Connecticut Appeals

Advance Release Opinions - Review and Analysis

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Advance Release Opinions – July 13

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Reviews of Connecticut Appellate Court advance release opinions about administrative law, child custody, divorce, easement, mortgage foreclosure, and professional negligence.

Administrative Law

Handel v. Commissioner of Social Services – Social Services denied Handel’s request for benefits more than 90 days after she requested a fair hearing. Trial court affirmed. Appellate Court reversed and directed judgment for Handel because Social Services failed to make final decision with 90 days as the statute required.

Child Custody

In re Katherine H. – Appellate Court affirmed trial court judgments finding respondent’s two children neglected, and committing them to DCF, because respondent failed to demonstrate that any of the trial court’s findings was clearly erroneous.

In re Zoey H. – Trial court found child uncared for and committed her to DCF by agreement of mother and the putative father, who was not, as it later turned out, the biological father. Later, the biological father intervened and petitioned to revoke the commitment to DCF. Trial court denied that petition. Biological father tried again with a new petition, and trial court denied it again. Appellate Court affirmed, finding that, because the child was adjudicated uncared for before biological father got involved, it was not (1) a deprivation of procedural due process to commit the child to DCF before assessing biological father’s fitness as a parent; or (2) a deprivation of substantive due process to deny biological father a presumption of fitness.

Divorce

Conroy v. Idlibi – Appellate Court affirmed divorce judgment, rejecting Idlibi’s claims that (1) Conroy was responsible for the irretrievable breakdown of the marriage; and (2) certain financial awards unfairly favored Conroy.

Zilkha v. Zilkha – Over defendant’s opposition, trial court granted guardian ad litem’s motion for an increase in her hourly rate. Appellate Court affirmed, finding that trial court (1) properly precluded defendant from eliciting testimony about guardian’s putative bias because the proceeding was about the hourly rate, not misconduct; and (2) properly set the hourly rate at the higher end of the Judicial Branch’s sliding scale given the hourly rates of the parties’ attorneys, complexity of the issues, and availability of other household income.

Easement

Hum v. Silvester – Trial court properly concluded that the Silvesters had acquired a prescriptive easement to use the Hums’ driveway to access their property. A prescriptive easement is essentially an easement acquired by adverse possession. CGS § 47-37

Mortgage Foreclosure

Bank of America, N.A. v. Kydes – Bank had standing to foreclose because Kydes, by failing to answer or object to Bank’s requests for admissions, admitted Bank was the holder of the note, and never presented any evidence to rebut the resulting presumption of ownership.

Professional Negligence

Corneroli v. Kutz – Legal malpractice. Though not at all relevant to the decision, certain facts are captivating: D’Amico bought a painting at a yard sale for $3. Turned out to be a John Singer Sargent worth millions. But D’Amico couldn’t get the painting authenticated as a Sargent so he couldn’t realize its value. Then D’Amico died. Enter his cousin, Corneroli, who said he and D’Amico agreed that if Corneroli got the painting authenticated, D’Amico would go halfsies with him on the profit. Corneroli entrusted the painting to a guy named Borghi, and it seems Borghi double-crossed Corneroli by selling it to a guy named Adelson for $1.2 million without telling Corneroli. Adelson then apparently sold it to someone else for millions more than he paid for it. Corneroli sued Borghi, Adelson and the second buyer, but did not include D’Amico’s estate in the case. Corneroli recovered some $300,000 from Borghi. D’Amico’s estate later brought its own action and settled with Adelson for $2.4 million. Corneroli then filed a claim against the estate for a chunk of that $2.4 million. Probate Court disallowed the claim.

Now we come to the facts pertinent to the appeal. Corneroli hired Kutz to appeal the Probate Court’s decision. Probate Court dismissed the appeal as untimely. Corneroli sued Kutz for legal malpractice. Trial court granted Kutz’s motion for summary judgment on the ground that Corneroli failed to present sufficient expert evidence to create a fact issue about causation. Appellate Court affirmed, finding that (1) expert testimony was required on causation even though it went to the ultimate issue because the factfinder needed expert assistance; and (2) Corneroli’s expert’s testimony was inadequate to create a fact issue because he testified only that a favorable outcome for Corneroli was a possibility, not a probability.

Advance Release Opinions – July 5

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Reviews of Connecticut Appellate Court advance release opinions about administrative law, breach of contract, civil procedure, domestic relations, and mortgage foreclosure.

