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Advance Release Opinions

Advance Release Opinions – December 14

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Connecticut Supreme Court

The Supreme Court advance released an opinion about guardianship and special immigrant juvenile status. I don’t review the decision because I normally don’t review decisions in cases like this, but I do provide the syllabus from the opinion.

In re Henrry P. B.-P.

Sylbabus:

Pursuant to statute (§ 45a-608n [b]), ‘‘[a]t any time during the pendency of
a petition . . . to appoint a guardian or coguardian . . . a party may
file a petition requesting the Probate Court to make findings . . . to
be used in connection with a petition [for] special immigrant juvenile
status under [federal law].’’
H, a minor child, traveled from Honduras, where his life was threatened,
to the United States in order to seek refuge with his mother, the peti-
tioner, who lives in Connecticut. Five weeks before H’s eighteenth birth-
day, the petitioner filed petitions seeking, inter alia, the appointment of
a coguardian and juvenile status findings pursuant to § 45a-608n (b)
so that H could obtain special immigrant status and avoid potential
deportation. The Probate Court then scheduled a hearing on a date after
H’s eighteenth birthday and ordered the Department of Children and
Families to conduct a study related to the guardianship petition. Shortly
before H’s birthday, the petitioner filed an emergency petition for find-
ings under § 45a-608n (b), which the Probate Court denied. Thereafter,
the petitioner and H appealed to the Superior Court from certain of the
Probate Court’s rulings, including the denial of the emergency petition.
The Superior Court dismissed the appeal for lack of subject matter
jurisdiction on the ground that H was no longer a minor, and the peti-
tioner and H appealed to the Appellate Court. While that appeal was
pending, the Probate Court issued a final decision denying the petitions
seeking appointment of a coguardian and juvenile status findings pursu-
ant to § 45a-608n (b) on the ground that H was no longer a minor. The
petitioner and H then appealed from the Probate Court’s final decision
to the Superior Court, which dismissed that appeal. Thereafter, the
petitioner and H filed a second appeal with the Appellate Court, which
consolidated the two appeals. The Appellate Court affirmed the judg-
ments of the Superior Court dismissing the probate appeals, concluding
that the Probate Court lacked authority to appoint a coguardian and to
make juvenile status findings under § 45a-608n (b) because H had
reached the age of eighteen. On the granting of certification, the peti-
tioner and H appealed to this court.
Held that the Appellate Court
improperly affirmed the Superior Court’s judgments dismissing the pro-
bate appeals, this court having concluded that the Probate Court was
not divested of authority to make juvenile status findings under § 45a-
608n (b) after H reached the age of eighteen during the pendency of
the underlying proceeding: although the text of § 45a-608n (b) requires
juvenile status findings upon the granting of certain guardianship peti-
tions, there was no statutory language expressly conditioning the Pro-
bate Court’s authority to make such findings on the granting of such a
petition; moreover, adding such restrictive language would be inconsis-
tent with the maxim that this court does not read language into statutes
and with the statutory (§ 45a-605 [a]) directive favoring a liberal con-
struction of § 45a-608n, recognizing the authority to make findings under
such circumstances was consistent with the overarching purpose of
§ 45a-608n, which is to facilitate access to the state court findings neces-
sary for federal juvenile status petitions, which must be filed with federal
immigration authorities before a child’s twenty-first birthday, and the
legislative history of § 45a-608n counseled in favor of a broader reading
of the statute as to those persons eligible to obtain predicate state court
findings necessary to render available the federal immigration benefits
of juvenile status.

Advance Release Opinions – December 13

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Connecticut Supreme Court

The Supreme Court advance released an opinion about criminal law. Though I don’t ordinarily review criminal law decisions, it’s easy enough to post the syllabus from the opinion, which I think I’m going to do for criminal cases from now on.

