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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 – Appellate Court – August 9

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Reviews of Appellate Court opinions about custody and visitation, governmental immunity, and personal injury.

Custody and Visitation

In re Joheli V. – Trial court terminated father’s parental rights because he failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of Joheli, he could assume a responsible position in her life. Father appealed, claiming that trial court based its decision solely upon father’s incarceration and pending trial for allegedly sexually assaulting Joheli. Appellate Court affirmed, finding that father’s incarceration was one factor (and properly so), but not the sole factor, in the trial court’s decision.

Governmental Immunity

Drabik v. Thomas – AT&T notified the FCC that it was thinking about putting a cell tower on Drabik’s property. FCC notified the Mohegan Tribe of Indians of Connecticut. The tribe objected because the tower would “impact the view shed” for “substantial stone groupings” that were of “traditional religious and cultural significance to the tribe.” Drabik asked the tribe for more information about the stone groupings but the tribe did not respond. So, Drabik filed a petition for a bill of discovery, a device to obtain evidence for use in an action other than the one in which the discovery is sought. Trial court granted the tribe’s motion to dismiss Drabik’s petition on the ground of tribal sovereign immunity. Appellate Court affirmed, finding that tribal sovereign immunity applied to a prelitigation bill of discovery just as it did to an actual litigation, and that the immunity extended to the individual members of the tribe from whom Drabik sought the discovery because they were acting within the scope of their tribal authority.

Palosz v. Greenwich – Board of Education not entitled to sovereign immunity for claims alleging failure to comply with antibullying policy because sovereign immunity protects the state alone, and Board acts for the municipality, not the state, in enforcing antibullying policy. More specifically, a board of education acts for the state when it performs duties delegated to it by the state, and for the municipality when it performs duties delegated to it by the municipality. Though the state delegated creation of an anti-bullying policy to the boards of education, it delegated enforcement to the municipalities. Greenwich delegated its enforcement duties to Board.

Personal Injury

Farmer-Lanctot v. Shand – Farmer-Lanctot jumped out of the way of Shand’s car and was injured. Shand denied he was negligent and asserted contributory negligence. Trial court denied Farmer-Lanctot’s request for certain charges. General verdict for Shand. Appellate Court affirmed, finding that (1) under the general verdict rule, the verdict stands if any ground for the verdict is proper; (2) Shand’s denial of negligence was possibly a ground for the verdict; (3) Farmer-Lanctot’s only attack on that ground was her claim that the trial court should have charged the jury on the driver’s duty to yield to pedestrians when making a right turn; (4) trial court properly declined to give that charge because the facts did not support it; and (5) since the trial court properly declined to give the charge, the general verdict rule required Appellate Court to presume that the jury found Shand not negligent, which was sufficient to affirm.

 

Advance Release Opinions – Appellate Court – July 27

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Reviews of Connecticut Appellate Court decisions about commercial litigation, custody and visitation, and divorce.

Commercial Litigation

This is a new tag. I introduced it because, although there is often a contract somewhere in every business dispute, there are often also other claims that the “Contracts” tag does not capture.

Abrams v. PH Architects, LLC – Abrams fell into dispute with his architects and general contractor about renovations to Abrams’ house and yard. He started an action against them, and they counterclaimed. Trial court found for architects and contractor on Abrams’s claims and on their counterclaims. Appellate Court affirmed, finding that (1) Abrams’s claim that general contractor failed to follow contractual change order procedures failed because the operative complaint did not include or rely upon any such allegation; (2) record did not support Abrams’s claim that the architects did not follow contractual procedures and, even if they didn’t, it was not a material breach; (3) general contractor did not breach separate contract to build a stone wall on the perimeter because Abrams modified the contract to move the wall closer to the house; (4) architects had provided the required “contract administration” services; (5) trial court had discretion to credit architects’ expert over Abrams’ expert in rejecting Abrams’ professional malpractice claim; and (6) trial court had discretion to accept other expert testimony over Abrams’ expert’s about cost to complete punch list.

National Waste Associates, LLC v. Scharf – National Waste is a waste management broker. Employees signed a non-solicitation agreement with National Waste. Years later, employees went to work for a National Waste competitor. Then, one of National Waste’s customers declined to renew its contract and instead signed with the competitor. National Waste sued employees and competitor. Trial court found (mainly) for defendants. Appellate Court affirmed, finding that (1) trial court denied unjust enrichment claim against competitor because competitor was “innocent,” not because contracts with employees precluded unjust enrichment against a third-party; (2) non-solicitation agreements were unreasonably overbroad as to prospective customers, and National Waste failed to prove a breach under trial court’s appropriately narrowed interpretation; and (3) National Waste failed to prove it was damaged by any misappropriated trade secret so Appellate Court did not have to decide whether CUTSA trumps CUTPA.

Custody and Visitation

In re Briana G. – Appellate Court affirmed trial court’s decision terminating respondent father’s parental rights upon finding that commissioner had shown by clear and convincing evidence that father had failed to achieve a sufficient degree of personal rehabilitation, and that termination was in the best interests of the children.

Martowska v. White – To resolve a motion relating to visitation orders, the parties underwent a psychological evaluation. That effectively resolved the action. Plaintiff later moved the court to release a copy of the evaluation to him. Trial court denied that request, but did permit plaintiff to review the evaluation. Plaintiff appealed that order. Appellate Court dismissed the appeal for lack of subject matter jurisdiction, finding that the postjudgment order at issue was not a final judgment.

Taylor v. Taylor – Appellate Court affirmed trial court’s order denying visitation, finding that, even if plaintiff had shown a parent-like relationship with the minor child, he had not shown that denying visitation would cause real and significant harm to the child.

Divorce

Riccio v. Riccio – Appellate Court affirmed trial court’s financial orders, concluding that (1) trial court did not misapply the law, abuse its discretion, or commit clear error in issuing financial orders that they were equitable, even if not monetarily equal; (2) trial court did not abuse its discretion in valuing pension benefits under the present division method, instead of the present value method; and (3) trial court did not double dip in setting the rehabilitative alimony defendant had to pay because the court considered plaintiff’s income, not the value of the pension asset, in setting the alimony amount.

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 – 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.