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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 – September 7

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Reviews of Connecticut Appellate Court advance release opinions about breach of contract, civil procedure, mortgage foreclosure, and personal injury.

Breach of Contract

Ajluni v. Chainani – Statute of limitations did not bar this breach of guaranty claim because the limitations period commenced anew when Chainani reaffirmed the debt.

Downing v. Dragone – Dragone hired Downing to auction cars. Dragone said he agreed to pay Downing $2,500. Downing said she had a contract for 1% of the gross sales. Trial court admitted into evidence an unsigned “contract” supporting Downing’s claim. Trial court concluded that the unsigned contract created an implied-in-fact contract because even though Dragone did not read it until four months after the auction, Downing had given it him before the auction. Trial court found for Downing on her breach of contract claim. Appellate Court reversed because the implied-in-fact contract finding was clearly erroneous: Dragone’s testimony was that he did not receive the contract until four months after the auction, not that he did not read it until four months after the auction.

Civil Procedure

A Better Way Wholesale Autos, Inc v. Gause – Used-car transaction. Arbitrator found for Gause and the award included punitive damages. Appellate Court found that trial court properly denied plaintiff’s motion to vacate arbitration award, and properly granted Gause’s motion to confirm it, because the arbitration was an unrestricted submission and arbitrator did not manifestly disregard the law in awarding punitive damages.

Mortgage Foreclosure

Christiana Trust v. Lewis – Trial court granted plaintiff summary judgment as to liability only. Appellate Court reversed, finding that Lewis’ affidavit swearing that the mortgage was forged was sufficient to create an issue of fact about the mortgage’s validity.

Hirsch v. Woermer – Appellate Court affirmed, reaching two conclusions: (1) Allegations of one year loan term, 15% interest, and 5 points, were insufficient to overcome motion to strike unconscionability special defense; and (2) Trial court did not abuse its discretion in denying Woermer’s motion to open the judgment so that he could particularize the special defense because he failed to amend after trial court granted Hirsch’s motion to strike and there was nothing new in his proposed amendment.

Personal Injury

Bisson v. Wal-Mart Stores, Inc. – Slip and fall on water on the floor inside the store on a snowy day. Trial court granted Walmart summary judgment because Walmart did not have constructive notice of the water in time to do anything about it. Appellate Court affirmed, finding that (1) Walmart’s evidence showed that it had inspected the spot and didn’t see any water 40 seconds before Bisson fell, and (2) Bisson failed to counteract that evidence with evidence creating an issue of fact (Bisson’s evidence included Walmart’s video surveillance, which both courts found supported Walmart’s claim).

 

Advance Release Opinions – Appellate Court – August 24

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

Administrative Law

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

Civil Procedure

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

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

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

Foreclosure

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

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

 

 

 

Advance Release Opinions – Appellate Court – August 3

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Reviews of Connecticut Appellate Court decisions about defamation, foreclosure, and professional malpractice (legal). Yes, I’m far behind but plan to catch up by mid-October.

Defamation

Crismale v. Walston – Walston called DEEP to report that he had seen Crismale poaching his clams. DEEP officers responded, did their own investigation, and arrested Crismale. After the arrest, Walston told a newspaper reporter that he had “nailed” Crismale. Crismale was acquitted and sued Walston for defamation based on Walston’s statements to DEEP and the reporter, and for malicious prosecution. Trial court granted Walston summary judgment on his special defenses of privilege and opinion, and probable cause. Appellate Court affirmed, finding (1) Walston’s statements to DEEP enjoyed a qualified privilege, there being no evidence of malice to abrogate it; (2) though Crismale was correct that Walston’s statement to the reporter was one of fact, not opinion, the statement was true – Walston had nailed Crismale by reporting what he had seen to DEEP, which led to Crismale’s arrest – and thus not defamatory; and (3) there was no malicious prosecution because Walston demonstrated that he acted with probable cause and without malice in reporting to DEEP. Judge Lavine concurred, but wrote separately to express his disagreement that Walston’s statement to the reporter could not be anything other than a statement of fact.

Foreclosure

Goodwin Estate Association, Inc. v. Starke – In this action to foreclose a lien for unpaid condominium common charges, trial court denied Starke’s motion to open the judgment and his motion to dismiss for the Association’s failure to notify him of its standard foreclosure policy. Appellate Court affirmed, (1) declining to review as inadequately briefed Starke’s claim that trial court improperly considered equitable principles in deciding his motion to dismiss as opposed to his motion to open; and (2) finding that denial of motion to dismiss was proper since Starke had admitted to receiving the standard foreclosure policy.

