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Monday, August 30, 2010
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Appellate Court APPEALS
Insufficient Record To Determine Basis For Trial Court’s Judgment 
The record was inadequate to review the claims on appeal where it was unclear from the trial court’s memorandum of decision which legal theory it relied on to resolve the claims and while the plaintiff filed a motion for articulation, the trial court denied it and the plaintiff failed to file a motion for review with the Appellate Court pursuant to Practice Book §66-7.
CIVIL PRACTICE
Defense Verdict In Collision Case Should Not Have Been Set Aside
When reviewing whether the court properly set aside the jury verdict, our standard directs that we must examine whether there was some evidence on which the jury reasonably could have based its verdict and, here, based on the defendant’s testimony and a weather report, the jury reasonably could have inferred that the defendant’s car slid on ice or salt and crashed into the plaintiff’s car.
CONSTITUTIONAL LAW
Equal Protection Claims Failed Raising Racial Sentencing Issues
It is well settled that, as a general matter, this state’s constitutional equal protection jurisprudence follows that of the federal constitution and, here, a habeas petitioner’s claim that he was not required to allege purposeful discrimination to assert an equal protection violation under our state constitution was rejected.
CONTRACTS
Home Improvement Act Did Not Apply To Engineer Overseeing Work
The Home Improvement Act, C.G.S. §20-418, is inapplicable to licensed professional engineers and the trial court’s finding in this case that the defendant acted as a licensed professional engineer in drawing up the plans and supervising construction for the addition to the plaintiffs’ home was not clearly erroneous.
CRIMINAL PRACTICE
Entrapment Defense Failed Where Officer Posed As Teen On Internet
With an entrapment defense, for the state to prove that a defendant was predisposed to commit the charged offenses, it must show that the criminal intent or willing disposition to commit the crimes originated with the defendant not the government.
CRIMINAL PRACTICE
Habeas Court’s Finding That Counsel Was Diligent Was Affirmed
Although the habeas petitioner did not plead his claim that his counsel provided ineffective assistance by failing to seek a three to four year offer during plea negotiations with the state, evidence pertaining to it was presented during trial and the habeas court made findings on it in the decision and, therefore, the Appellate Court reviewed the claim.
EMPLOYMENT
Amendment To CHRO Complaint Did Not Render Action Timely
The two year time limit in C.G.S. §46a-102 is mandatory and where the plaintiff failed to bring his action in the Superior Court within two years of the filing of his administrative complaint with Commission on Human Rights and Opportunities as required by C.G.S. §46a-102, an amendment to the CHRO complaint did not extend the time to file the Superior Court action.
FAMILY LAW
1st Impression Issue On Standard For Underlying Facts In TPR Case
While the court must find by clear and convincing evidence the three elements of C.G.S. §17a-112(j) to grant a petition to terminate parental rights, any subordinate facts that, together, lead the court to the conclusion that those elements have been met need not be proven by that heightened standard of proof.
FAMILY LAW
Court Properly Looked To Housing Statutes For Home Damage Issue
In a marriage dissolution action, the trial court did not abuse its discretion in relying on housing law and C.G.S. §47a-11 for guidance in its determination of the extent of the plaintiff’s liability for damage and deferred maintenance to the marital home during her court-ordered exclusive possession.
GOVERNMENT
Sovereign Immunity Barred Claim For Death By Repeat Drunk Driver
The exception to the doctrine of sovereign immunity for actions by state officers in excess of their statutory authority applies only to actions seeking declaratory or injunctive relief, not to actions for money damages as in this action brought against the commissioner of motor vehicles for the death of a 14 year old allegedly killed by a licensed driver with five prior convictions for operating a motor vehicle while under the influence of alcohol.
JUDGES
Claims Of Judicial Impropriety Were Found To Be Without Merit
Precedent establishes that speculation is insufficient to establish an appearance of impropriety and here, where the plaintiff former attorney issued a check for pendente lite alimony prorated to the date the court later issued its decision terminating alimony, the defendant failed to establish an extrajudicial communication between the court and the plaintiff informing him of the substance and date of the decision.
