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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 April 16, 2014

In 2008, the Plaintiff executed a series of estate planning documents, designating one daughter to make the health care decisions, have a power of attorney, and to be the “future conservator.”  Four years later, another daughter sought the appointment of an outside neutral person as a conservator, claiming that the designated daughter was mismanaging her mother’s affairs for her own personal gain.  The plaintiff argued against the appointment of any conservator over her.  Nonetheless, the Probate Court proceeded to appoint an attorney as conservator over the estate and person of the plaintiff/mother.  The plaintiff filed an appeal from the order of the Probate Court.  But in the interim, the attorney resigned as conservator, and the Probate Court appointed a replacement. No appeal was filed over the replacement’s appointment.  This decision held that the Superior Court properly dismissed the appeal as moot.  The plaintiff’s appeal became moot when the conservator she was complaining of resigned.  The subsequent appointment of a new conservator was a new final judgment from which a new appeal would have to have been taken. [Hmmm, since it was the conserved person appealing, this seems to be one of those instances where some equitable remedy might be appropriate.]

Unless there is further appeal of this decision, you will want to review this before you attempt to make service of process upon foreign businesses.  The plaintiffs, Massachusetts residents, brought suit against twenty-one non-Connecticut defendants.  The plaintiffs claimed that they were falsely told that their interest in in a new company would be on an equal footing with that of other shareholders in the new company after a merger with their existing old company.  All of the defendants moved to dismiss the action for insufficient service of process under the long-arm statute, lack of jurisdiction of Connecticut over the defendants, and improper venue.  The Trial Court granted the Motion to Dismiss.  The plaintiffs appealed.

The Appellate Court held that when the defendants contest personal jurisdiction, the burden is placed upon the plaintiff to establish it.  When there is no evidentiary hearing, the Court must rely upon the undisputed allegations of the complaint and the affidavits of the parties.  The plaintiffs’ attempted long-arm service on some of the individual defendants failed to comply with C.G.S. Section § 52-59(b).  In some instances, the address utilized was not the defendants’ actual address for the certified mail.  It does not matter if the defendant receives actual notice if the statute is not complied with.  “Last known address” does not mean the last address known to the plaintiff.  Unless the defendant has departed for parts unknown, it means his actual address.  Failure to serve the Secretary of State for the partnership defendant was also fatal.  Service upon the LLCs was insufficient because under § 34-225(b), the current address under the LLCs was not utilized.  While service upon an LLC can be affected by multiple means, mailing it to the last known address that turns out to be an incorrect address, is not an authorized method.  In such a circumstance, it is irrelevant that the LLC ultimately became aware of the lawsuit.  Proper service of process is not a mere technicality.

The Trial Court properly concluded that the plaintiffs used the wrong statute to serve a foreign LLC.  They attempted to use the statute intended for service upon CT LLCs when they should have used the statute for foreign corporations. 

For those defendants over whom jurisdiction was based upon allegations of committing a tort in CT, the Court held that making broad, general allegations against groups of defendants of vague tortious conduct does not justify hauling them into Connecticut.  “Group allegations” are not sufficient to establish personal jurisdiction over foreign defendants.  Allegations must be specific, and must allege jurisdictional facts to establish personal jurisdiction. 

The plaintiff also improperly used § 33-828(f) to sue the Florida corporation.  CGS 33-929(f) only allows a resident of this state or a person with business in this State to sue a foreign corporation in a Connecticut Court.  Such residency must be as of the time of the filing of suit, rather than when the underlying events occurred.  The Statute is not available to former residents or former places of business.  Also, since the plaintiffs brought this action as individuals, they cannot point to their membership in unrelated Connecticut LLCs to satisfy the Connecticut place of business requirement.  Finally, the plaintiffs’ claims they qualify for this statute due to their conducting business in this state forces the Court to define what is meant by “usual place of business” under § 33-929(f).  Conducting some business in Connecticut is not enough.  It must be usual, customary, and ordinary to carry out business in this State.  Plaintiffs did not specify whether or not their business was sporadic, occasional or habitual.  Therefore dismissal of their lawsuit was proper.

