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Monday, March 8, 2010
Judicial Watch
Agency Courts
BOARD OF MEDIATION AND ARBITRATION
Municipality Did Not Follow Steps To Prove Just Cause To Discharge 
A worker must be compensated for loss of wages and benefits, if a municipality decides to subcontract bargaining unit work and fails to follow the steps to prove the municipality possesses just cause to discharge.

BOARD OF MEDIATION AND ARBITRATION
Social Services Aide Received Two Weeks’ Notice Of Discharge 
A city worker whose job is funded through a state grant may be entitled to only two weeks’ notice, if the state elects to discontinue funds.

COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES/OFFICE OF PUBLIC HEARINGS
Apparent 1st Impression On Prisoner’s Whistleblower Claims 
Whistleblower protection that shields `public' workers who allege retaliation in response to whistleblowing activities, pursuant to C.G.S. §4-61dd, does not apply to prisoners.

DEPARTMENT OF ENVIRONMENTAL PROTECTION
Hunter Allowed To Keep License After Hunting-Related Accident 
The Department of Environmental Protection possesses the discretion to suspend or to revoke a hunting license, pursuant to C.G.S. §22a-62, and to condition reinstatement on passing a hunting course.

STATEWIDE GRIEVANCE COMMITTEE
Attorney Had Duty To Report Belief His Signature Was Forged 
An attorney who fails to report his belief that a disbarred attorney allegedly forged his signature and absconded with a client’s filing fee violates Rule 8.3 of the Rules of Professional Conduct.

STATEWIDE GRIEVANCE COMMITTEE
Allegedly Attorney Promised To Remove Felony From Record 
An attorney who allegedly promises his client he will remove a felony from his client’s record and does no work on his client’s case violates Rule 1.1 of the Rules of Professional Conduct.

STATEWIDE GRIEVANCE COMMITTEE
Allegedly Attorney Failed To Manage Client’s Case Diligently 
An attorney who allegedly fails to manage a client’s case diligently, because of an error in the docket management system, violates Rule 1.3 of the Rules of Professional Conduct.

STATEWIDE GRIEVANCE COMMITTEE
Attorney Who Allegedly Violated Rule 1.4 Was Reprimanded 
The Statewide Grievance Committee can reprimand an attorney who allegedly violates Rule 1.4 of the Rules of Professional Conduct.

STATEWIDE GRIEVANCE COMMITTEE
Chiropractor Claimed Attorney Did Not Promptly Protect His Fee  
An attorney who allegedly issues letters of protection to a doctor and fails to pay the doctor promptly, when his client’s cases settle, violates Rule 1.15(e) of the Rules of Professional Conduct.

STATEWIDE GRIEVANCE COMMITTEE
Allegedly Attorney Violated Order About Representing Women Clients  
Rule 1.8(j) states, `A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.'

STATEWIDE GRIEVANCE COMMITTEE
Allegedly Client’s Fiance Did Not Want Any Written Contracts 
An attorney who allegedly fails to supply a written fee agreement violates Rule 1.5(b) of the Rules of Professional Conduct.

STATEWIDE GRIEVANCE COMMITTEE
Attorney’s Counsel Agreed To His Presentment To Court 
Attorney’s counsel and disciplinary counsel can reach agreement that the attorney will be presented to the Superior Court for discipline.

STATEWIDE GRIEVANCE COMMITTEE
Attorney Did Not Obtain Former Client’s Informed Consent 
An attorney who fails to obtain a former client’s informed consent, when he represents the former client’s spouse in a divorce, violates Rule 1.7(b)(4) of the Rules of Professional Conduct.

STATEWIDE GRIEVANCE COMMITTEE
Enough Evidence Existed To Prove Lawyer Violated Rule 1.4  
An attorney who fails to adequately communicate with his client violates Rule 1.4 of the Rules of Professional Conduct.

Appellate Court
CREDITORS’ AND DEBTORS’ RIGHTS
Holder Of Note Is Entitled To Foreclose Without Mortgage 
The holder of a promissory note secured by a mortgage has standing to bring a foreclosure action even if it is not a bona fide assignee of the mortgage because, as discussed in the 2003 Connecticut Appellate Court case of Fleet National Bank v. Nazareth, C.G.S. §49-17 codifies the common law principle that `the mortgage follows the note.'

