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Advance Release Opinions – Supreme Court – September 21

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Review of a Connecticut Supreme Court advance release opinion about personal injury (wrongful death).

Personal Injury (Wrongful Death)

Angersola v. Radiologic Associates of Middletown, P.C. – Though CGS § 52-555 provides a limitation period for a wrongful death claim, it is a statute of repose, not a statute of limitations, meaning that the court lacks subject matter jurisdiction over a wrongful death claim that is not brought within the limitations period. The continuing course of treatment and continuing course of conduct doctrines apply to the wrongful death limitations period. As in other cases where there is a dispute about the facts that determine whether the court has subject matter jurisdiction, there must be an evidentiary hearing, or at least discovery, to resolve the dispute. Here, Supreme Court concluded that there was a factual dispute about a continuing course of conduct, reversed the trial court’s dismissal for lack of subject matter jurisdiction, and remanded for an evidentiary hearing or limited discovery.

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 9

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

Custody and Visitation

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

Governmental Immunity

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

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

Personal Injury

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

 

Advance Release Opinions – 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 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.