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Advance Release Opinions – May 11

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

Civil Procedure

Meribear Productions, Inc. v. Frank – Reversed. Connecticut couple hired California company to stage their Connecticut home for sale. Payment dispute arose. Company obtained default judgment against couple in California. Company then started Connecticut action to enforce the foreign judgment, and for breach of contract and quantum meruit. Trial court found for Company against husband on the California judgment, for wife against Company on the foreign judgment, and for Company against wife on the breach of contract claim. Appellate Court affirmed. Supreme Court found that Appellate Court should have dismissed the appeal for lack of a final judgment against husband since the trial court did not determine the breach of contract or quantum meruit claims against him. Those claims are legally inconsistent, or mutually exclusive, with each other, but not with the foreign judgment claim. So, the judgment against wife on the breach of contract claim automatically disposed of the quantum meruit claim against her. But, the judgment against husband on the foreign judgment did not dispose of either breach of contract or quantum meruit against him, meaning there was no final, appealable judgment against husband.

Worker’s Compensation

MacDermid, Inc. v. Leonetti – Affirmed. While MacDermid’s employee, Leonetti suffered an on-the-job injury and filed a worker’s compensation claim. Five years later, and before the worker’s compensation claim was finally resolved, MacDermid discharged Leonetti. The parties entered into a severance agreement, under which MacDermid paid Leonetti some $70,000, and Leonetti released all claims against MacDermid. The worker’s compensation commission ruled that the release did not include Leonetti’s worker’s compensation claim. Supreme Court affirmed. While that appeal was pending, MacDermid started the instant action against Leonetti, essentially claiming through a variety of theories that if Leonetti wanted his worker’s compensation claim, he would have to give back the $70,000 severance payment. Jury found for MacDermid on its unjust enrichment claim. Supreme Court affirmed, finding that (1) MacDermid’s claim not barred by collateral estoppel because there was no identity of issues between the worker’s compensation matter and the unjust enrichment claim; (2) Leonetti failed to preserve for appeal his claim that the worker’s compensation act, the severance agreement, or public policy barred MacDermid’s claim; (3) Leonetti failed to adequately brief the harm that he claims to have suffered from improper jury instructions; (4) the general verdict rule bars Leonetti’s argument about the jury instructions in any event; and (5) Leonetti failed to challenge all of the trial court’s bases for excluding certain exhibits, and failed to adequately brief the harm he supposedly suffered from its exclusion of another.

Advance Release Opinions – April 27

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

Deed Restrictions

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

Divorce

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

Foreclosure

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

Governmental Immunity and Procedure

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

Advance Release Opinions – April 20

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

Civil Procedure

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

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

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

Divorce

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

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

Mortgage Foreclosure

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

Professional Negligence

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

 

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.

 

Advance Release Opinions – April 6

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Reviews of Connecticut Appellate Court advance release opinions about civil procedure, mortgage foreclosure, noncompete agreements, and vicarious liability.

Civil Procedure

Ruiz v. Victory Properties, LLC – Plaintiff brought negligence claims against D1, and derivative fraudulent transfer claims against D2 and D3. D1, and D2 and D3, filed separate summary judgment motions and the trial court granted both of them. Plaintiff appealed the summary judgment for D1, but not the summary judgment for D2 and D3. Over the next four and a half years, Appellate Court reversed the summary judgment for D1, and Supreme Court affirmed that reversal. Back in the trial court, plaintiff moved to open the summary judgment against D2 and D3, arguing that the reversal as to D1 presented good cause for reviving the derivative claims against D2 and D3. Trial court denied the motion. Appellate Court affirmed because (1) Practice Book § 17-4, CGS § 52-212a, and the doctrine of finality of judgments all precluded opening a judgment more than four months after it became final for purposes of appeal; and (2) plaintiff did not argue that the four-month period should be tolled for any equitable reason. Appellate Court also found that the appellate stay under Practice Book § 61-11(a) (1) did not toll the four-month period because it precludes only proceedings to enforce or carry out a judgment, and a motion to open is not a proceeding to enforce or carry out a judgment; and (2) did not apply to the summary judgment for D2 and D3 because plaintiff did not appeal that judgment.

