Connecticut Appeals

Advance Release Opinions - Review and Analysis

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Advance Release Opinions – September 8

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Connecticut Appellate Court

The Appellate Court issued advance release opinions dealing with arbitration, breach of contract, fraud, mortgage foreclosure and personal injury.

Arbitration

A Better Way Wholesale Autos, Inc. v. Rodriguez – Car purchase gone bad. Arbitrator ordered the finance company to return the car to the dealer, among other things. Trial court denied dealer’s application to vacate arbitration award and granted purchaser’s and finance company’s motions to confirm it. Trial court also ordered dealer to pay finance company’s attorney’s fees in defending the arbitrator’s award. On appeal, dealer claimed arbitrator exceeded the scope of the submission in ordering the finance company to return the car because title was never at issue. Appellate Court affirmed, finding that the submission was unrestricted and title was at issue from the get go.  Dealer also challenged the award of attorney’s fees but Appellate Court declined to review these claims because dealer inadequately briefed them.

Breach of Contract

Luongo Construction and Development, LLC v. MacFarlane – What a mess. LLC sued customer for failure to pay on a contract to erect a modular home in separate actions – one in New Haven and one in Middletown. In the Middletown action, customer counterclaimed against LLC and cited in individual contractor for faulty workmanship and other claims. Middletown denied motion to dismiss based on prior pending action doctrine. LLC withdrew New Haven action. Middletown denied LLC’s motion for summary judgment. After courtside trial in Middletown, but before decision, LLC filed a second motion to dismiss based on prior pending action doctrine, claiming that New Haven action had been commenced first and customer could have litigated there before withdrawal. Court denied motion and issued judgment for customer on LLC’s claims and customer’s counterclaims. Appellate Court affirmed. Decision addresses prior pending action doctrine; summary judgment obligations; and punitive damages. Judge Flynn concurred with everything, except to the punitive damages award, as to which he dissented.

Fraud

Kenneson v. Eggert – In Action 1, plaintiff sued X and Y in tort. X tendered the claim to his Insurer who hired Lawyer to defend him. Jury returned a verdict for plaintiff against X for $67,556.07 and against Y for $380,037.38. Y did not appear at trial. Lawyer filed post-trial motions for X. Plaintiff and Lawyer later appeared for a hearing on the motions and a settlement conference. Plaintiff accepted $67,000 in settlement against X and signed a release and withdrawal as to X. Plaintiff later learned that she could not collect anything from Y because he was uninsured and had died earlier without assets. Plaintiff then moved to open the judgment to reinstate X as defendant, claiming that Lawyer was unfair and deceptive when she instructed plaintiff to sign the release without explaining its impact. Court denied the motion. Plaintiff started Action 2 against Lawyer for intentional misrepresentation and intentional nondisclosure and Insurer for vicarious liability. Trial court granted Lawyer and Insurer summary judgment. Appellate Court affirmed as to nondisclosure because Lawyer had no duty to plaintiff. Appellate Court reversed as to misrepresentation, finding that the denial of the motion to open did not collaterally estop plaintiff; there was a question of fact about whether the misrepresentation related to a past or existing fact, which could support a misrepresentation claim, or a future fact, which could not; and, though Connecticut has not yet recognized the sham affidavit rule (affidavit contradicting prior deposition testimony cannot support or defeat summary judgment), it would not be triggered in this case in any event.

Mortgage Foreclosure

McClancy v. Bank of America, N.A. – Borrowers sued bank on a host of theories surrounding a failed attempt to modify a mortgage loan. Trial court granted bank summary judgment as to all claims. Appellate Court affirmed, concluding that bank’s promise to review the borrowers’ modification application was not a promise to modify, a misrepresentation or a CUTPA violation.

