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Advance Release Opinions - Review and Analysis

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Advance Release Opinions

Advance Release Opinions – November 2

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Connecticut Supreme Court

Products Liability

Bagley v. Adel Wiggins Group – In this mesothelioma case, defendant was entitled to a judgment notwithstanding the verdict because plaintiff failed to present essential expert testimony to prove that “respirable asbestos fibers in a quantity sufficient to cause mesothelioma were released from FM-37 when it was used in the manner that it was in the Sikorsky blade shop during the decedent’s tenure there. Proof of this fact was necessary to prove both that (1) FM-37 was dangerous, and (2) FM-37’s dangerous condition caused the decedent to develop mesothelioma.”

Advance Release Opinions – October 31

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Connecticut Supreme Court

Res Judicata

Wellswood Columbia, LLC v. Hebron – In the first action, plaintiff sued for a temporary and permanent injunction barring Hebron from closing a road that was the only access to plaintiff’s property. The trial court denied the injunction. The Supreme Court reversed and remanded with instruction to grant the injunction. Plaintiff then commenced the second action seeking damages for temporary taking, temporary nuisance, and tortious interference with business expectancies. Trial court granted defendant summary judgment in the second action on res judicata grounds. Supreme Court affirmed, finding that a temporary taking claim accrues before the temporary taking ends; the road closure did not fall within the continuing or recurrent wrong exception to res judicata; and plaintiff could have pursued the tortious interference claim in the first action because the road closure caused an immediate and cognizable loss.

Advance Release Opinions – October 27

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Connecticut Appellate Court

The Appellate Court advance released opinions in the areas of family law, foreclosure and sanctions.

Family Law

Bruno v. Bruno – Quite a saga. Three rulings. First, since the Appellate Court had earlier reversed trial court orders reducing alimony and setting a valuation date for a financial account, trial court did not exceed its authority on remand by eliminating the interest originally awarded based on the orders the Appellate Court had reversed. Second, the trial court did not make a mistake in determining the start dates or the rate for the new postjudgment interest awards. Third, trial court properly held defendant in contempt because the violated order was clear and unambiguous.

Garvey v. Valencis – The statute providing for an emergency ex parte custody order – CGS § 46b-56f – does not require the court to allow the respondent to be heard prior to ordering emergency relief. Nor does the statute require the court, having ordered emergency ex parte relief, to complete a hearing within 14 days; the statute just requires that a hearing be scheduled, not completed, within 14 days.  Even though the hearing was not complete until some 112 days later, the original ex parte order did not expire after 30 days under Practice Book § 4-5 because following each day of the hearing the trial court found good cause for the ex parte order to remain in place.

Ray v. Ray – Contrary to plaintiff’s claim, the record shows that the trial court did find defendant’s net salary in making a child support determination and properly awarded the presumptive minimum support.

Spencer v. Spencer – Agreement that alimony terminated on “cohabitation” did not require defendant to prove that the cohabitation was romantic or sexual. Unclean hands is not a recognized basis for declining to terminate alimony based on cohabitation and, even if it were, defendant did not have unclean hands.

Foreclosure

U.S. Bank National Association, Trustee v. Blowers – Because the parties never reached a binding mortgage modification, the trial court properly struck counterclaims and special defenses based on conduct occurring during modification negotiations and foreclosure mediation as not having a sufficient nexus with, or relating to, the making, validity, or enforcement of the note or mortgage. In his dissent, Judge Prescott explained that he thought the trial court too narrowly construed and applied the making, validity, or enforcement test and failed to construe the counterclaims and special defenses in a light most favorable to upholding their legal sufficiency.

Sanctions

Emerick v. Glastonbury – Trial court properly dismissed action based on self-represented litigant’s conduct during trial. This one is worth reading if only to get the details of what the trial judge had to deal with.

Advance Release Opinions – October 20

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Connecticut Appellate Court

Fraud

McLeod v. A Better Way Wholesale Autos, Inc. – Trial court found used car dealer committed fraud by recording that the car had fewer miles than it actually did so as to impair the 3,000 mile warranty. Affirmed.

 

Advance Release Opinions – October 13

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Connecticut Appellate Court

The Appellate Court issued opinions in the areas of adverse possession (but not really), foreclosure, personal injury, and tax appeals.