APPEALS
Curcio Test Unmet In Appeal Of Interlocutory Financial Order 
An interlocutory order granting partial relief from the automatic orders in a dissolution case to allow the defendant permission to expend funds in his own name did not constitute an appealable final judgment under the test set out in the 1983 Connecticut Supreme Court case of State v. Curcio, as the ruling did not involve a right that is presently held by the plaintiff or will be irretrievably lost or irreparably harmed if it is not immediately reviewed.

APPEALS
Most Claims In Late Appeal Could Not Be Considered 
A plaintiff’s failure to file his motion to open the judgment within 20 days of the notice of judgment precluded review of all claims on appeal except for the claim that the trial court abused its discretion in denying his motion to open.

CIVIL PRACTICE
Prior Pending Action Doctrine Was Properly Applied To Bar Suit 
Supreme Court precedent establishes that the prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court.

CONTRACTS
Intentional Breach Does Not Defeat Substantial Performance 
The doctrine of substantial performance remained applicable despite any intentional breach by the plaintiff electrical subcontractor in disabling a fire alarm system.

CRIMINAL PRACTICE
Given Tapes Of Witness Tampering Plea Deal Advice Was Reasonable 
Given damaging evidence of witness tampering and bribery, and with the exposure to a 49 year sentence, trial counsel’s advice to accept a plea deal was entirely reasonable and did not constitute ineffective assistance.

CRIMINAL PRACTICE
No Prejudice Shown From Failure To Introduce Coat As Evidence 
The habeas court properly determined that the habeas petitioner failed to demonstrate that his defense was prejudiced by his trial counsel’s failure to introduce his coat into evidence to establish his claim of misidentification when a codefendant’s coat was introduced into evidence and it apparently was not enough to dissuade his jury from convicting him on the same charges.

CRIMINAL PRACTICE
Court Properly Quashed Subpoena Of State’s Attorney 
The habeas court did not abuse its discretion in quashing the petitioner’s subpoena of the attorney who represented the state at his criminal trial and habeas hearing when he could not demonstrate that the testimony was likely to be relevant to a material issue.

CRIMINAL PRACTICE
Telephone Calls To Jurors At Home Did Not Require A Mistrial 
There may be cases in which a juror’s affirmation of his or her ability to be fair does not overcome the inherent prejudice of a particular communication, but, this was not such a case where telephone contact was not initiated by the jurors, was brief and, at least on the surface, favored the defendant.

CRIMINAL PRACTICE
`Habeas On Habeas' Was Properly Denied 
Clear precedent establishes that the distinction between a petition for a new trial and a motion is not one of mere nomenclature and the habeas court properly rejected the claim that the petitioner’s prior habeas counsel was ineffective for failing to raise a claim that his trial counsel was ineffective for failing to file a motion for a new trial based on newly discovered post-verdict alibi evidence when the trial court has no authority to hear such a motion at the time of the criminal trial.

REAL PROPERTY
Rights Granted Under Parking Easement Were Not Abandoned 
The plaintiff could not avoid summary judgment in favor of the defendants based on a conclusory assertion that any diligent purchaser would have been on notice that a predecessor had abandoned an interest in a mutual grant of an easement for parking.

TAXATION
Equitable Tolling May Be Applied To Tax Assessment Appeal 
The statute of limitations found in C.G.S. §12-119, pertaining to appeals from municipal tax assessments, is procedural and personal rather than substantive or jurisdictional and is, therefore, subject to equitable defenses.

TAXATION
Actual Rent Should Be Considered To Determine Fair Market Value 
Pursuant to C.G.S. §12-63b(B), the court is required to consider both market rent and actual rent when determining fair market value using the income capitalization method.

TAXATION
Second Set Of Claims From Contested Assessment Were Barred 
C.G.S. §12-117a and §12-119 provide no private right of action for taxpayers against municipal officials in their individual capacities for alleged wrongdoing in the tax assessment of properties not owned or leased by or directly connected to those taxpayers.

TRUSTS AND ESTATES
Appeal From Probate Court Was Properly Dismissed As Untimely  
The failure to appeal timely from the decision or decree of the Probate Court warrants the dismissal of the appeal.

CRIMINAL PRACTICE
Double Jeopardy Violation Found With Assault On Police Officer 
The double jeopardy clause prohibited the defendant’s conviction of interfering with an officer along with assault of a peace officer in light of the 2001 Connecticut Supreme Court’s decision in State v. Mincewicz, interpreting vague counts in an information in favor of the defendant’s double jeopardy claims.