State v. Adams – Syllabus from the opinion: “Convicted of the crimes of attempted larceny in the sixth degree and breach of the peace in the second degree in connection with an incident in which the defendant attempted to shoplift a bag of items from a store before leaving that bag behind and fleeing, the defendant appealed to the Appellate Court, which reversed his conviction as to attempted larceny because there was no evidence that the items in the bag had belonged to the store. The Appellate Court reasoned that the store surveillance video had not captured the defendant’s placing of specific, identifiable store merchandise into the bag, and, although one of the investigating police officers testified that the store’s employees had determined the total dollar amount of the items in the bag, there was no evidence to substantiate how those employees arrived at that exact value. On the granting of certification, the state appealed to this court.

“Held that the Appellate Court incorrectly concluded that the evidence was insufficient to support the defendant’s conviction of attempted larceny, the evidence having supported a reasonable inference that the items in the bag belonged to the store and that the defendant intended to deprive the store of those items permanently without its consent: the fact finder could have reasonably inferred, from the evidence that the employees determined the exact value of the items in the bag, that those items had price tags on them from the store, which, together with
the surveillance video showing the defendant’s furtive movements, his resistance when store employees had attempted to stop him, his abandonment of the bag, and his flight from the store, raised a reasonable inference that the bag contained items owned by the store; furthermore, the defendant’s claim that the evidence of his flight could not be used to establish that a crime was committed was unavailing because, although evidence of flight, standing alone, may be ambiguous, it was for the fact finder to resolve that ambiguity under all of the relevant facts and circumstances.”

Advance Release Opinions – December 11

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Connecticut Supreme Court

The Supreme Court advance released an opinion about insurance coverage for false imprisonment, which I review below. The Court did not release any other opinions.

Nationwide Mut. Ins. Co. v. Pasiak – Pasiak had a home office for his construction company. He hired Socci to do office work at the home office. During Socci’s second week, a masked intruder entered the office and demanded that Socci open the safe. Socci didn’t know there was a safe and certainly didn’t have the combination. The intruder tied her up and threatened to kill her family if she didn’t give him the combination. The intruder was still there when Pasiak returned and the two had a struggle. Pasiak pulled off the intruder’s mask and it turned out that the intruder was Pasiak’s lifelong friend. Pasiak wouldn’t let Socci leave or call the police. He didn’t call the police either. A little later, Pasiak let his friend leave. After that, Pasiak drove Socci to Greenwich to discuss the incident with a mutual friend, who said they should call the police. Pasiak let Socci go, but did not call the police until later that day after Socci and her husband went to Pasiak’s house.

Pasiak’s friend was arrested, prosecuted and convicted. Socci prosecuted a personal injury action for false imprisonment against Pasiak and was awarded compensatory and punitive damages. Pasiak sought indemnification under a personal umbrella policy. The insurer brought a declaratory judgment action.

The umbrella policy covered “personal injury”, which was broad enough to cover Socci’s injuries, but the policy had a business pursuits exclusion. The exclusion precluded coverage for occurrences “arising out of” Pasiak’s “business pursuits.”

The trial court concluded that the exclusion did not apply. Though Socci testified that Pasiak said he didn’t want to call the police because he was trying to protect his friend and because calling the police would be bad for business, there was a lack of proof of any negative impact on the business from calling the police. So, in the trial court’s view, Pasiak was really just protecting his friend, which was not a business pursuit.

The Appellate Court reversed, finding that the exclusion applied essentially because everything that happened while Socci was at work necessarily “arose out of” Pasiak’s business pursuits – if she wasn’t at work doing her job, she would not have been victimized by Pasiak or his friend. Pasiak’s subjective motivations for his conduct were irrelevant.

The Supreme Court concluded that the trial court was too restrictive, and the Appellate Court too broad, about the scope of the exclusion. Specifically, Pasiak’s apparent desire to help his friend did not necessarily trump his concern about the impact on his business. And the mere fact that Socci was at work did not necessarily mean that the false imprisonment arose out of that work. In the end, the Supreme Court found the record insufficient to determine whether the exclusion applied as a matter of law and reversed and remanded to the trial court for further proceedings.

