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Advance Release Opinions – Appellate Court – September 28

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Reviews of Connecticut Appellate Court advance release opinions about divorce, a spite fence, and standing.

Divorce

Brochard v. Brochard – I’m not giving you much detail on this one – the second time in the Appellate Court for the Brochards – because the opinion is long and most of it is ho-hum. This quote from one of the many trial court judges gives you the idea: “[T]he enmity between the two of you has continued. . . . I mean, you’re both so adamant about who’s right about everything that you just keep, you know, wasting time and money and taking ridiculous positions.” Appellate Court affirmed, finding that (1) plaintiff was not in contempt of the non-emergency medical expenses or extracurricular activities provisions of the co-parenting agreement because defendant did not notify him of, or obtain his consent to, the proposed expenses in advance; (2) it would sua sponte invoke res judicata (prior appeal) to decline to consider defendant’s claim that plaintiff was in contempt of certain orders dealing with modification of the mortgage on the marital home (this part of the opinion was interesting because res judicata is not normally invoked sua sponte); (3) plaintiff was not in contempt of any order requiring him to reimburse defendant for mortgage payments because there was no such order; (4) plaintiff was not in contempt of an order requiring him to give defendant half of a refund on a joint income tax return because there was no such refund (plaintiff received a refund for a married-filing-separately return, but when the court ordered that corrected with amended married-filing-jointly return, there was tax owed); (5) trial court properly declined to modify the order directing the split for payment of guardian ad litem’s fees because there was no substantial change in either party’s finances since the court entered order; (6) there was no error in trial court’s orders modifying child support downward, and not modifying it upward; and (7) trial court did not miscalculate in granting defendant’s motion for contempt for failure to pay the correct amount of provisional alimony (defendant claimed that the trial court’s “correct amount” was too little).

Fredo v. Fredo – Defendant moved for modification of child support, claiming that child was living with an aunt, and asking the court to order that child support be paid directly to the aunt. Trial court granted plaintiff’s motion to dismiss for lack of subject matter jurisdiction because the motion for modification improperly asked for payment of child support to the aunt, a non-party to the action. Trial court simultaneously denied the motion for modification. Appellate Court reversed the dismissal for lack of subject matter jurisdiction because “[CGS] § 46b-1(4) vested the court with plenary and general jurisdiction over child support in the underlying matter, and § 46b-86(a) vested the court with continuing jurisdiction to modify the child support orders.” Appellate Court declined to consider the propriety of the denial of modification as moot because, by the time the parties argued the motion in the trial court, defendant had already abandoned her request that child support be paid to the aunt. Defendant’s claim for an accounting on an unrelated financial issue also was moot because plaintiff had since provided an accounting. And, since the motions to modify and for an accounting were moot, so was defendant’s claim that the trial court improperly quashed her subpoena of plaintiff related to those motions. Appellate Court reversed the award of attorney’s fees for having to deal with the motions to modify and for an accounting, and having to file a motion to quash the subpoena because trial court made no finding that any of defendant’s actions were taken in bad faith.

Peixoto v. Peixoto – Trial court granted plaintiff’s motion to increase her alimony. On appeal, defendant argued that the Supreme Court’s decision in Dan v. Dan precluded increasing alimony based on nothing more than a postdissolution increase in the payor’s income. Appellate Court affirmed, finding that Dan permits increasing alimony on an increase in the payor’s income if there are exceptional circumstances, as there were in this case: At the time of dissolution, trial court had minimum knowledge of defendant’s financial circumstances because he did not appear in the action, provide a financial affidavit, or appear at the dissolution hearing, and the parties did not present a written agreement to the court.

Spite Fence

Errichetti v. Botoff – Botoffs put up a fence through a low lying wooded/wetland area separating their property from Errichetti’s. The fence didn’t keep the Botoffs’ kids, or anyone else, in or out of the Botoffs’ yard because it didn’t connect to anything – anyone in the Botoffs’ yard could just walk around the fence into Errichetti’s yard and vice versa. The fence did not provide any privacy because it was lower than Errichetti’s house – if Errichetti was standing in his yard, he could see over the fence and into the Botoffs’ yard. The fence impaired Errichetti’s use and enjoyment of his property because, though it was not ugly as far as stockade fences go, it wasn’t as enjoyable as the natural scenery Errichetti had before. Trial court found the fence to be a “malicious erection … intended to annoy and injure any owner or lessee of adjacent land in respect to his use or disposition of the same” and granted an injunction under CGS § 52-480 requiring the Botoffs to remove it and restore the area to its previous condition. Appellate Court affirmed.

