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Welcome to our Supreme and Appellate Court summaries webpage.  On this page, I provide abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments 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.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my opinion . . . and when mistakes of trial counsel are highlighted because they triggered a particular outcome, I will try to be mindful of the adage . . . “There but for the grace of God . . ..”  I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted July 12, 2013

After clients grieved their attorney who represented them in a lawsuit against the town of Westport, the attorney withdrew his appearance.  The law firm defending the town then hired an associate from the firm that previously represented the plaintiff, who was now proceeding pro se.  The pro se plaintiffs then sued the law firm defending the town, but did not allege that the associate had any knowledge of or previously worked on their lawsuit while employed by their former counsel.  The pro se plaintiffs also sued their former lawyer, listing as far as I can tell, every cause of action in the book, to include, of course, conspiracy. They claimed their old law firm and the town’s firm were working in cahoots to harm them. The town attorneys succeeded in getting most causes of action stricken against them and then were successful in having the last claim of negligent infliction of emotional distress dismissed on the grounds of the lack of subject matter jurisdiction of the Court, to entertain a cause of action by their pro se opponent.  The pro se plaintiffs appealed, alleging that the Superior Court had no power to refer matters to judge trial referees.  In particular, they challenged the rulings of Judge Tierney and Judge Mottolese on a series of pre-trial motions.  The decision recites the powers of trial referees and notes that because all of the motions were decided before the pleadings were closed, consent was not required for referral to the referees pursuant to C.G.S. § 52-52-434(a) & Practice Book Section 19-3.  The decision also held that the Trial Court properly considered a second motion to strike against an amended complaint, rather than deciding the original motion to strike against the first complaint.

Addressing the transfer of the associate from the plaintiff’s firm to the defendant’s firm, the Court noted that such a coincidence is not enough to give rise to a claim of a breach of fiduciary duty.  More must be alleged.  The Court emphasized that the Rules of Professional Responsibility do not give rise to a civil cause of action.  Accordingly, granting the motion to strike all of the causes of action based upon the transfer of the associate were appropriate.

Next, the pro se plaintiffs alleged that their former attorney and the town’s attorney conspired to manipulate subpoenaed witnesses.  The Court noted that although attorneys have a duty to their clients and the judicial system not to pursue litigation or claims that are utterly groundless, that duty does not give rise to an abuse of process claim, unless the third party can point to specific misconduct intended to cause specific injury outside the normal contemplation of litigation.  Without such allegations, the Trial Court properly struck the abuse of process claim.

Next, the Decision holds that the Trial Court properly ordered the deletion of entire counts to the complaint, pursuant to a request to revise by the town’s law firm after their motion to strike had been granted.  The pro se plaintiffs had attempted to add new counts after the motion to strike was granted, but these were ordered deleted.  The Decision notes that Practice Book § 10-44 allows a party to amend the portion of their complaint that has been stricken, but it does not give them the wholesale power to revise the complaint entirely without permission of the Court.  The pro se plaintiffs never sought permission to amend their complaint.

Finally, the Decision addresses the motion to dismiss the emotional distress claims.  Here, the pro se plaintiffs claimed their prior attorney conspired with the town attorneys not to disclose the hiring of the associate.  The Court concluded that the plaintiff’s entire claim of negligent infliction was based upon communications that occurred during litigation, which were protected by absolute immunity from suit.  A court has no jurisdiction to entertain a claim by one party against their opponent’s attorney which is covered by the immunity.  Thus, the motion to dismiss was properly granted.

AC34238 - Charlotte Hungerford Hospital v. Creed

Law firm sued hospital for medical malpractice, but failed to properly file an opinion letter from a similar healthcare provider under C.G.S. § 52-190(a), as it was procured late and from an unqualified nurse.  The first suit was dismissed and the lawyer filed a second lawsuit after the Statute of limitation claiming entitled to the accidental failure of suit statute.  The dismissal of that second lawsuit was upheld by the CT Supreme Court.  The hospital then turned around and sued the law firm, claiming the lack of probable cause under C.G.S. § 52-190(a) which requires the certificate on the first suit and improper filing of a second suit, justified a vexations litigation lawsuit pursuant to C.G.S. § 52-568.  The hospital appealed a grant for summary judgment in favor of the law firm.  On appeal it was claimed the law firm was collaterally estopped from denying the lack of probable cause.