Administrative Law

Starble v. Inland Wetlands Commission – Over Starble’s objection, commission granted wetlands-permit application. Trial court affirmed. Appellate Court reversed, finding that (1) statutory and regulatory provisions requiring wetlands-permit applicant to prove absence of feasible and prudent alternative was mandatory, not directory, because the provisions were substantive, having been enacted to protect inland wetlands; and (2) since commission supported its decision with explicit findings, trial court was precluded from reviewing the record for evidence supporting anything other than those explicit findings.

Breach of Contract

DAB Three, LLC v. LandAmerica Financial Group, Inc. – DAB Three sued five corporations and two individual insurance brokers for failing to obtain the correct coverage. Trial court dismissed as to LandAmerica Financial Group (“LFG”) for lack of subject matter jurisdiction because LFG had been discharged in a bankruptcy. Then, accepting the representation of one of the remaining defendants, Lawyers Title Environmental Insurance Service Agency, Inc. (“LTEISA”), that it was the only party that could be liable for a breach of a brokerage contract, trial court granted summary judgment for the other three remaining defendants. Next, accepting LTEISA’s lawyers’ representation that LTEISA did not exist because it had become defendant LandAmerica Environmental Insurance Service Agency, Inc. (“LEISA”) before the policy was issued, trial court granted the lawyers’ motion to withdraw their appearance. So, the case was to be tried only against LTEISA. But since LTEISA did not exist, DAB Three declined to go to trial, leading trial court to dismiss as to LTEISA, the last remaining defendant. Appellate Court affirmed the dismissal as to LFG, finding that although LFG’s bankruptcy discharge would not have protected LFG’s insurer from liability for LFG’s breach, DAB Three had never made any claim against any such insurer. Since LFG would have been responsible for the costs of defending DAB Three’s claims, they violated the bankruptcy discharge and deprived the court of subject matter jurisdiction. Appellate Court reversed the summary judgment as to LEISA, finding that it could not stand in the face of defendants’ admission that LTEISA was really LEISA. In other words, the issue of fact that precluded summary judgment against LTEISA also precluded summary judgment against LEISA because they were one and the same.

Civil Procedure

Speer v. Department of Agriculture – Speer appealed commissioner’s order to euthanize Speer’s dogs. Trial court nonsuited Speer for failing to appear at a pretrial conference, though her counsel appeared, she was available telephone, and she actually spoke with trial court by telephone. Trial court then denied Speer’s verified motion to open and set aside the nonsuit in a one-sentence order finding that Practice Book § 14-13 required Speer to attend the pretrial. When Appellate Court ordered trial court to articulate its reasons for denying Speer’s motion, trial court said Speer had not complied with any of Practice Book § 17-43’s requirements. Appellate Court reversed, finding that Speer had complied with all of the requirements of Practice Book § 17-43 and CGS § 52-212, and that trial court abused its discretion in denying Speer’s motion. Appellate Court also noted, in a footnote, that trial court’s initial reliance on § 14-13 was misplaced because § 14-7 exempts administrative appeals from § 14-13’s pretrial rules.

Domestic Relations

Tala E.H. v. Syed I. – Trial court granted wife two-week, ex parte order of protection against husband, which the trial court continued for six months after a hearing on notice. Appellate Court affirmed, finding that (1) the record did not disclose any bias or judicial misconduct; and (2) trial court did not make any clearly erroneous factual findings or abuse discretion.

Mortgage Foreclosure

Webster Bank v. Frasca – Trial court denied plaintiff’s motion for a deficiency judgment because plaintiff failed to establish the property’s fair market value by “credible and accurate evidence.” Appellate Court affirmed, finding no plain error in the trial court’s conclusions that (1) plaintiff’s appraisal was not credible; and (2) plaintiff failed to carry its preponderance-of-evidence burden as to value. Nor was there any plain error from alleged judicial bias, since the trial court’s comments about the substantial financial resources of defendant’s former father-in-law, and the trial court’s knowledge of real estate in the area where the property is located, though concerning, were not a manifestation of bias, but just unnecessary and unhelpful commentary. Appellate Court also confirmed that trial court did not abuse its discretion in admitting and considering the evidence, and in denying plaintiff’s motion for a protective order regarding plaintiff’s deposition.

