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"Welcome to our Supreme and Appellate Court summaries webpage.  On this page I will provide abbreviated summaries of newly-released decisions from the Connecticut appellate courts which highlight important changes in Connecticut law, and provide practical practice pointers to litigants.  I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long.  It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements. These summaries are limited to the civil litigation decisions based on my own particular field of practice, so you will not find distillations of the many criminal and matrimonial law decisions on this page.   By necessity, I may from time to time add commentary to a summary to enhance a point, and may even criticize a decision’s reasoning.  Such commentary is solely my opinion….and when mistakes of trial counsel are highlighted by me because they triggered a particular outcome, I will try to be mindful of the old adage…..There but for the grace of God…..  I hope the reader finds these summaries helpful."  - Edward P. McCreery

Posted February 11, 2013

  • SC18596 - Commissioner of Environmental Protection v. Farricielli

This is the latest round in a 40 year war by the State attempting to shut down and clean up an illegal landfill.  A 1998 court order was followed by a 2004 appellate decision to uphold the enforcement of that order.  To complicate enforcement, the defendant held components of the property in different entities with different tenants and shifting property lines. Interference by the defendant with the DEEP’s remediation efforts prompted the trial court to issue a blanket order that anyone with notice of the court’s order was enjoined from any further interference.  The DEEP then moved for a supplemental order that one of the tenants vacate its portion of the property because its presence was interfering with the ongoing clean-up efforts.  The tenant objected claiming it was never a party to the underlying litigation and not bound by the various court orders.  This decision held that the tenant was bound by the court’s injunction orders.  Not only did the tenant have notice of the pending dispute by virtue of the recordation of the consent order, but the trial court has inherent authority to enforce its orders against a tenant who took possession in the middle of the ongoing litigation.  Injunctions may be enforced against non-parties, especially those in privity with a defendant/owner, such as a tenant.  Injunctions involving land are to be treated as in rem proceedings binding all involved.  Otherwise a party could frustrate a court order by merely transferring title to a new entity.   The tenant in this action received due process by way of an order to show cause why it should not be deemed to be bound by the prior court orders and be directed to move its operations off site.  The tenant was not entitled to challenge the underlying judgment.

  • SC18722 - Duncan v. Mill Management Co. of Greenwich, Inc.

Plaintiff sued her condo association over which she was President when she fell off a deck due to a non-code step.  After the plaintiff’s verdict the Appellate Court reversed on the grounds the trial court improperly allowed evidence of subsequent repairs to install new steps (ordered by the Plaintiff herself) and the error was harmful.  (See: Connecticut Code of Evidence 4-7.) The Supreme Court reversed the Appellate Court and reinstated the verdict on the grounds that while the admission of the evidence was improper, it was not harmful.   The public policy of encouraging post-accident repairs is the main reason for normally excluding such evidence which ordinarily has little relevance to the underlying case.  Such evidence may be allowed on occasion such as to impeach a witness but relying on that reason here, the trial court failed to weigh the prejudice the evidence might cause.  Still, the Supreme Court found the error was not so harmful as to require a new trial even though the evidence was central to the theory upon which the plaintiff prevailed.  The decision held there was plenty of other evidence to support the verdict so the improper evidence was only cumulative of the claim of a building code violation.  Furthermore, the trial court gave a curative instruction for the jury not to consider the repairs. (But this curative instruction appears to have only dealt with the straight negligence count and not the building code violation negligence per se count upon which the verdict was based.)   The defendant also lost its argument that the disclosure of an expert by the plaintiff months after the schedule and immediately before jury selection should not have been allowed.  (Apparently the ability to depose the expert in the middle of jury selection is enough to avoid prejudice even if you claim there was no time to secure a rebuttal expert - see footnote 20.)   Finally the defendant lost its argument that the jury should not have awarded ~$100,000 more in economic damages than was stipulated to as the plaintiff’s out-of-pockets.   The Court said in a personal injury case, a jury may reasonably extrapolate the likely costs of potential future surgeries based upon the medical bills for past surgeries ….and ……the jury may reasonably extrapolate future lost earnings when the plaintiff testified she lost 25% of her productivity.    (The Court seems to have bent over backwards on this one to refuse to grant a new trial to the defendant.)