The Appellate Court reversed the denial of the hospital’s motion for summary judgment as to the second lawsuit only, holding that the Trial Court had applied an improper standard in evaluating whether the lawyer had probable cause to bring the underlying lawsuits.  The old test espoused by the Appellate Court had been whether no competent and reasonable attorney would bring such a claim. It was only when all reasonable attorneys would agree the claim lacked merit, that the suit had no probable cause.  But the Appellate Court noted that the Supreme Court changed that standard to a less restrictive one, and adopted the test as being whether there was a bona fide belief in facts as would warrant a reasonable attorney to entertain a law suit.  There is no requirement that you must prove 100 out of 100 attorneys would have agreed the claim had no merit.  In this case, the Trial Court applied the old, more restrictive test.  Finding that the Trial Court had made a mistake in determining that whether there was probable cause is a question of law.

The Decision next analyzed whether collateral estoppel applied, because in one of the underlying dismissals, the Trial Court had characterized the attorney’s lack of diligence as blatant and egregious conduct. The Court said that it had to analyze whether the attorney was in privity with their client for purposes of collateral estoppel, and determined that they were.  A non-party to an action can be bound by the determination of issues decided in that action, if that non-party controls or substantially participates in the presentation.  Finding that attorneys are in privity with their clients, this attorney was bound by the Judge’s finding of blatant and egregious conduct. Nonetheless the decision concluded that did not stop the attorney from claiming he had probable cause to bring the first lawsuit.  Finding that a good faith certificate that the attorney even blatantly and egregiously failed to obtain did not equate into a determination that the attorney lacked probable cause to bring the first lawsuit.  The certificate is only evidence of the good faith belief.  The attorney can still show other factors to establish there was a good faith belief and looking at the record here, there was a basis for that belief as a matter of law.

Turning to the second lawsuit, the Court had to undertake a different analysis.  Here, it had to determine whether the lawyer reasonably believed he could take advantage of the accidental failure of suit statute.  The Connecticut Supreme Court concluded that the accidental failure of suit statute could not be used for that purpose.  Thus, the lawyer was legally barred from bringing the second action because of his blatant and egregious conduct in the first action, thus the decision held it was “obvious” that he could not have probable cause to bring the second action.  The Supreme Court’s rendering of its judgment that the second lawsuit was legally barred due to his prior blatant and egregious conduct, necessarily made the lawyer’s actions unreasonable.  Even though the law may not have been resolve up to that point in time, the attorney was certainly aware of his conduct, and there was prior law that egregious conduct precludes the use of the accidental failure of suit statute.

In the end, the decision concludes that the hospital was entitled to summary judgment for vexatious litigation against the lawyer for the second lawsuit only.

  • AC34617 - Konesky v. Post Road Entertainment

Husband and wife attended a charitable foundation event at Hula Hank’s, a bar filled to its 650 person capacity.  The husband slipped and fell near a temporary bar stocked with beers in a barrel with melting ice manned by a bar tender.  He sued the bar for negligence, and a jury awarded $300,000.  The complaint had sounded in two counts, one for traditional negligence for a defective step, and one under the mode of operation doctrine, meaning they should have known the floor would be continually wet and slippery when they had ice at a temporary bar, without the need to show advanced knowledge of it.