LANDLORD/TENANT LAW
Tenant Established Occupancy And Did Not Waive Lease Provision
In determining whether the defendant tenant had become an occupant of leased premises to enforce the plaintiff landlord’s breach of the warranty provisions of the lease, the defendant’s failure to use the leased premises for the anticipated professional purpose did not outweigh the significance of its exercise of control over the premises through possession of the keys, expenditure of funds to ready the property for use as a place of business and payment of rent.
LEGAL PROFESSION
Attorney Was Properly Held Liable In His Individual Capacity
An attorney was bound by his admission in his answer to the plaintiff’s complaint that he was a party to the retainer agreement with the plaintiff and it was not necessary for the trial court to pierce the corporate veil in order to hold him liable in his individual capacity.
REAL PROPERTY
Contract Obliged Developer To Pursue Zoning Approval Diligently
Under the plain terms of the contract for the sale of real property and their reasonable interpretation, a developer had an obligation to pursue zoning permits and approvals with due diligence where the word `shall' modified the developer’s duty to pursue zoning approval and the ultimate price of the land would be determined by how many condominium units were approved to be built.
REAL PROPERTY
Road Being `Closed' Was Equivalent To `Discontinued'
Precedent establishes that `the incantation of a legal abracadabra' is unnecessary to terminate a town road and here where the town in 1937 voted to `close' a road when the then predecessor to C.G.S. §13a-49 used the term `discontinue,' the road was validly discontinued and, consequently, the plaintiffs could not claim a right of way over the discontinued road pursuant to C.G.S. §13a-55, a 1959 statute not yet in effect.
TORTS
Given Some Evidence Of Storm, Jury Instructions Were Lacking
Inconsistency in the evidence concerning the weather and its effects did not mitigate against giving a requested jury instruction in accordance with the principles of the Connecticut Supreme Court’s 1989 decision in Kraus v. Newton, that absent unusual circumstances, a landowner’s duty to remedy the effects of a storm does not arise until the end of a storm and a reasonable time thereafter.
WORKERS’ COMPENSATION
Total Incapacity Benefits Were Awarded For Worsening Condition
Although hearing notices did not cite specifically to C.G.S. §31-315, they clearly indicated that the plaintiff was seeking benefits for total incapacity and because the authority of the commissioner to modify awards derives from C.G.S. §31-315, the defendant had to have known that the statute was necessarily implicated by the plaintiff’s claim.
CIVIL PRACTICE
Complaint Filed In Court Was Not True Copy Of The Complaint Served
Where the complaint served on the state defendants alleged that they were being sued in their individual capacities, but the plaintiff failed to return a `true' copy and filed a complaint alleging that the state defendants were also being sued in their official capacities, the operative complaint for purposes of the defendants’ motion to dismiss, was the complaint served on the defendants.
CRIMINAL PRACTICE
Plea Canvass Substantially Complied With Practice Book
The court’s explanation of the defendant’s waiver of his right to a jury trial substantially complied with Practice Book §39-19 (5), despite the court’s substitution of the word `hearing' for the word `trial.'
CRIMINAL PRACTICE
Criminal Contempt Adjudication Is Reviewable Only By Writ Of Error
A writ of error is the appropriate vehicle to attack a court’s summary adjudication of contempt and, here, where the defendant improperly challenged the criminal contempt judgment by motion to correct an illegal sentence, the trial court properly found that it lacked subject matter jurisdiction to entertain the motion.
CRIMINAL PRACTICE
Deficient Performance Established Concerning Use Of Guilty Pleas
Although trial counsel’s strategic recommendation for the petitioner to plead guilty on weapons charges was reasonable, his failure to ensure on the record, that the state would not seek to introduce those pleas at trial on the remaining charges rendered his performance deficient and that deficient performance prejudiced the petitioner as to those guilty pleas.
