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Advance Release Opinions

Advance Release Opinions – Supreme Court – August 17

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Review of a Connecticut Supreme Court decision about class actions.

Class Actions

Standard Petroleum Co. v. Faugno Acquisition, LLC – Dispute between gasoline supplier and buyers. Trial court granted buyers class certification. Supreme Court affirmed, finding that trial court did not abuse its discretion in concluding that all of the class certification prerequisites were met, having performed the required “rigorous analysis” to the prerequisites of Practice Book § 9-7 (numerosity, commonality, typicality, and adequacy of representation) and § 9-8(3) (predominance and superiority).

Advance Release Opinions – Appellate Court – August 17

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Reviews of Connecticut Appellate Court advance release opinions about administrative law, civil procedure, and custody and visitation.

Administrative Law

Landmark Development Group, LLC v. Water and Sewer Commission – Commission denied Landmark’s application for 118,000 gallons per day of sewer treatment capacity. On Landmark’s appeal, Superior Court remanded to commission to clarify the capacity it would allocate to Landmark. Commission said 13,000 gallons per day. Superior Court remanded again, finding 13,000 gallons inappropriately low under the Forest Walk factors. Commission, using the Forest Walk factors, upped the allocation to 14,434 gallons. Landmark appealed again. Superior Court granted Landmark’s motion to supplement the record with evidence showing that commission had recently approved a sewer connection for someone else, Gateway, that had a contemplated capacity of 160,000 gallons per day. Superior Court remanded again, finding commission abused its discretion in allowing Landmark only 14,434 gallons when it had allowed Gateway 160,000 gallons. Commission appealed that remand. Appellate Court affirmed, finding Superior Court did not abuse its discretion by (1) supplementing the record with the Gateway evidence; (2) disregarding the Forest Walk factors when remanding for the third time; or (3) considering the Gateway evidence in reaching its third decision to remand.

Civil Procedure

Carson v. Allianz Life Insurance Company of North America – Trial court granted Allianz summary judgment because the statute of limitations barred Carson’s claim. Appellate Court affirmed, finding that Carson failed to demonstrate a genuine issue of material fact that the fraudulent concealment or continuing course of conduct doctrines applied to toll the limitations period. Appellate Court noted that there was no evidence that Allianz knew that the agent that sold the policy had fraudulently concealed anything as required for fraudulent concealment, or that Allianz had a fiduciary relationship with Carson as required for a continuing course of conduct.

Custody and Visitation

Doyle v. Chaplen – Appellate Court affirmed, finding that trial court properly granted mother’s motion to open judgment of paternity by acknowledgment because of a material mistake of fact (mother miscalculated the conception date), genetic testing showed another man to be the father, and acknowledged father did not have a parent-child relationship with the child. In doing so, trial court properly rejected acknowledged father’s claims of laches and equitable estoppel from the delay in moving to open.

 

Advance Release Opinions – Supreme Court – August 9

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Reviews of Supreme Court advance release opinions about medical malpractice.

Medical Malpractice

Gagliano v. Advanced Specialty Care – There was sufficient evidence for jury to find that surgical resident was hospital’s actual agent, making hospital vicariously liable for resident’s malpractice.

Levin v. State – While on an approved home visit from a state mental-health facility, patient stabbed his mother to death. Claims commissioner granted mother’s administratrix permission to sue state for medical malpractice. Trial court struck the complaint. Supreme Court affirmed, finding that plaintiff’s claim violated Jarmie, which bars medical malpractice claims by nonpatients. And, even if plaintiff’s claim sounded in ordinary negligence as opposed to medical malpractice, it exceeded the scope of permission to sue that the claims commissioner had granted and thus the court lacked subject matter jurisdiction over it.

Advance Release Opinions – Appellate Court – August 9

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Reviews of Appellate Court opinions about custody and visitation, governmental immunity, and personal injury.