First, the Court held that the general verdict in favor of the plaintiff on both counts did not preclude review, even though the defendant was only appealing the jury instruction on the mode of operation count.  When all of the causes of action in the complaint are seeking to vindicate the same right, the Court can reverse if it concludes that any ground upon which the jury could have based the verdict was improper.  Both the claim for defective premises and the mode of operation rule were seeking to vindicate the same essential right of the plaintiff, arising out of negligent conduct.  The mode of operation rule simply eliminates the need for advance notice of the slippery floor.  The Court noted that the mode of operation rule arose out of self-service salad bars in grocery stores.  Applying it to every situation where there was customer interaction would swallow the rule.  It only applies to a distinct operation within the general business.  It does not necessarily apply only to self-service scenarios, but rather to operations that are likely to give rise to continuous and easily foreseeable dangerous conditions.  Here, merely serving patrons out of tubs filled with ice at a temporary bar station due to the crowds, did not create liability under the mode of operation doctrine.  It was simply chilled beer being served by a bartender at a different location than the main bar.  To hold otherwise, would render all locations within all bars or nightclubs to be zones of risk, because there is always a chance a drink can spill when it is being served or handed to a customer.  Accordingly, the case was remanded, and a new trial was ordered.

An attorney’s charging lien can be applied to assets assigned to a party in a dissolution of marriage action.  The Trial Court concluded that a charging lien would be prohibited in a dissolution action under the Rules of Professional Conduct 1.5(d)(1), claiming the attorney must create a new asset for the client before a charging lien could attach, and to hold otherwise would violate public policy.  The Court noted that common law charging liens of attorneys have been recognized since 1836.  The attorney has a lien right against all the papers in his possession, and all judgments obtained.  For items in the attorney’s possession, it is called a retaining lien.  As against avails of their actions for the client, it is called a charging lien, or equitable lien.  Such a charging lien can have priority over third parties, such a subsequent prejudgment remedy, even though it is not recorded.  There is no authority for the Trial Court’s conclusion that charging liens cannot arise in matrimonial cases, nor that the attorney has to create a new asset for the lien to attach.  In fact, the Court concluded Rule 1.8(i)(1) permits charging liens, and that in order for a charging lien to arise, the parties have to agree either explicitly or implicitly that the attorney’s fees will be secured by the proceeds of the litigation.  Most lawyers and clients don’t think to provide for this in non-contingent fee matters. In a personal injury action, it may be deemed implicit that the plaintiff’s attorney’s efforts should be secured by the recovery sought.  In other types of attorney - client relationships however, the court may have to search the entirety of the relationship to see if that was the intent of the parties.  [While this decision notes prior case law has consistently held that an attorney has a charging lien on any money recovered or fund due to the client at the conclusion of the suit, it seems to impose a new requirement that the Trial Court must take into account the whole contractual relationship between the client and the attorney to decide whether a lien was intended.]  In this matrimonial matter, it was remanded back to the Trial Court to make that determination.  The dissent would have agreed with the Trial Court that you cannot get a charging lien in a dissolution action, but for different reasons.

  • AC34764 - GMAC Mortgage, LLC v. Ford

This was a pro se defendant throwing every pleading in the book at the lender trying to slow down the foreclosure.  With respect to the summary judgment granted to the lender, it was insufficient for the pro se defendant to raise a defense for the first time in oral argument in opposition to the motion.  The defendant must present a counter-affidavit and/or documentary evidence or proof to support the defenses he raised.  An issue of first impression that did come up was the application of the Labriola v. McDonald decision.  This decision held the rule now applies when a summary judgment is used to challenge the sufficiency of a special defense instead of a motion to strike.  Thus, a summary judgment to challenge the legal sufficiency of a special defense is only appropriate when a repleading by amendment could not cure the deficiency in the defense.  Finally, the Trial Court did not have to consider the defendant’s request to amend his pleadings before deciding the summary judgment when the request to amend was filed nearly two months after the motion for summary judgment.

  • AC34594 - Lowney v. Zoning Board of Appeals

Zoning board properly declined to grant a permit for the home occupation of dog grooming even though dog grooming was not identified as a permitted or prohibited home occupation because the board had the discretion to determine whether that type of business was similar to the ones that were expressly prohibited, such as a barber shop. [Just a little off the top please]