Mortgage Foreclosure

Bayview Loan Servicing, LLC v. Park City Sports, LLC – Mild yawn. Even if plaintiff failed to comply with standing order about federal loss mitigation affidavit, it did not deprive trial court of subject matter jurisdiction because that depends on statutes or the constitution, and standing orders are not statutes or even rules of practice. There were no issues of fact about application of mortgage payments; date of default or propriety of the notice of default; assignment of the note to plaintiff; or the validity of the federal loss mitigation affidavit. Appellate Court declined to review defendant’s claim that the trial court should have granted his petition for foreclosure mediation because it failed to present a record adequate for review.

Nationstar Mortgage, LLC v. Mollo – Trial court granted plaintiff’s motion for summary judgment as to liability even though the motion did not address defendant’s special defenses because plaintiff filed the motion before defendant filed his answer.  Appellate Court reversed, finding that trial court lacked authority to raise and consider, sua sponte, issues that plaintiff hadn’t raised, namely whether there fact issues about the special defenses.

Noncompete Agreement

DeLeo v. Equale & Cirione, LLP – Accounting firm’s partnership agreement included noncompete clause. DeLeo left the firm and began practicing on his own. He then sued the firm, claiming essentially that he was still a partner, was improperly excluded from the firm, and the court should dissolve the firm. The firm counterclaimed for breach of the noncompete agreement. Trial court found for the firm on DeLeo’s claims and on the firm’s counterclaims. Appellate Court agreed with DeLeo’s claim that the noncompete agreement was not a liquidated damages clause, but a restraint of trade subject to a reasonableness analysis. Since the trial court did not perform that analysis, Appellate Court reversed and remanded for that purpose. Appellate Court did consider, and reject, DeLeo’s other claims that (1) trial court found he was estopped to deny enforceability of noncompete agreement (it didn’t); and (2) firm waived noncompete agreement (it didn’t). Appellate Court also rejected what might have been DeLeo’s best argument because he had not raised it in the trial court and did not meet the requirements for plain error review. More specifically, on appeal, DeLeo claimed that trial court should have dissolved the “partnership” because, after he left, there was only one partner, and there is no such thing as a one-partner partnership. In rejecting this claim, Appellate Court noted that not only had DeLeo failed to raise it in the trial court, he was contradicting himself because his position there was that he was still a partner, making it at least a two-partner partnership.

Vicarious Liability

Fiano v. Old Saybrook Fire Company No. 1, Inc. – As he was leaving firehouse to go home to change for his high school yearbook photo, seventeen-year-old junior firefighter hit plaintiff with his car (plaintiff was riding a motorcycle). Plaintiff wanted to hold Fire Company vicariously liable. Appellate Court affirmed trial court’s summary judgment for Fire Company because junior firefighter was not acting within the scope of his duties when the accident happened.

Advance Release Opinions – March 29

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Review of the Connecticut Appellate Court’s advance release opinion about employment, which also touches on procedure.

Employment/Procedure

Sempey v. Stamford Hospital – CHRO gave Sempey a right to sue Hospital for discrimination within 90 days. Sempey timely started a three-count lawsuit, but none of the none of the counts was expressly for discrimination. Trial court granted Hospital’s motion to strike all three counts. Sempey repleaded a three-count complaint, but this time one of the counts was for discrimination.  Hospital filed a motion to strike all three counts, and a motion to dismiss for lack of subject matter jurisdiction directed at only the discrimination count. Before Sempey’s time to file another substitute complaint had expired, trial court dismissed not only the discrimination count, but the other two counts as well. Appellate Court affirmed as to the discrimination count, finding that (1) since the motion to dismiss was subject matter jurisdictional, trial court was correct to decide it before Sempey’s time to substitute complaint expired; (2) Sempey had asserted her discrimination claim outside the 90 day window of her right-to-sue letter, and made no claim that a tolling doctrine applied; and (3) relation back doctrine did not apply since Sempey’s original complaint did not put Hospital on notice of a discrimination claim. But, Appellate Court reversed as to the other two counts because (1) Hospital directed its motion to dismiss solely at the discrimination count; and (2) Hospital did not show, and trial court did not find, that repleading could not cure any deficiencies in the two counts.