Wells Fargo Bank, N.A. v. Lorson – The longstanding requirement in Connecticut that plaintiff must plead and prove compliance with conditions precedent contained in the note and mortgage does not apply to FHA/HUD conditions precedent referenced, but not explicitly contained, in the note and mortgage. Rather, borrower must affirmatively plead and prove failure of any such condition precedent. This passage from the opinion explains why: “There are potentially dozens of HUD requirements that a defendant could argue are necessary prerequisites to the bringing of a foreclosure action… It is inconsistent with our expectation that trials are not supposed to be a game of blindman’s bluff to expect a plaintiff in a foreclosure action to anticipate which HUD requirement a defendant will seize upon to argue after the plaintiff rests that it has failed to prove its case. Foreclosure trials, and motions for summary judgment in foreclosure actions, in which the facts are largely undisputed, would become drawn-out, expensive affairs as a plaintiff presents evidence regarding a lengthy list of requirements. Moreover, because plaintiffs typically are entitled to an award of attorney’s fees upon the entry of judgment, the parties truly harmed by imposing such requirements on foreclosing plaintiffs are the borrowers who will be required to pay the additional fees caused by such a procedure. Consequently, in this particular context, it makes much more sense to require the defendant to plead the specific requirements that have not been met and bear the burden of proving the plaintiff’s noncompliance with those requirements. Not only is this more logical and more fair to plaintiffs and the vast majority of defendants who have no interest in raising such issues, it also is consistent with the manner in which other states have addressed the issue and the guidance provided by HUD itself.” Oh, and Appellate Court also affirmed as to borrower’s other two arguments, equitable estoppel (alleged to have arisen when plaintiff added a condition to a forbearance agreement already in progress) and unclean hands (from plaintiff’s allegedly ignoring HUD requirements willfully and in bad faith).

 

Advance Release Opinions – Supreme Court – June 1, 8, 22 and 29

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Reviews of Connecticut Supreme Court advance release opinions about civil procedure, election law, and worker’s compensation.

Civil Procedure

Samelko v. Kingstone Insurance Company – Kingstone is a New York insurance company that issued a business car insurance policy in New York covering a business located in New York and a vehicle garaged in New York. The coverage territory was the United States. Insured driver collided with the Samelkos in Connecticut. The Samelkos sued the insured. Kingstone declined to defend. Default judgment entered in the Samelkos’ favor, which Kingstone declined to pay. The Samelkos then exercised their subrogation rights and sued Kingstone. Trial court dismissed the action for lack of personal jurisdiction, finding that Kingstone had no contacts with Connecticut and thus no notice that it might be sued in Connecticut. Supreme Court reversed, finding that because the policy had a nationwide coverage territory (1) the contract was “to be performed” in Connecticut under our corporate long arm statute; (2) it was foreseeable that Kingstone would have to perform in Connecticut, which provided the necessary minimum contacts with Connecticut; and (3) it was fair and reasonable to require Kingstone to defend itself in Connecticut.

Election Law

Arciniega v. Feliciano – Reversed. Candidate 1 lacked standing to attack validity of petition that led to Candidate 2’s inclusion on the ballot in a primary election because Candidate 1 was not aggrieved “by the ruling of an election official” as the statute required. Specifically, though Candidate 2’s address was wrong on the petition, there was no statute requiring an election official to reject a petition containing an inaccurate address. Since there was no rejection requirement, there was no “ruling” in accepting the petition with the inaccurate address. Since there had to be a ruling before there could be standing to complain about the ruling, there was no standing.

Cook-Littman v. Board of Selectman – Reversed. Town’s charter, not state statute, set procedure for filling a vacancy on the board of selectman because it is a matter of purely local concern.

Worker’s Compensation

Williams v. New Haven – Worker received benefits, returned to work, but was ultimately terminated for worker’s compensation fraud. Worker filed a grievance, which the parties arbitrated under the collective bargaining agreement. Worker lost both the arbitration and the motion in Superior Court to vacate the arbitration award. Meanwhile, worker filed a statutory wrongful discharge claim under CGS § 31-290a with the worker’s compensation commission. City moved to dismiss, arguing that since worker was pursuing a statutory wrongful termination claim before the worker’s compensation commission instead of a “court of competent jurisdiction” as required by CGS § 31-51bb and Genovese, the arbitration collaterally estopped the wrongful termination claim. Commissioner denied the motion. Review board affirmed. Supreme Court also affirmed, finding that (1) “court of competent jurisdiction” includes worker’s compensation commission for purposes of § 31-51bb and Genovese; (2) Superior Court motion to vacate the arbitration award did not satisfy § 31-51bb’s requirement of judicial review of statutory claim; and (3) § 31-51bb and Genovese allow the worker to pursue the same or a substantially similar claim after the adverse arbitration decision.

