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Advance Release Opinions – Appellate Court – August 24

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Reviews of Connecticut Appellate Court advance release opinions about administrative law, civil procedure, and foreclosure.

Administrative Law

Blossom’s Escort Service, LLC v. Administrator, Unemployment Compensation Act – It’s not what you think – or at least it wasn’t what I first thought. The escorts are actually flag cars for oversized vehicles. One of the flag car drivers asserted that Blossom’s failed to pay him the proper amount of unemployment. Blossom’s had not reported any wages for the driver. Administrator found that Blossom’s owed some $27,000 for unpaid unemployment compensation contributions. Administrative and judicial appeals ensued. Issue was whether an amendment to the Act exempting escort car drivers from the definition of “employee” applied retroactively. Appellate Court found that it did not, so trial court properly dismissed Blossom’s appeal from the board’s decision.

Civil Procedure

GEICO v. Barros – Statutes of limitation did not apply to GEICO’s equitable subrogation claim because statutes of limitation do not apply to equitable claims.

Teodoro v. Bristol – Part I of the opinion explains what you need to do to have deposition excerpts considered on a summary judgment motion. In sum, you are all set if you submit the excerpts, the “deposition cover page, the page on which the court reporter certified the accuracy of the entire deposition transcript as he transcribed it, and the page on which the deponent swore that she had read the entire deposition transcript and certified to its truth and accuracy, so transcribed ….” Part II of the opinion confirms that the judge has discretion to decline to consider surreply submissions, even after the judge set a deadline for such submissions.

Sovereign Bank v. Harrison – This one is a little difficult to summarize clearly so you may have to read it to get a full understanding. Withdrawal of an action disposes of special defenses, but any counterclaim remains pending. In this mortgage foreclosure action, Harrison asserted a special defense that Sovereign did not properly account for her payments. After Sovereign withdrew the action before trial, Harrison filed a motion to amend her answer to assert a counterclaim. Trial court concluded that it had no jurisdiction to consider that motion since there was no counterclaim pending at the time of Sovereign’s withdrawal. Harrison then moved to restore the special defense to the docket, arguing that it was properly considered a counterclaim. Trial court granted that motion. Appellate Court reversed because the special defense could not be considered a counterclaim.

Foreclosure

Glastonbury v. Sakon – Trial court did not abuse its discretion in awarding Glastonbury more than $140,000 in attorney’s fees for prosecuting a tax foreclosure. Nice work if you can get it.

Real Estate Mortgage Network, Inc. v. Squillante – Trial court did not impermissibly shorten the appeal period by making the law date the same day as the last day to appeal. The time to appeal terminates when the appellate clerk’s office closes at 5 pm, but the law date continues to run until midnight. So, defendant had her full twenty-day period to appeal before the law date expired.

 

 

 

Advance Release Opinions – Appellate Court – August 17

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Reviews of Connecticut Appellate Court advance release opinions about administrative law, civil procedure, and custody and visitation.

Administrative Law

Landmark Development Group, LLC v. Water and Sewer Commission – Commission denied Landmark’s application for 118,000 gallons per day of sewer treatment capacity. On Landmark’s appeal, Superior Court remanded to commission to clarify the capacity it would allocate to Landmark. Commission said 13,000 gallons per day. Superior Court remanded again, finding 13,000 gallons inappropriately low under the Forest Walk factors. Commission, using the Forest Walk factors, upped the allocation to 14,434 gallons. Landmark appealed again. Superior Court granted Landmark’s motion to supplement the record with evidence showing that commission had recently approved a sewer connection for someone else, Gateway, that had a contemplated capacity of 160,000 gallons per day. Superior Court remanded again, finding commission abused its discretion in allowing Landmark only 14,434 gallons when it had allowed Gateway 160,000 gallons. Commission appealed that remand. Appellate Court affirmed, finding Superior Court did not abuse its discretion by (1) supplementing the record with the Gateway evidence; (2) disregarding the Forest Walk factors when remanding for the third time; or (3) considering the Gateway evidence in reaching its third decision to remand.