  • AC35383 - Longview Estates, LLC v. Woodin

Town started a tax foreclosure of a mobile home.  The mobile park owner asserted a defense that it had no legal or equitable interest in the mobile home itself.  The town then withdrew its foreclosure action.  The mobile home park then brought an action seeking a public sale of the mobile home, on the grounds that no rent had been paid by the mobile home owner.  The sale would have extinguished the town’s real estate tax lien.  The town cried “foul,” asserting that the mobile home park had waived its statutory right to sell the mobile home, based on its judicial admission in its disclosure of defense in its foreclosure action.  The Trial Court found that the disclaimer in the foreclosure was not a waiver.  On appeal, the Appellate Court agreed with the Trial Court.  The Statute authorizing the sale free and clear of municipal liens was passed to address the problem with abandoned mobile homes.  It is an alternative to the summary process eviction procedures available to the mobile home owner.  Disclosing that the mobile home park has no legal or equitable interest in the mobile home itself, is not inconsistent with the statutory ability to conduct a public sale of an abandoned unit.  Municipal taxes are assessed against the mobile home itself, and are not a lien against the underlying lot owned by the mobile home park owner.  The mobile home owner’s disclosure of a defense only disclaimed any interest in the home itself, not the right to recoup future sale auction expense or the right to transfer title to a new buyer free and clear of municipal liens.  The statute has intentionally set the mobile home owner’s recoupment of the costs of sale as a priority over the municipal tax liens.  In the event there are proceeds left over from the sale after the costs have been paid, the municipal tax liens may attach to those proceeds.  The liens themselves, however, are extinguished by operation of the statute.

  • AC35541 - MacDermid, Inc. v. Cookson Group, PLC

This was a case involving the prior pending action doctrine.  The plaintiff first sued the defendants in 2009, alleging the defendants had submitted a bogus bid to purchase stock that they had no intention to honor, forcing the plaintiff to pay more for the stock than they otherwise would have.  When the plaintiff was denied a motion to amend, to add claims, it commenced a second lawsuit against the same defendants with those new claims.  The Trial Court dismissed the second lawsuit, noting that it was virtually identical to the first lawsuit.  Reversing the Trial Court, the Appellate Court noted that bringing a second identical lawsuit is presumptively oppressive and vexatious, dictating that the second lawsuit should be dismissed.  If the two lawsuits are exactly alike, the second one must be dismissed.  If they are dissimilar, both cases are allowed to proceed.  In between those two extremes, the Trial Court has discretion whether to dismiss the action.  The plaintiff contended that the defendant should be judicially estopped from asserting the prior pending action doctrine because their arguments in support of dismissing the second lawsuit contradicted their arguments in opposition to his amending his complaint.  The Appellate Court agreed.  Judicial estoppel protects the integrity of the process by prohibiting parties from deliberately changing their position.  In their objection to the amendment, the defendants argued that amended complaint would allege new causes of action and new factual allegations.  In contrast, in their motion to dismiss the second lawsuit, the defendants reversed course and argued that the allegations now asserted were a rehash of the first lawsuit and pursued identical relief.  The Appellate Court concluded that it was “difficult to imagine a case that more strongly cries out for the application of judicial estoppel than this one.”  It was proper, however, for the Trial Court to dismiss the counts that were virtually identical to the first lawsuit.  The new counts in the second lawsuit that the plaintiff had attempted to amend and add in the first lawsuit, could now proceed in the second lawsuit.

Plaintiff’s medical malpractice action against an OB-Gyn was dismissed because the written opinion letter attached to the complaint did not satisfy C.G.S. § 52-190(a).  Attached to the complaint was a report from a urologist who concluded that the damage to the plaintiff’s bladder during a C-Section was not the fault of the patient’s urologist, but rather, was the fault of the obstetricians.  It was deemed inappropriate to have a urologist opine on the standard of care of the obstetricians.  This was not a similar health care provider as mandated by § 52-190(a).  The defendants being board certified obstetricians/gynecologists, only another similarly board certified doctor would qualify as a similar health care provider.  Further, renewal of the original motions to dismiss that had been filed at the start of the case but denied, five years later as the case approached trial, should be deemed the functional equivalent of a motion to reargue, despite the 20-day limit of Practice Book §11-12, ……even though the deadline in the Practice Book is mandatory.  Despite the untimeliness of the motions five years later, (due to a change in appellate law), the Practice Book does not deprive the Court of subject matter jurisdiction to consider any pleading.  Allowing a late reargument is especially appropriate when appellate authority has changed.