 

Advance Release Opinions – June 29

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Reviews of Connecticut Appellate Court advance release opinions about divorce, mortgage foreclosure, and worker’s compensation.

Divorce

Magsig v. Magsig – Trial court denied plaintiff’s contempt motion about compliance with an indemnity provision of the dissolution decree. Appellate Court affirmed, finding that (1) trial court considered defendant’s testimony about his understanding of indemnity provision solely on the wilfulness issue, not in interpreting provision; and (2) indemnity provision could not be interpreted to protect plaintiff against liability, as opposed to loss, because the liability was already extant at the time of the decree.

Mortgage Foreclosure

HSBC Bank USA, N.A., Trustee v. Hallums – Per curiam opinion affirming that (1) plaintiff had standing because borrower did not rebut the presumption of ownership arising from plaintiff’s holder status; (2) borrower’s bankruptcy discharge did not preclude foreclosure of the mortgage; and (3) borrower’s claims about the best evidence rule and clean hands doctrine were “baseless.”

Jenzack Partners, LLC v. Stoneridge Associates, LLC – Jenzack took an assignment of a note that was guaranteed. The guaranty was secured by a mortgage on the guarantor’s home. Trial court entered a judgment of strict foreclosure as to guarantor’s home. Guarantor raised three arguments on appeal. First argument was that Jenzack lacked standing because the assignment did not specifically assign the guaranty. Appellate Court rejected this argument because assignment of the note automatically carried with it assignment of guaranty. Second argument was that document showing loan balance on date of assignment was inadmissible hearsay because it came from a document that assignor had given to Jenzack. Appellate Court agreed and reversed, finding that business records exception is for records made in the ordinary course of business, not records received in the ordinary course of business. Third argument was that Jenzack was not entitled to attorney’s fees because the attorney’s bills were addressed to a party other than Jenzack. Appellate Court rejected this argument because there was testimony that Jenzack had had problems receiving its mail, and the “someone else” was added to insure that it would receive the attorney’s bills.

Worker’s Compensation

Mickucka v. St. Lucian’s Residence, Inc. – Defendants had been paying plaintiff temporary total incapacity benefits. Defendants then filed a form 36, seeking to discontinue benefits because plaintiff had achieved maximum medical improvement. Commissioner approved the form 36 at an informal hearing. Plaintiff objected, and sent a notice of formal hearing about “Form 36/Discontinuation of Benefits.” At the formal hearing, plaintiff attempted to present evidence that plaintiff was entitled to benefits for a vocational total disability even if she had achieved maximum medical improvement, i.e., an Osterlund claim. Because that was not part of plantiff’s notice of hearing, commissioner precluded the evidence, but invited plaintiff to pursue an Osterlund claim in a separate, future hearing. Commissioner found that plaintiff had reached maximum medical improvement and had work capacity. Without pursuing the Osterlund claim, plaintiff appealed to the board, arguing that the commissioner could not rule on the form 36 without considering whether plaintiff was still temporarily totally disabled. Board affirmed. On appeal to the Appellate Court, plaintiff claimed that she was denied due process when commissioner precluded her from presenting evidence of a lack of work capacity. Appellate Court rejected that claim, finding that commissioner precluded plaintiff from presenting Osterlund evidence when the form 36 was the only issue noticed; commissioner gave plaintiff opportunity to present he Osterlund evidence at a separate, future hearing. And, Appellate Court noted that allowing plaintiff to present Osterlund evidence at the form 36 hearing would have deprived defendants of due process because they were not given proper notice. Appellate Court rejected as unripe plaintiff’s claim that she was totally disabled because that would have been the issue in the Osterlund claim, which plaintiff had not pursued.

Advance Release Opinions – June 22

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Reviews of Connecticut Appellate Court advance release opinions about administrative law, breach of contract, eviction, and mortgage foreclosure.

Administrative Law

Gianetti v. Dunsby – Town ordinance gave tax relief to the elderly who applied to the assessor and met certain criteria. Assessor denied Gianetti’s application, and Board of Selectman denied his appeal. Gianetti then sued selectman individually for improperly denying his application. Selectman moved to dismiss for lack of subject matter jurisdiction because nothing authorized Gianetti to appeal the Board’s decision to the Superior Court. Trial court denied the motion. Appellate Court reversed, finding that Gianetti’s action was really an administrative appeal and there was no statute permitting him to appeal the matter to the Superior Court.