Advance Release Opinions – March 23

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Reviews of Connecticut Appellate Court’s advance release opinions about administrative law, civil procedure, contracts, deed restriction, governmental immunity, visitation, and worker’s compensation. I do not review the Court’s advance release opinions about criminal law and habeas corpus. I also do not review the Court’s per curiam decision affirming summary judgment for defendant in a spoliation of evidence and CUTPA case because there isn’t anything in the opinion to review (if you want to see for yourself, the case is Traylor v. Gambrell).

Administrative Law

Metropolitan District v. Commission on Human Rights and Opportunities – District is a municipal entity the legislature created in 1929 for water supply, waste management and regional planning. Commission is a state agency charged with enforcing statutes barring discrimination. District sought a declaratory judgment, injunction and writ of mandamus on allegations that Commission engaged in improper rulemaking and violated District’s due process rights regarding District’s alleged discriminatory hiring practices at issue in five proceedings before Commission. Trial court dismissed the action for lack of subject matter jurisdiction for failure to exhaust administrative remedies. Appellate Court affirmed, finding that District could not yet pursue declaratory relief in Superior Court because it had to first seek that relief before Commission under CGS § 4-176, and it could not yet seek that relief before Commission because three of the five discriminatory hiring claims were still pending before Commission. Appellate Court also confirmed that the exhaustion requirement applied even when challenging Commission’s jurisdiction; the exception for futility or inadequacy of administrative remedy did not apply since there was no showing of futility or inadequacy; and the exception for due process claims under 42 USC 1983 did not apply because lack of an adequate legal remedy remains a condition to injunctive relief even when claim is made under that statute.

Civil Procedure

Ryan v. Cassella – Plaintiff brought collection action against “Paul Cascella dba CIA Integrated Marketing Systems” and trial court entered a judgment for plaintiff on defendant’s failure to appear. In attempting to examine the judgment debtor, plaintiff learned that, though the marshal had served defendant at the correct address, defendant’s name was actually Cassella, with a second “s” instead of a second “c”, and that his company’s name was actually Integrated Marketing Systems, Inc., with an “Inc.” and without “CIA.” Trial court granted plaintiff’s motion to correct the names. After the trial court’s articulations, Appellate Court affirmed, finding that (1) judgment was against Cassella individually, not against his company, so that correcting the company name did not add a new party; (2) CGS § 52-123 gave the trial court the authority to correct the misspellings because correcting names did not substitute a new party and neither party was prejudiced; (3) the four month limit for opening judgments did not preclude the trial court from correcting the misspellings; (4) trial court did not abuse its discretion in denying defendant’s motion to open and vacate the trial court’s decision on the motion to correct.

Contracts

Micek-Holt v. Papageorge – Lease-to-buy contract blew up for landlord-seller when tenant-buyer failed to close – in 2011 – but remained in the property without paying anything. Trial court ordering a closing on certain terms, and failing that, judgment to enter for plaintiff extinguishing defendant’s property interest, quieting title in plaintiff, and requiring defendant to pay $150/day use and occupancy. Appellate Court affirmed in a per curiam decision essentially adopting the trial court’s reasoning.

