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Advance Release Opinions

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 – January 5

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The Connecticut Appellate Court advance released opinions about administrative law, civil procedure and personal injury, which I review below. The Court also advance released opinions about criminal law and habeas corpus, which I do not review.

Administrative Law

Tirado v. Torrington – In 2010, Torrington added Tirado’s car to its 2004 grand list. Tirado claimed that was improper and sued for damages. Trial court dismissed for lack of subject matter jurisdiction because plaintiff failed to exhaust administrative remedies under CGS § 12-117a and failed to file her claim within one year of the assessment as required by CGS § 12-119. Appellate Court rejected the § 12-119 basis because that section applies when a town assesses property it doesn’t have the authority to assess, as in the case where the taxpayer doesn’t live in the taxing town. Since Tirado conceded that she was living in Torrington in 2004, she effectively conceded that Torrington had the authority to assess. But, as to the § 12-117a basis, Appellate Court affirmed because that section requires a plaintiff complaining about an assessment to exhaust administrative remedies with the board of assessment appeals before starting an action in Superior Court and Tirado didn’t do that.

Recycling, Inc. v. Commissioner of Energy & Environmental Protection – Commissioner denied application for a new permit and revoked an existing permit. Superior Court dismissed Recycling’s appeal. Appellate Court rejected Recycling’s claims that (i) Commissioner’s decision was arbitrary and capricious; (ii) Commissioner applied the wrong standard of review; (iii) improperly excluded relevant evidence; and (iv) “[C]ommissioner improperly engaged in ex parte communications with the town of Milford and then publicly issued an official statement which harshly criticized Plaintiff and in effect directed DEEP to rule against plaintiff.”

Civil Procedure

Estela v. Bristol Hospital, Inc. – Estela is a doctor who claimed that the hospital had improperly restricted his privileges and stole his patients. Trial court dismissed Estela’s first action for failure to comply with deadlines set in two court orders. Estela started a second action relying on the accidental failure of suit statute, CGS § 52-592(a). Hospital moved for summary judgment on statute of limitations grounds but not explicitly challenging the applicability of § 52-592(a). Then, before Estela objected to the summary judgment motion, Hospital filed a motion to bifurcate Estela’s claim that his action was not time-barred from his underlying claims. Trial court granted bifurcation and, after an evidentiary hearing on the timeliness issue, found that § 52-592(a) did not apply because the first action was dismissed for serious disciplinary reasons, not because of mistake, inadvertence or excusable neglect. Appellate Court rejected Estela’s claim that Hospital waived objection to accidental failure of suit by failing to raise it before the motion to bifurcate, noting that Supreme Court precedent confirmed that accidental failure of suit may be addressed through a motion to bifurcate. Appellate Court also rejected Estela’s claim that trial court applied the wrong standard – “mistake, accident or reasonable cause” instead of “mistake, inadvertence or excusable neglect” – in determining whether the first action was an accidental failure. Whatever the trial court said about the standard at the evidentiary hearing, it applied the proper standard in its memorandum of decision.

Personal Injury

Boykin v. State – Plaintiff, hit by a car while in crosswalk, claimed that the State was negligent in failing to install or repair a crosswalk button or otherwise provide a safe crosswalk. Trial court dismissed the action for lack of subject matter jurisdiction, finding that the notice of claim was patently defective and so did not invoke the waiver of sovereign immunity in CGS § 13a-144. Appellate Court reversed, concluding that “plaintiff’s notice was not patently defective, as it ‘both informed the defendant of the plaintiff’s intent to file a claim and furnished the defendant with a guide as to how to conduct further inquiries to protect its interests.'”

Advance Release Opinions – December 28

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The Connecticut Appellate Court advanced released an opinion about an easement by implication, which I review below. The Court also advance released an opinion about criminal law, for which I provide the syllabus but no review.