Custody and Visitation

In re Joheli V. – Trial court terminated father’s parental rights because he failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of Joheli, he could assume a responsible position in her life. Father appealed, claiming that trial court based its decision solely upon father’s incarceration and pending trial for allegedly sexually assaulting Joheli. Appellate Court affirmed, finding that father’s incarceration was one factor (and properly so), but not the sole factor, in the trial court’s decision.

Governmental Immunity

Drabik v. Thomas – AT&T notified the FCC that it was thinking about putting a cell tower on Drabik’s property. FCC notified the Mohegan Tribe of Indians of Connecticut. The tribe objected because the tower would “impact the view shed” for “substantial stone groupings” that were of “traditional religious and cultural significance to the tribe.” Drabik asked the tribe for more information about the stone groupings but the tribe did not respond. So, Drabik filed a petition for a bill of discovery, a device to obtain evidence for use in an action other than the one in which the discovery is sought. Trial court granted the tribe’s motion to dismiss Drabik’s petition on the ground of tribal sovereign immunity. Appellate Court affirmed, finding that tribal sovereign immunity applied to a prelitigation bill of discovery just as it did to an actual litigation, and that the immunity extended to the individual members of the tribe from whom Drabik sought the discovery because they were acting within the scope of their tribal authority.

Palosz v. Greenwich – Board of Education not entitled to sovereign immunity for claims alleging failure to comply with antibullying policy because sovereign immunity protects the state alone, and Board acts for the municipality, not the state, in enforcing antibullying policy. More specifically, a board of education acts for the state when it performs duties delegated to it by the state, and for the municipality when it performs duties delegated to it by the municipality. Though the state delegated creation of an anti-bullying policy to the boards of education, it delegated enforcement to the municipalities. Greenwich delegated its enforcement duties to Board.

Personal Injury

Farmer-Lanctot v. Shand – Farmer-Lanctot jumped out of the way of Shand’s car and was injured. Shand denied he was negligent and asserted contributory negligence. Trial court denied Farmer-Lanctot’s request for certain charges. General verdict for Shand. Appellate Court affirmed, finding that (1) under the general verdict rule, the verdict stands if any ground for the verdict is proper; (2) Shand’s denial of negligence was possibly a ground for the verdict; (3) Farmer-Lanctot’s only attack on that ground was her claim that the trial court should have charged the jury on the driver’s duty to yield to pedestrians when making a right turn; (4) trial court properly declined to give that charge because the facts did not support it; and (5) since the trial court properly declined to give the charge, the general verdict rule required Appellate Court to presume that the jury found Shand not negligent, which was sufficient to affirm.

 

Advance Release Opinions – Appellate Court – August 3

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Reviews of Connecticut Appellate Court decisions about defamation, foreclosure, and professional malpractice (legal). Yes, I’m far behind but plan to catch up by mid-October.

Defamation

Crismale v. Walston – Walston called DEEP to report that he had seen Crismale poaching his clams. DEEP officers responded, did their own investigation, and arrested Crismale. After the arrest, Walston told a newspaper reporter that he had “nailed” Crismale. Crismale was acquitted and sued Walston for defamation based on Walston’s statements to DEEP and the reporter, and for malicious prosecution. Trial court granted Walston summary judgment on his special defenses of privilege and opinion, and probable cause. Appellate Court affirmed, finding (1) Walston’s statements to DEEP enjoyed a qualified privilege, there being no evidence of malice to abrogate it; (2) though Crismale was correct that Walston’s statement to the reporter was one of fact, not opinion, the statement was true – Walston had nailed Crismale by reporting what he had seen to DEEP, which led to Crismale’s arrest – and thus not defamatory; and (3) there was no malicious prosecution because Walston demonstrated that he acted with probable cause and without malice in reporting to DEEP. Judge Lavine concurred, but wrote separately to express his disagreement that Walston’s statement to the reporter could not be anything other than a statement of fact.