Standing

Bongiorno v. Capone – Bongiorno and Capone each owned 50% of an LLC. After they agreed that Bongiorno would buy Capone’s interest, Capone withdrew $17,000 from the LLC’s bank account. Bongiorno sued for breach of contract and statutory theft. Trial court found for Bongiorno on both claims and awarded him $17,000 for breach of contract and treble that for statutory theft (less $17,000 to avoid double recovery for breach of contract). Appellate Court affirmed as to the breach of contract claim, but only for $8,500, finding that since Bongiorno was buying only a 50% interest in the LLC, he was buying only a 50% interest in the $17,000 Capone withdrew. Appellate Court reversed as to the statutory theft claim because that injury was to the LLC, not Bongiorno, so Bongiorno lacked standing to bring the claim in his individual capacity. Appellate Court declined to consider Capone’s claim that waiver-of-suit provisions in the buy-sell documents protected him from Bongiorno’s claims because Capone did not raise it at trial.

Advance Release Opinions – Appellate Court – September 21

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Reviews of Connecticut Appellate Court advance release opinions about divorce, professional negligence (legal malpractice), and worker’s compensation.

Divorce

Varoglu v. Sciarrino – Appellate Court affirmed trial court’s finding that Varoglu bought a condominium in Colorado for herself with proceeds of a loan secured by the marital home in Westport and trial court’s division of the equity in the marital home.

Professional Negligence (Legal Malpractice)

Dubinsky v. Black – Dubinsky claimed that Black failed to inform him that accepting a plea deal in his criminal case would preclude him from suing the police for malicious prosecution. Black denied any failure to inform, and asserted that Dubinsky could not win any malicious prosecution claim in any event because the police had probable cause for the arrest. Trial court granted Black summary judgment. Appellate Court affirmed, finding that (1) malicious prosecution depends on absence of probable cause; (2) the police had probable cause; and (3) the fact that Dubinsky might have been able to successfully defend the criminal charges does not mean that the police lacked probable cause.

Worker’s Compensation

Dahle v. The Stop and Shop Supermarket Company, LLC – Dahle claimed that she was entitled to temporary total disability benefits without the social security offset because an improper prior decision and negligence in handling her claim had delayed her treatment, which was the only reason she was subject to the offset. Appellate Court affirmed board, finding that (1) board properly declined to consider “past incorrect evidence” and “new evidence” about the prior decision because that decision became final when Dahle failed to appeal it to the Appellate Court; (2) contrary to Dahle’s contention, commissioner never found that her treatment had been delayed; and (3) social security offset cannot be waived.

Advance Release Opinions – Appellate Court – September 14

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Reviews of Connecticut Appellate Court advance release opinions about civil procedure, divorce, easements, foreclosure, and personal injury. I know that I said that I hoped to be caught up by mid-October but this particular batch of opinions took a while to summarize – there were a lot, and they were complicated.

Civil Procedure

Kaye v. Housman – Breach of contract action for unpaid rent. Housman answered and asserted twelve special defenses. Kaye requested revision of eight special defenses. When Housman did not revise, trial court defaulted him for failure to plead. Kaye claimed the matter for a hearing in damages. Trial court denied Housman’s motion to strike the case from the hearing in damages list, conducted the hearing, and rendered judgment for Kaye. Appellate Court reversed, finding that even though Housman did not respond to request to revise, his answer precluded default for failure to plead and entitled him to contest liability.

Rocco v. Shaikh – Action to quiet title and discharge a purchaser’s lien, among other claims. Shaikh claimed that Rocco lacked standing because, after Rocco commenced the action, she transferred title to the property from herself individually to herself as trustee of her living trust. Trial court found for Rocco. Shaikh appealed. While appeal was pending, trial court terminated the appellate stay to permit Rocco to market and sell the property, which she ultimately did. Appellate Court affirmed, finding that the appeal was moot because reversing the trial court would not take title away from Rocco’s buyer. Appellate Court declined Shaikh’s invitation to “exercise supervisory authority over the administration of justice and reverse the trial court’s judgment because the judgment was procured by fraud,” saying that it could not “conclude that traditional protections available to the defendants were not and are not adequate, thereby warranting the rare and extreme exercise of our supervisory powers.”

Divorce

Keusch v. Keusch – Appellate Court reversed financial orders, finding that trial court (1) should have used actual income, not earning capacity, in calculating child support; (2) improperly deviated from the child support guidelines without first finding that applying the guidelines would be inequitable or inappropriate; and (3) abused its discretion in making its unallocated alimony and child support order nonmodifiable because it should be modifiable every time one of the couple’s three children reached the age of majority.