Financial Freedom Acquisition, LLC v. Griffin – Reverse mortgage borrower’s executor made two claims on appeal. First, executor claimed that substitute plaintiff had failed to make out a prima facie case at trial because the substitute plaintiff’s own evidence showed that someone other than the substitute plaintiff owned the loan. Appellate Court affirmed, concluding that under federal and state banking law, and state corporation law, a series of corporate transactions only resulted in a name change of the substitute plaintiff, not a change in loan ownership. In other words, the substitute plaintiff still owned the loan; it’s just that the substitute plaintiff had a new name. Second, executor claimed that substitute plaintiff breached covenant of good faith and fair dealing by declining to extend the repayment date so that the executor could take advantage of the option of selling the house to repay the loan. Appellate Court affirmed, concluding that the covenant applied only to a discretionary application or interpretation of a contract term and there was no discretionary application or interpretation of the repayment date.

Personal Injury

Dinino v. Federal Express Corporation – Worker sued employer and co-worker for injuries sustained when he fell into a gap between the loading dock and the truck he was unloading. He claimed that the motor vehicle exception to worker’s compensation exclusivity applied to his claim against his co-worker, who had parked the truck; and that the intentional creation of a dangerous work condition exception applied to his claim against his employer. Trial court granted summary judgment as to both defendants, finding that there was no genuine issue of material fact that neither exclusion applied. Appellate Court affirmed in a detailed 18-page opinion.

 

 

 

Advance Release Opinions – August 31

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Connecticut Appellate Court

Medical Malpractice

Simmons v. Weiss – First judge dismissed medical malpractice action for failure to file a written opinion of a similar healthcare provider. More than four months later, plaintiff filed a motion to open the dismissal. Second judge concluded that first judge’s dismissal was improper because complaint included a claim for lack of informed consent, which did not require a written opinion of a similar healthcare provider. Second judge opened the dismissal as to the lack of consent claim. Appellate Court reversed, concluding that no exception to the four month limitation on opening judgments applied, including the equitable exception because the judgment did not “shock the conscience.”

Divorce

Dejana v. Dejana – Postjudgment motion for contempt for failure to pay the correct amount of unallocated alimony and child support under separation agreement incorporated into dissolution judgment. At the time of judgment, defendant had three sources of income: base salary, bonus and a stock incentive plan. Settlement agreement gave plaintiff a percentage of base salary and bonus and gave defendant the right to use stock incentive plan to pay for the minor child’s college education. After defendant fully paid for the education with the stock incentive plan, plaintiff claimed that “bonus” included the stock incentive plan such that defendant could pay tuition from the plan only after paying plaintiff her share. Trial court denied the claim. Appellate Court affirmed, concluding that the separation agreement unambiguously excluded the stock incentive plan from the unallocated alimony and child support calculation.

Lugo v. Lugo – Postjudgment motion to modify child custody. Trial court awarded sole custody to plaintiff. Defendant appealed, claiming lack of due process because there was insufficient notice of a claim for, or that the court might award, sole custody to plaintiff. Appellate Court affirmed, finding that defendant had sufficient notice that custody was in issue.

Advance Release Opinions – August 30

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Connecticut Supreme Court

Maio v. New Haven – Police officer sought indemnification under CGS § 53-39a for economic loss sustained in successfully defending charges of sexual assault and unlawful restraint alleged to have occurred while he was on extra duty at a nightclub. The statute provides indemnification if an officer is acquitted of crimes alleged to have occurred “in the course of his duty.” Trial court borrowed the “course of employment” definition from worker’s compensation law in defining “course of duty.” Trial court excluded the criminal trial testimony of the two complaining witnesses, finding that they were not “unavailable” to testify at the indemnification trial because defendant had not taken their depositions. Verdict for the officer. City appealed, arguing that “course of duty” and “course of employment” were not the same and that the complaining witnesses were indeed unavailable. Supreme Court affirmed as to the “course of duty” definition but reversed as to the unavailability of the complaining witnesses.

Advance Release Opinions – August 25

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Connecticut Appellate Court

Rockhill v. Danbury Hospital – Plaintiff was injured when she tripped on an obstacle in a pedestrian walkway and fell. Judgment for plaintiff after a trial to the court. The Appellate Court rejected defendant’s invitation to impose a firm “trivial defect” rule. The Appellate Court also rejected defendant’s claims that plaintiff had failed to prove the defect actually caused her injuries and that not all of plaintiff’s bills were related to the fall. Affirmed.

