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Monday, March 8, 2010
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Agency Courts 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.
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.
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
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.'
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.
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