When an option to purchase agreement does not provide a date for the option’s performance, and there are no extensions to the option, the option expired eighteen months later (C.G.S. § 47-33(a)).  The Court also noted that a claim for specific performance of a contract for sale of land must be brought within one year of the date for closing, and no more than eighteen months after the contract’s execution.  Accordingly, the plaintiff’s lawsuit for specific performance was approximately thirty years too late.  An exception to the short time frame may exist in a long-term lease, for example, where the limitation period may not begin to run until the tenant attempts to exercise the option.  In such cases, the option to purchase usually remains in effect so long as the lease does.  That was not the situation before the Court in this case.  The Trial Court also properly refused to consider a purported handwritten note of the grantor offered at the last minute in opposition to summary judgment.  The grantor was deceased, and there was nothing authenticating the document.  The Decision notes that while Practice Book § 17-45 contains the phrase “including but not limited to” in reference to documents being filed in conjunction with summary judgment, the rule would be meaningless if parties could file unauthenticated documents in support or opposition of a summary judgment.  There must be a preliminary showing that the documents offered in conjunction with a summary judgment are what they purport to be.  Even had the plaintiff asked the Trial Court to compare signatures with a known document, the Trial Judge may, but is not required, to undertake such a comparison.

In closing, the decision held that just because an option to purchase does not include a timeframe for performance, that does not render the document ambiguous, entitling a party to introduce extrinsic evidence.

The Dissent argued that the Trial Judge should have allowed parole evidence of the handwritten note from the deceased grantor of the option.

  • AC31814 - Santos v. Zoning Board of Appeals

The Trial Court erroneously concluded that the plaintiff waived the provisions of C.G.S. § 51-183(b) by executing more than one agreement to extend the time for the judge to render their judgment.  The parties had agreed to a limited extension of time, and noted it would be the last extension.  But the judge had still not rendered any decision by that time, so he sought and obtained a second extension of time from the parties.  The judge missed the second extension deadline as well.  When the decision was finally issued, the plaintiff moved to have it set aside claiming it violated the extensions granted by the parties.  The judge refused claiming the multiple extensions amounted to an entire waver of the deadline.  The Appellate Court reversed. The judge’s decision should have been set aside.  By merely agreeing to two extensions, the plaintiff did not permanently waive the 120-day requirement.

  • AC34547 - Girolametti v. Rizzo Corp.

Application to vacate an arbitration award was properly dismissed when it was not filed within thirty days of the arbitration award, pursuant to C.G.S. § 52-420(b).

  • AC34261 - Brett Stone Painting & Maintenance, LLC v. New England Bank

This case is a warning to construction lenders about the risk of stepping into the shoes of the owner and becoming directly liable to the contractor.  Here the owner took out a construction loan from the bank and entered into a construction contract with the plaintiff for $375,000.  The loan documents included a typical assignment of the construction contract used in both commercial and residential deals.  It provided that in the event of default by the owner, the lender was entitled, but not obligated, to exercise any rights under the construction contract at the lender’s option.  The contractor, in turn, signed an acknowledgement of the assignment and agreement that the lender could enforce the contract at its option……also a typical construction loan document.  After an alleged default and non-payment to the contractor, the contractor sued the bank directly claiming it assumed the obligation of the owner by its action and the assignment.  Now here’s an example of why a bank needs to properly document what it is doing.  The Trial Court credited the testimony of the contractor that the bank manager had urged him to finish the house, in return for assurances he would get paid the balance of his contract, plus extras.  While the contractor had no paperwork to prove what he was saying, neither did the bank have any paperwork to refute it, and apparently it had a hard time explaining away the few post-default payments they made directly to the contractor  (which may very well have been just ordinary requisition payments catching up, based on my experience). The Trial Court concluded that by virtue of the manager’s actions and the assignment, it stepped into the shoes of the homeowner.  The contractor was awarded approximately $100,000 in damages, $60,000 in interest and $50,000 in attorney’s fees..

And here is what a bank will run up against when it cannot document its position……the decision held that the judge was fully entitled to believe the oral testimony of the contractor.  As a last-ditch effort, the bank tried to claim that the contract was void because it did not comply with the Home Improvement Act, but that defense had never been raised as a special defense in the trial below, and therefore had been waived.  [Editor’s Note: Having personally been involved in one of these cases, it appears that possibly lenders should be sending letters to the contractor after default, reaffirming that they are not assuming the obligation under the contract, and nothing they do or say should be interpreted as such.  Alternatively, a new contract between them should be considered at the time the lender makes the decision to keep funding to take into account all the changes in circumstances that will have taken place.]

