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Advance Release Opinions - Review and Analysis

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Advance Release Opinions – May 11 – Appellate Court

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Reviews of Connecticut Appellate Court advance release opinions about child support, civil procedure, divorce, insurance, medical malpractice, and underinsured motorist benefits.

Child Support

Asia A. M. v. Geoffrey M. – This is one that I normally would not review, but I found it interesting. Geoffrey executed a written acknowledgment of paternity under CGS § 46b-172(a)(1). More than two years later, state filed a petition for support against Geoffrey in Asia’s name. Geoffrey then moved to open the paternity acknowledgment under § 46b-172(a)(2) for fraud, mistake of act, and duress, claiming essentially that he signed it only because Asia had lied to him that he was the father; a DNA test proved that he was not the biological father; and it was in the child’s best interests to establish the biological father. Family support magistrate concluded that Geoffrey failed to establish any of the statutory bases for opening the acknowledgment – fraud, mistake, or duress – because the evidence showed that he knew that he was not the biological father when he signed it. But, magistrate nonetheless opened the judgment, concluding that magistrates have the inherent authority to open judgments in the child’s best interests. Trial court affirmed on the state’s appeal. Appellate Court reversed because (1) the statutory grounds are the only grounds for opening a judgment deriving from a § 46b-172(a)(1) paternity acknowledgment; and, redundantly in my view, (2) magistrate did not have authority to open the acknowledgment in the best interests of the child. Judge Keller concurred to suggest amending the paternity acknowledgment statute to require DNA testing before an acknowledgment could be accepted.

Battistotti v. Suzanne A. – Trial court awarded Suzanne sole custody; gave Battistotti, a New York resident, parenting time that had to be spent in Greenwich; and ordered Battistotti to pay child support in the amount suggested by the guidelines. On appeal, Battistotti claimed that the trial court should have deviated from the support guidelines to account for his additional expenses in maintaining a Greenwich apartment to comply with the visitation order. Appellate Court agreed, and remanded for a new hearing on child support. Battistotti also claimed that the trial court abused its discretion in restricting his parenting time to Greenwich. Appellate Court disagreed, and affirmed on that point.

Civil Procedure

Plainville v. Almost Home Animal Rescue and Shelter, Inc. – Town seized animals from defendant under a criminal search and seizure warrant and tried recover its animal care expenses from defendant under negligence per se and unjust enrichment theories. Trial court granted defendant’s motion to strike both counts. Appellate Court affirmed, finding that (1) Town was not an intended beneficiary of CGS § 53-247 so that statute was not a basis for Town’s negligence per se claim; (2) CGS § 22-329a provided Town with an adequate remedy for recouping its animal care costs so it could not recover in unjust enrichment; and (3) trial court did not apply an improper standard in deciding the motion to strike.

Divorce

Thomasi v. Thomasi – Wife and husband had separate appeals. In wife’s appeal, parties could not agree on the QDRO giving wife half of the “marital portion” of husband’s pension because they could not agree on the method of calculation. Even though both methods were acceptable, and the dissolution agreement did not specify which one to use, trial court found the agreement unambiguous, and accepted the coverture method favored by husband, instead of the subtraction method favored by wife. Appellate Court found that although “marital portion” was not a patent ambiguity since everyone understood generally what it meant, it was a latent ambiguity since there are multiple ways to calculate it. In other words, just because everyone agreed that the cat was to be skinned, didn’t mean that they agreed on how to skin it. The latent ambiguity required reversal

In husband’s appeal, trial court found that husband’s job loss was his own fault and denied his motion to reduce alimony. Appellate Court reversed on that point, finding that the record did not support the trial court’s conclusion. But Appellate Court affirmed trial court’s determination that husband’s obligation to pay pension benefits to wife started on the date of dissolution, and was not delayed by the delay in determining the marital-portion calculation method.

Insurance

General Ins. Co. of America v. Okeke – Some cases break your heart not because of the court’s ruling, but because of the facts that led the parties to litigation. This is one of those cases. Fifteen year old Michael allegedly assaulted, stabbed, and beat an elderly woman, in her home. The woman sued Michael and his mother, Agatha, in separate actions. Agatha’s homeowner’s insurer initially appeared for Michael, but then withdrew his appearance. It appeared for Agatha under a reservation of rights. Michael was defaulted for failure to appear. After a hearing in damages, the court awarded the woman more than $407,000 in Michael’s case. While the woman’s actions were pending, Agatha’s homeowner’s insurer brought this declaratory judgment action seeking a decree that it has no duty to defend or indemnify Michael or Agatha. Trial court granted the insurer’s motion for summary judgment, and decreed that it had no duty to defend or indemnify either defendant. Appellate Court affirmed in a per curiam opinion adopting the trial court’s memorandum of decision.