The Supreme Court also rejected all of the insurer’s alternate grounds for affirmance: (i) worker’s compensation exclusion did not apply because (a) Pasiak was sued in his personal capacity, not as Socci’s employer, and (b) there was no proof that Socci’s injuries would have been compensable under the worker’s compensation act in any event; (ii) physical or mental abuse exclusion did not apply because “abuse” is something different from false imprisonment; and (iii) public policy did not preclude coverage for punitive damages because those punitive damages arose from the intentional tort of false imprisonment, which the policy covers.

Advance Release Opinions – December 8

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Connecticut Appellate Court

The Appellate Court advance released opinions about administrative law, employment law, personal injury (three opinions) and trusts and estates, which I review below. The Appellate Court also released opinions about criminal law (three opinions) and habeas corpus, which I do not review.

Administrative Law

Lawrence v. Dept of Energy & Environmental – Superior Court dismissed the appeal because plaintiff was not classically or statutorily aggrieved by commissioner’s decision granting an application to construct a residential dock and pier, except as to his claim for visual degradation but the record supported the commissioner’s decision in that regard. Appellate Court affirmed by adopting Superior Court’s decision.

Employment Law

Horvath v. Hartford – Trial court granted city summary judgment on former assistant police chief’s claim of constructive discharge. Appellate Court affirmed, finding that the alleged adverse conditions even taken collectively “were not so objectively intolerable that a reasonable person would have felt compelled to resign.”

Personal Injury

Cuozzo v. Orange – Trial court granted municipal defendants summary judgment because there was no issue of fact that the pothole that allegedly caused the injuries was not on their property. Appellate Court affirmed.

Cusano v. Lajoie – Jury awarded medical expenses but nothing for non-economic damages. Trial court granted motion for additur because it was inconsistent to award substantial medical expenses but deny pain and suffering. Appellate Court reversed because (i) the trial court failed to “state the specific facts relied upon … to justify its decision to award the extraordinary relief of additur”; and (ii) there was “conflicting evidence and credibility issues concerning the extent, if any, of the plaintiff’s pain and suffering.”

Tara S v. Charles J – Father was prosecuted sexually abusing his daughter, who was four years old at the time. Daughter, now 36, started this action against father to recover for personal injuries resulting from the sexual abuse. Father moved to dismiss, arguing that CGS § 52-577d, which extends the limitations period for claims by those sexually abused as minors to 30 years after majority, was unconstitutional as applied to him because (i) legislative history shows extension is constitutional only for repressed memories and daughter did not have any; (ii) violated his rights to a speedy trial and confrontation, and his protection against double jeopardy (he argued this civil action was quasi-criminal); and (iii) and statute is unconstitutionally overbroad and unconstitutionally infringes on a property interest. Appellate Court affirmed, finding (i) statute clearly and unambiguously not limited to repressed memories so no basis for considering legislative history; (ii) the action is purely civil, not quasi-criminal; and (iii) statute isn’t overbroad because it doesn’t prohibit any constitutionally protected conduct and doesn’t impact any property right.

Trusts and Estates

Geci v. Boor – There was no confidential relationship between father and daughter that would have shifted burden of proof to daughter on issue of ownership of joint bank accounts; there were no facts suggesting that father intended anything other than leaving the joint accounts to daughter alone; trial court was free to conclude that daughter did not conceal survivorship aspect of accounts from father or his attorney; and daughter did not undervalue assets such that she should be removed as executrix.

 

Advance Release Opinions – December 1

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The Supreme Court advance released an opinion in a criminal case that I review below. The Appellate Court advance released opinions about civil procedure, family law, indemnification, and vexatious litigation that I review below. The Appellate Court also released three opinions in criminal matters which I do not review.

Connecticut Supreme Court

Criminal Law

State v. Damato-Kushel – I don’t normally review opinions in criminal cases but this one is a little different. The defendant was accused of sexual misconduct. Her alleged victim brought this writ of error, claiming that he, either personally or through his attorney, had a constitutional right under the victim’s rights amendment to be present during plea negotiations and other in-chambers pretrial disposition conferences between the prosecutor, the court and defense counsel. Supreme Court dismissed the writ, concluding that the alleged victim has no right to attend because the defendant herself has no right to attend. A concurring opinion notes that even though the defendant has no right to attend, her attorney does and the majority did not explain why the same right is not extended to the alleged victim’s counsel. The reason is that the language of the victim’s rights amendment does not allow it.