Professional Malpractice (Legal)

Taylor v. Wallace – Taylor pleaded guilty to murder, got 25 years, and then brought at least 12 habeas petitions. Wallace was appointed to represent Taylor in one of the habeas proceedings. Taylor sued Wallace for legal malpractice and for using Taylor as “an unwitting and unwilling participant” in fraud against the state. Trial court dismissed the action. Appellate Court affirmed. As to legal malpractice, Appellate Court applied US Supreme Court precedent and concluded that “if success in a tort action would necessarily imply the invalidity of a conviction, the action is to be dismissed unless the underlying conviction has been invalidated.” Since Wallace could be guilty of legal malpractice only if Taylor was invalidly incarcerated, and Taylor remained validly incarcerated because his conviction had not been overturned, the action had to be dismissed as unripe, an aspect of subject matter jurisdiction. As to being a participant in a fraud against the state, Taylor lacked standing because he had no injury – any harm he suffered was wholly derivative of harm to the state.

 

Advance Release Opinions – July 13

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Reviews of Connecticut Appellate Court advance release opinions about administrative law, child custody, divorce, easement, mortgage foreclosure, and professional negligence.

Administrative Law

Handel v. Commissioner of Social Services – Social Services denied Handel’s request for benefits more than 90 days after she requested a fair hearing. Trial court affirmed. Appellate Court reversed and directed judgment for Handel because Social Services failed to make final decision with 90 days as the statute required.

Child Custody

In re Katherine H. – Appellate Court affirmed trial court judgments finding respondent’s two children neglected, and committing them to DCF, because respondent failed to demonstrate that any of the trial court’s findings was clearly erroneous.

In re Zoey H. – Trial court found child uncared for and committed her to DCF by agreement of mother and the putative father, who was not, as it later turned out, the biological father. Later, the biological father intervened and petitioned to revoke the commitment to DCF. Trial court denied that petition. Biological father tried again with a new petition, and trial court denied it again. Appellate Court affirmed, finding that, because the child was adjudicated uncared for before biological father got involved, it was not (1) a deprivation of procedural due process to commit the child to DCF before assessing biological father’s fitness as a parent; or (2) a deprivation of substantive due process to deny biological father a presumption of fitness.

Divorce

Conroy v. Idlibi – Appellate Court affirmed divorce judgment, rejecting Idlibi’s claims that (1) Conroy was responsible for the irretrievable breakdown of the marriage; and (2) certain financial awards unfairly favored Conroy.

Zilkha v. Zilkha – Over defendant’s opposition, trial court granted guardian ad litem’s motion for an increase in her hourly rate. Appellate Court affirmed, finding that trial court (1) properly precluded defendant from eliciting testimony about guardian’s putative bias because the proceeding was about the hourly rate, not misconduct; and (2) properly set the hourly rate at the higher end of the Judicial Branch’s sliding scale given the hourly rates of the parties’ attorneys, complexity of the issues, and availability of other household income.

Easement

Hum v. Silvester – Trial court properly concluded that the Silvesters had acquired a prescriptive easement to use the Hums’ driveway to access their property. A prescriptive easement is essentially an easement acquired by adverse possession. CGS § 47-37

Mortgage Foreclosure

Bank of America, N.A. v. Kydes – Bank had standing to foreclose because Kydes, by failing to answer or object to Bank’s requests for admissions, admitted Bank was the holder of the note, and never presented any evidence to rebut the resulting presumption of ownership.

Professional Negligence

Corneroli v. Kutz – Legal malpractice. Though not at all relevant to the decision, certain facts are captivating: D’Amico bought a painting at a yard sale for $3. Turned out to be a John Singer Sargent worth millions. But D’Amico couldn’t get the painting authenticated as a Sargent so he couldn’t realize its value. Then D’Amico died. Enter his cousin, Corneroli, who said he and D’Amico agreed that if Corneroli got the painting authenticated, D’Amico would go halfsies with him on the profit. Corneroli entrusted the painting to a guy named Borghi, and it seems Borghi double-crossed Corneroli by selling it to a guy named Adelson for $1.2 million without telling Corneroli. Adelson then apparently sold it to someone else for millions more than he paid for it. Corneroli sued Borghi, Adelson and the second buyer, but did not include D’Amico’s estate in the case. Corneroli recovered some $300,000 from Borghi. D’Amico’s estate later brought its own action and settled with Adelson for $2.4 million. Corneroli then filed a claim against the estate for a chunk of that $2.4 million. Probate Court disallowed the claim.

Now we come to the facts pertinent to the appeal. Corneroli hired Kutz to appeal the Probate Court’s decision. Probate Court dismissed the appeal as untimely. Corneroli sued Kutz for legal malpractice. Trial court granted Kutz’s motion for summary judgment on the ground that Corneroli failed to present sufficient expert evidence to create a fact issue about causation. Appellate Court affirmed, finding that (1) expert testimony was required on causation even though it went to the ultimate issue because the factfinder needed expert assistance; and (2) Corneroli’s expert’s testimony was inadequate to create a fact issue because he testified only that a favorable outcome for Corneroli was a possibility, not a probability.