Adverse Possession (but not really)

Zhang v. 56 Locust Road, LLC – Trial court quieted title to property plaintiffs obtained by adverse possession but gave the defendant an easement by necessity over a portion. Appellate Court affirmed saying, “The trial court fully and accurately addressed the issues relevant to the parties’ appeals and, in its memorandum of decision, set forth a proper statement of both the facts and the applicable law. Any further discussion by this court would serve no useful purpose.”

Foreclosure

Bank of New York Mellon v. Mauro – Hohum. Even if borrowers’ affidavits created a fact issue as to their counterclaims, they did not create a fact issue as to any element of a prima facie foreclosure case or any special defense so as to preclude summary judgment as to liability on plaintiff’s claim in chief. And, the counterclaims were properly dismissed in any event because they failed the transaction test requiring that they be related to the making, validity or enforcement of the note.

Personal Injury

Smith v. Redding – Plaintiff was injured when he fell from a retaining wall built without a fence on top of it. He claimed that the wall was an absolute public nuisance. On appeal, he claimed that the trial court erred in failing to admit evidence under an exception to the rule against evidence subsequent remedial measures if such measures were not voluntary. Appellate Court declined to consider this claim because the record did not allow the Court to evaluate whether the ruling harmed plaintiff. Plaintiff also claimed that the trial court did not properly instruct the jury on the town’s zoning regulations. Appellate Court concluded plaintiff had failed to preserve this claim for appeal. Affirmed.

Tax Appeals

Faile v. Stratford – Two separate property owners appealed tax assessments on three properties. Same law firm represented both property owners. Pretrial order directed that the person with ultimate authority to settle must attend and bring the evidence intended to be submitted at trial. Property Owner One and Property Owner Two had agreed to a hardline settlement position not to exceed a certain fair market assessment. Since Property Owner One was unexpectedly hospitalized at time of pretrial, attorney from law firm and Property Owner Two attended. Attorney had Property Owner One’s authority to settle for the hardline settlement number. Attorney also had electronic copies of the evidence on his laptop, which was with him in the courtroom. Trial court entered nonsuits as to all three matters, finding noncompliance with the pretrial because (i) no one present had ultimate settlement authority because Property Owner Two was deferring to Property Owner One and attorney had authority only up the the hardline number; and (ii) evidence must be in hard copy, not electronic copies on a laptop. Appellate Court reversed as to Property Owner Two because he was present and nothing precluded him from taking a hardline settlement position, and nothing in the pretrial order required the evidence to be in hard copy. Appellate Court also reversed as to Property Owner One but for a different reason. Upon repeated questioning by the trial court, attorney eventually “conceded” that he did not have Property Owner One’s “ultimate authority” to settle because he could not go above the hardline number. Appellate Court concluded that it could not find ultimate authority in the face of that concession. But, the nonsuit was an abuse of discretion because Property Owner One was in the hospital and could not attend.

Advance Release Opinions – October 6

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Connecticut Appellate Court

The Appellate Court advance released opinions about foreclosure, matrimonial, personal injury, professional negligence, receivership and trusts and estates matters.

Foreclosure

JPMorgan Chase Bank, N.A. v. Essaghof – Borrower originally had a negative amortization adjustable rate note and claimed that lender fraudulently or with unclean hands induced a modification to a fixed rate by misrepresenting that interest rates were rising when they were actually falling. The trial court rejected borrower’s claim, concluding that interest rates were in fact rising leading into the modification even if they fell after the modification. The trial court also ordered borrowers to reimburse lender for real estate taxes and hazard insurance lender paid during pendency of appeal and until the conclusion of litigation. Appellate Court affirmed.

Matrimonial

Puff v. Puff – Parties resolved a post-dissolution motion to modify alimony with a stipulated agreement that the court approved as an order. Appellate Court rejected plaintiff’s claims that (i) there was no “agreement” that could be accepted as an order – there was only an agreement to agree; and (ii) the trial court did not conduct an adequate canvass before accepting the agreement as an order. But the Appellate Court reversed the trial court’s contempt order for plaintiff’s failure to comply with a term of the agreement/order, finding it unwarranted since it was undisputed that plaintiff had made “at least some effort” to comply.

Personal Injury

McFarline v. Mickens – Trial court granted defendant summary judgment, finding that municipality had not shifted responsibility for sidewalk maintenance to adjoining landowners so, absent proof of a positive act by landowner that contributed to plaintiff’s fall on allegedly defective sidewalk, landowner did not owe plaintiff any duty.  Appellate Court affirmed.