Deed Restriction

Bueno v. Firgeleski – A 1941 deed included a restrictive covenant limiting construction on the property to one house, within specified setbacks, and only if approved by grantor or his successors. Plaintiffs acquired the land in 2008, intending to subdivide into two lots – one for their own home and one for development. The deed into plaintiffs contains the restriction. Trial court declared the restrictions unenforceable because (1) its purpose had been frustrated by a permanent and substantial change in circumstances; (2) it had been abandoned by lack of enforcement; and (3) it benefits no land. Appellate Court affirmed, rejecting defendants’ claims that (1) the evidence did not support certain of the trial court’s factual findings; and (2) the trial court improperly went beyond the four corners of the deeds in interpreting them and misapplied the substantial change of circumstances test.

Governmental Immunity

McCarroll v. East Haven – Child fell from the ladder of a playscape at kindergarten allegedly because of a missing or loose bolt securing one of the rungs. Trial court granted defendant summary judgment, finding that the identifiable victim-imminent harm exception to governmental immunity did not apply because although the child was in identifiable class of victims, the harm was not imminent absent evidence that the missing or loose bolt was apparent to East Haven. Appellate Court affirmed, noting that “[w]hether the bolt was missing or loose, the plaintiffs failed to demonstrate that the probability of the child being injured was so high that the defendant had a clear and unequivocal duty to act to prevent harm.”

Visitation

Nassra v. Nassra – Supervised-visitation provider started collection action in small claims court to recover unpaid fees. Small claims court found that it lacked jurisdiction and dismissed the action. Service provider then filed an appearance in the dissolution action and moved for an order of payment, which the trial court granted. Appellate Court affirmed, finding that (1) service provider had standing because service provider had an oral contract with defendant and was injured when defendant did not pay; (2) six-year statute of limitations applied to the oral contract because the three-year statute applies only to executory oral contracts (neither party has fully performed and this oral contract was executed (service provider fully performed); and (3) trial court acted within its discretion in ordering defendant to pay service provider.

Worker’s Compensation

Binkowski v. Board of Education – Students assaulted Teacher and injured her. Teacher sued Board, alleging that Board acted “willfully and maliciously,” and intentionally inflicted emotional distress, by instituting a policy that led to the assault because it denied assistance to teachers confronted by violent and disruptive students. Trial court struck the complaint because it did not allege conduct to bring the action within an exception to worker’s compensation exclusivity. Appellate Court affirmed, finding that the complaint failed to allege conduct to bring her claim into the intentional tort exception under either the actual intent standard or the substantial certainty standard.

Technical Deficiencies in Appeal Form? No Problem

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In this Connecticut appeal (Levine v. 418 Meadow Street Associates, LLC), the Appellate Court concluded that technical deficiencies in the appeal form did not deprive it of jurisdiction.

Plaintiff and her husband were the only members of the LLC, until husband sold his interest to two others. The LLC owned a single commercial property. Plaintiff’s husband remained associated with some of the tenants in the property and continued to deal with the two members in respect of the property after selling them his interest in the LLC. The LLC ultimately lost the property through foreclosure.

Plaintiff later brought suit seeking to dissolve the LLC “and claimed money damages, alleging [among other things] that [the other two members] breached fiduciary duties owed to her, and that as a result she suffered damages.” The defendant-members counterclaimed against plaintiff and her husband for essentially the same things.

The jury found against plaintiff on her claims in chief and for the defendant-members on their counterclaims. It awarded the defendant-members some $264,000, which was the same amount that the defendant-members paid plaintiff’s husband for his membership interest in the LLC. Plaintiff and her husband moved to set aside the verdict and for remittitur of the verdict. Defendants objected to both motions. The trial court denied both motions without issuing a memoranda of decision.

Plaintiff and her husband appealed. The Appellate Court affirmed.

Technical Deficiencies in the Appeal Form did Not Deprive Appellate Court of Jurisdiction

Plaintiff’s and her husband’s “appeal form, JD-SC-28, indicate[d] that the appeal is taken from the ‘motion to dismiss granted in favor of defendants (see jury verdict (#174), memorandum of decision (#196); and judgment of dismissal (#197).'” However, their “preliminary statement of issues [said], in … part: ‘Did the trial court err in failing to set aside the jury verdict where the damages awarded to the counterclaim plaintiffs … were not supported by the evidence at trial, and were not in conformance with Connecticut law of damages.'”