Advance Release Opinions – July 5

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Reviews of Connecticut Appellate Court advance release opinions about administrative law, breach of contract, civil procedure, domestic relations, and mortgage foreclosure.

Administrative Law

Starble v. Inland Wetlands Commission – Over Starble’s objection, commission granted wetlands-permit application. Trial court affirmed. Appellate Court reversed, finding that (1) statutory and regulatory provisions requiring wetlands-permit applicant to prove absence of feasible and prudent alternative was mandatory, not directory, because the provisions were substantive, having been enacted to protect inland wetlands; and (2) since commission supported its decision with explicit findings, trial court was precluded from reviewing the record for evidence supporting anything other than those explicit findings.

Breach of Contract

DAB Three, LLC v. LandAmerica Financial Group, Inc. – DAB Three sued five corporations and two individual insurance brokers for failing to obtain the correct coverage. Trial court dismissed as to LandAmerica Financial Group (“LFG”) for lack of subject matter jurisdiction because LFG had been discharged in a bankruptcy. Then, accepting the representation of one of the remaining defendants, Lawyers Title Environmental Insurance Service Agency, Inc. (“LTEISA”), that it was the only party that could be liable for a breach of a brokerage contract, trial court granted summary judgment for the other three remaining defendants. Next, accepting LTEISA’s lawyers’ representation that LTEISA did not exist because it had become defendant LandAmerica Environmental Insurance Service Agency, Inc. (“LEISA”) before the policy was issued, trial court granted the lawyers’ motion to withdraw their appearance. So, the case was to be tried only against LTEISA. But since LTEISA did not exist, DAB Three declined to go to trial, leading trial court to dismiss as to LTEISA, the last remaining defendant. Appellate Court affirmed the dismissal as to LFG, finding that although LFG’s bankruptcy discharge would not have protected LFG’s insurer from liability for LFG’s breach, DAB Three had never made any claim against any such insurer. Since LFG would have been responsible for the costs of defending DAB Three’s claims, they violated the bankruptcy discharge and deprived the court of subject matter jurisdiction. Appellate Court reversed the summary judgment as to LEISA, finding that it could not stand in the face of defendants’ admission that LTEISA was really LEISA. In other words, the issue of fact that precluded summary judgment against LTEISA also precluded summary judgment against LEISA because they were one and the same.

Civil Procedure

Speer v. Department of Agriculture – Speer appealed commissioner’s order to euthanize Speer’s dogs. Trial court nonsuited Speer for failing to appear at a pretrial conference, though her counsel appeared, she was available telephone, and she actually spoke with trial court by telephone. Trial court then denied Speer’s verified motion to open and set aside the nonsuit in a one-sentence order finding that Practice Book § 14-13 required Speer to attend the pretrial. When Appellate Court ordered trial court to articulate its reasons for denying Speer’s motion, trial court said Speer had not complied with any of Practice Book § 17-43’s requirements. Appellate Court reversed, finding that Speer had complied with all of the requirements of Practice Book § 17-43 and CGS § 52-212, and that trial court abused its discretion in denying Speer’s motion. Appellate Court also noted, in a footnote, that trial court’s initial reliance on § 14-13 was misplaced because § 14-7 exempts administrative appeals from § 14-13’s pretrial rules.

Domestic Relations

Tala E.H. v. Syed I. – Trial court granted wife two-week, ex parte order of protection against husband, which the trial court continued for six months after a hearing on notice. Appellate Court affirmed, finding that (1) the record did not disclose any bias or judicial misconduct; and (2) trial court did not make any clearly erroneous factual findings or abuse discretion.

Mortgage Foreclosure

Webster Bank v. Frasca – Trial court denied plaintiff’s motion for a deficiency judgment because plaintiff failed to establish the property’s fair market value by “credible and accurate evidence.” Appellate Court affirmed, finding no plain error in the trial court’s conclusions that (1) plaintiff’s appraisal was not credible; and (2) plaintiff failed to carry its preponderance-of-evidence burden as to value. Nor was there any plain error from alleged judicial bias, since the trial court’s comments about the substantial financial resources of defendant’s former father-in-law, and the trial court’s knowledge of real estate in the area where the property is located, though concerning, were not a manifestation of bias, but just unnecessary and unhelpful commentary. Appellate Court also confirmed that trial court did not abuse its discretion in admitting and considering the evidence, and in denying plaintiff’s motion for a protective order regarding plaintiff’s deposition.

