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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 17

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

Administrative Law

Landmark Development Group, LLC v. Water and Sewer Commission – Commission denied Landmark’s application for 118,000 gallons per day of sewer treatment capacity. On Landmark’s appeal, Superior Court remanded to commission to clarify the capacity it would allocate to Landmark. Commission said 13,000 gallons per day. Superior Court remanded again, finding 13,000 gallons inappropriately low under the Forest Walk factors. Commission, using the Forest Walk factors, upped the allocation to 14,434 gallons. Landmark appealed again. Superior Court granted Landmark’s motion to supplement the record with evidence showing that commission had recently approved a sewer connection for someone else, Gateway, that had a contemplated capacity of 160,000 gallons per day. Superior Court remanded again, finding commission abused its discretion in allowing Landmark only 14,434 gallons when it had allowed Gateway 160,000 gallons. Commission appealed that remand. Appellate Court affirmed, finding Superior Court did not abuse its discretion by (1) supplementing the record with the Gateway evidence; (2) disregarding the Forest Walk factors when remanding for the third time; or (3) considering the Gateway evidence in reaching its third decision to remand.

Civil Procedure

Carson v. Allianz Life Insurance Company of North America – Trial court granted Allianz summary judgment because the statute of limitations barred Carson’s claim. Appellate Court affirmed, finding that Carson failed to demonstrate a genuine issue of material fact that the fraudulent concealment or continuing course of conduct doctrines applied to toll the limitations period. Appellate Court noted that there was no evidence that Allianz knew that the agent that sold the policy had fraudulently concealed anything as required for fraudulent concealment, or that Allianz had a fiduciary relationship with Carson as required for a continuing course of conduct.

Custody and Visitation

Doyle v. Chaplen – Appellate Court affirmed, finding that trial court properly granted mother’s motion to open judgment of paternity by acknowledgment because of a material mistake of fact (mother miscalculated the conception date), genetic testing showed another man to be the father, and acknowledged father did not have a parent-child relationship with the child. In doing so, trial court properly rejected acknowledged father’s claims of laches and equitable estoppel from the delay in moving to open.

 

Advance Release Opinions – Appellate Court – July 20

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Reviews of Connecticut Appellate Court advance release opinions about civil procedure, contracts (third-party beneficiary), easement, and worker’s compensation.

Civil Procedure

Magee Avenue, LLC v. Lima Ceramic Tile, LLC – Action for breach of lease agreement and unjust enrichment against Lima and Lima’s manager. Lima’s manager moved for summary judgment on the breach of contract counts but did not file a supporting affidavit until the day before the hearing. At the hearing, Magee objected to the affidavit because it was filed too late to be considered and was not based on personal knowledge. Trial court permitted Lima’s manager to testify. It then granted Lima’s manager summary judgment on the breach of contract counts and the unjust enrichment count (trial court’s decision said the complaint is “stricken” as to Lima’s manager, but Appellate Court concluded it was really summary judgment). Appellate Court reversed, finding that trial court (1) improperly considered Lima’s manager’s affidavit because it was filed too late under Practice Book § 17-45; (2) improperly permitted and considered Lima’s manager’s live testimony because that necessarily required trial court to make credibility determinations and factual findings, which necessarily precluded summary judgment; and (3) improperly rendered summary judgment on the unjust enrichment count because Lima’s manager’s written motion did not request summary judgment on that count.

Contracts (Third-Party Beneficiary)

Hilario’s Truck Center, LLC v. Rinaldi – Appellate Court affirmed trial court’s decision that Hilario’s lacked standing to sue Nationwide directly for towing and storage services it rendered for Rinaldi after she crashed her car because Hilario’s was not a third-party beneficiary of the insurance contract between Nationwide and Rinaldi.

Easement

Davis v. Property Owners Association at Moodus Lake Shores, Inc. – Appellate Court affirmed (1) trial court’s decision to permit defense experts to testify despite the arguably late disclosure because plaintiffs failed to show any prejudice; and (2) trial court’s denial of an easement by implication because the evidence showed that plaintiffs could access their property without crossing defendant’s (Appellate Court actually adopted the trial court’s memorandum of decision on this point, but Appellate Court’s decision earlier references the access evidence).