Medical Malpractice

Ugalde v. Saint Mary’s Hospital, Inc. – Appellate Court found that trial court (1) properly dismissed claim for lack of personal jurisdiction because opinion letter was deficient for want of doctor’s qualifications and plaintiff could not amend it because statute of limitations had expired; and (2) properly denied plaintiff’s motion to re-argue the denial of her motion to set aside the nonsuit that entered for her failure to comply with discovery.

Underinsured Motorist Benefits

Puente v. Progressive Northwestern Ins. Co. – Puente had an LLC, and the LLC had an auto insurance policy. Puente was hit after exiting the LLC’s truck. Trial court granted insurer summary judgment, finding that there was no dispute that Puente was not a named insured, and that he was not “occupying” the truck when he was hit because he wasn’t in physical contact with it. Appellate Court affirmed.

Advance Release Opinions – May 4

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Reviews of the Connecticut Appellate Court’s advance release opinions about divorce and personal injury.

Divorce

Murphy v. Murphy – Judgment says alimony terminates on cohabitation. Defendant cohabited with boyfriend. Trial court denied plaintiff’s motion to terminate alimony because there was no evidence under CGS § 46b-86(b) that boyfriend’s contributions to defendant’s support altered her financial needs. Appellate Court reversed, finding that the proper question is how much the cohabiting saved defendant financially, not how much the boyfriend was contributing. The evidence was that defendant’s move into boyfriend’s house cut her financial needs in half, regardless of boyfriend’s contributions to her support. That was all that was necessary to terminate alimony. The dissent asserts that the majority decision implicitly overturns precedent and is contrary to the legislative intent of § 46b-86(b).

Personal Injury

Micalizzi v. Stewart – Jury awarded economic damages, but not noneconomic damages. Trial court denied plaintiff’s motion to set aside the verdict or for additur. Appellate Court affirmed, finding: (1) Jury’s interrogatory response that defendant was a proximate cause of “the injuries sustained by the plaintiff” was not necessarily inconsistent with awarding zero noneconomic damages because the jury could have determined that plaintiff was injured, but failed to prove noneconomic damages; (2) Jury’s award of economic damages does not require, as a matter of law, an automatic award of noneconomic damages; (3) On this record, jury could reasonably have concluded that plaintiff’s noneconomic damages were not compensable; and (4) trial court did not create any procedural irregularity constituting an abuse of discretion.

Advance Release Opinions – April 27

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Reviews of the Appellate Court’s advance release opinions about deed restrictions, divorce, foreclosure, and governmental immunity and procedure.

Deed Restrictions

Jepsen v. Camassar – Long, fact-specific opinion about modifying restrictions in a deed conveying beach rights to all of the property owners in a subdivision. Trial court ruled that modification was valid. Appellate Court reversed and remanded with direction to render judgment declaring modification invalid, finding that: (1) association failed to give notice of the vote on the modification to all who were entitled to notice; and (2) the modifications were not approved by a majority of property owners as the deed required.

Divorce

Steller v. Steller – In modifying alimony, trial court properly determined that defendant’s earning capacity could be less than his current income because earning capacity is what defendant can be expected to earn in the future, not what he earns now. But, Appellate Court reversed because the evidence did not support the trial court’s determination of the amount of defendant’s earning capacity.

Foreclosure

Wells Fargo Bank, N.A. v. Melahn – Per curiam opinion. Trial court struck borrower’s counterclaims and special defenses and then granted bank’s motion for judgment on the counterclaims. Appellate Court dismissed the appeal as to the special defenses for lack of a final judgment, and affirmed the striking of the counterclaims, finding that trial court did not abuse its discretion in concluding that they were either legally insufficient or did not meet the transaction test. Appellate Court also affirmed the judgment on the counterclaim because borrower’s attempt to replead merely added conclusory statements to some of the counterclaims, and those additions did not correct the legal insufficiency.