Wells Fargo Bank, N.A. v. Lorson – The longstanding requirement in Connecticut that plaintiff must plead and prove compliance with conditions precedent contained in the note and mortgage does not apply to FHA/HUD conditions precedent referenced, but not explicitly contained, in the note and mortgage. Rather, borrower must affirmatively plead and prove failure of any such condition precedent. This passage from the opinion explains why: “There are potentially dozens of HUD requirements that a defendant could argue are necessary prerequisites to the bringing of a foreclosure action… It is inconsistent with our expectation that trials are not supposed to be a game of blindman’s bluff to expect a plaintiff in a foreclosure action to anticipate which HUD requirement a defendant will seize upon to argue after the plaintiff rests that it has failed to prove its case. Foreclosure trials, and motions for summary judgment in foreclosure actions, in which the facts are largely undisputed, would become drawn-out, expensive affairs as a plaintiff presents evidence regarding a lengthy list of requirements. Moreover, because plaintiffs typically are entitled to an award of attorney’s fees upon the entry of judgment, the parties truly harmed by imposing such requirements on foreclosing plaintiffs are the borrowers who will be required to pay the additional fees caused by such a procedure. Consequently, in this particular context, it makes much more sense to require the defendant to plead the specific requirements that have not been met and bear the burden of proving the plaintiff’s noncompliance with those requirements. Not only is this more logical and more fair to plaintiffs and the vast majority of defendants who have no interest in raising such issues, it also is consistent with the manner in which other states have addressed the issue and the guidance provided by HUD itself.” Oh, and Appellate Court also affirmed as to borrower’s other two arguments, equitable estoppel (alleged to have arisen when plaintiff added a condition to a forbearance agreement already in progress) and unclean hands (from plaintiff’s allegedly ignoring HUD requirements willfully and in bad faith).

 

Advance Release Opinions – June 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 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 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.

Advance Release Opinions – May 24

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Reviews of Connecticut Appellate Court advance release opinions about civil procedure, governmental immunity, mortgage foreclosure, and worker’s compensation.

Civil Procedure

Lynn v. Bosco – Board ousted chairman of privately-held company. Attempting to regain control, chairman offered to buy shares from other shareholders. No one accepted. Later, a shareholder offered to sell shares to the new chairman, not the ousted chairman. Instead of buying them directly, new chairman and board had company buy them, and turn around and sell them to the new chairman and other board members. Ousted chairman started declaratory judgment action against board members individually, essentially alleging that they violated his preemptive rights as a shareholder to buy the shares himself before the company could. Ousted chairman did not name company as a defendant. New chairman and board members moved to strike, claiming that company was a necessary party to an action asserting that company violated preemptive rights. Court granted the motion. When ousted chairman repleaded, he did name company as a defendant, but he did not allege any wrongdoing by, or seek relief from, the company. After trial, court ordered the board members to return the shares they had purchased to the company, and ordered the company to reimburse the board members for the returned shares. Appellate Court affirmed the return-the-shares order, but reversed the reimbursement order, finding that the trial court lacked authority to impose a remedy on the company because none of the pleadings contained any allegation against the company, sought any relief from it, or otherwise put the company on notice that a claim was being made against it.

Governmental Immunity

Perez v. University of Connecticut – Student fell on ice in a UConn parking lot. General Assembly waived sovereign immunity under CGS § 4-159. Student claimed action to jury list. Trial court granted state’s motion to strike the jury claim because CGS § 4-160(f) requires a bench trial when sovereign immunity is waived under § 4-159. Appellate Court affirmed, finding that (1) student had no constitutional right to a jury in action against the state; and (2) neither § 4-159 nor § 4-160 authorized a jury trial against the state.

Mortgage Foreclosure

Tedesco v. Agolli – Per curiam decision affirming judgment of foreclosure by sale. Appellate Court adopted trial court’s memorandum of decision, which Appellate Court appended to its decision. I didn’t read the trial court’s decision, but here’s what I gleaned from the Appellate Court’s: Apparently Tedesco’s pension plan loaned money to a limited liability company composed of Agolli and some others. The company secured the loan with mortgages on company property. Agolli seems to have claimed that the people who had signed the loan documents for the company did not have a meeting of the minds with Tedesco, authority to bind the company, and were under duress. Trial court and Appellate Court rejected those claims.

Worker’s Compensation

Clements v. Aramark Corporation – Not sure I completely get this one. Worker fell and hit her head on the ground after fainting due to health conditions unrelated to her job. Commissioner and board denied benefits, concluding that injuries arose out of worker’s personal infirmity, not her employment. Appellate Court reversed, finding that worker’s injuries from falling at her workplace did arise out of her employment, even though the personal infirmity that caused her to fall did not.