CRIMINAL PRACTICE
Ineffective Assistance Of Counsel Claim Was Inadequately Briefed
The petitioner claimed that his trial counsel rendered ineffective assistance by failing to argue that his confession was not knowing and voluntary due to his mental disabilities but the petitioner failed to analyze why his trial counsel’s performance fell below an objective standard of reasonableness required to show deficient performance by counsel under the test established by the 1984 U.S. Supreme Court case of Strickland v. Washington.
FAMILY LAW
Motion To Transfer Guardianship Was Not To Revoke Commitment
Under C.G.S.§ 46b-129(j), the court may commit a child previously found to be uncared for, neglected or dependent, to the commissioner and the commitment is to remain in effect until `further order' and, here, the trial court erred in dismissing the intervenor’s motion to transfer guardianship to herself as it was an appropriate way for her to request consideration as a potential guardian for the children.
FAMILY LAW
Prenuptial Agreement Defense Was Not Properly Raised
The defenses of contract illegality and unconscionability are not synonymous and no authority was found or cited to support the claim that the defense of unconscionability may be maintained by way of a general denial.
REAL PROPERTY
Mooring Poles Off Private Beach Were Not A Trespass Or Nuisance
Precedent establishes that ownership of adjoining upland extends to the high water mark on the shore and the owner of upland has certain rights to use the land between high and low water mark and the waters extending therefrom to the point where they become navigable but, here, claimed interference with littoral rights was not established.
TRUST AND ESTATES
Executrix Had No Colorable Claim To Intervene In Tax Foreclosure
Title to real property vested in the defendant when the decedent’s will was admitted to probate, therefore, the decedent’s estate had no interest in the property when a judgment of foreclosure by sale was later rendered on municipal tax liens, and the estate fiduciary could not assert a colorable claim entitling her to intervene in the foreclosure action as a matter of right.
Second Circuit Court CIVIL PRACTICE
Court Correctly Denied Pro Se Plaintiff’s Motion To Amend
The 2nd Circuit reviews the District Court’s denial of a motion for leave to amend a complaint and a motion to transfer venue for abuse of discretion, pursuant to Azurite Corp. v. Amster & Co., a 1995 decision of the 2nd Circuit.
CONSTITUTIONAL LAW
2nd Circuit Remanded To Permit Broader Public Forum Analysis
When ruling whether a traditional public forum exists, courts may consider: 1.) whether the property falls within types of property historically viewed as public fora or that should be classified as public fora, because of physical characteristics; 2.) objective uses of the property; and 3.) municipal intent.
IMMIGRATION LAW
Denial Of Continuance Did Not Affect `Fundamental Fairness’
`To establish a violation of due process, an alien must show that [he] was denied a full and fair opportunity to present [his] claims or that the [IJ] or [BIA] otherwise deprived [him] of fundamental fairness,' pursuant to Burger v. Gonzales, a 2007 decision of the 2nd Circuit.
IMMIGRATION LAW
Chinese Petitioner Who Failed To Pay Debt Fears Torture
Khouzam v. Ashcroft, a 2004 decision of the U.S. Court of Appeals for the 2nd Circuit, held that torture requires only that `government officials know of or remain willfully blind . . . and . . . breach their legal responsibility to prevent' torture.
Superior Court BUSINESS LAW
Class Action Shareholder Suit Against General Dynamics Stricken
In Yanow v. Teal Industries Inc., a 1979 Connecticut Supreme Court decision that interpreted Connecticut General Statutes §33-373, the predecessor to C.G.S. 33-856(d), the court wrote, `[A]n exclusive appraisal remedy [means] exactly what [it] says: as to the fact of the merger and claims addressed to it, a shareholder is entitled only to payment of the value of his shares in accordance with the [appraisal] procedures.'
CIVIL PRACTICE
Motion To Cite In Failed To Comply With Practice Book §10-11
Practice Book §10-11 provides, `A defendant in any civil action may move the Court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to such defendant for all or part of the plaintiff’s claim against him.'