Breach of Contract

Emeritus Senior Living v. Lepore – Daughter signed a senior living agreement as her mother’s representative. The agreement made daughter and mother jointly liable for services. Emeritus sued daughter to collect payment for services rendered. Trial court found the agreement unconscionable and against public policy, and denied Emeritus any relief. Appellate Court reversed, concluding that the record did not support either of the trial court’s findings.

Eviction

Federal National Mortgage Association v. Farina – Farina claimed that Fannie Mae lacked standing to evict him because it never took title to the property in the underlying foreclosure. More specifically, Farina claimed that his appeal of the trial’s court’s denial of his third motion to open the foreclosure judgment invoked the appellate stay, rendering the law date ineffective, and Fannie Mae had never reset the law date after Appellate Court had dismissed his appeal as moot. Trial court agreed, and granted Farina’s motion to dismiss the eviction action. Appellate Court reversed, explaining that it had dismissed the prior appeal as moot because Farina had not complied with Practice Book § 61-11(g), which was necessary to invoke the appellate stay for an appeal of a third denial of a motion to open. Since Farina never petitioned for certification of that dismissal, it became a final judgment and was not subject to collateral attack in the eviction action.

Kargul v. Smith – Yawn. After serving notice to quit, Kargul started and then withdrew a summary process action. Kargul served a second notice to quit and started a second summary process action. The second action ended with a stipulated judgment, which Smith later violated. On Kargul’s application, trial court ordered that execution could issue immediately. Smith appealed, claiming that the first notice to quit terminated the tenancy, thus depriving the trial court of jurisdiction to entertain the second summary process action. Appellate Court affirmed because Kargul’s withdrawal of the first summary process action put the parties back to square one.

Mortgage Foreclosure

Deutsche Bank National Trust Company, Trustee v. Fraboni – A late-filed appeal does not invoke, or revive, the appellate stay in a noncriminal case.

Advance Release Opinions – June 15

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Reviews of Connecticut Appellate Court advance release opinions about debt collection, divorce, eviction, medical malpractice, and municipal law.

Debt Collection

Sikorsky Financial Credit Union, Inc. v. Pineda – If a note provides for postmaturity interest, and the lender has not waived it, lender is entitled to postjudgment interest at the rate specified, and if no rate is specified, at the legal rate. This is true regardless of whether the judgment expressly provides for postjudgment interest.

Divorce

Hall v. Hall – Trial court held plaintiff in contempt for withdrawing money from a bank account in violation of court order, and denied a joint motion to open and set aside the contempt judgment. Appellate Court rejected plaintiff’s claim that he relied on counsel’s advice in withdrawing the money as unsupported by the record. For the same reason, Appellate Court also rejected plaintiff’s claim that vacating the contempt judgment served substantial justice because it could interfere with his employment prospects – there was no evidence of any such interference in the record.

Eviction

Lyons v. Citron – If a landlord withdraws a summary process action for nonpayment of rent, intending to start the process all over again with a new notice to quit, landlord must wait the nine statutory grace period before serving the new notice to quit because the withdrawal reinstates the tenancy.

Medical Malpractice

Peters v. United Community and Family Services, Inc. – Doctor who wrote opinion letter was board certified in defendant’s specialty, but his letter did not say so. Plaintiff tried to correct the deficiency with an affidavit in opposition to defendant’s motion to dismiss. Trial court dismissed because plaintiff submitted the affidavit after the limitations period had expired, making the affidavit too late to fix the problem. Appellate Court affirmed.

Municipal Law

Nichols v. Oxford – Nichols petitioned under CGS § 13a-103 for an order directing Town to repair and maintain unimproved sections of highway. Trial court denied the petition, finding that the sections had been abandoned if they had ever even been part of a highway. Appellate Court affirmed.

 

Advance Release Opinions – June 8

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Reviews of Connecticut Appellate Court advance release opinions about breach of contract, condemnation, professional negligence (legal malpractice), and reformation.

Breach of Contract

Murallo v. United Builders Supply Co., Inc. – Parties testified that they had a telephone conversation in which they reached an agreement resolving a dispute they were having over construction materials. Defendant confirmed the terms in a follow up email. Plaintiff later alleged that defendant refused to honor the agreement. After a courtside trial, trial court concluded that defendant’s email was not a contract but an unaccepted offer, and found for defendant. Appellate Court reversed, finding the unaccepted-offer conclusion clearly erroneous as defendant had admitted that the email memorialized the telephonic agreement.