“[D]efendants assert[ed] that [the Appellate] [C]ourt lacks jurisdiction because [plaintiff and her husband] did not file an appeal form indicating that they sought review of the court’s decisions denying their motions to set aside the verdict and for remittitur of the verdict.”

The Appellate Court noted that the Supreme Court has a policy of not exalting form over substance. “[T]he forms for appeals and amended appeals do not in any way implicate appellate subject matter jurisdiction. They are merely the formal, technical vehicles by which parties seek to invoke that jurisdiction. Compliance with them need not be perfect; it is the substance that matters, not the form.”

“[Plaintiff and her husband] referenced the jury verdict itself on the appeal form, which can be interpreted as an intention to appeal from the judgment.” Moreover, the preliminary statement of issues is a better representation of the substance of the appeal than the appeal form.

Consequently, “[d]espite the imprecise language used on the appeal form, viewing the substance of [plaintiff and her husband’s] amended appeal, they have sufficiently invoked this court’s jurisdiction, and we will review their claims on appeal.”

Plaintiff’s Main Argument on Appeal

“The essence of the [plaintiff’s and her husband’s] claim briefed on appeal is that the jury could not have awarded damages for defendants’ capital contributions to [the LLC] because the complaint only referenced, in all of its counts, losses due to the foreclosure of [the LLC’s] property by People’s Bank, and the value of the property at the time of foreclosure was less than the amount of the mortgage at the time of foreclosure.” In other words, plaintiff and her husband claimed that the defendant-members lost their investment not because of anything plaintiff or her husband did but because the property was underwater.

Appellate Court Concludes there was No Error

“[I]t was possible for the jury to have found that [the LLC’s] property became less valuable, not enough rent was collected to satisfy mortgage payments, and the property was subsequently foreclosed because of the self-dealing and obstructive behavior of [plaintiff and her husband]. The jury also could have concluded that the [defendant-members] … lost the entire amount of their
investments in Meadow when the property was foreclosed. Therefore, it would have been reasonable for the jury to conclude that absent the self-dealing and obstructive behavior of [plaintiff and her husband], [the LLC’s] property might not have been foreclosed, and the [defendant-members] would not have lost their investments in [the LLC].”

“Therefore, on the basis of our review of the limited record provided to us, we conclude that the [plaintiff and her husband] have not shown that the court acted unreasonably or abused its discretion in denying their motions to set aside, and for remittitur of, the verdict thereby rendering judgment in favor of the [defendant-members] on their counterclaims, in accordance with the jury verdict.”

No Lost Profit Damages in Failed Law Firm Case

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The Connecticut appeal in Adler v. Rosenthal involved two lawyers who talked about starting a firm together. They got close enough to sign a “Preliminary Partnership Agreement” which set out draws and profit shares for the two members. They also filed organizational documents with the Secretary of the State and agreed on a starting date for the partnership.

To be ready for the start date, plaintiff “met with landlords to discuss potential office space, negotiated with payroll, telephone, and insurance companies, interviewed and negotiated with prospective staff members, put an advertisement in the yellow pages, set up e-mail accounts and a computer system, opened bank accounts, purchased office supplies, and arranged for a construction crew to construct an office space ….”

Then defendant said he didn’t want to do it. Plaintiff sued him for breach of contract, seeking lost profits, among other things. After a bench trial, “[t]he court awarded the plaintiff $38,786.93 as damages for lost profits and $3678.79 as reliance damages for costs that the plaintiff incurred prior to the breach.”

Defendant appealed. Plaintiff cross-appealed. The Connecticut Appellate Court affirmed everything, except the lost profits award as to which it remanded with an instruction to vacate that part of the judgment.