Advance Release Opinions – August 18

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Connecticut Appellate Court

Child Support

Commissioner of Social Services v. Zarnetski – Family support magistrate dismissed petition for child support because the commissioner did not submit the putative father’s acknowledgment of paternity that was executed in Massachusetts. Commissioner appealed to the Superior Court, which affirmed for the same reason. Appellate Court reversed, finding that family support magistrate acted in contravention of CGS §§ 46b-172 and 46b-215 by requiring the commissioner to submit the acknowledgment.

Summary Judgment Procedure / Appellate Procedure

Windsor Federal Savings and Loan Association v. Reliable Mechanical Contractors, LLC – In this action to collect on a note and guarantee, the Appellate Court reversed the trial court’s order granting summary judgment to plaintiff, concluding that the defendant had presented evidence sufficient to create a fact issue as to whether defendant had signed the loan documents. As to the trial court’s order dismissing defendant’s counterclaims, the Appellate Court dismissed the appeal because the trial court specified two independent grounds for its decision and defendant challenged only one ground. Absent challenge to both grounds, the Appellate Court could not afford the defendant any meaningful relief.

Renaissance Management Company, Inc. v. Barnes – Summary process action to evict a tenant, who asserted a defense of retaliatory eviction under CGS § 47a-20. Trial court granted tenant summary judgment on that ground. Landlord appealed. After oral argument but before the Appellate Court rendered a decision, the parties advised the court that the tenant had surrendered possession. Since landlord was seeking possession, and had obtained it, Appellate Court dismissed the appeal as moot, finding that the circumstances did not fit the mootness exceptions for “capable of repetition, yet evading review” or “collateral consequences.”

Medical Malpractice

Procaccini v. Lawrence and Memorial Hospital, Inc. – Plaintiff alleged that his decedent presented to the hospital with a methadone overdose, which, according to plaintiff, required the hospital to monitor her for at least 24 hours for signs of potentially fatal methadone toxicity. The hospital discharged decedent after four and a half hours. She subsequently died from methadone toxicity within what would have been the 24 hour period. Verdict for plaintiff. Defendant claimed that there was insufficient evidence that the decedent had initially presented with a methadone overdose so there was insufficient evidence that the defendant had a 24 hour monitoring duty. Defendant also claimed that there is no duty to monitor unless the patient is admitted to the hospital and there was insufficient evidence that the decedent met the hospital’s admission criteria. Appellate Court affirmed in a lengthy opinion too factually detailed to summarize here.

Personal Jurisdiction / Promissory Estoppel

TD Bank, N.A. v. Salce – Action to recover on a promissory note. Defendant owned property in Connecticut but lived in Florida. He claimed that service was improper because, although the marshal left the process with the secretary of state and mailed it to defendant by certified mail, he had to actually receive the mailing for service to be good and he never had. Trial court denied his motion to dismiss for lack of personal jurisdiction. Later, defendant claimed that his promissory estoppel special defense – asserting that plaintiff had reneged on a promise to modify the loan – required the court to deny plaintiff’s summary judgment motion. Trial court granted summary judgment. Appellate Court affirmed, noting that under CGS § 52-59b(c) sufficiency of service did not depend on receipt. Plaintiff complied with the statute when the marshal left the process with the secretary of state and sent it by certified mail to defendant’s Florida address. As to the promissory estoppel special defense, the Appellate Court noted that the defendant had not established a genuine issue of material fact as to reliance because defendant had stopped paying the note three years before there was any discussion of a modification.