Easement by Implication

Deane v. Kahn – Picture three parcels in a row along the northern shore of the Connecticut River. Going from west to east, the first parcel is Gorman’s, the second is Kahn’s, and the third is Deane’s. The Kahn and Deane properties were once one property, separated by conveyance in 1960. A road runs along the northern border of the properties and provides access to each of the properties. Deane’s property, however, is bisected by a steep slope that effectively divides it into an upper portion and a lower portion. The lower portion is closest to the river. Because of the slope, Deane can’t really access the lower portion from the upper portion. Though to the west of the properties the road curves sharply to the south and east and runs along the river, it dead-ends at the southern portion of Gorman’s property near the river (it actually dead ends to the west of Gorman’s property but the case is easier to understand if you picture the road dead-ending at  Gorman’s property).  The trial court concluded that Dean had an implied right to access the lower portion of his property from the dead-end of this lower road by crossing the Gorman and Kahn properties. The Appellate Court affirmed, noting that an easement by implication typically arises where a conveyance separates what was once one piece of land “and at the time of the conveyance a permanent servitude exists as to one part of the property in favor of another which servitude is reasonably necessary for the fair enjoyment of the latter property.” It differs from an easement by necessity in the following ways: (i) easement by necessity requires a landlocked parcel, but easement by implication does not; and (ii) easement by necessity does not require an apparent preexisting servitude at the time of the conveyance, but an easement by implication does. The Appellate Court concluded that there was sufficient evidence supporting an easement by implication for Deane to access the lower portion of his property by crossing the Gorman and Kahn properties.

Criminal Law

State v. Grant – Syllabus:

“Convicted, after a jury trial, of the crimes of manslaughter in the first degree with a firearm and assault in the first degree in connection with an incident in which the defendant shot two witnesses at a restaurant, the defendant appealed. During the defendant’s trial, the court admitted into evidence a digital video recording of an interview of the defendant by the police following his arrest and a written statement in which the defendant had admitted to being the shooter and that he sold drugs to make money. The state also presented forensic evidence and testimony from various eyewitnesses, including V, who testified, inter alia, that he had personal knowledge that the defendant sold drugs and had possessed a firearm prior to the time of the shooting. Following V’s testimony, the trial court gave a limiting instruction to the jury regarding prior misconduct evidence. On the defendant’s appeal, held:
“1. The defendant could not prevail on his claim that the trial court abused its discretion in admitting V’s testimony and the portions of the defendant’s statements to the police that indicated that he was involved in the sale of drugs, as any alleged error in the admission of that evidence was harmless: the defendant failed to demonstrated that the admission of the subject evidence had a significant impact on the jury’s verdict, as the state’s case against the defendant was strong, the state having presented an abundance of independent evidence that substantiated the jury’s verdict, including eyewitness testimony identifying the defendant as the shooter, forensic evidence indicating that a firearm recovered near the restaurant fired the bullets that were recovered from the victims’ bodies, documentary and testimonial evidence that the defendant’s DNA was present on that firearm and the written and recorded statements made by the defendant, in which he admitted his involvement in the shooting and the manner in which it transpired; moreover, the evidence that the defendant sold drugs was not a prominent part of the state’s case or more egregious in nature than the evidence related to the shooting incident, the record was barren of any evidence that contradicted V’s testimony and the court provided the jury with a limiting instruction regarding prior misconduct evidence immediately following V’s testimony.
“2. The defendant’s claim that the trial court abused its discretion in permitting the state to elicit testimony from V that he had observed the defendant carrying a firearm on a prior occasion was unavailing, as any alleged error in the admission of V’s statement was harmless; in light of the various factors discussed in this court’s analysis of the defendant’s first claim, this court was left with a fair assurance that the admission of V’s statement did not substantially affect the jury’s verdict.”

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.”

Advance Release Opinions – December 21

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The Connecticut Appellate Court advance released opinions about arbitration and underinsured motorist benefits, which I review below. The Court also advance released opinions about criminal law and habeas corpus matters, which I do not review.

Arbitration

Henry v. Imbruce – The Appellate Court affirmed trial court’s decision granting plaintiffs’ motion to confirm arbitration award and denying defendants’ motion to vacate the award. In doing so, the Appellate Court rejected defendants’ claims that arbitrator (i) had a nontrivial conflict of interest because she had arbitrated the divorce of an attorney who had previously represented some of the defendants in an unrelated matter; (ii) denied defendants fundamental fairness in (a) declining to order plaintiff to produce certain information and (b) permitting plaintiff to add new claims for which discovery was not permitted; and (iii) exceeded her authority in (a) rendering an award against one of the defendants individually even though he didn’t sign an arbitration agreement and (b) apportioning costs and awarding attorney’s fees. I note that the Appellate Court described defendants’ argument (iii)(a) as “close to frivolous” because the individual defendant repeatedly had identified himself as a party to the arbitration and thus assumed the obligation to arbitrate.

Stack v. Hartford Distributors, Inc. – Trial court granted employee’s application to proceed with arbitration under the parties’ employment agreement. Employer appealed, claiming that the arbitration clause did not apply because a corporate merger rendered the employment agreement void and a different agreement, corporate bylaws and our corporate governance statutes gave employer a basis for firing employee that was independent of the employment agreement. Appellate Court affirmed because employee claimed that employer breached employment agreement, the agreement required arbitration of claims of breach, and under our law if the employer says the whole employment agreement is void, not just the arbitration clause, the arbitrator decides validity.