Defendant’s Argument on Appeal Concerning Lost Profits

Defendant advanced three reasons why the trial court erred in awarding plaintiff lost profits. The Appellate Court found one of those reasons dispositive so it did not address the other two. The dispositive reason was that plaintiff and the trial court based there conclusions on the notion that defendant would have contributed a certain amount of revenue to the firm. But, defendant argued, “there was no support in the evidence for the court’s finding that the defendant would have contributed $250,000 to the firm’s annual revenue.”

Appellate Court Concludes it was Error to Award Lost Profits

The court noted that plaintiff has the “burden of proving lost profits to a reasonable certainty.” This must be done with evidence that “is not merely subjective or speculative . . . but which allows for some objective ascertainment of the amount…. Evidence is considered speculative when there is no documentation or detail in support of it and when the party relies on subjective opinion.”

In awarding lost profits in this case, “[a] crucial piece of evidence upon which the court relied consisted of the defendant’s alleged representation to the plaintiff during the formation of the preliminary agreement that he regularly brought in $250,000 a year to his own law firm ….” But, “plaintiff did not present, to a degree of reasonable certainty, expert testimony or statistical evidence regarding lost profits that resulted from the defendant’s failure to join the law firm. Instead, the plaintiff only produced his own law firm’s profit and loss statement for the … time period
following the defendant’s failure to join the firm. The plaintiff supplemented this data with his own testimony that the defendant had given him a confident projection, orally, that he would bring $250,000 in business to the law firm…. Despite the facts that the defendant had an established law practice and that he continued to practice law after failing to join the plaintiff’s firm, the plaintiff failed to submit any of the defendant’s financial statements into evidence in support of his lost profits claim.”

“The proper remedy in the present situation is to remand the case to the trial court with direction to vacate the award of lost profits. Although the court erred in awarding lost profits, the plaintiff is not entitled to further relief in the form of a new hearing related to lost profits. As our foregoing analysis demonstrates, the plaintiff failed in his burden of proving an entitlement to any amount of lost profits resulting from the defendant’s failure to join the firm. It is well established that in administrative, civil and criminal cases, when the party charged with the burden of proof fails to satisfy that burden, it is not entitled to a second ‘bite at the apple’ on remand.”

Appellate Court Rejects Plaintiff’s Cross-Appeal

“In his cross appeal, the plaintiff claims that the trial court erred by not allowing him to amend his complaint to include a claim for damages related to paralegal fees incurred as a result of the defendant’s failure to join the firm. Next, the plaintiff claims that the court erred by not awarding him damages to compensate him for the time that he personally expended addressing the defendant’s failure to join the firm. Finally, the plaintiff claims that the court erred by excluding $80,000 from his damages award, which he alleges was a cost that he incurred due to his need to hire a new associate to replace the defendant.”

As to plaintiff’s first argument, the Appellate Court concluded: “In light of the evidence considered by the court, the lateness of the plaintiff’s request made during the trial, and the likelihood that an amendment would have caused significant prejudice to the defendant, we conclude that the court’s ruling did not reflect an abuse of its discretion.”

As to plaintiff’s second argument, the Appellate Court concluded: “The [trial] court therefore ruled that there was no sufficient factual predicate for the award requested, and it refused to speculate as to the time that the plaintiff actually spent on those matters…. The court was in the best position to assess the credibility of the evidence submitted at trial and to make findings of fact based upon this assessment. On the basis of our review of the record, we conclude that the court’s findings regarding the time that the plaintiff spent in addressing the defendant’s failure to join the firm were not clearly erroneous.”

The Appellate Court also rejected plaintiff’s third argument, “observ[ing] that there was no persuasive evidence that the plaintiff’s hiring of the new associate was done for the primary purpose of ‘replac[ing]’ the defendant, given that the defendant never actually joined the firm and accordingly added nothing to the plaintiff’s caseload, which required the attention of a new associate regardless of the defendant’s actions. In this regard, the [trial] court observed that one of the reasons why the defendant did not join the firm was that, apart from his work with his own clients, he was concerned about the ‘many new files he would be assigned to by the plaintiff.'”