CIVIL PRACTICE
Complaint Failed To Seek Relief Requested On Appeal  
No practical relief could be afforded to the plaintiff and its appeal was moot where the trial court awarded the plaintiff the relief requested in its complaint and the Appellate Court could not supplement that relief with conditions not sought in the complaint.

CIVIL PRACTICE
Inmate Lacked Standing To Challenge Prison Conditions 
Absent an allegation of direct injury, the plaintiff lacked standing to invoke the jurisdiction of the court.

Federal Courts
CIVIL PRACTICE
Car Dealer Failed To Prove Buyer Did Not Meet $50,000 Threshold 
A federal court will lack jurisdiction over a federal Magnuson-Moss Warranty Act claim, `if the amount in controversy is less than the sum or value of $50,000 (exclusive of interest and costs) computed on the basis of all claims,' pursuant to 15 U.S.C. §2310.

CIVIL PRACTICE
Conservation Of Resources Merits Transfer Of General Electric Suit 
28 U.S.C. §1404(a) permits the transfer of a suit to another district in which the suit could have been brought `[f]or the convenience of parties and witnesses, in the interest of justice.'

CONSUMER PROTECTION
Genuine Issue About Veracity Of Quizno Ads About Sandwiches 
The Lanham Act prohibits any `false or misleading representation of fact which . . . in commercial advertising . . . misrepresents the nature [or] characteristics . . . of another person’s goods.'

CRIMINAL PRACTICE
Handcuffed Defendant’s Statement Was Voluntary And Spontaneous 
`[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent,' pursuant to the U.S. Supreme Court’s 1980 decision, Rhode Island v. Innis.

EMPLOYMENT
Plaintiff Allegedly Fired Because Of His Interracial Relationship 
A worker who suffers from adverse employment action because of the employer’s alleged disapproval of an interracial relationship suffers discrimination because of the employee’s race, pursuant to Holcomb v. Iona College, a 2008 decision of the U.S. Court of Appeals for the 2nd Circuit.

LABOR LAW
Pratt Required To Use `Every Reasonable Effort’ To Save Jobs 
A court has discretion to issue an injunction to enforce a collective bargaining agreement, pursuant to the Labor Management Relations Act, 29 U.S.C. §185.

CIVIL PRACTICE
Plaintiffs Sought An Additional 30 Days To Disclose Experts 
A court has discretion to grant an extension of time in which to disclose expert witnesses and expert reports, if the parties supply a reasonable explanation and an extension would not prejudice the nonmovants.

CRIMINAL PRACTICE
Indigent Inmate Requested That Court Appoint Pro Bono Attorney 
An individual who is indigent must establish the individual has made diligent attempts to find an attorney, before the District Court will appoint an attorney.

INTELLECTUAL PROPERTY
Microsoft Granted Injunction To Freeze Defendants’ Assets 
`To prevail on a claim of copyright infringement, the plaintiff must demonstrate both 1.) ownership of a valid copyright and 2.) infringement of the copyright by the defendant,' pursuant to Yurman Design Inc. v. PAG Inc., a 2001 decision of the U.S. Court of Appeals for the 2nd Circuit.

CIVIL PRACTICE
Pfizer Argued Plaintiff’s Expert Did Not Fully Explain Reasoning 
An affidavit in support of or in opposition to a motion for summary judgment must be based on `personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify,' pursuant to Federal Rule of Civil Procedure 56(e)(1).

CRIMINAL PRACTICE
Weapon Left In BMW Did Not Facilitate Drug Transaction 
To establish a defendant possesses a gun `in connection with' a drug offense and is not eligible for safety-valve relief, the government must prove the weapon facilitated or had the potential of facilitating the drug offense.

CRIMINAL PRACTICE
Cops Stayed In Defendant’s Place While Waiting For Search Warrant 
Even if law enforcement agents remain in a private apartment longer than required to sweep the apartment, evidence seized pursuant to a search warrant obtained subsequently need not be suppressed, as long as the warrant was granted on the basis of evidence obtained independently of an entry without a warrant.

EVIDENCE
Defendant Argued Cop Could Tailor Testimony To Other Witnesses 
A court is not required to sequester `an officer or employee of a party which is not a natural person designated as its representative by its attorney, or . . . a person whose presence is shown by a party to be essential to the presentation of the party’s cause,' pursuant to Federal Rule of Evidence 615.

