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Professional Negligence

Advance Release Opinions – Appellate Court – September 21

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Reviews of Connecticut Appellate Court advance release opinions about divorce, professional negligence (legal malpractice), and worker’s compensation.

Divorce

Varoglu v. Sciarrino – Appellate Court affirmed trial court’s finding that Varoglu bought a condominium in Colorado for herself with proceeds of a loan secured by the marital home in Westport and trial court’s division of the equity in the marital home.

Professional Negligence (Legal Malpractice)

Dubinsky v. Black – Dubinsky claimed that Black failed to inform him that accepting a plea deal in his criminal case would preclude him from suing the police for malicious prosecution. Black denied any failure to inform, and asserted that Dubinsky could not win any malicious prosecution claim in any event because the police had probable cause for the arrest. Trial court granted Black summary judgment. Appellate Court affirmed, finding that (1) malicious prosecution depends on absence of probable cause; (2) the police had probable cause; and (3) the fact that Dubinsky might have been able to successfully defend the criminal charges does not mean that the police lacked probable cause.

Worker’s Compensation

Dahle v. The Stop and Shop Supermarket Company, LLC – Dahle claimed that she was entitled to temporary total disability benefits without the social security offset because an improper prior decision and negligence in handling her claim had delayed her treatment, which was the only reason she was subject to the offset. Appellate Court affirmed board, finding that (1) board properly declined to consider “past incorrect evidence” and “new evidence” about the prior decision because that decision became final when Dahle failed to appeal it to the Appellate Court; (2) contrary to Dahle’s contention, commissioner never found that her treatment had been delayed; and (3) social security offset cannot be waived.

Advance Release Opinions – Appellate Court – August 3

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

Defamation

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

Foreclosure

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

Professional Malpractice (Legal)

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

 

Advance Release Opinions – July 13

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

Administrative Law

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

Child Custody

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

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

Divorce

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

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

Easement

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

Mortgage Foreclosure

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

Professional Negligence

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

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

Advance Release Opinions – June 8

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Reviews of Connecticut Appellate Court advance release opinions about breach of contract, condemnation, professional negligence (legal malpractice), and reformation.

Breach of Contract

Murallo v. United Builders Supply Co., Inc. – Parties testified that they had a telephone conversation in which they reached an agreement resolving a dispute they were having over construction materials. Defendant confirmed the terms in a follow up email. Plaintiff later alleged that defendant refused to honor the agreement. After a courtside trial, trial court concluded that defendant’s email was not a contract but an unaccepted offer, and found for defendant. Appellate Court reversed, finding the unaccepted-offer conclusion clearly erroneous as defendant had admitted that the email memorialized the telephonic agreement.

Condemnation

Gartrell v. Hartford – Not technically condemnation, but close. Doesn’t really matter because the issue was not preserved for appeal, so Appellate Court declined to review it. After a fire at Gantrell’s building, Hartford tore it down. Gantrell sued. Jury trial. After the close of evidence, Hartford moved for a directed verdict. Court reserved decision, pending jury’s answer to a single interrogatory asking whether Hartford could have believed there was an imminent danger allowing it to tear down the building. Jury answered “Yes.” Court then asked parties if they had anything to add to the motion for directed verdict. When they said “No,” court directed verdict for Hartford. On appeal, Gantrell argued that jury’s finding that Hartford could have believed there was imminent danger did not support directed verdict; jury would have had to have found that Hartford did believe there was imminent danger. Appellate Court affirmed, finding that Gantrell failed to preserve the issue for appellate review since he “failed to raise the issue to the trial court on the record, either before or after the jury was charged, or as a basis for denying the city’s motion for a directed verdict.”

Professional Negligence (Legal Malpractice)

Kuehl v. Koskoff – Mr. Kuehl had car accident on his way from his home office to a business meeting. He later discovered an injury that he believed was tied to the car accident. He filed a worker’s comp claim, but the employer and insurer contested whether the accident happened in the scope of employment. Mr. Kuehl signed up with Koskoff to pursue claims against the other driver. Mrs. Kuehl signed up with Koskoff to pursue any claims arising out of the accident. Mr. Kuehl then died, and Koskoff and Mrs. Kuehl believed it was a result of the accident. Mrs. Kuehl missed the deadline for filing a claim for worker’s comp survivor benefits, and the commissioner would not let her proceed. She blamed Koskoff and started a legal malpractice action. Jury found for Mrs. Kuehl. Though there was no expert testimony as to causation, trial court denied Koskoff’s motion to set aside the verdict. Appellate Court reversed, finding that expert testimony was necessary to establish causation, i.e. that it was more likely than not that Mrs. Kuehl would have been awarded survivor’s benefits if she had made her claim on time. Since Mrs. Kuehl failed to present that testimony, trial court should have set aside the verdict.

Reformation

Kaplan v. Scheer – Kaplan has owned her home since 1970. The Scheers became her neighbors in 1999. The Scheers’ house stands between Kaplan’s house and the Long Island Sound. The Scheers have a walkway and stairs that provide access to the water, which Kaplan had a right to use under a water easement granted in an 1882 deed. Kaplan and the Scheers had a contentious relationship and ended up in a dispute about whether Kaplan’s driveway was on the Scheers’ property. They settled that dispute with a written agreement calling for two quitclaim deeds and an easement. One deed, labelled “A” in the settlement agreement, conveyed to the Scheers any interest that Kaplan had in the Scheers’ property. The other deed, labelled “B” in the settlement agreement, conveyed to Kaplan any interest the Scheers had in Kaplan’s property. The easement, labeled “C” in the settlement agreement, gave Kaplan an easement over Scheers’ property – but only as necessary for Scheer to access her property. The documents were recorded in reverse order of their letter designations: Easement first, Scheer-to-Kaplan deed second, and Kaplan-to-Scheer deed third. Sometime after that, the Scheers made their walkway and stairs off limits to Kaplan. Kaplan sued, claiming that (1) the letter designations dictated the recording order, and she would still have her water easement if they had been recorded in that order; and (2) her deed to the Scheers should be reformed to reserve the water easement. Trial court found that (1) the letter designations were a matter of convenience and not intended to specify a recording order (there was also expert testimony that the recording order did not matter); and (2) Kaplan failed to prove a basis for reformation by clear and convincing evidence. Appellate Court affirmed.

 

Advance Release Opinions – April 20

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

Civil Procedure

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

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

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

Divorce

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

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

Mortgage Foreclosure

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

Professional Negligence

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