  • AC23836 - Gough v. Saint Peter’s Episcopal Church

Now here is a case with the exact opposite outcome as compared to the St Francis Hospital case.  Maybe had the plaintiff alleged and establish a failure to supervise a child custodial situation, like in St. Francis, the outcome may have been different, but of course they did not have the benefit of that very recent CT Supreme Court decision.  Here an altar boy claimed he was molested in 1977 and sued the Episcopal Church in 2011, claiming negligence and breach of fiduciary duty.  The Church filed a motion for summary judgment, claiming they had no reason to know of the propensities of the priest, supported by numerous affidavits from those who knew him, indicating they had never witnessed or heard anything to suggest that the priest would act in any inappropriate manner towards children.  The Trial Court granted the plaintiff’s motion for summary judgment on the grounds the church had no reason to suspect the priest was up to no good.  The Appellate Court agreed holding that the crux of the appeal was whether the defendant owed a duty to the plaintiff, and thus whether the specific harm alleged was foreseeable to the defendant.   The issue is whether the Church knew or should have known that the priest had or would abuse the plaintiff.  Here, the plaintiff did not submit any evidence to controvert the affidavits that no one who knew the priest saw or heard or observed anything out of the ordinary.  The plaintiff himself did not think anyone at the Church knew of the incident, and he did not disclose it until decades later. [Frankly, its very depressing that there are so many child abuse cases in the court system nowadays.]

  • AC34346 - Holth v. Chelsea Groton Bank

I am imagining this lawsuit was started knowing it was a Hail Mary Pass.  Husband and wife established nine Revocable and Spray trusts.  Years later, the designated trustee took out a loan from the defendant bank for $1.3 million, secured by property owned by the trusts.  The trustee claimed the proceeds were to be used to pay off a prior loan of $1.2 million to another bank to the trusts.  It was discovered that in fact he was pocketing the money for his own benefit.  New trustees stepped in, and with probably a judgment proof former trustee, and no insurance, they tried to sue the bank claiming it should have undertaken a more diligent investigation, and discovered the embezzlement.  The bank moved to strike the complaint in its entirety on the grounds that it owed no legal duty to investigate the trustee’s motives in taking out a loan, citing the Fiduciary Powers Act, C.G.S. § 45a-33.  This statute states no lender shall have a duty to inquire into a trustee’s purpose or authority in entering into a transaction.  The Trial Court held that the plaintiffs were not alleging that the bank had actual knowledge of the trustees’  intent, and granted the motion.

On appeal, the replacement trustees claimed that the bank had constructive knowledge of the first trustee’s activities, triggering a duty to conduct further inquiry based on prior case law holding brokers liable for the speculative investing of trust assets.  Under an 1881 decision (that is still good law in Connecticut), a bank has no duty to investigate some unknown misconduct on the part of a trustee.  In the brokerage case, the defendants had a duty to investigate because they knew trust money was being used for an improper purpose; whereas in both the 1881 case and the present case, the money was loaned for an otherwise proper purpose.  The decision held that simply because the bank knew it would be dealing with trust property (being used as collateral for the loan proceeds, and the loan proceeds in turn, being used to pay off another bank’s loan), does not trigger either constructive knowledge, or a duty to investigate the circumstances surrounding the first bank’s loan.  The motion to strike was upheld.