CIVIL PRACTICE
New York Law Applied To Stamford Motor-Vehicle Accident
When ruling on choice of law, courts may consider: 1.) the location of the injury; 2.) the location where the conduct causing the injury took place; 3.) the domicile, residence, nationality, place of incorporation and place of business of the parties; and 4.) the location where the parties’ relationship is centered.
CIVIL PRACTICE
Plaintiff Sought Names Of Medical Experts Hired To Examine Records
A plaintiff cannot condition the plaintiff’s agreement to permit the defendant to review the plaintiff’s diagnostic films on the defendant’s furnishing the names of medical experts, pursuant to Superior Court Judge Thomas Corradino’s 2004 decision, Malanson v. Bridgeport Restoration Co.
CREDITORS’ AND DEBTORS’ RIGHTS
Defendant Failed To Qualify For Protection From Foreclosure
Connecticut General Statutes §49-31d(6) defines an `underemployed' individual as `a person whose earned income during the 12-month period immediately preceding the commencement of the foreclosure action is A.) less than fifty thousand dollars and B.) less than seventy-five per cent of his average annual earned income during the two years immediately preceding such twelve-month period.'
DAMAGES
Motion To Set Aside $689,775 Verdict For Plaintiff Denied
`A court is empowered to set aside a jury verdict when, in the court’s opinion, the verdict is contrary to the law or unsupported by the evidence,' pursuant to Marchell v. Whelchel, a 2001 decision of the Connecticut Appellate Court.
FAMILY LAW
Dad Claimed Eye Care Not Included With Medical Expenses
A father who agrees to help pay for unreimbursed `medical' expenses for the minor children is responsible to pay for unreimbursed costs associated with the children’s visits to an ophthalmologist or optometrist.
LEGAL PROFESSION
Plaintiff’s PI Firm Previously Drafted Defendant’s Will
`Disqualification of counsel is a remedy that serves to enforce the lawyer’s duty of absolute fidelity and to guard against the danger of inadvertent use of confidential information,' pursuant to Bergeron v. Mackler, a 1993 decision of the Connecticut Supreme Court.
MOTOR VEHICLES
Owner Rebutted Any Presumption That Driver Was Owner’s Agent
Connecticut General Statutes §52-183 provides, `In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption.'
MOTOR VEHICLES
Genuine Issues About Defendant’s Ownership Of Motor Vehicle
Connecticut General Statutes §52-182 provides, `Proof that the operator of a motor vehicle or a motorboat, as defined in section 15-127, was the husband, wife, father, mother, son or daughter of the owner shall raise a presumption that such motor vehicle or motorboat was being operated as a family car or boat within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption.'
REAL PROPERTY
Genuine Issues In Attorney’s Adverse Possession Claim
The `essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible and exclusive possession of the claimant without license or consent of the owner,' pursuant to Anderson v. Poirier, a 2010 decision of the Connecticut Appellate Court.
TORTS
Administratrix Moved To Strike Request For Double Damages
In Tedesco v. Maryland Casualty Co., a 1941 decision, the Connecticut Supreme Court wrote, `the additional sum representing the doubling of the compensatory damages is, in its essence, a liability imposed, not for damages because of bodily injury, but as a reward for securing the punishment of one who has committed a wrong of a public nature.'
TORTS
Husband Sued Former Wife For Allegedly False Statements
`[C]ommunications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy,' pursuant to Watts v. Chittenden, a decision of the Connecticut Appellate Court.
TRUSTS AND ESTATES
Creditor Alleged Conservator Failed To Properly Appraise Art
Connecticut General Statutes §45a-655 provides, “A conservator of the estate . . . shall, within two months after the date of the conservator’s appointment, make and file in the Court of Probate, an inventory, under penalty of false statement, of the estate of the conserved person.”
UNEMPLOYMENT COMPENSATION
Dunkin’ Donuts Employee Refused To Sign Written Warning
A worker’s refusal to sign an employer’s written warning can result in the employee’s discharge but generally does not qualify as `willful misconduct,' sufficient to deny unemployment compensation benefits.
