff appealed. The Appellate Court affirmed.

Plaintiff’s Main Argument on Appeal

On appeal, plaintiff’s main argument was “that count two was never decided on the merits by the jury and he requests his day in court.”

Appellate Court Concludes that an Attorney Who Violates the Contingency Fee Statute Cannot Recover in Quantum Meruit

In the first appeal, the Appellate Court noted that the public policy underlying the contingency fee cap statute was to protect the public from overreaching attorneys. “[E]nforcement of an overreaching fee agreement would violate such a policy even where recovery is limited to the statutory amounts because such a result would create no disincentive for an overreaching attorney and no corresponding public benefit. In other words, if an attorney could be assured of a fee no less than the amount provided by the fee cap statute, such an attorney, if unscrupulous, would have no reason, based in law, to limit fees to the statutory prescribed amount because enforcement of the contract in accordance with the statutorily permitted amount would simply become the lowest possible fee recoverable.” For this reason, the court will not enforce a fee agreement that violates the statute.

The same reasoning applies to a claim in quantum meruit. “An attorney who is permitted to recover in quantum meruit, although unable to recover under the unenforceable contract, would again, if unscrupulous, have no reason based in law to limit fees as required by § 52-251c if he knows that at the very least he can recover in quantum meruit. Accordingly, to permit a recovery in quantum meruit would render the statutory limits of the fee cap statute a meaningless legislative gesture.”

Other Things to Note

“[P]laintiff also claim[ed] that the trial court inappropriately acted on the defendant’s motion, which was captioned ‘Motion for Judgment,’ because a stand-alone motion for judgment does not exist under our rules of practice.” The Appellate Court concluded that, although a stand-alone motion for judgment does not exist in Connecticut, it’s the substance of the motion, not the title, that determines the appropriateness of the relief. Here, the Appellate Court in the first appeal determined that “a fee agreement governed by § 52-251c was the exclusive method for payment of the attorney.” The trial court in granting defendant’s motion for judgment on the quantum meruit claim merely was giving effect to this pronouncement in respect of a claim that the Appellate Court effectively decided in the first appeal.

Summary Judgment Movant Must Demonstrate the Absence of Any Fact Issue

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chain link fenceA summary judgment movant must demonstrate the absence of any fact issue before the opponent must do anything, according to the Connecticut Appellate Court’s opinion in Capasso v. Christmann, to be officially released on February 23, 2016.

In this Connecticut appeal, defendant filed a motion for summary judgment on all six counts of plaintiffs’ complaint. Plaintiffs filed opposition papers. “Although they argued that genuine issues of material fact existed as to all of the plaintiffs’ claims, and thus that summary judgment was not warranted as to any such count, the plaintiffs made no specific references to evidence in their objection.”

At a later hearing, the trial court conducted a trial management conference in chambers. “On the record after that conference, the court had requested that the plaintiffs submit a more detailed response to the defendants’ motion for summary judgment.” The trial court directed plaintiffs to provide specific factual citations to record evidence and to “state with precision … the cause of action in the first count of your second revised complaint.”

Plaintiffs filed a supplemental memorandum that “contained general references to the affidavits that previously had been filed by the plaintiffs, [but] did not contain specific citations to the evidence of record, as the court had instructed.”

The trial court concluded that plaintiffs had not complied with either of its directives. “[T]he court informed the plaintiffs’ counsel that his supplemental memorandum of law opposing the motion for summary judgment was ‘completely inadequate . . . .’ The plaintiffs’ counsel, however, maintained that he had complied with both of the court’s instructions. The court then stated that it would take the matter on the papers, and concluded the hearing. Significantly, the court heard no argument on the merits of the motion for summary judgment.”

“Later that same day, the [trial] court issued a memorandum of decision in which it granted the defendants’ motion ‘for the failure of its counseled opponents to submit an adequate brief following specific instructions to do so.’ … Relying on a case from the United States Court of Appeals from the Second Circuit, the court declined to search the record for facts asserted in the plaintiffs’ supplemental memorandum.”

Plaintiffs appealed. The Appellate Court reversed.

Plaintiffs’ Arguments on Appeal

Plaintiffs argued that the trial court’s instructions weren’t clear and failure to file adequate opposition was not a valid basis for granting summary judgment in any event.

Appellate Court Concludes Summary Judgment Movant Must Demonstrate the Absence of Any Fact Issue

To begin, the Appellate Court rejected plaintiffs’ contention that the trial court’s instructions were not clear: “The trial court clearly and unambiguously stated on the record that the plaintiffs’ counsel was to make specific citations to the record evidence in the opposition to the motion for summary judgment and to state precisely the cause of action set forth in count one of the operative complaint.” Plaintiffs’ supplemental opposition memorandum did neither.