Condemnation

Gartrell v. Hartford – Not technically condemnation, but close. Doesn’t really matter because the issue was not preserved for appeal, so Appellate Court declined to review it. After a fire at Gantrell’s building, Hartford tore it down. Gantrell sued. Jury trial. After the close of evidence, Hartford moved for a directed verdict. Court reserved decision, pending jury’s answer to a single interrogatory asking whether Hartford could have believed there was an imminent danger allowing it to tear down the building. Jury answered “Yes.” Court then asked parties if they had anything to add to the motion for directed verdict. When they said “No,” court directed verdict for Hartford. On appeal, Gantrell argued that jury’s finding that Hartford could have believed there was imminent danger did not support directed verdict; jury would have had to have found that Hartford did believe there was imminent danger. Appellate Court affirmed, finding that Gantrell failed to preserve the issue for appellate review since he “failed to raise the issue to the trial court on the record, either before or after the jury was charged, or as a basis for denying the city’s motion for a directed verdict.”

Professional Negligence (Legal Malpractice)

Kuehl v. Koskoff – Mr. Kuehl had car accident on his way from his home office to a business meeting. He later discovered an injury that he believed was tied to the car accident. He filed a worker’s comp claim, but the employer and insurer contested whether the accident happened in the scope of employment. Mr. Kuehl signed up with Koskoff to pursue claims against the other driver. Mrs. Kuehl signed up with Koskoff to pursue any claims arising out of the accident. Mr. Kuehl then died, and Koskoff and Mrs. Kuehl believed it was a result of the accident. Mrs. Kuehl missed the deadline for filing a claim for worker’s comp survivor benefits, and the commissioner would not let her proceed. She blamed Koskoff and started a legal malpractice action. Jury found for Mrs. Kuehl. Though there was no expert testimony as to causation, trial court denied Koskoff’s motion to set aside the verdict. Appellate Court reversed, finding that expert testimony was necessary to establish causation, i.e. that it was more likely than not that Mrs. Kuehl would have been awarded survivor’s benefits if she had made her claim on time. Since Mrs. Kuehl failed to present that testimony, trial court should have set aside the verdict.

Reformation

Kaplan v. Scheer – Kaplan has owned her home since 1970. The Scheers became her neighbors in 1999. The Scheers’ house stands between Kaplan’s house and the Long Island Sound. The Scheers have a walkway and stairs that provide access to the water, which Kaplan had a right to use under a water easement granted in an 1882 deed. Kaplan and the Scheers had a contentious relationship and ended up in a dispute about whether Kaplan’s driveway was on the Scheers’ property. They settled that dispute with a written agreement calling for two quitclaim deeds and an easement. One deed, labelled “A” in the settlement agreement, conveyed to the Scheers any interest that Kaplan had in the Scheers’ property. The other deed, labelled “B” in the settlement agreement, conveyed to Kaplan any interest the Scheers had in Kaplan’s property. The easement, labeled “C” in the settlement agreement, gave Kaplan an easement over Scheers’ property – but only as necessary for Scheer to access her property. The documents were recorded in reverse order of their letter designations: Easement first, Scheer-to-Kaplan deed second, and Kaplan-to-Scheer deed third. Sometime after that, the Scheers made their walkway and stairs off limits to Kaplan. Kaplan sued, claiming that (1) the letter designations dictated the recording order, and she would still have her water easement if they had been recorded in that order; and (2) her deed to the Scheers should be reformed to reserve the water easement. Trial court found that (1) the letter designations were a matter of convenience and not intended to specify a recording order (there was also expert testimony that the recording order did not matter); and (2) Kaplan failed to prove a basis for reformation by clear and convincing evidence. Appellate Court affirmed.

 

Advance Release Opinions – June 1

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Reviews of Connecticut Appellate Court advance release opinions about breach of contract, child support, custody and visitation, divorce, medical malpractice, and mortgage foreclosure.

Breach of Contract

Bracken v. Windsor Locks – Breach of a settlement agreement. In 1994, Town settled an employment dispute with Bracken by reinstating him as a cop as of June 1993, and giving him a seniority date of September 1987. Bracken understood that to mean that he was entitled to pension credit for the period between his September 1987 seniority date and his June 1993 reinstatement date. Town had the right to buy pension credit for Bracken for that period from the Connecticut Municipal Employee Retirement System any time up until Bracken started receiving benefits. Under the pension plan, Bracken would not be eligible to receive benefits until October 2017. In late 2002 or early 2003, Bracken learned that the Town had not purchased pension credit. Over the ensuing years, Bracken tried to get Town to buy the credit, but Town seemed to prefer to wait. As of 2014, Town still had not bought the credit. Bracken started the action, claiming that the Town had breached the express terms of the settlement agreement and the implied covenant of good faith and fair dealing. Trial court concluded that the 6-year statute of limitations, and laches, barred the action because the breach occurred with reinstatement in 1993. Appellate Court reversed, noting that since Town could buy pension credit up until October 2017, Bracken’s 2014 action was for anticipatory breach, and Town had not established laches.