Foreclosure

Goodwin Estate Association, Inc. v. Starke – In this action to foreclose a lien for unpaid condominium common charges, trial court denied Starke’s motion to open the judgment and his motion to dismiss for the Association’s failure to notify him of its standard foreclosure policy. Appellate Court affirmed, (1) declining to review as inadequately briefed Starke’s claim that trial court improperly considered equitable principles in deciding his motion to dismiss as opposed to his motion to open; and (2) finding that denial of motion to dismiss was proper since Starke had admitted to receiving the standard foreclosure policy.

Professional Malpractice (Legal)

Taylor v. Wallace – Taylor pleaded guilty to murder, got 25 years, and then brought at least 12 habeas petitions. Wallace was appointed to represent Taylor in one of the habeas proceedings. Taylor sued Wallace for legal malpractice and for using Taylor as “an unwitting and unwilling participant” in fraud against the state. Trial court dismissed the action. Appellate Court affirmed. As to legal malpractice, Appellate Court applied US Supreme Court precedent and concluded that “if success in a tort action would necessarily imply the invalidity of a conviction, the action is to be dismissed unless the underlying conviction has been invalidated.” Since Wallace could be guilty of legal malpractice only if Taylor was invalidly incarcerated, and Taylor remained validly incarcerated because his conviction had not been overturned, the action had to be dismissed as unripe, an aspect of subject matter jurisdiction. As to being a participant in a fraud against the state, Taylor lacked standing because he had no injury – any harm he suffered was wholly derivative of harm to the state.

 

Advance Release Opinions – Supreme Court – August 3

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Reviews of Connecticut Supreme Court decisions about divorce, employment, and underinsured motorist benefits.

Divorce

Shirley P. v. Norman P. – Plaintiff sought a divorce after accusing defendant of sexually assaulting her. While the action was pending, defendant was convicted of several criminal offenses arising from the alleged assault. Though those convictions were on appeal, the matrimonial court gave them preclusive effect under collateral estoppel, and entered a property division award that heavily favored plaintiff. Defendant appealed the property award, claiming that the convictions were not preclusive because they were still on appeal. While the appeal of the property award was pending, the Appellate Court reversed the convictions and the Supreme Court affirmed. Supreme Court then reversed the property award, finding that under United States Supreme Court precedent, a second judgment based on the preclusive effect of a first judgment must be reversed if the first judgment is reversed.

Employment

Trinity Christian School v. Commission on Human Rights and Opportunities – Former female employee filed a claim with CHRO alleging that Trinity unlawfully terminated her employment on the basis of  her sex, marital status, and pregnancy. Trinity moved to dismiss, claiming that it was immune from suit under CGS § 52-571b, which bars the state from burdening any religious belief. CHRO denied the motion. Trinity appealed to Superior Court, re-asserting its immunity argument and adding that its immunity permitted an interlocutory appeal of what would otherwise be a nonfinal order of the CHRO. Superior Court disagreed, finding that the statute provided a special defense, not immunity from suit. Supreme Court affirmed for the same reason.

Underinsured Motorist Benefits

Tannone v. Amica Mutual Insurance Company – This is a good one. Two pedestrians hit by an authorized driver of a rental car. Driver and lessee were underinsured. Rental agency was self-insured. Pedestrians made an underinsured claim on their policy. Amica denied it because the policy, as permitted by state agency regulation, excluded underinsured benefits when the owner of the car is self-insured. The Supreme Court in 1999 had concluded that the regulation was not against public policy because self-insureds had to prove their ability to pay judgments when liable, making underinsurance unnecessary. In other words, the exclusion was valid because a “self-insured” could not be underinsured. In this case, the Supreme Court noted that Congress had passed the Graves Amendment, which makes rental car companies immune from vicarious liability for injuries caused by their underinsured lessees. So, since the injured party no longer can recover from a self-insured car rental agency, the exclusion is invalid because it leaves the injured party without a remedy. Supreme Court reversed the trial court’s summary judgment for defendant and remanded for further proceedings.

Advance Release Opinions – Appellate Court – July 27

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Reviews of Connecticut Appellate Court decisions about commercial litigation, custody and visitation, and divorce.

