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 April 1, 2014
Supreme Court Advance Release Opinions:
Plaintiffs complained to the Town’s Zoning Enforcement Officer that the neighbor had been issued an improper permit. When the Zoning Enforcement Officer ("the ZEO") did not do anything, the plaintiffs claimed that was a “decision” and took an appeal to the Zoning Board of Appeals ("ZBA"). Notice of the issuance of both building permits and zoning permits had been published in the local paper in March of 2010. It was not until six months later that the plaintiff complained that the permits had been issued in violation of the Coastal Management Act and various Zoning Regulations. The Complaint acknowledged that the permits had been issued in March, but asserted that the plaintiff was unaware of the extent of the approval until July. The ZBA concluded that the ZEO’s failure to respond to the letter of complaint was not an appealable event within the Board’s jurisdiction. The Superior Court agreed.
The Supreme Court affirmed, noting that while C.G.S. § 8-6(a) allows an appeal to the ZBA of any error in any order or decision made by the ZEO, the failure of a ZEO to bring a zoning enforcement action is not an order and is appealable to the ZBA. Enforcement of zoning regulations is a discretionary, as opposed to an administerial, duty. Further, the issuance of building permits or certificates of zoning compliance are appealable events. Unless there can be no meaningful appeal, the complaining party must exhaust its administrative remedies and may not institute a collateral action challenging a prior decision of the zoning authority. Here, the complaints that permits were issued upon inadequate information of the neighbor could have been asserted by way of timely appeal to the ZBA from the decision to issue the permits. The current appeal is nothing more than an impermissible collateral attack. Further, ZEOs should be encouraged to discuss concerns from members of the public without the fear that every communication, regardless of its binding effect, might give rise to an administrative appeal. Here, the ZEO explained to the plaintiffs why he felt their complaints had no merit. Having not appealed the issuance of the zoning and building permits, the subsequent actions or inactions on the part of the ZEO in response to the plaintiffs’ complaint did not give rise to an independent decision from which an appeal could lie. [Note in Footnote 5, the Court comments that the appeal time frame was 30 days under both the State Statute and the Darien Zoning Regulations, but that C.G.S. § 8-7 suggests that the clock might start when there is actual or constructive notice. Footnote 8 further observes, without comment, that one authority suggests the only remedy available in this type of circumstance is a mandamus action.]
Monday, March 31, 2014
Appellate Court Advance Release Opinions:
Defendant’s mother was diagnosed with dementia, and she signed her into a nursing home, and also signed an agreement acknowledging to be the responsible party for payment. The mother’s assets funded her care for the next seven months, and then Medicaid assistance was applied for. The agreement with the nursing home also provided that the responsible party would provide all information that might be required by Medicaid. Medicaid then made two requests for follow-up information from the defendant/responsible party, but she did not respond and thus the Medicaid assistance application was rejected. The nursing home sued the defendant, and the Trial Court ruled in its favor. The defendant appealed, claiming the plaintiff failed to put on evidence to support its damage claim. Since the parties had stipulated to the damage amount, the calculation could not be challenged, but the Appellate Court noted the more problematic question was whether there was sufficient evidence to establish that the defendant’s breach of their contractual obligations caused those damages. The Court noted that damages recoverable in torts differ from those in contracts, because under tort law, all damages proximately caused by the negligent contract are recoverable, whether foreseeable or not; whereas under contract law, damages are limited to those that the defendant had reason to foresee as a probable result from the breach of contract. Therefore, whereas where tort law looks for proximate cause, contract law looks for stricter proof of foreseeable damages. Proof of contractual damages must be established with a reasonable degree of certainty, but the level of proof required may be relaxed in instances of wrongful breach, which make the damages hard to predict. In those circumstances, a plaintiff may rely upon probable and influential evidence, as well as direct and positive proof. Accordingly, the fact finder may consider the willfulness of a party’s breach in assessing the degree to which damages have been established, but even under the more relaxed standard, a plaintiff must furnish some proof that the breach caused the damages complained of.
In this case, even though the parties stipulated that had the application been approved, Medicaid would have paid $50,000 to the nursing home, the Court ruled that there was no evidence that had the defendant provided the requested information, that Medicaid would have, in fact, approved the application. In a classic Catch-22, the Medicaid representative testified that they could not determine whether the application qualified without reviewing the applicant’s financial information, which is exactly what the defendant failed to provide. The Court suggested the question that should have been asked of the witness was . . .”Assuming the patient had no assets as testified to by the defendant, would she have qualified for the benefits?” Alternatively the plaintiff could have established the likelihood the application would have been approved by evidence and testimony obtained through discovery / experts. The breach of contract finding was reversed for failure to establish the damages element.