Civil Procedure

Carson v. Allianz Life Insurance Company of North America – Trial court granted Allianz summary judgment because the statute of limitations barred Carson’s claim. Appellate Court affirmed, finding that Carson failed to demonstrate a genuine issue of material fact that the fraudulent concealment or continuing course of conduct doctrines applied to toll the limitations period. Appellate Court noted that there was no evidence that Allianz knew that the agent that sold the policy had fraudulently concealed anything as required for fraudulent concealment, or that Allianz had a fiduciary relationship with Carson as required for a continuing course of conduct.

Custody and Visitation

Doyle v. Chaplen – Appellate Court affirmed, finding that trial court properly granted mother’s motion to open judgment of paternity by acknowledgment because of a material mistake of fact (mother miscalculated the conception date), genetic testing showed another man to be the father, and acknowledged father did not have a parent-child relationship with the child. In doing so, trial court properly rejected acknowledged father’s claims of laches and equitable estoppel from the delay in moving to open.

 

Advance Release Opinions – Supreme Court – July 20

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Reviews of Connecticut Supreme Court advance release opinions about administrative law and civil procedure.

Administrative Law

Kuchta v. Arisian – I list the topics alphabetically, and though I’m not sure that this case is really about administrative law, I wanted it to be first since it was in the news. Arisian hired Baybrook Remodelers, Inc. for some home improvements. She later put up a sign on her property confirming, “I Do Not Recommend Baybrook.” She also put up two other signs graphically (in the bar graph sense) representing, under the caption “BAYBROOK REMODELERS’ TOTAL LAWSUITS,” the number of cases in which Baybrook was supposedly a party. Kuchta, Milford’s zoning enforcement officer, ordered Arisian to remove the signs, claiming that they violated zoning regulations on the size, height, and number of signs. When Arisian did not comply, Kuchta sought an injunction in Superior Court. Arisian’s special defense was that Milford lacked authority to regulate her signs under CGS § 8-2 because they were not “advertising signs.” Trial court agreed that the signs were not advertising and denied the injunction. After lengthy analysis, the Supreme Court confirmed the signs were not “advertising signs” under § 8-2, which it defined as “any form of public announcement intended to aid directly or indirectly in the sale of goods or services, in the promulgation of a doctrine or idea, in securing attendance, or the like.”

But that’s not all. Kuchta had also sought to enjoin Arisian from occupying the property until she obtained a new certificate of occupancy, which required her to submit a new as-built plot plan. Arisian, of course, had been relying on Baybrook to do that. And, Baybrook, of course, did not. At the time the case had gone to trial more than four years later, Arisian had submitted the as-built, but it reflected a zoning violation, so the building department declined to issue the certificate of occupancy. Trial court denied the injunction because the circumstances did not justify that extraordinary remedy, but fined Arisian $1,000 for taking more than four years to submit a proper as-built. Supreme Court affirmed.

Walgreen Eastern Company, Inc. v. West Hartford – Real property tax appeal. Assessor set fair market value at $5,020,000. Board of Assessment appeals affirmed. Walgreen’s appealed to Superior Court, alleging one count under CGS § 12-117a that it was aggrieved because the assessor overvalued the property; and one count under CGS § 12-119 that the assessment was manifestly excessive. Trial court heard expert testimony and, on the § 12-117a claim, set fair market value at $4,900,000, and ordered West Hartford to correct any overpayment. Trial court denied the § 12-119 claim. Supreme Court affirmed on both claims, finding that trial court properly determined property’s true and actual value, and Walgreen’s had failed to establish assessment was manifestly excessive.

Can anyone tell me the practical difference between § 12-117a and § 12-119? They both seem to give the court the authority to reduce the assessment. It is not clear to me what more you get if the assessment is manifestly excessive.