Commercial Litigation

This is a new tag. I introduced it because, although there is often a contract somewhere in every business dispute, there are often also other claims that the “Contracts” tag does not capture.

Abrams v. PH Architects, LLC – Abrams fell into dispute with his architects and general contractor about renovations to Abrams’ house and yard. He started an action against them, and they counterclaimed. Trial court found for architects and contractor on Abrams’s claims and on their counterclaims. Appellate Court affirmed, finding that (1) Abrams’s claim that general contractor failed to follow contractual change order procedures failed because the operative complaint did not include or rely upon any such allegation; (2) record did not support Abrams’s claim that the architects did not follow contractual procedures and, even if they didn’t, it was not a material breach; (3) general contractor did not breach separate contract to build a stone wall on the perimeter because Abrams modified the contract to move the wall closer to the house; (4) architects had provided the required “contract administration” services; (5) trial court had discretion to credit architects’ expert over Abrams’ expert in rejecting Abrams’ professional malpractice claim; and (6) trial court had discretion to accept other expert testimony over Abrams’ expert’s about cost to complete punch list.

National Waste Associates, LLC v. Scharf – National Waste is a waste management broker. Employees signed a non-solicitation agreement with National Waste. Years later, employees went to work for a National Waste competitor. Then, one of National Waste’s customers declined to renew its contract and instead signed with the competitor. National Waste sued employees and competitor. Trial court found (mainly) for defendants. Appellate Court affirmed, finding that (1) trial court denied unjust enrichment claim against competitor because competitor was “innocent,” not because contracts with employees precluded unjust enrichment against a third-party; (2) non-solicitation agreements were unreasonably overbroad as to prospective customers, and National Waste failed to prove a breach under trial court’s appropriately narrowed interpretation; and (3) National Waste failed to prove it was damaged by any misappropriated trade secret so Appellate Court did not have to decide whether CUTSA trumps CUTPA.

Custody and Visitation

In re Briana G. – Appellate Court affirmed trial court’s decision terminating respondent father’s parental rights upon finding that commissioner had shown by clear and convincing evidence that father had failed to achieve a sufficient degree of personal rehabilitation, and that termination was in the best interests of the children.

Martowska v. White – To resolve a motion relating to visitation orders, the parties underwent a psychological evaluation. That effectively resolved the action. Plaintiff later moved the court to release a copy of the evaluation to him. Trial court denied that request, but did permit plaintiff to review the evaluation. Plaintiff appealed that order. Appellate Court dismissed the appeal for lack of subject matter jurisdiction, finding that the postjudgment order at issue was not a final judgment.

Taylor v. Taylor – Appellate Court affirmed trial court’s order denying visitation, finding that, even if plaintiff had shown a parent-like relationship with the minor child, he had not shown that denying visitation would cause real and significant harm to the child.

Divorce

Riccio v. Riccio – Appellate Court affirmed trial court’s financial orders, concluding that (1) trial court did not misapply the law, abuse its discretion, or commit clear error in issuing financial orders that they were equitable, even if not monetarily equal; (2) trial court did not abuse its discretion in valuing pension benefits under the present division method, instead of the present value method; and (3) trial court did not double dip in setting the rehabilitative alimony defendant had to pay because the court considered plaintiff’s income, not the value of the pension asset, in setting the alimony amount.

Advance Release Opinions – Supreme Court – July 27

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Reviews of Connecticut Supreme Court advance release opinions about attorney discipline and worker’s compensation.

Attorney Discipline

D’Attilo v. Statewide Grievance Committee – D’Attilo started an action in Superior Court (1) seeking a writ of mandamus directing local grievance panels to reverse their dismissals of grievance complaints that D’Attilo had filed against five lawyers; and (2) asking Superior Court to oust the Statewide Grievance Committee and take control of grievances still pending against two other lawyers. Superior Court dismissed the action for lack of standing because D’Attilo was neither statutorily nor classically aggrieved. Supreme Court affirmed, adopting Superior Court’s memorandum of decision.