Professional Negligence – What it is Not

Pellet v. Keller Williams Realty Corporation – Homeowners sued realtor on a host of contract and tort claims about realtor’s conduct in selling house. Trial court equated all eight counts of the complaint with professional negligence and directed verdict for realtor because homeowners did not present expert testimony as to the professional standard of care. Trial court also granted realtor’s motion for a special finding that homeowners brought the action in bad faith and without merit, which entitled realtor to its attorney’s fees. Appellate Court reversed the judgment and special finding, concluding that (i) rolling an allegation about what realtor knew or should have known about house’s market value into all eight counts did not make all eight counts professional negligence claims; (ii) the jury was actually provided with necessary expert testimony as to the standard of care even if it did not come from homeowners’ witness and did not expressly opine a breach of the standard; and (iii) special finding could not stand in the face of the other rulings.

Receivership

Seaport Capital Partners, LLC v. Speer – Receiver appointed in a nine-property commercial foreclosure action brought writ of error challenging trial court’s denial of approval of receiver’s reports and order of payment. Appellate Court rejected receiver’s claim that trial court lacked subject matter jurisdiction to appoint a receiver because lender never fully funded the loans. Not surprisingly, Appellate Court also rejected receiver’s claim that the order of payment was improper because the underlying borrower had collected certain rents and so receiver did not have the money to comply with the order of payment.

Trusts and Estates

Eder’s Appeal from Probate – This case is really only interesting because its name seems archaic. Appellate Court noted that the case had been captioned Eder v. Appeal from Probate in the Superior Court and that on appeal the parties had called it Eder v. Eder. Appellate Court changed it to Eder’s Appeal from Probate to “conform[ ] to the convention our appellate courts use for appeals from probate.” In any event, the gist of the appeal was that father had set up a trust that upon termination was to be distributed equally to “each child of the [father] then living.” Father and biological son had a falling out. Father later adopted the two adult sons of a woman with whom he had had a long term relationship. Biological son claimed it was a sham adoption undertaken solely to reduce his share of the trust corpus. Probate Court concluded adopted sons were entitled to share equally with biological son. Same result in Superior Court. Appellate Court affirmed.

Advance Release Opinions – September 29

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Connecticut Appellate Court

The Appellate Court advance released one civil opinion on September 29, which deals with foreclosure procedure.

CitiMortgage, Inc. v. Tanasi – This was my case and I lost so of course I think the Appellate Court got it wrong. But I won’t let that color my objectivity. The Appellate Court concluded that, at oral argument of a motion to dismiss, plaintiff could switch its claimed basis for standing to foreclose and offer a document produced in foreclosure mediation as proof of that new status.

Advance Release Opinions – September 19

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Connecticut Supreme Court

The Supreme Court advance released two decisions dealing with the firefighter’s rule in personal injury cases.

Sepega v. DeLaura – The firefighter’s rule precludes a police officer’s nonpremises liability negligence claim for injuries sustained in breaking down a door to reach the defendant who was threatening to harm himself.

Lund v. Milford Hospital – The firefighter’s rule does not preclude a state trooper’s claim for injuries sustained in subduing a patient committed to defendant’s psychiatric care because the substitute complaint clarified that the alleged negligence was not “intimately connected with the very occasion for which the trooper was on the property.”

Advance Release Opinions – September 22

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Connecticut Appellate Court

The Appellate Court issued advance release decisions about civil protection orders, family law, and personal injury (but really appellate procedure).

Civil Protection Order

Sabrina C. v. Fortin – Civil protection order entered. On appeal, defendant claimed that trial court improperly (1) denied his motion to vacate or modify the protection order; (2) changed the basis for its denial in its subsequent articulation; (3) awarded plaintiff her attorney’s fees under the bad faith exception to the American Rule; and (4) granted plaintiff’s motion for a one-year extension of the protection order. The Appellate Court “agree[d] with the defendant’s third and fourth claims, and, accordingly, … remand[ed] the matter to the trial court with direction to vacate the award of attorney’s fees and to vacate the order extending the civil protection order to November 24, 2017.”

Family Law

Mason v. Ford – Defendant moved for postjudgment modification of child support to zero based on loss of income. Trial court modified support to zero, effective retroactively to a date preceding defendant’s service of the motion to modify, and found a 16 week arrearage terminating on the retroactive effective date. Defendant appealed. Appellate Court reversed, finding that under CGS § 46b-86(a) the retroactive effective date could not be earlier than the date of service of the motion to modify, and remanded to recalculate the arrearage.