The finding of promissory estoppel in favor of the plaintiff was also reversed, because there was no allegation of a promise independent of what was made in the contract. Since promissory estoppel is inconsistent with breach of contract, the former claim can only be maintained when there is no consideration to support a contract. While inconsistent judgment may be harmless, that is only the case when there was sufficient evidence to support judgment under both the correct and the incorrect theory of recovery. When the claims are mutually exclusive, there must be evidence to support the judgment under the correct count. That judgment was thrown out in the prior paragraph.
The decision goes on, however, to refute the concurrence’s opinion that an individual signing a nursing home admission agreement does not incur personal financial liability under federal law. The federal law merely provides that a person cannot be compelled to give a guaranty. It does not make it illegal for a nursing home contract to seek a guaranty. Had Congress intended to forbid third party guarantees under all circumstances, it could have said so. The majority also strongly disagreed with the concurrence’s conclusion that the specific contractual language here only imposed personal liability for breaching certain specific contractual provisions. The clause that made the defendant personally liable if they received a transfer of assets from the resident was not a limitation as to the only circumstance upon which damages for breach may apply. The agreement specifically provided that the defendant undertook faithfully, all of the obligations of the agreement. The majority accused the concurrence of conflating the concepts of “guarantor” and “responsible party liability.” The defendant’s liability for breach of a contract for failing to perform obligations she voluntarily undertook as a signatory to an agreement, is not the same as making her a guarantor for her mother’s care under all circumstances.
Trial Court properly dismissed plaintiff’s foreclosure action due to lack of standing, when the plaintiff failed to list the note and mortgage deed as an asset in his bankruptcy petition ten years beforehand. That Chapter 7 bankruptcy case was closed as a No Asset Case in 1997. The plaintiff justified his conduct, pointing out that at the time of the bankruptcy, there were numerous liens ahead of the mortgage, and thus there was no equity to support it. The plaintiff claimed that over the intervening two decades, those prior liens had been paid off, and he did not list the mortgage as an asset on the advice of his bankruptcy counsel. Under the Bankruptcy Code, property that is not formerly scheduled is considered not abandoned, and therefore remains part of the estate. As such, the debtor lacks standing to pursue the collateral after emerging from bankruptcy. The plaintiff never explains why he did not go back to Bankruptcy Court to reopen his case when this issue was raised. The integrity of the bankruptcy system depends upon full and honest disclosure by the debtors of all of their assets. Thus, the courts will not permit a debtor to maintain a claim for their own benefit that they do not disclose to the Bankruptcy Court.
The concurring opinion heads off into a discussion about the sad state of the real property’s title left encumbered by a mortgage that the plaintiff cannot foreclose, and for which the owner cannot get a release, without some action of a Bankruptcy Trustee, thus rendering the property unmarketable. Therefore, he urges the parties to hoof it over to the Bankruptcy Court. [I disagree. If plaintiff does not have standing to foreclose their own mortgage, I would immediately bring an action to dissolve an ineffective and invalid mortgage, as the Statutes allow.]
An attorney showed up at a town clerk’s office to record a document concerning a property in town. The first page was an affidavit concerning the property, and the second page was a description of the property. After accepting the recording fee and stamping a volume and page, the town clerk had concerns about the document and showed it to the town attorney. The town attorney concluded that the document did not have to be recorded as it failed to state who the current owner of the property was supposed to be and its real purpose was to impede the collection of municipal taxes. The town clerk then crossed off the volume and page number and returned it, along with the fee, to the attorney. [Apparently the technique is to assert facts that the current owner (such as a trust) does not still own the property but without disclosing who the affiant asserts is the current true owner thus setting the stage to later challenge tax assessments as being made against the true owner.]
The plaintiff then brought a mandamus action to compel recording of the document, alleging it complied with C.G.S. § 47-12(a), and alleging its “unrecording” was an unlawful removal of public record in violation of C.G.S. § 53-153. The Trial Court concluded that the affidavit could be recorded under C.G.S. § 7-24 and C.G.S. § 47-12(a). The Trial Court denied the plaintiff’s damage claim.