Foreclosure

Rockstone Capital, LLC v. Sanzo – This case, involving cross-appeals, has a messy factual and procedural background. In a nutshell, plaintiff first obtained a judgment of personal liability against the defendants and filed a judgment lien against their home. Defendants later defaulted on their payments and the parties entered into a forbearance agreement that was secured by a mortgage on the home. Defendants defaulted on the forbearance agreement and plaintiff commenced an action to foreclose the judgment liens. Plaintiff later amended its complaint to foreclose only on the mortgage. The trial court concluded that the mortgage was void as against public policy because it eliminated the statutory homestead exemption where the judgment liens did not. The trial court also concluded that plaintiff could foreclose the judgment liens as they were subject to the homestead exemption. As to plaintiff’s appeal of the invalidity of the mortgage, the Appellate Court reversed, finding that the mortgage was not void because it was a consensual lien not subject to the homestead exemption. The Appellate Court also reversed as to defendants’ appeal of the ruling allowing plaintiff to foreclose the judgment liens, finding that the complaint limited the issues in the case to foreclosure of the mortgage, not the judgment liens.

 

Advance Release Opinion – August 17

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Connecticut Supreme Court

Williams v. General Nutrition Centers, Inc. – Supreme Court addressed the question of how to determine the overtime pay rate for retail workers who are paid partly on an hourly basis and partly on a commission basis. In a nutshell, you determine the base rate by dividing the the pay for the given week by the “usual” number of hours worked in a week, not the actual number of hours worked in the given week. You then multiply the base rate by 1.5 to determine the overtime rate.

Supreme Court Reverses Decision Vacating Arbitration Award

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Kellogg v. Middlesex Mutual Assurance Company – Trial court vacated an unrestricted arbitration award because it found the appraisal panel’s valuation to be too low and that the appraisal panel had imposed depreciation when the policy did not. Supreme Court reversed, concluding that neither of these findings warranted vacating the award under CGS § 52-418.

New Format for Connecticut-Appeals

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I started this blog with the noble idea of digesting every Connecticut Appellate Court and Supreme Court decision to make it easy for you busy practitioners to get the updates you need faster than doing it yourself. I bit off more than I could chew. That’s why there hasn’t been a post in nearly a year and a half. Since I’m still reading, or mostly reading, all of the decisions more or less as the courts post them on the judicial branch website, I figured I could do a short blurb about the main issue in each case and link to the decision so that you can read it in detail if it’s important for you. So, going forward, that’s what I’m going to do.

CT Appeals: AC Reverses Foreclosure for Standing Issue

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In this Connecticut appeal, Deutsche Bank National Trust Company, Trustee v. Thompson, the Appellate Court reversed the judgment of foreclosure because the trial court did not make any factual findings as to plaintiff’s standing.

Plaintiff alleged in the complaint that it was the holder of the note. Defendant was defaulted for failure to plead. The trial court entered a judgment of foreclosure but made no factual findings as to whether plaintiff was the holder or owner of the note at the time it commenced the action. The Appellate Court reversed, concluding that, absent such factual findings, it could not answer “[t]he key question … [of] when the note came into the plaintiff’s possession.”

Plaintiff argued on appeal that if it had not presented the note to the trial court, the trial court could not have entered the foreclosure judgment. Plaintiff claimed, in other words, that it’s implicit from the judgment that the trial court had the note before it at the time of entry. The Appellate Court rejected this contention because there was no evidence that plaintiff ever presented the original note to the trial court. Plus, the copy of the note in the record was payable to the original lender, not plaintiff, and was not endorsed. Without an endorsement, plaintiff could not be the holder.

Plaintiff also argued that it had established holder status because it alleged that status in the complaint and defendant was defaulted for failure to plead. The Appellate Court rejected this argument.  Finding standing by a default in pleading would be akin to finding standing by waiver or consent, which the law expressly precludes.

The Appellate Court also “reject[ed] the plaintiff’s argument that an inadequate record precludes our review of its standing.” Though the appellant has the burden of presenting a record adequate for review, plaintiff has the burden of proving standing whenever the issue is raised, including on appeal. Because it is not the Appellate Court’s function to find facts, “[t]he judgment [was] reversed and the case [was] remanded for a determination of the jurisdictional issue and for further proceedings according to law.”

Technical Deficiencies in Appeal Form? No Problem

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In this Connecticut appeal (Levine v. 418 Meadow Street Associates, LLC), the Appellate Court concluded that technical deficiencies in the appeal form did not deprive it of jurisdiction.