Other Things to Note

The trial court denied plaintiff’s application for a prejudgment remedy. Plaintiff failed to serve his signed summons and complaint within thirty days of the denial as required by CGS § 52-278j(b).  Defendant moved to dismiss, arguing that, pursuant to the statute, “the civil action effectively was withdrawn, and any action filed after the thirty day period must be dismissed for lack of subject matter jurisdiction.” The trial court denied the motion. On appeal, the Appellate Court confirmed that the statute deems withdrawn only the application for the prejudgment remedy, not the action itself.

Plaintiff also took issue, in the trial court and on appeal, with “plaintiff’s failure to include a return date on the writ of summons and his failure, in amending the writ of summons and complaint, to
include a return date that was within two months from the date on which the plaintiff had first served the defendant.” Once he learned of the omission, plaintiff attempted to cure it with two requests for leave to amend. The Appellate Court “decline[d] to decide this issue on its merits because, procedurally, it was not properly raised in the trial court. The defendant did not object to the plaintiff’s first request for leave to amend within fifteen days, as required by Practice Book §10-60(a)(3). Accordingly, the complaint as amended was deemed to have been filed with the consent of the adverse party by operation of the rule of practice sixteen days after the filing of the request …. The defendant did not file his objection until [too late], and the court never ruled on it, nor was
it required to do so, because of the lateness of the filing of the objection.”

Brothers Abandoned Claims in Estate Contest

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The Connecticut appeal in Tyler v. Tyler involved two brothers who were feuding over their mother’s trust but teamed up against the attorney serving as trustee. The Appellate Court concluded that the brothers abandoned their claims against the trustee-attorney.

The case turns on a procedural matter, which is unfortunate because the procedural background is complex — the advance release opinion is 17 pages. I will shorten it as best as I can.

Mom had a living trust and an attorney serving as trustee. The trust divided the remainder among Mom’s five sons according to a formula. When Mom passed, one son was going to get nothing. He started an action against his brothers and the trustee-attorney. One of the defendant-brothers cross-claimed against the trustee-attorney. Between the complaint and the cross-complaint, the brothers asserted what amounted to five distinct counts against the attorney-trustee (complaint asserted five counts and the cross-complaint repeated four of the five).

The trustee-attorney moved for summary judgment as to all claims against him. The trial court granted that motion as to four of the five distinct claims. The brother defendants also had moved for summary judgment as to the claims against them. The advance release opinion is not clear but it seems the trial granted summary judgment for the defendant-brothers on at least one claim against them.

On reargument, the trial court found that there was a genuine issue of material fact in respect of the trustee-attorney and reversed as to that one fact issue. The one fact issue was central to at least two of the four causes of action as to which the trial court had granted summary judgment.  The trial court did not specify which causes of action remained in the case but it’s clear that there were at least two — the one the trial court left in the case with its original summary judgment decision and at least one that was added back on reargument.

The brothers appealed. This is where it gets tricky. While the appeal was pending, the trial court conducted a jury trial on the claims remaining against the trustee-attorney. The jury returned a general verdict for the trustee-attorney. The brothers did not appeal the verdict. Later, the Appellate Court dismissed the brothers’ appeal as to the trustee-attorney claims because the summary judgment ruling was not a final judgment in that it did not dispose of all claims against the trustee-attorney. But, the Appellate Court also reversed and remanded as to one of the claims against the defendant-brothers.

Back in the trial court, the brothers maintained that they were entitled to a trial not only as to the remanded claim against the defendant-brothers but also as to the  claims remaining against the trustee-attorney based on the fact issue the trial court found on reargument. The brothers claimed that there had to be claims remaining against the trustee-attorney because the Appellate Court dismissed the appeal for lack of a final judgment against him after the jury trial.