Civil Procedure

Mendillo v. Tinley, Renehan & Dost, LLP – Mendillo is a lawyer who represented the plaintiff in an employment action against her former employer, a not-for-profit, and the not-for-profit’s executive director, and the chairperson of its board. The Tinley firm represented the defendants. Mendillo apparently communicated with other putative members of the not-for-profit’s board about the not-for-profit’s counterclaim in the employment action. The trial court in the employment action agreed with the Tinley firm’s assertion that Mendillo had violated Rule of Professional Conduct 4.2, and issued a protective order precluding Mendillo from further contact with board members absent the Tinley firm’s consent. Mendillo filed a writ of error, which the Appellate Court dismissed. Supreme Court denied certification, and also denied Mendillo’s motion for reconsideration of that denial. Mendillo filed a second writ of error in the Supreme Court challenging the Appellate Court’s actions. Supreme Court dismissed the second writ, and denied Mendillo’s motion for reconsideration en banc. So, Mendillo filed a new action against the Tinley firm and the Appellate Court, asserting multiple grounds for a declaratory judgment, all essentially attacking the protective order in the employment action. Trial court granted Appellate Court’s and the Tinley firm’s motion to dismiss. Supreme Court affirmed, finding that Mendillo’s claims were nonjusticiable: No practical relief was available to Mendillo because his declaratory judgment action was nothing more than a collateral attack on the protective order in the employment action, which had been fully and finally adjudicated on the first writ of error by the Appellate Court’s decision and the Supreme Court’s denial of certification.

 

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 – 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 – April 13

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Reviews of Connecticut Appellate Court advance release opinions about administrative law, breach of contract, business dissolution, civil procedure, eviction, mortgage foreclosure, personal injury, and worker’s compensation.

Administrative Law

Berka v. Middletown – Trial court found that it lacked subject matter jurisdiction over Berka’s appeal of notice of violations issued by city’s department of health because Berka named only city, and not department of health, as the defendant. Appellate Court concluded that failure to name department of health did not deprive court of subject matter jurisdiction, but affirmed because his failure to serve department did.

Breach of Contract

Randazzo v. Sakon – Parties resolved blow up over development of shopping center with global settlement that had several inter-related pieces, including an easement from plaintiff to defendant. Though everyone signed the global agreement, defendant never signed the easement itself. Every year after that, in accordance with the easement, plaintiff sent defendant a bill for the taxes on the easement portion of the property. And every year defendant refused to pay. Plaintiff sued. Case was tried to an attorney trial referee. Trial court accepted referee’s recommendation to enter judgment for plaintiff. Appellate Court affirmed, finding that (1) plaintiff’s claim was for breach of contract, not indemnification, and thus had a 6-year, not a 3-year, statute of limitations; (2) statute of frauds did not apply to the easement because defendant had accepted the conveyance, and the global settlement validated the easement in any event; and (3) holding defendant responsible for the part of the taxes that he voluntarily agreed to pay was merely holding defendant to his agreement, and was not (a) an impermissible, separate tax on the property subject to the easement; (b) an impermissible double tax on top of the additional tax he had to pay because the easement increased the value of his property; or (c) something to be shared by another tenant who also used the easement but had not agreed to pay any portion of the taxes.

Business Dissolution

Chioffi v. Martin – Law firm disintegrated. Trial court found that Martin breached two sections of the partnership agreement by taking out too much money during the windup and awarded Chioffi damages and attorney’s fees. Trial court denied Chioffi’s claims for breach of fiduciary duty and an accounting. Both parties appealed. Appellate Court found that Martin did breach one section of the partnership agreement, but it was not the section that would give Chioffi attorney’s fees. Appellate Court also found that (1) Martin breached a fiduciary duty, which can give rise to attorney’s fees because it is a tort; (2) either Chioffi had waived his claim to an accounting, or trial court did not abuse discretion in denying Chioffi’s claim for one; and (3) trial court did not miscalculate Chioffi’s damages. Remanded to trial court to determine whether to award Chioffi attorney’s fees for Martin’s breach of fiduciary duty, and if so, how much.

Civil Procedure

McMahon v. Middletown – In this municipal employment case, trial court denied former deputy police chief’s request to ask leading questions on his direct examination of current and former city officials. On appeal, McMahon claimed that he had an absolute right under CGS § 52-178 to lead these witnesses. Appellate Court declined to review the claim, and affirmed, finding that McMahon had failed to preserve the issue for appeal because he did not distinctly raise the statute, or the absolute right he claimed it conferred, before the trial court.