Worker’s Compensation

Callaghan v. Car Parts International, LLC – Prior to 2011, if an injured worker recovered from a third-party, the employer was entitled to be reimbursed from that recovery for any worker’s compensation benefits that the employer had paid to the injured worker. If any of the recovery remained after reimbursing the employer, the employer enjoyed a “moratorium” on payment of benefits in the future, up to the amount of the remaining recovery. In 2011, the legislature amended the statute, CGS § 31-293(a), to provide that one-third of any recovery from a third-party “shall inure solely to the benefit of the employee.” In other words, the employee is entitled to one-third of any recovery from a third-party. The question on appeal was whether the moratorium applied to that one-third. The Supreme Court confirmed that it does not. The employee gets to keep the one-third regardless of whether the employer pays any future benefits.

Advance Release Opinions – Appellate Court – July 20

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Reviews of Connecticut Appellate Court advance release opinions about civil procedure, contracts (third-party beneficiary), easement, and worker’s compensation.

Civil Procedure

Magee Avenue, LLC v. Lima Ceramic Tile, LLC – Action for breach of lease agreement and unjust enrichment against Lima and Lima’s manager. Lima’s manager moved for summary judgment on the breach of contract counts but did not file a supporting affidavit until the day before the hearing. At the hearing, Magee objected to the affidavit because it was filed too late to be considered and was not based on personal knowledge. Trial court permitted Lima’s manager to testify. It then granted Lima’s manager summary judgment on the breach of contract counts and the unjust enrichment count (trial court’s decision said the complaint is “stricken” as to Lima’s manager, but Appellate Court concluded it was really summary judgment). Appellate Court reversed, finding that trial court (1) improperly considered Lima’s manager’s affidavit because it was filed too late under Practice Book § 17-45; (2) improperly permitted and considered Lima’s manager’s live testimony because that necessarily required trial court to make credibility determinations and factual findings, which necessarily precluded summary judgment; and (3) improperly rendered summary judgment on the unjust enrichment count because Lima’s manager’s written motion did not request summary judgment on that count.

Contracts (Third-Party Beneficiary)

Hilario’s Truck Center, LLC v. Rinaldi – Appellate Court affirmed trial court’s decision that Hilario’s lacked standing to sue Nationwide directly for towing and storage services it rendered for Rinaldi after she crashed her car because Hilario’s was not a third-party beneficiary of the insurance contract between Nationwide and Rinaldi.

Easement

Davis v. Property Owners Association at Moodus Lake Shores, Inc. – Appellate Court affirmed (1) trial court’s decision to permit defense experts to testify despite the arguably late disclosure because plaintiffs failed to show any prejudice; and (2) trial court’s denial of an easement by implication because the evidence showed that plaintiffs could access their property without crossing defendant’s (Appellate Court actually adopted the trial court’s memorandum of decision on this point, but Appellate Court’s decision earlier references the access evidence).

Worker’s Compensation

Barker v. All Roofs by Dominic – Bridgeport was “principal employer” under CGS § 31-291 and thus responsible for benefits for the employee of an uninsured subcontractor who was injured while repairing a roof on a Bridgeport-owned building because (1) our Supreme Court had already confirmed that a municipality can be a principal employer under § 31-291; (2) the statute creating the Second Injury Fund, which compensates injured employees of uninsured employers, did not expressly or implicitly repeal or modify § 31-291; and (3) commissioner properly concluded that the roofing repairs to the Bridgeport-owned building were part of Bridgeport’s “business” under § 31-291, since CGS § 7-148 obligated Bridgeport to repair its property.

 

Advance Release Opinions – Supreme Court – July 20

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Reviews of Connecticut Supreme Court advance release opinions about administrative law and civil procedure.