Underinsured Motorist Benefits

Doyle v. Universal Underwriters Ins. Co. – Plaintiff went to high/low confidential arbitration with tortfeasor, with a high of tortfeasor’s $100,000 policy limit. Arbitrator found the damages were some $106,000. Torfeasor’s carrier paid its policy limit. Plaintiff commenced action against his own carrier for underinsured motorist benefits but apparently wanted to relitigate damages. Trial court granted carrier’s motion for summary judgment on collateral estoppel grounds but awarded plaintiff the $6,000 difference between the arbitrator’s damages and the torteasor’s policy limit. Plaintiff appealed. Appellate Court affirmed.

Advance Release Opinions – December 20

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Connecticut Supreme Court

The Supreme Court advance released an opinion in a personal injury matter about a police duty to search those in civil mental health custody.

Hull v. Newtown – Lupienski went to the police station complaining of hallucinations and shortness of breath. Without searching him, a police officer took him into custody and had EMS take him to the hospital, where he was admitted. About 38 hours later, Lupienski shot Hull, a nurse manager at the hospital. Hull brought suit, alleging that the police had a duty to search Lupienski before he got to the hospital. The trial court granted the Town’s summary judgment motion and Hull appealed. The Supreme Court noted that “the police would have been required to search Lupienski only if the [department’s] arrest policy in conjunction with § 17a-503 (a) [civil mental health custody] , or the [department’s] transportation policy, imposed a ministerial duty to do so.” The Supreme Court affirmed, finding that the search requirement of the arrest and transportation policies applied only to those in “custody” in the criminal context, not the civil mental health context.

Advance Release Opinions – December 18

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Connecticut Supreme Court

The Supreme Court advance released an opinion about personal injury law involving an exception to municipal immunity, which I review below.

Williams v. Housing Authority – Tough case all the way around. An adult and her three young children died in a fire in a Bridgeport public housing complex. Administratrix sued Fire Department for failing to conduct a statutory fire safety inspection of the apartment. Under the municipal liability statutes, municipalities are immune from liability for a failed or negligent inspection unless the “failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances ….” The trial court granted the Fire Department’s motion for summary judgment, finding that the exception did not apply because recklessness required knowledge of a dangerous condition and there was no evidence that the Fire Department had any such knowledge. The Appellate Court reversed, finding that recklessness required only recognition of a “possible impact” on health or safety from a failure to inspect. The Supreme Court also reversed because neither the trial court nor the Appellate Court got the recklessness standard right. It doesn’t require as much as knowledge of a dangerous condition or as little as recognition of a possible impact. Rather, reckless disregard “is more egregious than mere negligence and requires that health and safety inspectors disregard a substantial risk of harm.” Whether the inspectors did that requires consideration of “all the relevant circumstances” – which really makes the recklessness issue always a fact question for the jury to decide.

After reaching these conclusions, the majority spends a lot of time trying to refute accusations it claims the dissent makes. I’m not so sure it succeeds. For example, the majority “categorically reject[ed] the dissent’s suggestion that we have embraced a per se theory of recklessness with respect to the failure to perform mandated health or safety inspections. Rather, we have identified numerous factors that the trier of fact may consider in assessing whether any particular failure to carry out a statutorily mandated inspection demonstrates a reckless disregard for health or safety under all the relevant circumstances.” That may be true in theory, but it’s hard to imagine how a failure to conduct a health or safety inspection already deemed to be important enough to warrant statutory mandate could be anything other than reckless under the majority’s standard.

 

Advance Release Opinions – December 15

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Connecticut Appellate Court

The Appellate Court advance released opinions about breach of contract, child custody, civil procedure, conversion, and employment law, which I review below. The Appellate Court also advance released two decisions in criminal cases and one decision in a habeas matter. I don’t review those decisions and don’t provide the syllabuses (or syllabi if you prefer) because I’m concerned about the length.