The Appellate Court held that an Affidavit of Facts relating to an interest in real estate is not required to state the name of the purported current property owner, but rather the name of the owner of record at the time the affidavit is filed. C.G.S. § 47-12(a). The statute allows the recording of any affidavit which may affect the title to, or any interest in, real estate. The affidavit may relate to any number of matters, including death, capacity, heirship, identity of parties, adverse possession, any condition which may terminate in estate or interest, etc. The statute sets forth what must be in the affidavit. The affidavit here related to the death of a trustee which may have the impact of terminating an ownership interest. Since the affidavit complied with all other aspects of C.G.S. § 47-12(a) as to its required contents, the town clerk is required by law to record it. Nothing in C.G.S. § 7-24 supports the position that the claimed owner of the property must be included in the affidavit. With respect to the assertion that the affidavit was intended to obfuscate the title in an effort to avoid paying taxes, the Court declined to review that assertion because it was not decided by the Trial Court below. Motivations for filing an affidavit are beyond the dictates of C.G.S. § 47-12(a), and did not have to be decided by the Trial Court. The legal consequences of the affidavit will have to await future proceedings. The Court did not want to saddle town clerks with the impossible task of determining the intent or motive of a party filing an affidavit.
The majority also disagreed with the Dissent’s argument that the town was not given an opportunity to present evidence that the plaintiffs came to Court with unclean hands. Noting that several towns have encountered difficulty prosecuting tax lien foreclosures against entities connected to the plaintiff utilizing these tactics, it is not the responsibility of town clerks to assess the possibility of future confusion or even accuracy of statements contained in a land record affidavit. The intent of the party filing an affidavit is not relevant if the affidavit complies with the statute. The lengthy history of these plaintiffs with this and other municipalities is of no import. The evidence of unclean hands was not conduct connected to the present litigation, but rather litigation concerning taxes due and owing in a different town.
Plaintiffs sued defendant contractor, claiming he had overcharged for the construction of a modular home. The defendant filed a pro se appearance, and then was defaulted for failure to file an answer. Thereafter, a hearing in damages proceeded on the plaintiff’s complaint and CUTPA claim. The Trial Court awarded damages of $57,000 and attorneys’ fees under CUTPA in the amount of $15,000. On appeal, the defendant was unable to challenge his liability, but may challenge the determination of damages awarded by the Court after a default. The entry of a default operates as a confession of the material facts alleged in the complaint, but it is not an equivalent of an admission of all facts pled. The plaintiff is not entitled to all claimed damages just because of a default. The plaintiff must still prove how much they are entitled to receive. The Appellate Court set aside the award of CUTPA attorneys’ fees, holding that even taken as true, the allegations of the Complaint did not state a CUTPA claim. The consequences of a default cannot traverse the bounds of the underlying pleading and admit allegations not made in the complaint. Not every contractual breach rises to the level of a CUTPA violation. There must be some nexus to the public interest, some violation of a concept of what is fair and moral, unethical or unscrupulous, or some practice that offends public policy. The allegations of the complaint asserted the defendant charged more than originally proposed, charged for work that had not been done, and changed the dimensions of the house without explaining what they were doing. There was no allegation that the defendant acted deceptively, in bad faith or unethically, nor any allegation that the conduct offended public policy, etc. There was no allegation that the practice caused substantial injury to Consumers. Thus out of the three criteria for a CUTPA violation, the plaintiffs only alleged a portion of one. It is not enough, however, to cite one criteria without asserting how such unethical conduct rose to the level to be a CUTPA violation. The Trial Court was equally skeptical of the CUTPA claim, stating so on the Record, and did not grant the $314,000 in punitive damages requested. Not only did plaintiff fail to allege facts in their complaint adequately to plead a CUTPA claim, they failed to present evidence to support a claim of anything beyond a mere breach of contract. Therefore, the CUTPA award was reversed.
The Dissent disagreed that the CUTPA claim had not been both pled properly and adequately proven. The Dissent also disagreed with the CUTPA claim even being reached on appeal, when it was not properly raised by either party. Finally, the Dissent noted that Trial Court’s mulling over the CUTPA question does not mean that its ultimate decision was incorrect.
Plaintiff school bus driver began dating co-worker who suddenly disappeared and was never heard or seen again. The missing man’s mother and sister put up Missing Persons posters, but found that many of them were being torn down or vandalized by the plaintiff. So the mother and daughter started following the plaintiff, making comments about her, and posting excessive numbers of the posters where she lived and worked. The plaintiff sued the mother and the daughter, claiming that they were interfering with her job and defaming her by characterizing her as a murderer. The defendants denied that they were harassing her, interfering with her job, or called her a murderer. The Trial Court found that the defendants committed intentional infliction of emotional distress, and that they had made statements that the plaintiff was a murderer, and awarded intentional infliction of emotional distress damages of $30,000, defamation damages of $7,000 and punitive damages of $13,000.