Eviction

Altama, LLC v. Napoli Motors, Inc. – Commercial tenant claimed that summary process complaint did not allege that lease had terminated by lapse of time, and that it had timely exercised its right to renew. Trial court found for landlord. Appellate Court affirmed.

Mortgage Foreclosure

GMAC Mortgage, LLC v. Demelis – Appellate Court affirmed judgment of foreclosure by sale, finding that trial court did not abuse its discretion in refusing dismissal: (1) for failure to comply with conditional order for dismissal for failure to prosecute; or (2) for failure to prosecute despite a delay of more than two years. Appellate Court declined to review borrower’s claim that trial court abused its discretion in denying motion for articulation, reconsideration and/or reargument, because borrower did not file a motion for review of that denial, which was her only remedy.

Personal Injury

Osborn v. Waterbury – Fifth grader was assaulted at recess by other students. Trial court found for plaintiff, concluding that ‘‘one . . . student intern and three . . . or four . . . staff members were not sufficient to exercise proper control over perhaps as many as . . . (400) students.’’ Appellate Court reversed with direction to render judgment for defendants because the number of staff necessary for proper control required expert testimony and plaintiff failed to offer any.

Worker’s Compensation

Desmond v. Yale-New Haven Hospital, Inc. – Interesting procedural issue for starters. Trial court granted defendant’s motion to strike because plaintiff’s claims were barred by the worker’s compensation exclusivity provision. Plaintiff filed a substitute complaint. Defendant requested revisions seeking deletion of all of the allegations of the substitute complaint as not materially different from the complaint that was struck, and did not cure its deficiencies. Trial court overruled plaintiff’s objections and dismissed the action. Appellate Court noted that, by filing the amended complaint, plaintiff waived the right to appeal the issue whether the original complaint was properly struck. Instead, all plaintiff could appeal was whether the amended complaint was materially different from the original complaint and cured its deficiencies. Appellate Court declined to review that issue because plaintiff had inadequately briefed it. But, Appellate Court did reverse the trial court’s ruling denying plaintiff’s request for leave to amend her substitute complaint to add a retaliatory discrimination claim, finding that the trial court based its denial on the wrong proposed amended substitute complaint.

 

Advance Release Opinions – March 23

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Reviews of Connecticut Appellate Court’s advance release opinions about administrative law, civil procedure, contracts, deed restriction, governmental immunity, visitation, and worker’s compensation. I do not review the Court’s advance release opinions about criminal law and habeas corpus. I also do not review the Court’s per curiam decision affirming summary judgment for defendant in a spoliation of evidence and CUTPA case because there isn’t anything in the opinion to review (if you want to see for yourself, the case is Traylor v. Gambrell).

Administrative Law

Metropolitan District v. Commission on Human Rights and Opportunities – District is a municipal entity the legislature created in 1929 for water supply, waste management and regional planning. Commission is a state agency charged with enforcing statutes barring discrimination. District sought a declaratory judgment, injunction and writ of mandamus on allegations that Commission engaged in improper rulemaking and violated District’s due process rights regarding District’s alleged discriminatory hiring practices at issue in five proceedings before Commission. Trial court dismissed the action for lack of subject matter jurisdiction for failure to exhaust administrative remedies. Appellate Court affirmed, finding that District could not yet pursue declaratory relief in Superior Court because it had to first seek that relief before Commission under CGS § 4-176, and it could not yet seek that relief before Commission because three of the five discriminatory hiring claims were still pending before Commission. Appellate Court also confirmed that the exhaustion requirement applied even when challenging Commission’s jurisdiction; the exception for futility or inadequacy of administrative remedy did not apply since there was no showing of futility or inadequacy; and the exception for due process claims under 42 USC 1983 did not apply because lack of an adequate legal remedy remains a condition to injunctive relief even when claim is made under that statute.