CIVIL PRACTICE
State’s Power To Enforce CUTPA In Conn. Trumps NY Forum Clause
Waiver of sovereign power cannot be inferred, and the State of Connecticut’s power to bring suit in Connecticut to enforce CUTPA, the Connecticut Unfair Trade Practices Act, can trump a forum selection clause that generally requires litigation in New York courts.
CIVIL PRACTICE
Father Who Moved Out Of State Alleged Service Was Inadequate
Connecticut General Statutes §52-62 provides, `Any nonresident of this state who causes a motor vehicle to be used or operated upon any public highway or elsewhere in this state shall be deemed . . . to have agreed that any process in any civil action . . . resulting from the alleged negligence of the nonresident or his agent or servant in the use or operation of any motor vehicle upon any public highway or elsewhere in this state may be served upon the commissioner.'
CIVIL PRACTICE
Allegedly Complaint Omitted Consumer Defendant’s Address
Connecticut General Statutes §51-345(d) provides, `In all actions involving consumer transactions, civil process shall be made returnable to the judicial district where the consumer resides or where the transaction occurred.'
INSURANCE LAW
Insurer Argued Binder Excluded Uninsured-Motorist Benefits
Connecticut General Statutes §38a-340 provides, `Any insurer authorized to issue an automobile liability insurance policy may, pending the issue . . . , make an agreement, for a period which shall not exceed sixty days, to be known as a binder.'
REAL PROPERTY
Defendant Enjoined From Erecting Picket Fence On Boundary
`[A] prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right,' pursuant to Gioielli v. Mallard Cove Condominium Assn. Inc., a 1995 decision of the Connecticut Appellate Court.
TORTS
Bus Owner Claimed Child’s Parent Sought Double Recovery
Connecticut General Statutes §52-504 provides, `In any civil action arising out of personal injury . . . , as a result of which personal injury . . . the . . . parent of the plaintiff has made or will be compelled to make expenditures . . . , the amount of such expenditures . . . may be recovered by the plaintiff, provided a recovery by the plaintiff shall be a bar to any claim by such . . . parent.'
Supreme Court CRIMINAL PRACTICE
Majority Finds Car Stop Improper For Cross Hanging From Mirror
A state trooper lacked a reasonable and articulable suspicion in contravention of the 1968 U.S. Supreme Court case of Terry v. Ohio, to stop the defendant driving a vehicle with a small cross dangling on a chain from the rearview mirror to investigate a possible violation of C.G.S. §14-99f(c) for operating a motor vehicle with an obstructed view.
CRIMINAL PRACTICE
Plea Waived Jury Trial Right For Entire Enhanced Sentence Scheme
By entering his plea of nolo contendere on a part B information, the defendant waived his right to a jury trial, not only for the factual predicate of whether he was a persistent serious felony offender, but also regarding the issue of whether his extended incarceration was in the public interest.
EVIDENCE
Photo Identification Procedure Was Not Unnecessarily Suggestive
A simultaneous photographic array is not unnecessarily suggestive per se, even if it was not administered in a double-blind procedure and, while open to reconsidering precedent involving the admissibility of expert testimony concerning the reliability of eyewitness identifications, the majority of the Supreme Court found that this was not the case in which to do so.
EVIDENCE
Hearsay And Irrelevant Evidence Were Found Properly Excluded
The trial court properly classified as hearsay the victim’s attorney’s statements in a transcript discussing the victim’s potentially favorable treatment in a pending criminal case in exchange for his testimony in this case, where the transcript was offered for the truth of the matter asserted therein rather than for the impact on the listener, the victim.
EMPLOYMENT
Contract Bonus Constituted A `Wage' Under C.G.S. §31-71a(3)
Contract bonuses were wages as defined by C.G.S. §31-71a (3) because, under the employment agreement, they were entirely nondiscretionary and, addressing two issues of first impression, the Supreme Court concluded that the trial court did not abuse its discretion by declining to invoke the doctrine of judicial estoppel to bar the wage claim after it was not listed in bankruptcy petitions which were later dismissed.
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