Second Circuit Court
EVIDENCE
`Other Acts’ Admitted To Prove Defendant’s Intent To Murder  
The 2nd Circuit permits evidence of `other acts' to be admitted for any purpose other than to show criminal propensity, unless the potential prejudice is greater than the probative value.

IMMIGRATION LAW
Peruvian Prosecutor Who Received Threats Fears Future Persecution 
Anonymous threats constitute harassment but do not qualify as persecution, pursuant to the 2nd Circuit’s 2006 decision, Ivanishvili v. U.S. Department of Justice.

Superior Court
ATTORNEYS’ FEES
Law Firm Won $80,000 Prejudgment Remedy For Unpaid Attorneys’ Fees 
A court can order a prejudgment remedy if the court finds the plaintiff established probable cause that a judgment will be issued in the plaintiff’s favor in the amount of the prejudgment remedy requested, taking into account any defenses, counterclaims or set offs, pursuant to C.G.S. §52-278d(a).

CIVIL PRACTICE
Request For Class Action Certification Against AIG Denied 
`[A] representative plaintiff must have individual standing to assert claims against all of the members of the defendant class,' pursuant to Macomber v. Travelers Property & Casualty Corp., a 2006 decision of the Connecticut Supreme Court.

CONTRACTS
Plaintiff Settled Suit For $5,000, Then Changed Her Mind 
A court may enforce the parties’ agreement to settle, if the terms are clear and unambiguous.

CREDITORS’ AND DEBTORS’ RIGHTS
Defendants Argued Bank Did Not Allege It Was A `Holder’ Of Note 
Only a `holder' or a `nonholder with the rights of a holder' can prevail in an action to enforce a negotiable instrument.

EMPLOYMENT
Bonus For Finishing Work On Time Qualified As §31-71a(3) `Wages’ 
In Weems v. Citigroup Inc., a 2008 decision, the Connecticut Supreme Court held that bonuses that are discretionary and are not linked to employee efforts do not constitute wages for purposes of C.G.S. §31-71a(3).

FAMILY LAW
Cohabitor Requested Equal Division Of Parties’ Property 
In the absence of an express contract, courts may find that conduct of unmarried persons living together establishes an implied contract, agreement, partnership or joint venture, pursuant to Boland v. Catalano, a 1987 Connecticut Supreme Court decision.

GOVERNMENT
Student Filed Complaints About Locker Before She Was Injured 
`Discretionary act immunity is abrogated when "the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm," ' pursuant to D.H.R. Construction Co. v. Donnelly, a 1980 Connecticut Supreme Court decision.

LAND USE AND PLANNING
Owner Could Be Incarcerated For Failure To Clean Up Scrap Metal 
`Any person who, having been served with an order to discontinue any such violation, fails to comply . . . shall be subject to a civil penalty not to exceed two thousand five hundred dollars, payable to the treasurer of the municipality,' pursuant to C.G.S. §8-12.

REAL PROPERTY
Buyers Alleged Seller Wrongly Described Furnace As `Newer’ 
A seller who describes an appliance as `newer' on a residential property condition report, although the seller does not know if the appliance is `newer,' can be legally responsible for intentional misrepresentation, even if the buyers signed a sales-and-purchase agreement that purported to release the seller from `any and all liability related to any defects,' in consideration of inspection rights.

REAL PROPERTY
Court Amended 2008 Decision On Waterbury Hiking Trail 
In an amended memorandum of decision, a hiking trail met all the elements of an easement by prescription, a court found, but if the plaintiffs fail to arrange an A-2 survey and record it within 12 months of the date of the amended decision, any and all rights to an easement by prescription shall lapse and revert to the defendants.

DAMAGES
Jury Awarded $1,810 To Plaintiff With Medical Expenses Of $10,832 
A trial court `should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonable reach [its] conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles,' pursuant to Greci v. Parks, a 2009 decision of the Connecticut Appellate Court.

ENVIRONMENTAL LAW
Defense Rebutted Claims Of Hazardous Discharge Of PCBs  
C.G.S. §22a-134 defines `hazardous waste' in part as PCBs, or `polychlorinated biphenyls[,] in concentrations greater than 50 parts per million.'