Next, the Appellate Court, relying on ample Supreme Court precedent, observed that “‘the rule that the party opposing summary judgment must provide evidentiary support for its opposition applies only when the moving party has first made out a prima facie case for summary judgment. . . . [I]f the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings.'”

“The trial court failed to address or consider whether the defendants had met their burden of establishing that they were entitled to summary judgment. The court instead rendered judgment in favor of the defendants because the plaintiffs’ counsel had submitted an inadequate brief.” This was error.

“Under our jurisprudence, the court was required to consider, in the first instance, whether the defendants, as the movants, had satisfied their burden of establishing their entitlement to summary judgment. If, and only if that burden was met, would the court have considered the plaintiffs’ memoranda in opposition and supporting evidentiary submissions to determine if they raised genuine issues as to any facts material to the defendants’ right to judgment in their favor. If the defendants had failed to meet their initial burden, it would not matter if the plaintiffs had not filed any response.”

About the Photo

The dispute between plaintiffs and defendants apparently started when plaintiffs installed a fence on their property. Plaintiffs and defendants were neighbors. Plaintiffs operated a construction business out of their property. Defendants lived in theirs. The opinion describes a little bit of their relationship. You can read more about it the New Haven Independent.

Defamatory Statement Must Be Specially Alleged

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The Connecticut Appellate Court concluded that a defamatory statement must be specially alleged in the complaint to be considered on summary judgment. In this Connecticut appeal, Stevens v. Carlton Hemming, to be officially released on February 23, 2016, defendants were appointed receiver of plaintiff’s oil company after he left unfulfilled hundreds of prepaid consumer heating oil contracts. Plaintiff filed a bankruptcy petition. “[D]efendants audited the business’ accounts and found instances where the plaintiff had apparently used corporate funds for personal expenses.” Defendants “filed a proof of claim in the bankruptcy court … alleging that the plaintiff had committed corporate waste.”

A newspaper “article quoted [defendant] as stating, ‘We have not done sufficient work yet to present it in court, but I don’t have any doubt that probably 99 percent would stand up, and that we’d probably find more.’ The plaintiff refer[red] to this statement as the ’99 percent comment.’ The article stated that Helming said that the business ‘paid the various amounts listed in the proof of claim over different periods, from one year to up to five years.’ The plaintiff refers to this as the ‘one to five year allegation.'”

“[P]laintiff filed a complaint against the defendants, in which he alleged that the 99 percent comment and the allegations in the proof of claim were defamatory. He did not plead that [defendant] defamed him by making the one to five year allegation.”

“[D]efendants moved for summary judgment on the grounds that [defendant]’s statements were absolutely privileged; the statements were opinions protected by the fair comment privilege; the allegedly improper statements were not defamatory as they did not ascribe any improper conduct to the plaintiff; and the allegedly unprivileged statements were substantially true.” Plaintiff opposed and defendants replied. Plaintiff then filed a sur-reply memorandum alleging that defendant had defamed him by making the one to five year allegation.

“The [trial] court granted the defendants’ motion for summary judgment in regard to the 99 percent comment on the grounds that it was an opinion on a matter of public concern protected by the first amendment, and was protected by the qualified privilege of fair comment.” The court did not consider the one to five year comment.

The Appellate Court affirmed.

Plaintiff’s Only Argument on Appeal

Plaintiff’s only claim on appeal was “that the trial court improperly declined to consider the one to five year allegation when it granted the defendants’ motion for summary judgment.”

Appellate Court Concludes Defamatory Statement Must be Specially Alleged

The Appellate Court concluded that the trial court properly declined to consider the one to five year comment because plaintiff did not allege it in his complaint. In response to plaintiff’s claim that the modern trend, which Connecticut follows, allows for a broad reading of pleadings, the court said: “This trend … is not a panacea for every instance where a party fails to adhere to the basic procedural requirements of pleading, especially in the context of a defamation complaint.” The court noted in a footnote that, “[a]lthough this court has not addressed the issue, we find persuasive the reasoning of various Superior Courts in requiring specificity in pleading defamation.”

The court ultimately concluded, as follows: “The trial court, in ruling on the defendants’ motion for summary judgment, was limited to the facts alleged in the complaint standing alone, which cannot fairly be read to encapsulate the one to five year allegation. Simple fairness requires that a defendant not be forced to defend against facts that are not clearly pleaded in a complaint. Thus, we conclude that the court did not err in declining to consider the plaintiff’s claim as to the one to five year allegation.”