  • AC35695 - JMS Newberry, LLC v. Kaman Aerospace Corp.

Plaintiff sued their neighbor across the street because water would run off the defendants’ property, cross the street and then cause erosion upon the plaintiff’s property.  The plaintiff claimed this was due to unnatural grading by the defendants.  The Trial Court granted summary judgment to the defendants.  On appeal, it was held that the count asserting a violation of C.G.S. § 22a-14, et. seq.(polluting the environment), requires a plaintiff to specifically identify what alterations of the land were made.   The plaintiff failed to do this.  It is not enough to just assert that a natural resource of the state is likely to be polluted.  The claimed alteration to the land must be identified.  Mere allegations that over a twenty year period, trees were removed from the property and replaced with a meadow which has a potential for higher runoff than woodlands is also insufficient to assert that the defendant was maintaining an unnatural grade or inappropriately altered their property so as to cause erosion or pollution of other lands.  Finally, the natural flow of water down the hill and across the street does not amount to trespass.

  • AC35253 - Wells Fargo Bank, N.A. v. Strong

Plaintiff as assignee commenced a foreclosure of a mortgage on property in Mystic,  Connecticut.  The defendants asserted lack of standing due to lack of ownership of the indebtedness.  Plaintiff moved for summary judgment on the defense, attaching copies of the note, mortgage and a series of assignments with an affidavit from a vice-president of the loan servicer.  The defendant’s objection was that their “internet search” disclosed that the affiant was nothing more than a Florida notary.  The Trial Court rejected this affidavit as being without evidentiary basis.  On appeal, the property owner claimed they had raised a question of fact and they further contended that the transfers of the note and mortgage did not strictly comply with the servicing agreement.  The Appellate Court held, the mere possession of the note by the plaintiff imports prima facie evidence that it acquired the note in good faith and for value, and has standing to bring the foreclosure.  It matters not that the note has been endorsed in blank.  Even if the Court were to consider the servicing agreement, the borrower is not a party to that document.  The property owner simply does not have standing to challenge the plaintiff’s lack of compliance with the servicing agreement.  Here, the property owner was not disputing that the plaintiff, in fact, was the holder and owner of the note and mortgage, but rather, claimed it had not complied with the pooling and servicing agreement.  Any non-compliance with the servicing agreement does not undermine the plaintiff’s standing to bring the action.  The defendant is not a party to, nor contemplated beneficiary of, the servicing agreement.  Further, the challenge to the affidavit of the lender based on a  cursory internet search, was purely conjecture.  An internet search is not binding legal authority, nor a recognized legal principle, nor relevant evidence. 

  • AC35085 - Czajkowski v. YMCA of Metropolitan Hartford, Inc.

Plaintiff Minor at a YMCA day camp tripped over a low fence along the path placed there to keep people from stepping on the flowers along a pathway, and was injured.  Plaintiff’s expert claimed that the small 14” high fence along a pathway created a condition that was foreseeable that someone would try and jump over it and get hurt, and he cited building code references to barriers that should be 42” high.  The defendant filed a motion in limine, claiming that plaintiff’s expert’s testimony was based upon irrelevant building codes, and the Trial Court agreed.  So did the Appellate Court.  The building codes the expert was relying upon pertained only to the interior of buildings.  A low fence around a flower garden does not serve the same purpose as a guard barrier inside a building.  The jury could and did decide whether or not the walkway with the flower fence presented a dangerous situation.  They did not need an expert to make that decision in eventually ruling in favor of the YMCA.  It does not matter that the Trial Court allowed a lay witness for the defendant to opine that she did not think the fence was dangerous.  A witness can state their own conclusions based upon their own observations and knowledge.  That does not necessarily make them an expert or testifying about an expert matter.  Testifying about common outdoor objects and their safety is commonly allowed by lay witnesses, and even if it was improper, it was harmless error and not grounds for reversal.