Child Support

Bolat v. Bolat – Judgment entered on parties’ agreement which gave sole legal and primary physical custody of three children to husband, and required no child support from wife. Wife later moved to modify custody. Trial court denied that motion, but found that wife’s income had increased substantially since the original judgment. Husband then filed a motion to modify child support based on the trial court’s finding as to wife’s income and his own loss of employment. His motion asked the court to “see attached,” which appeared to be a motion for child support that included a child support worksheet and wife’s financial affidavits. While that motion was pending, wife filed a motion for contempt, asserting that husband had failed to pay his share of agreed expenses for children’s extracurricular activities. In denying husband’s motion to modify, trial court found that defendant had not properly raised anything other than his own loss of income and declined to consider evidence of the change in wife’s income. Trial court granted wife’s motion. Appellate Court reversed as to both, finding that (1) husband had properly raised wife’s increase in income by asking the court to see the motion for child support attached to his motion to modify; and (2) husband did not wilfully disobey order about extracurricular expenses because they weren’t “agreed expenses” – he had told wife that he could not agree because he could not afford them.

Custody and Visitation

Kyle S. v. Jayne K. – Appellate Court affirmed trial court’s orders granting Jayne K custody of T (the child) and a relief from abuse restraining order against Kyle S, finding that the evidence was sufficient to establish that Kyle S presented an immediate and present risk of physical danger or psychological harm to T, and that a change in custody was warranted. But, Appellate Court reversed the trial court’s order, that the child psychologist was to determine the scope of Kyle S’s visitation with T, as an improper delegation of judicial authority.

Divorce

Hamburg v. Hamburg – Divorce decree required husband to pay into education accounts for the two children. He did, but later raided the accounts for his own purposes. While he and wife were fighting about that and other things in court, wife was murdered. Trial court granted her administrator’s motion to substitute as plaintiff. Trial court then ordered husband to pay some $324,000 to wife’s estate to replace the money he took from the education accounts. Trial court also later granted daughter’s motion to intervene. Husband then moved to dismiss, arguing that neither administrator nor daughter had standing to pursue claims for the education money. Trial court denied the motion. Appellate Court reversed as to the administrator’s standing, but affirmed as to the daughter’s. The administrator lacked standing because the claim for education money belonged to the children, not the estate. For the same reason, daughter had standing to intervene.

Zilkha v. Zilkha – This is actually a tale of two appeals. In the first one, trial court found that husband fraudulently failed to disclose an employment dispute and ordered him to escrow the settlement money he received. Trial court later ordered some of that money be disbursed to pay the fees and retainers of the guardian ad litem, children’s attorney, and experts. Husband appealed claiming that trial court lacked authority to issue that order since it wasn’t in connection with a motion to open. Appellate Court agreed and vacated the order. But Appellate Court did not order any of the recipients to return any money. In the second appeal, trial court denied husband’s request that the recipients return the money. Husband appealed, arguing that by refusing to order return of the money, trial court had violated the Appellate Court’s ruling in the first appeal. Appellate Court affirmed because it had not ordered anyone to return anything – it just vacated the order directing payments that had already been made. Appellate Court also found that husband had failed to show that any equitable basis for ordering the money returned.

Medical Malpractice

Labissoniere v. Gaylord Hospital, Inc. – Defendant doctors were board certified internists. Opinion letter was by a board certified surgeon. Trial court granted defendants’ motion to dismiss because a surgeon and internists are not similar health care providers, and the complaint did not allege that internists were acting outside the scope of their specialty. Appellate Court affirmed.

Mortgage Foreclosure

Deutsche Bank National Trust Company v. Pollard – Yawn. Per curiam decision affirming the trial court’s conclusion that Pollard’s eight-count counterclaim was legally insufficient because it did not go to the making, validity, or enforcement of the note or mortgage.