Connecticut Appellate Court

Civil Procedure

Law Offices of Frank N. Peluso, P.C. v. Cotrone – This case confirms, if we didn’t already know it, that failure to follow proper procedure can really ruin your day. Law firm sued former client for unpaid legal fees. Former client counterclaimed. Law firm filed a withdrawal of its action. Two days later, law firm filed what it thought was a withdrawal of its withdrawal. Trial court rejected former client’s argument that you can’t withdraw a withdrawal. Case went to trial. Law firm won on its claim and the counterclaim. Appellate Court reversed the judgment on law firm’s claim because you can’t withdraw a withdrawal. You have to move to restore the case to the docket within four months of the withdrawal. Painful lesson.

Family Law

Kent v. DiPaola –  Trial court did not include the present value of Spouse 2’s pensions (which were in pay status) in the division of assets because it used the income stream from the pensions to eliminate what would have been Spouse 1’s child support obligation. Trial court divided the martial assets two-thirds / one-third in favor of Spouse 2. Appellate Court affirmed, concluding that trial court did not abuse its discretion in excluding the pensions from the marital asserts because the income offset Spouse 1’s support obligation. Nor was there any abuse of discretion in the property division.

Indemnification

O’Brien v. New Haven – Plaintiff was the city’s tax collector. A third party sued plaintiff for misconduct. Plaintiff asked city to defend him. City declined but said that it would indemnify plaintiff under CGS § 7-101a(b) for financial loss, including attorney’s fees, if plaintiff won the case and was acting in the discharge of his duties. Plaintiff hired his own lawyer and won. City refused to pay his attorney’s fees. Plaintiff filed a notice of intention to bring an action for indemnification with the city clerk and commenced the action soon after. City claimed that notice was late. Trial court found that notice was proper and timely; plaintiff was entitled to his attorney’s fees in defending against the misconduct claims; but plaintiff was not entitled to his attorney’s fees in prosecuting the indemnification action. Plaintiff and city appealed. After some extensive statutory analysis, Appellate Court agreed that the notice was proper and timely. Appellate Court also agreed that plaintiff was not entitled to his attorney’s fees in the indemnification action because there was no statute or contract authorizing it.

Vexatious Litigation

Rockwell v. Rockwell – In the underlying action, wife sued husband on an investment agreement and lost. Husband then sued wife and wife’s attorney for vexatious litigation. Wife was dismissed for lack of personal jurisdiction. Husband claimed a jury. After bifurcating the issue since it involved a question of law, the trial court found that there was probable cause to commence the underlying action and entered judgment for attorney. Appellate Court affirmed, concluding that trial court did not abuse discretion in bifurcating the probable cause issue; husband did not have a constitutional right to have the jury decide that issue; and trial court properly determined there was probable cause for the underlying action.

 

Advance Release Opinions – November 24

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Connecticut Appellate Court

The Appellate Court advance released opinions in the areas of breach of contract (involving a collective bargaining agreement) and foreclosure, which I review below. The Court also advance released opinions in three habeas matters and three criminal matters, which I do not review.

Breach of Contract

Rosenthal v. Bloomfield – Retired cops claimed that Town breached collective bargaining agreement because new health insurance plan, which increased co-pays, was not “comparable”to old plan. Trial court dismissed claim for failure to make out a prima facie case. Appellate Court affirmed, finding that there was no evidence of a breach. Though the new plan increased co-pays, it did so only for some services, while lowering or eliminating them for others. So, as a whole, the new plan was comparable to the old plan.