Breach of Contract

Isenburg v. Isenburg – Despite the title, this is not a matrimonial case. Plaintiff and defendant lived together but never married. Plaintiff took defendant’s last name through a legal name change. Plaintiff was self-represented and displayed a fair amount of creativity in her claims after the relationship went bad. Both the trial court and Appellate Court rejected all of the claims, but the decision is relatively short (12 pages) and worth a quick read, if only for the true flavor of the claims. The gist of the complaint was that defendant had promised plaintiff a share of his property and business income. The trial court rejected plaintiff’s claims. On appeal, plaintiff claimed that the trial court erred by: (1) excluding certain exhibits; (2) not recusing itself; (3) finding that there was no contract; (4) finding that the defendant did not owe or breach any fiduciary duty to her; and (5) failing to award her certain specific damages and property. The Appellate Court affirmed, finding as follows with respect to plaintiff’s claims: (1) the trial court did not exclude any exhibits; (2) that the trial court was a married man and the case involved unmarried persons living together was not a basis for recusal; (3) the evidence confirmed there was no contract; (4) the parties’ relationship was social, not fiduciary; and (5) there was no basis to award plaintiff the specific damages or property.

Child Custody

Baronio v. Stubbs – Trial court ordered joint legal custody and shared physical custody. Defendant-mother appealed, claiming that joint custody was not in the child’s best interests where one parent objected to it and she objected to it. Appellate Court affirmed. It found that the record showed that the parties had in fact agreed to joint custody. The Appellate Court also rejected defendant’s claim that the trial court was biased in favor of plaintiff or against defendant for the same reason – the record did not show any bias or predetermination.

Civil Procedure (Foreclosure)

Chase Home Finance, LLC v. Scroggin – This case is significant, not necessarily because of the procedural issue involved, but because it was resolved for the borrower in a foreclosure case. I think if this case was decided five or six years ago, borrower would have lost. In any event, on to the decision. Bank filed a motion for default for failure to plead and a motion for judgment of foreclosure. Borrower was defaulted for failure to plead. Before judgment entered, bank amended its complaint to add a new defendant and five new counts. The only amendment to the original count was to identify the new defendant as a subsequent encumbrancer. Three of the new counts addressed a priority issue between bank and new defendant. The other two new counts alleged that borrower’s interaction with new defendant had injured bank. Bank filed a new motion for judgment. Before the court considered that motion, borrower filed an answer to the amended complaint. The trial court granted the motion for judgment because the case was five years old, borrower never moved to open a default, and borrower could not file an answer after a motion for judgment had been filed. The Appellate Court reversed, noting that amending the complaint after a default extinguishes the default and gives the defendant the right to plead if the amendments reflected a substantial change in the pleading. Here, the new counts reflected new facts and legal theories that were substantive, not technical, changes. Judge Bear dissented, noting that the court’s focus should not have been on whether the amended complaint as a whole reflected substantive changes but on whether the foreclosure count reflected substantive changes. The borrower had not appealed the judgment as to the two new counts alleged against him and the other three new counts involved only the bank and the new defendant. Since the original count was really the only count under review and that count didn’t substantially change, the trial court’s decision should have been affirmed.

Conversion

Wiederman v. Halpert – Plaintiff sued for breach of fiduciary, fraud, conversion, bad faith and CUTPA violations arising from real estate investments she made with the defendants. Trial court defaulted defendants for failure to attend a trial management conference and awarded plaintiff compensatory for all but the CUTPA count and punitive damages for the fraud count. The trial court also separately awarded plaintiff her attorney’s fees and costs. Defendants moved to open the judgment on the ground that plaintiff, as an LLC member, lacked standing to pursue the claims she asserted as an individual. The trial court denied the motion. Defendants appealed. The Appellate Court rejected the lack of standing claim because plaintiff had alleged injuries that were direct, not remote, indirect or derivative. Defendants also claimed that the trial court’s decision “is rife with errors, and those errors are so plain that they resulted in manifest injustice.” The Appellate Court concluded that the only plain error claims that had any traction related to the the award of damages for conversion against one defendant and the punitive damages award. As to conversion, the Appellate Court reversed the judgment as to that one defendant because the conversion count did not contain any allegations against her. The Appellate Court also reversed the punitive damages award because punitive damages for common law fraud are limited to attorney’s fees and the trial court had separately awarded attorney’s fees.

Employment

Heyward v. Judicial Branch – Trial court struck plaintiff’s hostile work environment and racial discrimination claims because the complaint did not allege sufficient facts to support them. Appellate Court affirmed. As to the hostile work environment claim, the Appellate Court found that the facts alleged “are not sufficiently severe or pervasive so as to alter the conditions of [plaintiff’s] employment and to create a hostile work environment.” In fact, plaintiff alleged only two instances of racial remarks and only one of those remarks was directed at plaintiff. As to the racial discrimination claim, the Appellate Court found that plaintiff did not allege any facts showing that she was subjected to an adverse employment action.