Personal Injury (but really appellate procedure)

Pecher v. Distefano – Defense verdict in an action for personal injuries plaintiff sustained when she fell off her horse during a riding lesson. Plaintiff appealed claiming that trial court committed harmful error in improperly admitting a release and hold harmless agreement, and a picture of a sign, purporting to relieve defendant from liability. The Appellate Court concluded that plaintiff had failed to carry her burden of presenting an adequate record for the Court to review her claim that she was harmed by the allegedly improper evidentiary rulings.  More specifically, the Court explained that a harm determination requires, among other things, evaluation of the relationship of the improper evidence to the central issues in the case, particularly as highlighted in closing arguments. This evaluation is done in the context of the totality of the evidence. Since plaintiff did not provide the Appellate Court with the totality of the evidence or the closing arguments, the Appellate Court could not conduct a full and complete analysis of harm and had to affirm.

 

Advance Release Opinions – September 15

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Connecticut Appellate Court

Family Law

Fuller v. Baldino – Man sought visitation with a child of a woman with whom he had been in a relationship for some time. Trial court dismissed for lack of jurisdiction. Appellate Court affirmed, finding that although there was no dispute that man had a parent-like relationship with child, man had failed to plead or prove that the child would suffer any real or substantial harm other than emotional harm that stems from denial of visitation itself.

Franchise Law

Aldin Associates Limited Partnership v. Hess Corporation – Franchisee claimed that franchisor improperly charged too high a wholesale price for gas, which stifled franchisee’s ability to compete. Trial court denied trial by jury based on written jury waivers and found for franchisor, concluding that franchisee had failed to prove damages with sufficient certainty. Appellate Court affirmed the jury trial waiver but reversed on the damages issue.

Insurance

Amica Mutual Insurance Company v. Piquette – Declaratory judgment action about the scope of an insurance policy. Trial court granted summary judgment for insurer. Appellate Court framed the issue on appeal as “whether, under the terms of an automobile insurance contract providing coverage for bodily injury, a loss of consortium claim is entitled to a separate per person liability limitation from the principal bodily injury claim of another person from which the loss of consortium claim arises.” Appellate Court concluded that the policy language in Izzo was substantially similar so Izzo applies and Izzo says there is only one limit for the bodily injury and the loss of consortium.

Landlord-Tenant

Presidential Village, LLC v. Perkins – Trial court dismissed summary process action against Section 8 tenant because the pretermination notice was defective under federal and state law in that it specified an incorrect cure amount to avoid termination of the tenancy and included non-rent charges in the total past due rental obligation.  Appellate Court reversed, noting that only federal law applied to determining the sufficiency of the notice and the notice complied with federal law.

Medical Malpractice

Wilkins v. Connecticut Childbirth and Women’s Center – Defense verdict. Plaintiff appealed, claiming that the threshold interrogatory, which the jury answered in the negative, was confusing and overly restrictive given the allegations in the complaint and the proof elicited at trial.  Appellate Court essentially rejected each of those claims and affirmed.

Personal Injury

Gostyla v. Chambers – Car accident. Defense verdict. Plaintiff appealed because trial court permitted defense’s biomechanical expert to offer an opinion on causation, which was beyond his expertise. Appellate Court agreed that trial court improperly admitted the causation testimony but affirmed because plaintiff failed to provide an adequate record to determine whether the error affected the outcome of the trial.

Zoning

St. Joseph’s High School, Inc. v. Planning and Zoning Commission of the Town of Trumbull – High school wanted to install lights on its football field. P&Z denied special application because of a deadlock (2 votes in favor, 2 votes against, 1 abstention). High school appealed to Superior Court. Superior Court sustained the appeal, finding that the application satisfied the known and definite standards in the regulation, and could not be trumped by the general standard of “detrimental to the character of a residential district. The Appellate Court reversed. After a lengthy discussion, the Appellate Court concluded that “[u]nder Connecticut law, a zoning commission may deny a special permit application due to noncompliance with general standards contained in the zoning regulations.” So, Superior Court had applied an improper legal standard. The Appellate Court then concluded that, using the proper standard, there was substantial evidence in the record to support a denial. Said another way, there was substantial evidence that the high school had not met its burden of demonstrating that the lights would not be detrimental to the character of the neighborhood.