Civil Procedure

Ryan v. Cassella – Plaintiff brought collection action against “Paul Cascella dba CIA Integrated Marketing Systems” and trial court entered a judgment for plaintiff on defendant’s failure to appear. In attempting to examine the judgment debtor, plaintiff learned that, though the marshal had served defendant at the correct address, defendant’s name was actually Cassella, with a second “s” instead of a second “c”, and that his company’s name was actually Integrated Marketing Systems, Inc., with an “Inc.” and without “CIA.” Trial court granted plaintiff’s motion to correct the names. After the trial court’s articulations, Appellate Court affirmed, finding that (1) judgment was against Cassella individually, not against his company, so that correcting the company name did not add a new party; (2) CGS § 52-123 gave the trial court the authority to correct the misspellings because correcting names did not substitute a new party and neither party was prejudiced; (3) the four month limit for opening judgments did not preclude the trial court from correcting the misspellings; (4) trial court did not abuse its discretion in denying defendant’s motion to open and vacate the trial court’s decision on the motion to correct.

Contracts

Micek-Holt v. Papageorge – Lease-to-buy contract blew up for landlord-seller when tenant-buyer failed to close – in 2011 – but remained in the property without paying anything. Trial court ordering a closing on certain terms, and failing that, judgment to enter for plaintiff extinguishing defendant’s property interest, quieting title in plaintiff, and requiring defendant to pay $150/day use and occupancy. Appellate Court affirmed in a per curiam decision essentially adopting the trial court’s reasoning.

Deed Restriction

Bueno v. Firgeleski – A 1941 deed included a restrictive covenant limiting construction on the property to one house, within specified setbacks, and only if approved by grantor or his successors. Plaintiffs acquired the land in 2008, intending to subdivide into two lots – one for their own home and one for development. The deed into plaintiffs contains the restriction. Trial court declared the restrictions unenforceable because (1) its purpose had been frustrated by a permanent and substantial change in circumstances; (2) it had been abandoned by lack of enforcement; and (3) it benefits no land. Appellate Court affirmed, rejecting defendants’ claims that (1) the evidence did not support certain of the trial court’s factual findings; and (2) the trial court improperly went beyond the four corners of the deeds in interpreting them and misapplied the substantial change of circumstances test.

Governmental Immunity

McCarroll v. East Haven – Child fell from the ladder of a playscape at kindergarten allegedly because of a missing or loose bolt securing one of the rungs. Trial court granted defendant summary judgment, finding that the identifiable victim-imminent harm exception to governmental immunity did not apply because although the child was in identifiable class of victims, the harm was not imminent absent evidence that the missing or loose bolt was apparent to East Haven. Appellate Court affirmed, noting that “[w]hether the bolt was missing or loose, the plaintiffs failed to demonstrate that the probability of the child being injured was so high that the defendant had a clear and unequivocal duty to act to prevent harm.”

Visitation

Nassra v. Nassra – Supervised-visitation provider started collection action in small claims court to recover unpaid fees. Small claims court found that it lacked jurisdiction and dismissed the action. Service provider then filed an appearance in the dissolution action and moved for an order of payment, which the trial court granted. Appellate Court affirmed, finding that (1) service provider had standing because service provider had an oral contract with defendant and was injured when defendant did not pay; (2) six-year statute of limitations applied to the oral contract because the three-year statute applies only to executory oral contracts (neither party has fully performed and this oral contract was executed (service provider fully performed); and (3) trial court acted within its discretion in ordering defendant to pay service provider.

Worker’s Compensation

Binkowski v. Board of Education – Students assaulted Teacher and injured her. Teacher sued Board, alleging that Board acted “willfully and maliciously,” and intentionally inflicted emotional distress, by instituting a policy that led to the assault because it denied assistance to teachers confronted by violent and disruptive students. Trial court struck the complaint because it did not allege conduct to bring the action within an exception to worker’s compensation exclusivity. Appellate Court affirmed, finding that the complaint failed to allege conduct to bring her claim into the intentional tort exception under either the actual intent standard or the substantial certainty standard.