This case reaffirmed that the assertion of a claim of ineffective assistance of counsel cannot be used as an affirmative claim in an appeal involving a civil case.

  • AC33867 - Dickman v. Office of State Ethics, Citizen’s Ethics Advisory Board

This was an appeal from a finding that a UConn Health Center employee violated the State Code of Ethics by conducting sideline businesses during working hours.  The plaintiff could not claim that one of the Ethics Commission members should have been disqualified, because she did not raise that issue in the intervening appeal to the Superior Court.  As to a second Commission member whose appointment violated C.G.S. § 1-84, his reappointment just before the hearing started rectified that problem. Next, the Court held that the preponderance of the evidence standard, not the clear and convincing evidence standard, applies to proving ethical violations.  That is the typical standard to apply in administrative proceedings (including those involving fraud) absent a legislative intent to the contrary.  The agency’s conclusion that using state computers and state time to conduct a sideline business violates C.G.S. § 1-84(c), was a reasonable statutory interpretation that was supported by legislative history, even if the language of the statute could be deemed ambiguous. (It blows my mind that someone was arguing with a straight face that the employee did not do anything wrong here.)

  • AC33583 - Lawrence v. State Board of Education

Sovereign immunity barred an action by a former state employee seeking to rescind his severance agreement with the State Board of Education.  The severance agreement had been negotiated with the teacher and his union in response to allegations of misconduct.  When charges against the former teacher were pursued by other state agencies, he claimed that the State Board of Education breached a promise that no further actions would be brought.  Despite the plaintiff’s claims, the Court concluded that there would be no way to implement his claim for rescission and reinstatement without implicating the State’s fiscal resources.  The realignment of teachers would obviously cost the State money.  Further, absent specifying the charges of misconduct that the State Board of Education should have known were going to be brought by other agencies, and should have disclosed them, the plaintiff fails to assert a constitutional argument against the defense of sovereign immunity.  Thus the two exceptions to sovereign immunity were not available.

Judge Levine concurred, but noted that Connecticut does have a common law exception to sovereign immunity for claims for declaratory or injunctive relief where a state officer has acted in excess of their authority or unconstitutionally. 

The plaintiff invested $2.5 million in his friend’s companies for a percentage of the equity.  Thereafter, when an opportunity arose to sell some of the assets at a significant profit, the parties entered into a letter agreement providing that the plaintiff would sell his stake of $1.4 million in cash and 412,000 shares of stock in the reformulated companies.  Plaintiff claimed he was tricked into signing the letter, being told it was necessary for the asset sale, not realizing he was redeeming his entire interest in the underlying companies.  The Trial Court found that the letter was a valid agreement that was not manifestly unfair.  On appeal, it was noted that the plaintiff was not treated any differently than other shareholders.  The plaintiff claimed that his capital infusion should have been reflected in a larger capital account, but there was no expert testimony presented by either side as to how the capital accounts should have compared to the shareholder investments.  Similarly, there was no expert testimony that other shareholders benefitted disproportionately by virtue of the capital account entries.  Although the defendant disclosed a potential expert witness on this topic, he never called him to testify during trial.  It is plaintiff’s burden to offer such expert testimony when dealing with a complex issue such as capital accounts, and the plaintiff failed to meet that burden.  Navigating the tax returns and capital accounts of three separate companies over a five-year timeframe necessitating forensic accounting, goes beyond the field of ordinary knowledge and expertise of judges or jurors.  (When you read the case it’s hard to see what the plaintiff was claiming but certainly the failure to call his expert witness was fatal to his claim.)  

  • AC33898 - Silicon Valley Bank v. Miracle Faith World Outreach, Inc.

This was a foreclosure action of a house of worship encumbered by a $1.9 million mortgage.  First, it was held that the Trial Court properly admitted a photocopy of the original promissory note under the lost instrument rule, C.G.S. § 42a-3-309.  The Trial Court also properly allowed the plaintiff to introduce screen shots from its records to establish the balance due on the loan under Connecticut Code of Evidence § 8-4.  It was not necessary for the witness to have personally entered the loan repayment data into the computer system of the bank.  The Court, in its decision, noted that the witness must be a person who is familiar with computerized records and has acquaintance with how the records are made.  That is all that is required.   Finally, the Trial Court did not commit error by allowing the plaintiff to reopen its case to offer evidence of the amount of its attorney’s fees when the original attorney was not available for the initial hearing.   (This is a logical case and balances out the extremes to which some of the lower court decisions went a few years back which suggested the witness had to have personal knowledge of everything to do with the loan.)  