The Appellate Court agreed to consider the denial of First Amendment Free Speech claims on appeal even though not preserved below, because it was a fundamental First Amendment right, and the Record was adequate for review. Not all speech is of equal First Amendment importance, however. Only speech dealing with matters of public concern is protected from argument that it was inappropriate, controversial or irrelevant. Having inundated the defendant’s business location and home with large quantities of posters, the Trial Court could conclude that such targeting was an attempt to harass the plaintiff, and that calling her a murderer was extreme and offensive, and did not comport with society’s norms, and therefore were not a matter of public concern. The context and placement of the posters was designed to hound the plaintiff into submission, rather than to raise a matter of public concern. Such conduct is not protected speech. The Appellate Court also upheld the Trial Court findings of intentional infliction of emotional distress and defamation. Statements like…. Gleason or someone murdered my son… you don’t know what that woman is capable of … she at least knows where he is … she is involved … someone else says you are a murderer…..could all be deemed defamatory. Allegations of moral turpitude are actionable per se, and injury is presumed. The amount of actionable damages need not be established in such instances. Further, an award of punitive or exemplary damages is appropriate where the conduct amounts to reckless indifference to the rights of others. The damages awarded in this case were clearly within the province and discretion of the Court, and do not shock the sense of justice.
Post-dissolution judgment proceedings regarding visitation. [Not summarized.]
Plaintiff operated a small engine repair shop in Wallingford in an area subject to the Aquifer Protection Act, § 22a-354(g), overseen by DEEP, but administered by the local land use boards. Claiming that servicing lawn mower motors was a regulated activity, DEEP directed the plaintiff to register his business as a regulated activity. The plaintiff refused, claiming they were not “motor vehicles.” The agency then moved to amend its Regulation to include lawn mowers as regulated activities, and the plaintiff appealed the adoption of the regulation amendment to the Superior Court, which found that the Regulation was not supported by substantial evidence and the public notice was deficient. On appeal, this decision reminded everyone that the substantial evidence test only applies when an agency is engaged in fact-finding in an adjudicatory capacity. When, however, an agency is in a rule-making capacity, as here, the more deferential standard should be applied by the courts. The Regulation need only be reasonably supported by the Record. Here, the Trial Court improperly applied the substantial evidence review to the agency’s legislative act. The arguments of plaintiff’s counsel to the agency during its consideration of the proposed Regulation does not change the fact that the agency was engaged in a legislative act entitled to judicial deference. Reviewing the Record and the goal of the act to prevent contamination of drinking water, …..clarifying that the repair of any combustible engine was covered…… was well within the authority of DEEP. The Appellate Court also set aside the finding that the notice of the proposed amendment was deficient. The notice informed the public of the intent to include repairing lawn mowers as a regulated activity. The agency was not required to include in the notice the multiple arguments raised against the regulation by the plaintiff’s attorney.
Plaintiff, a former school principal, brought a vexatious litigation and intentional infliction of emotional distress claim, and included as defendants, an attorney of the Office of the Child Advocate of the State of Connecticut and an Assistant Attorney General. The State Officers moved to dismiss the allegations against them for lack of subject matter jurisdiction, claiming they were barred by the doctrines of sovereign immunity and C.G.S. § 4-165.
The Trial Court denied the motions to dismiss, on the grounds that the defendants had been sued in their individual capacities only upon allegations that they had exceeded their statutory authority, and the complaint did not seek damages from the State. The Trial Court also found that C.G.S. § 4-165 did not apply because it did not immunize employees from willful and intentional conduct, as alleged. The defendants appealed, claiming that even though the plaintiff purported to sue them in their individual capacities, the State was the real party-in-interest under a four-prong test articulated in the case of Sommers v. Hill.
The Appellate Court agreed. Since the State can only act through its officers, an action against a State officer is, in effect, against the State. Exceptions are few and narrowly construed. It does not matter that the State is not named as a defendant, but rather one must look at whether the suit concerns a matter in which the official was representing the State. Here, the officers were investigating the manner in which allegations that school employees abused or neglected children had been addressed. Clearly, the State was the real party-in-interest, as the damages sought were as a result of their undertaking their official duties. Also, none of the exceptions to sovereign immunity applied to the plaintiff’s lawsuit. [A Footnote adds that holding State actors liable for inquiring how schools are addressing allegations of inappropriate conduct would inhibit the efforts of the Office of Child Advocate to discharge its statutorily-mandated duties.]
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