Plaintiff and her husband were the only members of the LLC, until husband sold his interest to two others. The LLC owned a single commercial property. Plaintiff’s husband remained associated with some of the tenants in the property and continued to deal with the two members in respect of the property after selling them his interest in the LLC. The LLC ultimately lost the property through foreclosure.

Plaintiff later brought suit seeking to dissolve the LLC “and claimed money damages, alleging [among other things] that [the other two members] breached fiduciary duties owed to her, and that as a result she suffered damages.” The defendant-members counterclaimed against plaintiff and her husband for essentially the same things.

The jury found against plaintiff on her claims in chief and for the defendant-members on their counterclaims. It awarded the defendant-members some $264,000, which was the same amount that the defendant-members paid plaintiff’s husband for his membership interest in the LLC. Plaintiff and her husband moved to set aside the verdict and for remittitur of the verdict. Defendants objected to both motions. The trial court denied both motions without issuing a memoranda of decision.

Plaintiff and her husband appealed. The Appellate Court affirmed.

Technical Deficiencies in the Appeal Form did Not Deprive Appellate Court of Jurisdiction

Plaintiff’s and her husband’s “appeal form, JD-SC-28, indicate[d] that the appeal is taken from the ‘motion to dismiss granted in favor of defendants (see jury verdict (#174), memorandum of decision (#196); and judgment of dismissal (#197).'” However, their “preliminary statement of issues [said], in … part: ‘Did the trial court err in failing to set aside the jury verdict where the damages awarded to the counterclaim plaintiffs … were not supported by the evidence at trial, and were not in conformance with Connecticut law of damages.'”

“[D]efendants assert[ed] that [the Appellate] [C]ourt lacks jurisdiction because [plaintiff and her husband] did not file an appeal form indicating that they sought review of the court’s decisions denying their motions to set aside the verdict and for remittitur of the verdict.”

The Appellate Court noted that the Supreme Court has a policy of not exalting form over substance. “[T]he forms for appeals and amended appeals do not in any way implicate appellate subject matter jurisdiction. They are merely the formal, technical vehicles by which parties seek to invoke that jurisdiction. Compliance with them need not be perfect; it is the substance that matters, not the form.”

“[Plaintiff and her husband] referenced the jury verdict itself on the appeal form, which can be interpreted as an intention to appeal from the judgment.” Moreover, the preliminary statement of issues is a better representation of the substance of the appeal than the appeal form.

Consequently, “[d]espite the imprecise language used on the appeal form, viewing the substance of [plaintiff and her husband’s] amended appeal, they have sufficiently invoked this court’s jurisdiction, and we will review their claims on appeal.”

Plaintiff’s Main Argument on Appeal

“The essence of the [plaintiff’s and her husband’s] claim briefed on appeal is that the jury could not have awarded damages for defendants’ capital contributions to [the LLC] because the complaint only referenced, in all of its counts, losses due to the foreclosure of [the LLC’s] property by People’s Bank, and the value of the property at the time of foreclosure was less than the amount of the mortgage at the time of foreclosure.” In other words, plaintiff and her husband claimed that the defendant-members lost their investment not because of anything plaintiff or her husband did but because the property was underwater.

Appellate Court Concludes there was No Error

“[I]t was possible for the jury to have found that [the LLC’s] property became less valuable, not enough rent was collected to satisfy mortgage payments, and the property was subsequently foreclosed because of the self-dealing and obstructive behavior of [plaintiff and her husband]. The jury also could have concluded that the [defendant-members] … lost the entire amount of their
investments in Meadow when the property was foreclosed. Therefore, it would have been reasonable for the jury to conclude that absent the self-dealing and obstructive behavior of [plaintiff and her husband], [the LLC’s] property might not have been foreclosed, and the [defendant-members] would not have lost their investments in [the LLC].”

“Therefore, on the basis of our review of the limited record provided to us, we conclude that the [plaintiff and her husband] have not shown that the court acted unreasonably or abused its discretion in denying their motions to set aside, and for remittitur of, the verdict thereby rendering judgment in favor of the [defendant-members] on their counterclaims, in accordance with the jury verdict.”