The Bank of New York Mellon v. Horsey – Appellate Court affirmed, finding that (1) trial court did not abuse its discretion in opening dismissal for failure to prosecute because the record suggested a reasonable cause for plaintiff’s delay (waiting for prior counsel to return original documents necessary for judgment); (2) defendant failed to preserve for appellate review his judicial bias claim because he never raised it in the trial court; (3) defendant failed to preserve for appellate review his claim that plaintiff failed to timely file certain documents necessary for judgment because never raised in the trial court; (4) summary judgment as to liability was proper because plaintiff’s proof established a prima facie foreclosure claim and defendant did not offer any evidence that created a fact issue; (5) defendant failed to preserve, and inadequately briefed, his claim that plaintiff should have been nonsuited under Practice Book § 17-19 for failing to comply with the trial court’s deadline for filing summary judgment motion; (6) defendant inadequately briefed his claim that plaintiff rendered note and mortgage unenforceable by separating them from each other; (7) defendant could not prevail on his claim that plaintiff lacked standing because defendant failed to rebut the presumption of ownership arising from plaintiff’s holder status; and (8) there was no evidence supporting defendant’s claim of fraud on the court.

Advance Release Opinions – May 24

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Reviews of Connecticut Appellate Court advance release opinions about civil procedure, governmental immunity, mortgage foreclosure, and worker’s compensation.

Civil Procedure

Lynn v. Bosco – Board ousted chairman of privately-held company. Attempting to regain control, chairman offered to buy shares from other shareholders. No one accepted. Later, a shareholder offered to sell shares to the new chairman, not the ousted chairman. Instead of buying them directly, new chairman and board had company buy them, and turn around and sell them to the new chairman and other board members. Ousted chairman started declaratory judgment action against board members individually, essentially alleging that they violated his preemptive rights as a shareholder to buy the shares himself before the company could. Ousted chairman did not name company as a defendant. New chairman and board members moved to strike, claiming that company was a necessary party to an action asserting that company violated preemptive rights. Court granted the motion. When ousted chairman repleaded, he did name company as a defendant, but he did not allege any wrongdoing by, or seek relief from, the company. After trial, court ordered the board members to return the shares they had purchased to the company, and ordered the company to reimburse the board members for the returned shares. Appellate Court affirmed the return-the-shares order, but reversed the reimbursement order, finding that the trial court lacked authority to impose a remedy on the company because none of the pleadings contained any allegation against the company, sought any relief from it, or otherwise put the company on notice that a claim was being made against it.

Governmental Immunity

Perez v. University of Connecticut – Student fell on ice in a UConn parking lot. General Assembly waived sovereign immunity under CGS § 4-159. Student claimed action to jury list. Trial court granted state’s motion to strike the jury claim because CGS § 4-160(f) requires a bench trial when sovereign immunity is waived under § 4-159. Appellate Court affirmed, finding that (1) student had no constitutional right to a jury in action against the state; and (2) neither § 4-159 nor § 4-160 authorized a jury trial against the state.

Mortgage Foreclosure

Tedesco v. Agolli – Per curiam decision affirming judgment of foreclosure by sale. Appellate Court adopted trial court’s memorandum of decision, which Appellate Court appended to its decision. I didn’t read the trial court’s decision, but here’s what I gleaned from the Appellate Court’s: Apparently Tedesco’s pension plan loaned money to a limited liability company composed of Agolli and some others. The company secured the loan with mortgages on company property. Agolli seems to have claimed that the people who had signed the loan documents for the company did not have a meeting of the minds with Tedesco, authority to bind the company, and were under duress. Trial court and Appellate Court rejected those claims.

Worker’s Compensation

Clements v. Aramark Corporation – Not sure I completely get this one. Worker fell and hit her head on the ground after fainting due to health conditions unrelated to her job. Commissioner and board denied benefits, concluding that injuries arose out of worker’s personal infirmity, not her employment. Appellate Court reversed, finding that worker’s injuries from falling at her workplace did arise out of her employment, even though the personal infirmity that caused her to fall did not.

Advance Release Opinions – May 18

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Review of an advance release opinion about breach of a real-estate brokerage contract.

Breach of Contract

Reyher v. Finkeldey – In this dispute over a real-estate brokerage commission,  seller had rejected buyer’s counteroffer, which included financing and inspection contingencies, and buyer testified that it was not ready, willing, or able to close unless those contingencies were fulfilled. In a rare per curiam reversal, the Appellate Court found that the trial court wrongly determined that the broker had obtained a buyer ready, willing, and able to buy seller’s property.