Now here’s a case that will just make you think of a Norman Rockwell painting of an ideal American family….OR….make you groan….and say……Pleeeeease, not another bad attorney.   The mother in this touching story worked most of her life as a teacher scraping together her life savings.  When she retired, she felt the need to do some good in this lousy world and so left her two adult children in the States and joined the Peace Corp, where she was assigned to an African village.  So far - so good, but then she made the biggest mistake of her life by trusting her attorney-son to watch over her funds while she was gone.  She put his name on her bank accounts and gave him a power of attorney.  During the mother’s service with the Peace Corp., the lovely darling son took tens of thousands of dollars out of the accounts for his own personal use.  Upon the mother’s return to Connecticut, she was diagnosed with dementia and passed away.  During her period of disability, her lovely son absconded with additional funds from her accounts, and after her death, had the chutzpah to seek to be appointed the administrator of her estate.  Thereafter, as administrator, he sold her home, but ignored repeated requests from the Probate Court for a final accounting and the payment of probate fees.  [I don’t know,…. is not paying the court fees sort of like the icing on the cake …..or what?] The Probate Court appointed a successor administrator, who filed a claim against the attorney son.  It was only then that the son filed a statement claiming that the $300,000 sale proceeds would be split equally between he and his sister, but, of course, he was lying.  The sister eventually sued her brother.  Before the lawsuit, but after demand from the sister’s lawyer, the brother transferred the title to his house to his wife and his son.  The Trial Court found that this transfer was a fraudulent transfer, and even if the attorney’s wife was telling the truth that she wanted to get the property out of her husband’s name when she discovered his financial shenanigans, the overriding purpose was to avoid his obligations.  Thus, the transfer was set aside, and judgment was entered in favor of the plaintiff for $160,000.

The attorney son and his wife moved to reopen and set aside the judgment, which was denied, and they appealed.  On appeal, all the attorney & wife did was reargue why they felt the transfer of title was proper.  The Appellate Court deemed this nothing more than an attempt at a second bite at the apple.  The Court would not let the attorney and his wife make a claim that C.G.S. § 52-552(b)(2) precludes a claim of fraudulent conveyance when the property is held by tenancy in the entirety, because it was not properly raised below.  The Appellate Court also did not let the defendants raise the issue of whether title could be ordered transferred when the attorney’s son had not been named as the defendant, because that issue had not been raised properly below either.  In a Footnote, however, the decision noted that the Trial Court cannot compel the nonparty son to convey his interest back to his attorney-father because the plaintiff failed to join him in the case.  [Oops!  Someone made a mistake.]

Landscaper agreed to sell his business to defendant in return for monthly payments under an 80k promissory note.  Several months later, the buyer sold all of the customer accounts to the plaintiff for $50k cash and then defaulted on the promissory note.  Furious, the original landscaper started contacting his former customers and announcing he was back in business and asking them to fire the plaintiff and rehire him.  This worked for almost 70% of the accounts.  The plaintiff then sued the landscaper and his original buyer as co-defendants, claiming breach of contract, tortious interference, etc.  The landscaper filed a cross-complaint against the original purchaser on the promissory note.  The Trial Court entered judgment in favor of the plaintiff, finding that the landscaper knew that the plaintiff had paid for the accounts, and that at that time, the co-defendant was not yet in default of his note and agreement to buy the business.  Even if the co-defendant had defaulted on his loan, the only remedy was to accelerate the note, not to go grab the customers back.  The landscaper “just decided he wanted it all back.”  The Trial Court awarded the plaintiff $50,000 in damages, plus pre-judgment interest of $20,000, as well as a finding of a CUTPA violation.  The landscaper was denied any recovery on the note as that was deemed an attempt at double-dipping by seeking to collect on the promissory note and at the same time trying to keep the customer accounts.  Such conduct evidenced a tortious intent.   The decision held that the 50k price paid for the business was a valid basis for setting the damages.  It is not just the profit the defendant would have made on the accounts.  The defendant landscaper all but destroyed the business that the plaintiff paid 50k to acquire.  The award of pre-judgment interest, however, was set aside.  The plaintiff only pled a claim for interest in its Prayer for Relief under C.G.S. § 37-3(a), and not C.G.S. § 37-1.  Therefore, it was now bound by C.G.S. § 37-3(a) being the only basis for an award of interest….and that statute only allows pre-judgment interest for the wrongful detention of a liquidated amount of money.  That was inapplicable to these circumstance, and the award of pre-judgment interest must be set aside.

 

The facts and holdings of any case may be redacted, paraphrased or condensed for ease of reading.  No summary can be an exact rendering of any decision, however, so interested readers are referred to the full decisions.  The docket number of each case is a hyperlink to the Connecticut Judicial Department online slip opinion.  ©2013 Pullman & Comley, LLC. All Rights Reserved.

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