Foreclosure

GMAC Mortgage, LLC v. Ford – Not to be confused with the 2013 Appellate Court decision involving the same parties and mortgage, in this one the borrower claimed that the United States Supreme Court’s 2015 decision in Jesinoski v. Countrywide Home Loans, Inc. (135 S. Ct. 790) resuscitated his TILA-rescission defense and that the substituted plaintiff lacked standing because it never had any legal existence. Jesinoski confirms that under TILA a borrower need only mail a rescission notice within three years of consummating the loan transaction – the borrower does not also have to start a lawsuit to confirm the rescission within that same three year period. Ford claimed that under Jesinoski the foreclosure action could not proceed because he had rescinded the loan by mailing a notice within the three year period. The Appellate Court rejected this claim, concluding that Jesinoski merely confirms that mailing is the only required mechanism for providing notice of a rescission; it does not say that timely mailing the notice is itself a rescission. I’m not so sure that I agree with that but there you have it. The Appellate Court also rejected Ford’s lack of standing claim, finding that Ford never suggested any evidence that the substituted plaintiff had no legal existence.

Advance Release Opinions – November 17

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Connecticut Appellate Court

The Appellate Court advance released opinions involving collections (attorney’s fees) and sanctions, which I review below. It also released opinions involving summary process (housing authority as landlord), criminal prosecution (2 opinions), habeas corpus, and termination of parental rights (2 opinions), which I do not review.

Beck and Beck, LLC v. Costello – Nothing to see here folks. Law firm sued for its fee. Defendant counterclaimed. Trial court struck counterclaims. Defendant appealed. While that appeal was pending, defendant filed for bankruptcy but did not list the counterclaims as contingent or unliquidated claims. Bankruptcy trustee issued a report of no distribution and bankruptcy case was closed. Appellate Court reversed the striking of the counterclaims. On remand, the trial court granted law firm’s motion to dismiss the counterclaims for lack of standing because the bankruptcy trustee had not abandoned the counterclaims. Appellate Court affirmed, finding that the trustee’s report of no distribution was not an abandonment because defendant had not listed the counterclaims as assets.

Picard v. The Guilford House, LLC – Not much to see here either. Plaintiff’s former attorney brought a writ of error challenging the trial court’s imposition of financial sanctions for former attorney’s misconduct while conducting an out-of-state deposition in the underlying matter. Trial court granted underlying defendants’ application for sanctions against former attorney in the form of the attorney’s fees defendants incurred in dealing with former attorney’s misconduct. Trial court also referred the matter to the statewide grievance committee who reprimanded former attorney.  Appellate Court affirmed, concluding that grievance was not res judicata of the sanctions because grievance committee and underlying defendants were not in privity and because trial court awarded sanctions before grievance committee issued reprimand. Appellate Court also concluded that the amount of the sanction – some $60,000 – was not an abuse of discretion.

 

Advance Release Opinions – November 14

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Connecticut Supreme Court

The Supreme Court advance released a single opinion, which deals with breach of contract.

CCT Communications, Inc. v. Zone Telecom, Inc. – This opinion results from something that I don’t recall ever happening before (though I know it must have): The Supreme Court granted reargument and effectively reversed itself. Plaintiff’s claim and defendant’s counterclaim each asserted that the other breached the contract. The trial court found that it was plaintiff who breached. But the trial court’s decision was unclear as to whether plaintiff breached by filing for bankruptcy, which seemed to be the trial court’s conclusion, or that plaintiff breached by providing inadequate service, which defendant cited as an alternate ground for affirmance. On the first go ’round, after oral argument the Supreme Court ordered the trial court to articulate. After the articulation, the Supreme Court affirmed, its original opinion accepting the alternate ground for affirmance. On reargument, the Supreme Court reversed the trial court, finding that the record did not support the alternative ground for affirmance and that plaintiff’s bankruptcy filing was not a breach.

Advance Release Opinions – November 9

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Connecticut Appellate Court

The Appellate Court advance released one opinion and it was in the area of foreclosure.