Worker’s Compensation

Barker v. All Roofs by Dominic – Bridgeport was “principal employer” under CGS § 31-291 and thus responsible for benefits for the employee of an uninsured subcontractor who was injured while repairing a roof on a Bridgeport-owned building because (1) our Supreme Court had already confirmed that a municipality can be a principal employer under § 31-291; (2) the statute creating the Second Injury Fund, which compensates injured employees of uninsured employers, did not expressly or implicitly repeal or modify § 31-291; and (3) commissioner properly concluded that the roofing repairs to the Bridgeport-owned building were part of Bridgeport’s “business” under § 31-291, since CGS § 7-148 obligated Bridgeport to repair its property.

 

Advance Release Opinions – Supreme Court – July 20

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Reviews of Connecticut Supreme Court advance release opinions about administrative law and civil procedure.

Administrative Law

Kuchta v. Arisian – I list the topics alphabetically, and though I’m not sure that this case is really about administrative law, I wanted it to be first since it was in the news. Arisian hired Baybrook Remodelers, Inc. for some home improvements. She later put up a sign on her property confirming, “I Do Not Recommend Baybrook.” She also put up two other signs graphically (in the bar graph sense) representing, under the caption “BAYBROOK REMODELERS’ TOTAL LAWSUITS,” the number of cases in which Baybrook was supposedly a party. Kuchta, Milford’s zoning enforcement officer, ordered Arisian to remove the signs, claiming that they violated zoning regulations on the size, height, and number of signs. When Arisian did not comply, Kuchta sought an injunction in Superior Court. Arisian’s special defense was that Milford lacked authority to regulate her signs under CGS § 8-2 because they were not “advertising signs.” Trial court agreed that the signs were not advertising and denied the injunction. After lengthy analysis, the Supreme Court confirmed the signs were not “advertising signs” under § 8-2, which it defined as “any form of public announcement intended to aid directly or indirectly in the sale of goods or services, in the promulgation of a doctrine or idea, in securing attendance, or the like.”

But that’s not all. Kuchta had also sought to enjoin Arisian from occupying the property until she obtained a new certificate of occupancy, which required her to submit a new as-built plot plan. Arisian, of course, had been relying on Baybrook to do that. And, Baybrook, of course, did not. At the time the case had gone to trial more than four years later, Arisian had submitted the as-built, but it reflected a zoning violation, so the building department declined to issue the certificate of occupancy. Trial court denied the injunction because the circumstances did not justify that extraordinary remedy, but fined Arisian $1,000 for taking more than four years to submit a proper as-built. Supreme Court affirmed.

Walgreen Eastern Company, Inc. v. West Hartford – Real property tax appeal. Assessor set fair market value at $5,020,000. Board of Assessment appeals affirmed. Walgreen’s appealed to Superior Court, alleging one count under CGS § 12-117a that it was aggrieved because the assessor overvalued the property; and one count under CGS § 12-119 that the assessment was manifestly excessive. Trial court heard expert testimony and, on the § 12-117a claim, set fair market value at $4,900,000, and ordered West Hartford to correct any overpayment. Trial court denied the § 12-119 claim. Supreme Court affirmed on both claims, finding that trial court properly determined property’s true and actual value, and Walgreen’s had failed to establish assessment was manifestly excessive.

Can anyone tell me the practical difference between § 12-117a and § 12-119? They both seem to give the court the authority to reduce the assessment. It is not clear to me what more you get if the assessment is manifestly excessive.