FAMILY LAW
Husband Protested Wife Would Not Tell Him Where Child Was 
`To constitute contempt, a party’s conduct must be wilful,' pursuant to Auerbach v. Auerbach, a Connecticut Appellate Court decision.

LABOR LAW
Inspector’s Reinstatement Did Not Violate Public Policy 
An arbitration award that reinstates an employee who was acquitted on federal charges of child pornography does not violate public policies of protecting children and supervising individuals who have committed sexual offenses.

LANDLORD/TENANT LAW
Summary-Process Plaintiff Was Not Official Owner Of Record 
C.G.S. §47a-23 requires that the owner of the subject property serve a notice to quit possession on the tenant, before the owner commences a summary-process suit.

ATTORNEYS’ FEES
Robinson & Cole Reasonably Charged About $245 Per Hour 
`[T]he initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate,' pursuant to Ernst v. Deere & Co., a 2005 Connecticut Appellate Court decision.

CIVIL PRACTICE
Party That Won Bench Trial Requested Prejudgment Remedy  
A plaintiff who prevails in a bench trial can request a prejudgment remedy.

CIVIL PRACTICE
Defendants Argued That Proceeding In New York Remained Pending 
`[T]he pendency of a prior action between the same parties, in the same jurisdiction and to the same ends is grounds for dismissal,' pursuant to Southland Corp. v. Vernon, a 1984 decision of the Connecticut Appellate Court.

CIVIL PRACTICE
Doctor Timely Alleged Patient Failed To Pay For 2002 Surgery 
C.G.S. §52-576 provides, `No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues.'

CONTRACTS
General Contractor Alleged That Mechanic’s Lien Was Filed Timely 
`A mechanic’s lien is not valid,' pursuant to C.G.S. §49-34, `unless the person performing the services or furnishing the materials 1.) within 90 days after he had ceased to do so lodges with the town clerk in which the building, lot or plot of land is situated a certificate in writing.'

EMPLOYMENT
Claims Director Failed To Prove Bonuses Qualified As `Wages’ 
`[B]onuses that are awarded solely on a discretionary basis, and are not linked solely to the ascertainable efforts of the particular employee, are not wages under §31-71a(3),' pursuant to the Connecticut Supreme Court’s 2008 decision in Weems v. Citigroup Inc.

FAMILY LAW
81-Year-Old Won Reduction Of Alimony To $76 Per Week 
A husband’s retirement as a result of poor health constitutes a substantial change in circumstances.

SCHOOLS AND EDUCATION
Sheff Plaintiffs Protested Count Of `Reverse Choice’ Students  
C.G.S. §10-266a provides, `There is established, within available appropriations, an interdistrict public school attendance program. The purpose of the program shall be to: 1.) Improve academic performance; 2.) reduce racial, ethnic and economic isolation or preserve racial and ethnic balance; and 3.) provide a choice of educational programs for students enrolled in the public schools.'

TAXATION
Municipality Over Assessed $3.7 Million Marina At $4.1 Million 
A court may disregard the testimony of expert appraisers, who disagree about operating expenses, and reach an independent decision about fair market value.

Supreme Court
CONSTITUTIONAL LAW
Mistrial Was Properly Based On `Manifest Necessity' Grounds 
The trial court properly exercised its discretion in declaring a mistrial when the prosecutor became unexpectedly ill during trial and required a lengthy absence and no other prosecutor was able to step in and resume the complex trial within a reasonable period for a jury with members having prior plans they wished to keep.

WORKERS’ COMPENSATION
City Aiding Town Was Liable For Its Own Firefighter’s Injury  
C.G.S. §7-433d does not relieve a municipality from liability for a workers’ compensation claim made by a paid firefighter injured during the course of his employment while fighting a fire pursuant to a request for mutual aid assistance in a neighboring municipality; firefighters remain covered for workers’ compensation by their home municipality pursuant to C.G.S. §31-284 and §7-310.

REAL PROPERTY
Highest And Best Use Finding In Condemnation Case Was Proper 
In a condemnation appeal, the questions of the highest and best use of the property and the reasonable probability of a zone change are questions of fact, and a trial court’s determination of these issues will not be disturbed unless clearly erroneous.

CIVIL PRACTICE
1st Impression Issue: Failure To Poll Jury Was Harmless Error 
Connecticut Practice Book §16-32 imposes a mandatory duty on the trial court to poll the jury when requested to do so by a party; however, the failure to poll in a civil case is subject to review for harmlessness.

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