Foreclosure

Sovereign Bank v. Licata – Sometimes you read an opinion and you wonder how the case could ever get to where it is. This is one of those. But on reflection you can kind of understand it. The important events are 10 years old, a lot of different lawyers and judges involved over time, no formal orders for some things – you get the idea. Here’s what happened: Bank sought foreclosure and defendant counterclaimed. Foreclosure was tried to the court and the counterclaim was tried to a jury. Court found for bank on the foreclosure claim and orally set law days to commence on February 6, 2007. Jury found for defendant on counterclaim and awarded damages. There was some post-judgment wrangling about the counterclaim judgment. The bank appealed the counterclaim judgment and the defendant cross-appealed the decision on one of the post-judgment motions about the counterclaim judgment. This is where it all broke down. Even though the appeals related only to the counterclaim, everyone – lawyers and judges alike – assumed that the appellate stay had gone into effect as to the foreclosure judgment such that the law days never passed. Though the trial court purported to terminate that stay, no new law days were ever set. Years later – in 2016 – defendant was still living in the house and started groaning that the bank was acting like it owned the joint (trying to sell it) even though no law day had ever passed. That led to motion practice, which led to another appeal. The Appellate Court’s opinion is thorough, detailed and acknowledges that the confusion about the whole thing was justified. But the inescapable conclusion is this: Because no one appealed the foreclosure judgment, the law days passed in February 2007 and the bank has owned the house ever since. Huh, who knew?

Advance Release Opinions – November 3

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Connecticut Appellate Court

The Appellate Court advance released opinions in the areas of breach of contract, declaratory judgment, employment, personal injury, and zoning.

Breach of Contract

Frauenglass and Associates, LLC v. Enagbare – Law firm sued former dissolution client for unpaid fees and won. Client appealed and Appellate Court affirmed. Law firm then moved for postjudgment interest and attorney’s fees for prosecuting the collection action (fee agreement had attorney’s fees provision). Former client’s objection related to the law firm’s fees in the dissolution proceeding, not the collection action. Trial court granted law firm’s motion because the dissolution fee issue had already been finally resolved. Appellate Court affirmed.

Declaratory Judgment

21st Century North American Ins. Co. v. Perez – Insurer had properly terminated defendants’ car insurance for not fully paying a premium installment (before defendants had a fatal crash). Though defendants had made a partial payment, the doctrine of substantial performance did not save them because payment of premiums is an essential and material condition to car insurance and there can be no substantial performance when the performance owed is the payment of money and time is of the essence.

Employment

Samakaab v. Dept of Social Services – “[P]laintiff alleged that he was denied a promotion because of his age, sex, national origin, and his prior opposition to unlawful employment practices”. Trial court granted defendant summary judgment because plaintiff’s self-serving affidavit and deposition testimony did not demonstrate a fact issue. Affirmed.

Personal Injury

Burke v. Mesniaeff – Husband was giving a tour of his historic second home to three people when wife arrived in an agitated state. Husband forcibly escorted wife out of the house and down the driveway. Wife alleged assault and battery. Husband asserted justification because he acted in defense of others – the tour guests. Defense verdict. Appellate Court affirmed, finding that the trial court properly instructed the jury on justification. Judge Bishop dissented because in his view defendant’s evidence at trial and the jury instructions were tainted by the improper notion that wife could have been a trespasser in a house her husband owned (majority found this inconsequential because jury did not find wife was a trespasser) and the evidence did not support the defense of others justification.

Zoning

Griswold v. Computaro – Defendants filed motions to cite in new defendants and to open and modify an 18 year old stipulated judgment for the operation of an asphalt manufacturing facility. Those motions were assigned to the November 23 short calendar. On November 9, the town, the defendants, and the yet to be cited-in defendants agreed to modify the stipulated judgment. On November 12, the town, the defendants, and the yet to be cited-in defendants filed a joint motion to open and modify the stipulated judgment, together with a caseflow request to have all of the motions heard on the November 16 short calendar. The trial court granted the caseflow request and opened and modified the judgment on November 16. The proposed intervenors showed up on November 23 to file their motion to intervene and be heard on the motion to open and modify only to learn that the trial court had already done it without them on November 16. The trial court denied intervention. The Appellate Court reversed, concluding that (i) it was a violation of our rules of practice to proceed on November 16 when the matters had been published to the November 23 short calendar; (ii) because of (i), the intervenors were denied their statutory right to intervene; and (iii) because of (ii), the hearing on the stipulated settlement failed to conform to CGS § 8-8(n).