Civil Procedure

Mendillo v. Tinley, Renehan & Dost, LLP – Mendillo is a lawyer who represented the plaintiff in an employment action against her former employer, a not-for-profit, and the not-for-profit’s executive director, and the chairperson of its board. The Tinley firm represented the defendants. Mendillo apparently communicated with other putative members of the not-for-profit’s board about the not-for-profit’s counterclaim in the employment action. The trial court in the employment action agreed with the Tinley firm’s assertion that Mendillo had violated Rule of Professional Conduct 4.2, and issued a protective order precluding Mendillo from further contact with board members absent the Tinley firm’s consent. Mendillo filed a writ of error, which the Appellate Court dismissed. Supreme Court denied certification, and also denied Mendillo’s motion for reconsideration of that denial. Mendillo filed a second writ of error in the Supreme Court challenging the Appellate Court’s actions. Supreme Court dismissed the second writ, and denied Mendillo’s motion for reconsideration en banc. So, Mendillo filed a new action against the Tinley firm and the Appellate Court, asserting multiple grounds for a declaratory judgment, all essentially attacking the protective order in the employment action. Trial court granted Appellate Court’s and the Tinley firm’s motion to dismiss. Supreme Court affirmed, finding that Mendillo’s claims were nonjusticiable: No practical relief was available to Mendillo because his declaratory judgment action was nothing more than a collateral attack on the protective order in the employment action, which had been fully and finally adjudicated on the first writ of error by the Appellate Court’s decision and the Supreme Court’s denial of certification.

 

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 – Supreme Court – June 1, 8, 22 and 29

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Reviews of Connecticut Supreme Court advance release opinions about civil procedure, election law, and worker’s compensation.

Civil Procedure

Samelko v. Kingstone Insurance Company – Kingstone is a New York insurance company that issued a business car insurance policy in New York covering a business located in New York and a vehicle garaged in New York. The coverage territory was the United States. Insured driver collided with the Samelkos in Connecticut. The Samelkos sued the insured. Kingstone declined to defend. Default judgment entered in the Samelkos’ favor, which Kingstone declined to pay. The Samelkos then exercised their subrogation rights and sued Kingstone. Trial court dismissed the action for lack of personal jurisdiction, finding that Kingstone had no contacts with Connecticut and thus no notice that it might be sued in Connecticut. Supreme Court reversed, finding that because the policy had a nationwide coverage territory (1) the contract was “to be performed” in Connecticut under our corporate long arm statute; (2) it was foreseeable that Kingstone would have to perform in Connecticut, which provided the necessary minimum contacts with Connecticut; and (3) it was fair and reasonable to require Kingstone to defend itself in Connecticut.

Election Law

Arciniega v. Feliciano – Reversed. Candidate 1 lacked standing to attack validity of petition that led to Candidate 2’s inclusion on the ballot in a primary election because Candidate 1 was not aggrieved “by the ruling of an election official” as the statute required. Specifically, though Candidate 2’s address was wrong on the petition, there was no statute requiring an election official to reject a petition containing an inaccurate address. Since there was no rejection requirement, there was no “ruling” in accepting the petition with the inaccurate address. Since there had to be a ruling before there could be standing to complain about the ruling, there was no standing.

Cook-Littman v. Board of Selectman – Reversed. Town’s charter, not state statute, set procedure for filling a vacancy on the board of selectman because it is a matter of purely local concern.

Worker’s Compensation

Williams v. New Haven – Worker received benefits, returned to work, but was ultimately terminated for worker’s compensation fraud. Worker filed a grievance, which the parties arbitrated under the collective bargaining agreement. Worker lost both the arbitration and the motion in Superior Court to vacate the arbitration award. Meanwhile, worker filed a statutory wrongful discharge claim under CGS § 31-290a with the worker’s compensation commission. City moved to dismiss, arguing that since worker was pursuing a statutory wrongful termination claim before the worker’s compensation commission instead of a “court of competent jurisdiction” as required by CGS § 31-51bb and Genovese, the arbitration collaterally estopped the wrongful termination claim. Commissioner denied the motion. Review board affirmed. Supreme Court also affirmed, finding that (1) “court of competent jurisdiction” includes worker’s compensation commission for purposes of § 31-51bb and Genovese; (2) Superior Court motion to vacate the arbitration award did not satisfy § 31-51bb’s requirement of judicial review of statutory claim; and (3) § 31-51bb and Genovese allow the worker to pursue the same or a substantially similar claim after the adverse arbitration decision.

 

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.

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.