Administrative Law

Kuchta v. Arisian – I list the topics alphabetically, and though I’m not sure that this case is really about administrative law, I wanted it to be first since it was in the news. Arisian hired Baybrook Remodelers, Inc. for some home improvements. She later put up a sign on her property confirming, “I Do Not Recommend Baybrook.” She also put up two other signs graphically (in the bar graph sense) representing, under the caption “BAYBROOK REMODELERS’ TOTAL LAWSUITS,” the number of cases in which Baybrook was supposedly a party. Kuchta, Milford’s zoning enforcement officer, ordered Arisian to remove the signs, claiming that they violated zoning regulations on the size, height, and number of signs. When Arisian did not comply, Kuchta sought an injunction in Superior Court. Arisian’s special defense was that Milford lacked authority to regulate her signs under CGS § 8-2 because they were not “advertising signs.” Trial court agreed that the signs were not advertising and denied the injunction. After lengthy analysis, the Supreme Court confirmed the signs were not “advertising signs” under § 8-2, which it defined as “any form of public announcement intended to aid directly or indirectly in the sale of goods or services, in the promulgation of a doctrine or idea, in securing attendance, or the like.”

But that’s not all. Kuchta had also sought to enjoin Arisian from occupying the property until she obtained a new certificate of occupancy, which required her to submit a new as-built plot plan. Arisian, of course, had been relying on Baybrook to do that. And, Baybrook, of course, did not. At the time the case had gone to trial more than four years later, Arisian had submitted the as-built, but it reflected a zoning violation, so the building department declined to issue the certificate of occupancy. Trial court denied the injunction because the circumstances did not justify that extraordinary remedy, but fined Arisian $1,000 for taking more than four years to submit a proper as-built. Supreme Court affirmed.

Walgreen Eastern Company, Inc. v. West Hartford – Real property tax appeal. Assessor set fair market value at $5,020,000. Board of Assessment appeals affirmed. Walgreen’s appealed to Superior Court, alleging one count under CGS § 12-117a that it was aggrieved because the assessor overvalued the property; and one count under CGS § 12-119 that the assessment was manifestly excessive. Trial court heard expert testimony and, on the § 12-117a claim, set fair market value at $4,900,000, and ordered West Hartford to correct any overpayment. Trial court denied the § 12-119 claim. Supreme Court affirmed on both claims, finding that trial court properly determined property’s true and actual value, and Walgreen’s had failed to establish assessment was manifestly excessive.

Can anyone tell me the practical difference between § 12-117a and § 12-119? They both seem to give the court the authority to reduce the assessment. It is not clear to me what more you get if the assessment is manifestly excessive.

Civil Procedure

Mendillo v. Tinley, Renehan & Dost, LLP – Mendillo is a lawyer who represented the plaintiff in an employment action against her former employer, a not-for-profit, and the not-for-profit’s executive director, and the chairperson of its board. The Tinley firm represented the defendants. Mendillo apparently communicated with other putative members of the not-for-profit’s board about the not-for-profit’s counterclaim in the employment action. The trial court in the employment action agreed with the Tinley firm’s assertion that Mendillo had violated Rule of Professional Conduct 4.2, and issued a protective order precluding Mendillo from further contact with board members absent the Tinley firm’s consent. Mendillo filed a writ of error, which the Appellate Court dismissed. Supreme Court denied certification, and also denied Mendillo’s motion for reconsideration of that denial. Mendillo filed a second writ of error in the Supreme Court challenging the Appellate Court’s actions. Supreme Court dismissed the second writ, and denied Mendillo’s motion for reconsideration en banc. So, Mendillo filed a new action against the Tinley firm and the Appellate Court, asserting multiple grounds for a declaratory judgment, all essentially attacking the protective order in the employment action. Trial court granted Appellate Court’s and the Tinley firm’s motion to dismiss. Supreme Court affirmed, finding that Mendillo’s claims were nonjusticiable: No practical relief was available to Mendillo because his declaratory judgment action was nothing more than a collateral attack on the protective order in the employment action, which had been fully and finally adjudicated on the first writ of error by the Appellate Court’s decision and the Supreme Court’s denial of certification.