After a minor fender bender where everyone admitted there was no damage or injuries, the plaintiff sued the defendant, claiming serious back injuries.  Not only had the plaintiff suffered prior serious back injuries before the accident, but he suffered additional injuries after the car accident.  The jury returned a verdict form for the plaintiff, but awarded ZERO damages.  The judge sent them back, saying they have to either use defendant’s verdict form or the plaintiff’s verdict form and award damages.  The jury then sent out a note to the judge, claiming they felt the defendant was negligent, but the plaintiff was entitled to no money.  The judge then instructed them to fill out the defendant’s verdict form.  On appeal, it was held that the Trial Court did not improperly direct a verdict for the defendant, but simply instructed the jury as to the proper form to utilize to effectuate their wishes.  Actual damages are necessary to a cause of action in negligence, as nominal damages cannot be awarded.  To issue a plaintiff’s verdict, but award no damages, would be inherently inconsistent.  The instruction to use the verdict form was proper, as the jury had clearly determined the plaintiff had not met its burden of proving all the elements of negligence, which include proving damages.  

  • AC33881 - Lost Trail v. Town of Weston

Property owner acquired two pieces of land and attempted to reconfigure them into four lots.  The town informed the owner that it needed subdivision approval, even though the town engineer had signed off on the recorded maps adjusting the lot lines.  The tax assessor then modified the assessment to tax the owner as if it were one parcel.  The town attorney informed the owner that building permits would not be issued.  The owner sued the town, claiming deprivation of equal protection and regulatory taking, and further sought declaratory relief that no subdivision had occurred.  The case was removed to the District Court, which granted the town’s motion to dismiss because the administrative appeal process for local land use decisions had not been exhausted.  The Second Circuit affirmed.  It was then remanded to the State Court, where the town moved to dismiss the remaining state law claims.  The inverse condemnation of the declaratory relief claims were deemed not ripe, because the planning & zoning commission had never ruled on an application, and thus, administrative remedies had not been exhausted.

On appeal, the Appellate Court held that an inverse condemnation cannot be found to exist until a final decision has been rendered by the appropriate land use board.  Only then can it be determined whether or not the land retains any reasonable beneficial use to the owner.  The town’s attorney properly directed the property owner to apply to the planning and zoning commission to determine whether or not he needed subdivision approval.  That letter, thus cannot be considered the definitive position on the issue.  The owner’s assertion that the division of its property obviously did not constitute a subdivision mattered not.

The Court noted that strength of conviction is not a substitute for a final administrative decision.  The town is correct that property owners cannot be their own arbiters of whether or not a land use board has authority to act.  The land use board must decide first whether the matter falls within their jurisdiction.  Refusing to apply for a subdivision, the owner eliminated the possibility that the matter could be resolved at the local level.  (Ultimately, the planning and zoning commission decided not to follow its attorney’s advice, and concluded that the lot line revisions did not amount to a subdivision or re-subdivision.)  The Court added that administrative agencies must be given a chance to discover and correct their own errors, and people should not be allowed to flout the administrative process.  Having failed to apply to the planning and zoning commission years ago, the owner cannot now complain that there was an unconstitutional taking.

The owner’s claim of futility of  purpose on the grounds that no land use board or building official would give him a permit once the town attorney’s opinion had been issued, was unavailing.  While an owner need not pursue patently fruitless measures, it cannot claim futility by setting up its own obstacles.  Had the owner gone to the planning and zoning commission, it likely would have come to the same ultimate conclusion it did years later…. that there was no subdivision, and …….plaintiff could have gotten its permits.  (The moral of the story is that you have to exhaust your administrative remedies….and if you don’t….you can’t go whining about how you were mistreated.)

 

The factual summary, or even the legal conclusions, of any case may be summarized, redacted, paraphrased or altered at the author’s discretion for ease of reading.  Accuracy of the summary cannot be guaranteed and the viewer is referred to the actual case for an exact reading. The Docket number should be a link to the full decision.  ©2013 Pullman & Comley, LLC. All Rights Reserved.

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