Easements

57 Broad Street Stamford, LLC v. Summer House Owners, LLC – Picture two commercial buildings, both units in a condominium, separated by an alley. The alley is part of Unit 2, and Unit 1 has an easement on it for access to Unit 1, the garbage area on Unit 2, and parking spaces inside Unit 2. After granting the easement, Unit 2 built a service access structure on the alley. Unit 1 claimed that the structure interfered with its reasonable use and enjoyment of the easement. Trial court found that, given the easement’s specific purposes, the structure did not interfere with Unit 1’s use or enjoyment because the structure did not block the access rights the easement provides. Appellate Court affirmed, concluding that Unit 1’s argument (1) that the structure might cause congestion within the easement was speculative; (2) that the structure restricted garbage area access was inconsistent with evidence that other units were accessing the garbage area without issue; (3) that the structure prevented large trucks from getting any closer than 100 feet to Unit 1 did not interfere with the easement because the easement did not guaranty closer access for large trucks and the other units were accepting deliveries from large trucks without issue; and (4) that, by allowing the structure to remain, trial court had given Unit 2 the unilateral right to determine when, where, and how Unit 1 could use the easement was inconsistent with trial court’s actual decision, which was that Unit 1 was not entitled to the entirety of the easement – the other units had a right to use it too and the only restriction on Unit 2’s use was that it be reasonable and as least burdensome as possible, which it was.

Jordan v. Biller – Thinking that a view easement granted to prior owners ran with his newly acquired property, Biller cut down some 80 trees on Jordan’s property. Trial court found that the easement was personal to the prior owners, so it did not run with the land, and awarded Jordan $446,660 in damages. Appellate Court affirmed. Ouch.

Foreclosure

U.S. Bank National Association v. Eichten – This is the most significant foreclosure decision in 2018, and probably since Bank of America, N.A. v. Aubut in 2016. If foreclosure is in your bailiwick, I encourage you to read the decision. Here’s the summary: Trial court granted plaintiff summary judgment as to liability. Appellate Court reversed, finding that (1) special defense of unclean hands arising out of a pre-commencement trial modification went to the making, validity or enforcement of the note and mortgage and was thus legally valid; (2) there were genuine issues of material fact about the unclean hands special defense that precluded summary judgment; (3) Eichten’s counterclaim, alleging that plaintiff breached a contract to provide a permanent modification after Eichten completed the trial modification and satisfied all other conditions, met the transaction test; and (4) there were genuine issues of material fact about whether (a) the parties had formed a contract for a permanent modification, (b) plaintiff breached any such contract, (c) any such contract came within the statute of frauds, and (d) any exception to the statute of frauds applied. Judge Alvord issued a concurring opinion in which she agreed that there were fact issues, but as to the breach of contract special defense (the majority found this defense legally insufficient), not the unclean hands defense.

Personal Injury

Farrell v. Johnson & Johnson – Lot of stuff happened in this case about lack of informed consent and misrepresentation for a mesh surgery. Farrell originally sued a number of defendants on a number of theories. After jury selection, Farrell withdrew against all of the parties except the surgeon and his medical practice. Trial court granted Farrell’s in limine motion to preclude surgeon from referring to any of the prior defendants. On Farrell’s direct examination, she testified that she had a contingency fee arrangement with her lawyers. On cross, over Farrell’s objection based on the successful in limine motion, trial court permitted her to testify that the contingency fee applied to recovery from any defendant, even the prior defendants. Trial court directed verdict on innocent misrepresentation. Defense verdict on all other claims. Appellate Court affirmed, finding (1) the cross examination about the contingency fee did not violate the in limine ruling because Farrell had opened the door on direct, and the testimony did not otherwise run afoul of CGS § 52-216a (Appellate Court said in a footnote that it would have been harmless error anyway); (2) trial court properly excluded as hearsay journal articles about the risks of the mesh operation (Farrell said she offered the articles to show that the surgeon had notice of the risks but courts said the issue was whether the mesh operation was in fact risky, not whether the surgeon knew or should have known); (3) trial court properly directed a defense verdict because “claims of innocent misrepresentation are based on commercial relationships between the parties and, because [Farrell] did not allege products liability claims against [surgeon] or [his practice], the court properly directed a verdict in their favor;” and (4) there was no error in the trial court’s jury charge on negligent misrepresentation because even though the trial court did not adopt Farrell’s exact wording, the court’s charge fairly and substantially conveyed its substance. As a side note, Appellate Court concluded that Farrell had preserved the jury charge issue for appeal even though she did not except or object to the court’s charge because she had submitted a written request to charge.