Plaintiff applied for a special permit and a 38-unit residential subdivision.  The applications were denied, and the plaintiff appealed.  In their appeal, plaintiff asserted that one of the commission members disliked them and was biased against them, having been former social acquaintances, and should not have participated in the deliberations.  The plaintiff did not bring the matter to the attention of the commission, however, for fear of angering the commission members.  Therefore, the Trial Court refused to consider the issue on appeal.  This case held that when a plaintiff claims that their due process rights have been impaired on count of bias of an agency member, they must raise the claim prior to or during the hearing before the examining board.  But here that same commissioner also made statements to other commissioners that she was out to get even with the applicant.  These statements were unknown to the plaintiff.  Therefore, he could not have raised concern over those statements to the commission.  The transcript, in turn, revealed that this commissioner spoke aggressively against the plaintiff’s application, to the extent that she dominated the meeting.  Accordingly, her bias against the applicant was reason to sustain the appeal.  While failure to raise a claim of disqualification with reasonable promptness after learning of the grounds ordinarily constitutes a waiver, the challenge must be made at the first opportunity after discovery.  Bias claims based upon unheard statements hostile to plaintiff, were not deemed waived.  They were unknown.

  • AC34950 - Fairfield Merrittview Ltd. Partnership v. Norwalk

This was a 12-117(a) municipal tax appeal over an eight-story office building assessed at $49 million.   While the appeal was pending, the plaintiff moved to add an LLC with a similar name as a co-party plaintiff, asserting it, too, was an “owner.”  In their post-trial brief, the defendant-town claimed that the first plaintiff did not yet own the property when it filed the appeal, and that the second plaintiff would have been the property party to take the appeal to the assessment board, but did not get added as a party until after the action was already commenced.  (Oops!)  The Trial Court held that it was sufficient that one of the plaintiffs was the record owner for purposes of standing, and then reduced the assessed value to $34,000.  On appeal, this decision reversed and held that both plaintiffs lacked standing, and the Trial Court was without jurisdiction to entertain the appeal.  The wrong entity challenged the assessed value, and the correct entity was not added until after the appeal had already been started.  The plaintiffs’ arguments that the two entities were really the same and only reflected the name change from a “restructuring” were unavailing, along with arguments that the defendant had waited too long to assert the issue of standing in its post-trial brief.  The first plaintiff was a limited partnership, and the second plaintiff was an LLC.  These are separate and distinct legal entities formed under different statutory provisions.  Further, no evidence was submitted that the LLC was a successor to the LP.  A claim of lack of standing due to this screw up can be raised at any time.

  • AC35262 - Passalugo v. Guida-Seibert Dairy Co.
  • AC35157 - Pachaug Marina & Campground Assn., Inc. v. Pease

Common interest community sought to foreclose a statutory lien under § 47-258.  After default, the Trial Court ordered a judgment of foreclosure by sale.  In the third motion to extend the sale date, the defendants asserted for the first time, that the amount of the debt was incorrect, and sought to reopen the judgment and allow defenses to be asserted.  The Trial Court refused.  The Appellate Court agreed. Section 52-212 requires that a showing that a good defense existed at the time of judgment, and that the reason it was not timely raised was due to mistake, accident or reasonable cause.  Failure to raise a defense due to negligence is not a basis to reopen a judgment. 

  • AC35436 - Di Teresi v. Stamford Health System, Inc.

A nurse walked in on an aide perpetrating a horrendous assault upon a 92-year old patient suffering from Alzheimer’s, and ran to get help during the morning hours.  When the daughter came to visit, she noticed her mother was visibly disturbed and agitated, and the hospital staff informed her what happened.  It was not until late that afternoon when the hospital finally contacted the Stamford Police Department and administered medical treatment and a rape examination of the patient.  The plaintiff sued, alleging that the hospital’s delay was solely to look out for its own reputation as it held staff meetings and consulted with its lawyers on what to do about the rape.   The hospital claimed that the delay was the result of trying to act deliberately with the advice of counsel.  The only damage asserted was emotional trauma and the only cause of action asserted was CUTPA.  The Trial Court granted summary judgment against the CUTPA claims.  The plaintiff asserted that the claims of emotional distress are sufficient to meet the ascertainable loss requirement of CUTPA.  The Appellate Court disagreed.  The ascertainable loss requirement is a threshold barrier to a CUTPA claim.  Ascertainable means that it is capable of being discovered, observed or established and measured.  A claim of emotional distress is not an ascertainable loss for purposes of CUTPA.  CUTPA was not designed to address claims of emotional distress.

 

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.  ©2014 Pullman & Comley, LLC. All Rights Reserved.

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