The trustee-attorney countered that the brothers had abandoned the claims dependent on the one fact issue because (i) there was a jury trial against the trustee-attorney at a time when those claims were in the case; and (ii) the brothers did not “ask that the jury be instructed on those claims at trial and, if dissatisfied with the court’s instructions as given, to claim error in those instructions in a subsequent appeal ….”

The trial court concluded there were no claims remaining against the trustee-attorney. The brothers appealed but they did not submit a trial transcript. The Appellate Court affirmed.

Brothers’ Main Argument on Appeal

The brothers’ argument went more or less like this: Their appeal was pending at the time the jury trial occurred. After the jury trial concluded, the Appellate Court dismissed their appeal because the summary judgment decision did not dispose of all claims against the trustee-attorney. Therefore, there were claims remaining against the trustee-attorney after the jury trial.

Appellate Court Concludes Brothers Abandoned their Claims

The Appellate Court “agree[d] with [the trustee-attorney’s] argument that, even in the absence of a trial transcript, we can clearly tell from the [borthers’] failure to appeal from the judgment rendered upon the jury’s general verdict that none of their claims against him were still pending after the initial appeal was dismissed.” The court gave three reasons for this conclusion:

“First, if and to the extent that the jury was actually instructed on the [brothers’] pending claims, then such claims were no longer pending in the trial court after trial because they all had been resolved in [the trustee-attorney’s] favor by the jury’s general verdict. By not appealing from that judgment, the [brothers] would have accepted the finality of the jury’s determinations with respect to all such instructed-upon claims.”

“Second, if any pending claims were not prosecuted to verdict at trial because the [brothers] did not seek to prove them or to have the jury instructed upon them at trial, then by so failing to prosecute them, they must be deemed to have abandoned such claims, and thus to have forfeited their right to prosecute them further.”

“Third and finally, if the [brothers] requested that the jury be instructed on certain pending claims but the trial court failed or refused to give such instructions, then Tatoian is correct in arguing that they could and should have appealed from the judgment rendered against them upon the jury’s general verdict, claiming error in the court’s failure or refusal to instruct the jury as requested. The [brothers’] failure to appeal from the judgment on the basis of such instructional error constituted an abandonment of all claims as to which the court refused to instruct the jury as requested just as surely as if the [brothers] had not sought instruction on them at all.”

Dismissal of Appeal does Not Mean Claims Remained

The Appellate Court separately addressed the brothers’ argument that there had to be claims remaining against the trustee-attorney because the court dismissed the appeal for that reason after the jury trial. The court said:

“The [brothers’] claim is based on a fundamental misunderstanding of our basic procedure. It is axiomatic that the jurisdiction of this court is restricted to appeals from judgments that are final…. The [brothers] misunderstand the correct measuring point for determining if the judgment appealed from is final…. [W]e concluded that the … summary judgment ruling, from which the [brothers] appealed, was not a final judgment as to [the trustee-attorney] at the time the appeal therefrom was filed because it did not dispose of all of the counts then pending against him. We did not conclude that there was no final judgment as to [the trustee-attorney] at the later time when we finally dismissed the appeal, because the measuring point for determining if an appeal is from a final judgment is when the appeal is filed.”

Other Things to Note

In concluding that there were no claims remaining against the trustee-attorney, the trial court accepted the trustee-attorney’s analysis and gave two additional reasons: “First, because the trial court never ordered bifurcation of the trial, all of the [brothers’] pending claims against [the trustee-attorney] were presumptively contested in that trial. Second, because the jury returned a general verdict for [the trustee-attorney], all such pending claims were presumptively decided in his favor at trial.”

The Appellate Court rejected these reasons: “Because, in the absence of a trial transcript, we cannot determine whether or not such jury instructions were actually given in this case, we cannot agree with the trial court’s presumptive finding that all of the [brothers’] pending claims against [the trustee attorney] on which summary judgment was not previously rendered were finally resolved in his favor by the jury’s general verdict at trial.”