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Advance Release Opinions - Review and Analysis

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Eviction

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 – 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 – 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.

 

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.