Governmental Immunity and Procedure

Carter v. Watson – Governmental immunity barred inmate’s claims for money damages against Attorney General and four state employees, sued in their official capacities for failing to timely restore inmate to his proper status after an overturned drug test. Inmate’s claim for declaratory relief arising from the same incident was properly dismissed as moot since it did not fall within the mootness exception for matters capable of repetition, yet evading review.

Advance Release Opinions – April 20

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Reviews of Connecticut Appellate Court advance release opinions about civil procedure, divorce, mortgage foreclosure, and professional negligence.

Civil Procedure

Anderson v. Ocean State Job Lot -Trial court dismissed because plaintiff failed to appear for a court-ordered deposition. Plaintiff moved to open, saying that he missed the deposition because he was incarcerated. Trial court denied the motion. On appeal, plaintiff claimed that defendant obtained the dismissal by fraud. Appellate Court affirmed because plaintiff did not raise his fraud claim before the trial court, and because he did not verify his motion to open by oath as CGS § 52-212 requires.

Bridgeport v. Grace Building, LLC – Tenant’s lawyer withdraw and trial court continued the trial so tenant could get a new one. Tenant had a new lawyer lined up, but the day before trial, the new lawyer said he would not appear for tenant. Trial court defaulted tenant for failure to appear for trial. Tenant moved to open the default, saying that the debacle with new lawyer was reasonable cause and there were good defenses, as reflected in his already-filed answer and special defenses. Trial court denied the motion. After tenant appealed, trial court granted landlord’s motion to terminate appellate stay, and landlord took possession. Appellate Court found that turnover of possession did not moot appeal since lease was for 98 years, meaning that court could restore property to tenant. Appellate Court also found that denying motion to open was an abuse of discretion. Tenant’s answer included meritorious defenses; delays in the action were at landlord’s door, not tenant’s; and tenant’s new lawyer sandbagged him the day before trial.

Packard v. Packard – Appellate Court declined to review this appeal in a divorce case because “[t]he defendant, in her lengthy and detailed brief, present[ed] no legal analysis and cite[d] virtually no case law.”

Divorce

Hirschfeld v. Machinist – Latest installment of what seems to be a never-ending divorce. In this installment, Appellate Court rejected all four of plaintiff’s contentions and affirmed. First, plaintiff claimed that defendant was in contempt for underpaying her for certain investments that were supposed to have been divided. Appellate Court found defendant could not be in contempt because there was no order to pay plaintiff any share of the investments. That’s just what defendant did in good faith after he learned that an in kind division was impossible. Second, plaintiff claimed that defendant was in contempt for underpaying alimony in the first year of the divorce because of a questionable interpretation of the effect of an income tax issue. Appellate Court found that although defendant’s interpretation did not have a reasonable basis, he made it in good faith and it was not frivolous. Third, plaintiff claimed that defendant was in contempt for violating a minimum alimony provision and that the trial court had improperly accepted parole evidence on the meaning of that provision. Appellate Court found that the provision could not be reasonably interpreted any other way. Fourth, plaintiff claimed she was entitled to her attorney’s fees in bringing the other three matters to the trial court’s attention. Appellate Court found that she was not entitled to attorney’s fees because the trial court properly declined to hold defendant in contempt.

Schimenti v. Schimenti – Parties agreed to amend original judgment by requiring defendant to pay 50% of plaintiff’s initiation fee for a country club golf membership. Defendant did not pay, and by way of excuse wanted to offer evidence about the parties’ intent for the provision. Trial court declined that request, and ordered defendant to pay as agreed. Certain of the trial court’s comments in doing so suggested a personal bias based on her own experiences with country club golf memberships. Relying on the plain error doctrine, defendant appealed. Appellate Court reversed, finding that it would be a manifest injustice to defendant to do anything else.

Mortgage Foreclosure

Aurora Loan Services, LLC v. Condron – My case. Under most residential mortgages, notice of default is given when mailed by first class mail or when actually delivered if sent by any other means. Bank sent default notice by certified mail, but failed to prove actual delivery. Trial court ruled that actual delivery was not required because certified mail was the same thing as first class mail, and certified mail substantially complied with the notice provision in any event. Appellate Court reversed, finding that certified mail requires actual delivery, and substantial compliance does not apply where there is no notice, as opposed to a technically deficient notice.

Professional Negligence

Windsor v. Loureiro Engineering Associates – Seven year statute of limitations of CGS § 52-584a barred plaintiff’s claim against architects and engineers for allegedly negligently preparing a Comparable-to-New report that plaintiff used to obtain state funding for a school renovation project.