Advance Release Opinions – Appellate Court – August 31

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

Divorce

Merk-Gould v. Gould – Appellate Court reversed alimony award and division of certain investments because trial court’s finding as to defendant’s earning capacity was clearly erroneous and trial court abused its discretion in valuing the investments at acquisition cost, rather than value at date of dissolution. Because the alimony award was interwoven with everything else, the remand requires the trial court to reconsider all financial and property orders.

Insurance

Vaccaro v. D’Angelo – Vaccaro was Boileau’s lawyer in a personal injury action. D’Angelo was Boileau’s chiropractor who had a letter of protection. After the case settled, Boileau disputed whether he had to pay D’Angelo for treatments that exceeded the maximum number under Boileau’s health insurance plan. Boileau said that he didn’t have to pay because the provider contract between D’Angelo and Boileau’s health insurance plan required D’Angelo to obtain Boileau’s acknowledgment of financial responsibility before each extra treatment and D’Angelo did not do that. Vaccaro started an interpleader action. Trial court found for D’Angelo. Appellate Court affirmed, concluding that the acknowledgment form was only required for non-covered services, and treatments that exceeded the maximum number were not “non-covered services.” Boileau had some other claims too, but Appellate Court declined to consider them as inadequately briefed.

Worker’s Compensation

Diaz v. Department of Social Services – Dueling doctors on the question of whether lack of proper ergonomics at the workplace, or pre-existing conditions unrelated to the employment, triggered Diaz’s back surgery. Commissioner dismissed. Board affirmed. Appellate Court also affirmed, finding that (1) board was bound to accept commissioner’s decision as to which medical evidence he found more persuasive; (2) board properly affirmed commissioner’s denial of Diaz’s motion to correct his findings because Diaz really just asked the commissioner to substitute her conclusions for his own; and (3) board did not abuse its discretion in denying Diaz’s motion to submit additional evidence because that additional evidence was not new.

Advance Release Opinions – Supreme Court – August 3

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Reviews of Connecticut Supreme Court decisions about divorce, employment, and underinsured motorist benefits.

Divorce

Shirley P. v. Norman P. – Plaintiff sought a divorce after accusing defendant of sexually assaulting her. While the action was pending, defendant was convicted of several criminal offenses arising from the alleged assault. Though those convictions were on appeal, the matrimonial court gave them preclusive effect under collateral estoppel, and entered a property division award that heavily favored plaintiff. Defendant appealed the property award, claiming that the convictions were not preclusive because they were still on appeal. While the appeal of the property award was pending, the Appellate Court reversed the convictions and the Supreme Court affirmed. Supreme Court then reversed the property award, finding that under United States Supreme Court precedent, a second judgment based on the preclusive effect of a first judgment must be reversed if the first judgment is reversed.

Employment

Trinity Christian School v. Commission on Human Rights and Opportunities – Former female employee filed a claim with CHRO alleging that Trinity unlawfully terminated her employment on the basis of  her sex, marital status, and pregnancy. Trinity moved to dismiss, claiming that it was immune from suit under CGS § 52-571b, which bars the state from burdening any religious belief. CHRO denied the motion. Trinity appealed to Superior Court, re-asserting its immunity argument and adding that its immunity permitted an interlocutory appeal of what would otherwise be a nonfinal order of the CHRO. Superior Court disagreed, finding that the statute provided a special defense, not immunity from suit. Supreme Court affirmed for the same reason.

Underinsured Motorist Benefits

Tannone v. Amica Mutual Insurance Company – This is a good one. Two pedestrians hit by an authorized driver of a rental car. Driver and lessee were underinsured. Rental agency was self-insured. Pedestrians made an underinsured claim on their policy. Amica denied it because the policy, as permitted by state agency regulation, excluded underinsured benefits when the owner of the car is self-insured. The Supreme Court in 1999 had concluded that the regulation was not against public policy because self-insureds had to prove their ability to pay judgments when liable, making underinsurance unnecessary. In other words, the exclusion was valid because a “self-insured” could not be underinsured. In this case, the Supreme Court noted that Congress had passed the Graves Amendment, which makes rental car companies immune from vicarious liability for injuries caused by their underinsured lessees. So, since the injured party no longer can recover from a self-insured car rental agency, the exclusion is invalid because it leaves the injured party without a remedy. Supreme Court reversed the trial court’s summary judgment for defendant and remanded for further proceedings.

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 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 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 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.