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Appellate Court Notes: Week of March 14, 2016

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.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my own personal opinion.. Pullman & Comley’s Appellate Practice Group of which I am a member includes experienced appellate advocates in almost every area of the law.  Should you have a need to consult about a potential appeal,  please email me at emccreery@pullcom.com I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted March 29, 2016

Appellate Court Advance Release Opinions:

While this is yet another case where a defendant attempted to block a foreclosure by claiming the plaintiff lacked standing because it did not have possession of the note when it started the lawsuit, the real lesson to be learned here is that the defendant did not carefully protect the record to insure that its win against a motion to dismiss prevailed on appeal.  The end result was rather than the Appellate Court simply dismissing the appeal outright, it remanded the matter to the Trial Court for the completion of a record when the Trial Court’s subject matter jurisdiction was challenged  for the first time on appeal. 

While it appeared the plaintiff obtained a judgment of foreclosure after a lengthy mediation process and intervening bankruptcy, no judgment order setting the law days, nor transcript of the proceedings were filed in the Appellate Record.  The Plaintiff thought that it could rest on its laurels, that it had pled it was the holder of the note, and that the defendant had been defaulted, thus admitting the jurisdictional allegations of the complaint.  The Appellate Court noted, however, that subject matter jurisdictional challenges could be raised at any time, even on appeal.  Thus, it was necessary to resolve if there was any evidence in the record that the plaintiff was the holder of the note or had produced it to the Trial Court and claimed it held it from the start of the action.  The Appellate Court complained that there was no documentation demonstrating when the plaintiff came to hold the note or if it held it at the time of judgment.

Plaintiff’s counsel argued that the note had to have been shown to the Trial Judge in order to obtain the judgment, but the Appellate Court complained that there was no evidence of that.  While the defendant was defaulted, that only conclusively determined the liability of the defendant if there is subject matter jurisdiction.  A default does not conclusively establish that the court has subject matter jurisdiction.  That is a defect that cannot be waived.

Thus, the matter was remanded to the Trial Court to conduct an evidentiary hearing as to when  the plaintiff came into possession of the note, i.e., did it have possession of the note when it started the foreclosure action, and hold it through the entire case?  Thus, this case is significant for the proposition that, even after obtaining a default against the defendant, the burden is on the plaintiff to establish a record to be utilized on appeal to show that the plaintiff had standing to commence the action.  That lesson is not limited to foreclosures.  If a defendant files a frivolous appeal, the burden is upon the plaintiff to ensure the record on appeal establishes their standing to have brought the action in the first place.

In this matrimonial matter, the defendant ex-husband appealed the Trial Court’s post-judgment rulings against him on contempt and visitation, asserting that the trial judge should have disqualified himself for bias.  The Appellate Court refused to consider the claim because the defendant had failed to comply with Practice Book Section 64-1 that requires a written decision of the Trial Court encompassing its conclusions as to each claim of law and the factual basis therefore, and puts the burden on the appellant to provide an adequate record if the Trial Court has not done that.  There was no written decision here, nor did the defendant ask the Trial Court to articulate the factual and legal basis for its rulings.  The defendant’s appeal over the visitation issue was also rejected by the Appellate Court because the claim on appeal that there was no viable motion for modification pending when the Trial Court ruled had not been raised as an objection before the Trial Court.

A mother called the police department to report that eight teenage boys were bullying her daughter, and requested a police officer to respond, claiming the harassment had been going on for four years in school, and now the boys were walking in front of her house.  The police officer responded that somebody will see you shortly.  The police officer did not take the phone call as an emergency and coded it to be followed up.  After over one hour, the mother called again and complained that no one had responded and the threats were escalating.  This time, the matter was re-coded on the computer from non-emergency to a disturbance call, and officers were dispatched.  While they were in transit, reports came in of shots being fired, and the code was changed again to an emergency.  Police finally arrived eleven minutes after the upgrade of the call to a disturbance, but by then a family member had been shot by one of the teenage boys.

The shooting victim sued the police department, claiming a breach of a ministerial duty to properly classify telephone calls.  The defendants moved for summary judgment, asserting they were entitled to governmental immunity.  The Trial Court granted that motion, concluding it was a discretionary act under C.G.S. Section 52-557(n).  Under that statute, municipalities are only liable for negligently performed ministerial acts.  Case law has established an exception to the statute for situations where an identifiable person is subject to imminent harm, which is recognized by the public official.  All three elements must be proven for the exception to apply.  The plaintiff claimed there was a question of fact of whether this was a discretionary act.

First, the Appellate Court held that, as a matter of law, police officers deciding how to code telephone calls is a discretionary function, absent some evidence from the plaintiff, such as the city charter, an ordinance, regulation, rule, policy or other directive that mandates how the police officers are to respond to certain calls.  Otherwise, it is a basic duty of a police department to determine the appropriate level of response to calls and how to prioritize them.

Second, the Court ruled there was no question of fact whether the identifiable person/imminent harm exception applied.  The rules of proving that exception have only been relaxed for school children in schools, because school children are likely to be an identifiable class of foreseeable victims when they are statutorily required to be present on school property.  Otherwise, the mere presence of the plaintiff as an invitee on the caller’s property does not classify the plaintiff as an identifiable person, as he was on private property, and not on school property as a student.  There was no way for the police officers to know that the plaintiff would be present on the phone caller’s property when the incident occurred.  The plaintiff was not a resident of the property, was not the daughter the mother called about, and was not mentioned personally by name in any of the telephone calls to the police.

  • AC37379 - Myers v. Commissioner of Correction
  • AC36704 - State v. Adams
  • AC36913 - Hadden v. Capitol Region Education Council

The Appellate Court noted that it was bound by the 1943 precedent of the Connecticut Supreme Court case of Cashman v. McTiernan School, that forbids apportionment of a worker’s compensation claim partially caused by a pre-existing condition, if the pre-existing condition was non-occupational.  Plaintiff was a teacher with MS who went to break up a fight between students, and was punched in the jaw by one of the students, causing her to fall back and hit her head and sustain a brain injury, which might have aggravated her MS conditions, and she was rendered totally disabled.  The School District challenged an award of total disability, saying that the natural progression of the teacher’s MS was the real cause of her muscle spasms, and that the punch had merely aggravated that condition.  They argued the award should be apportioned between covered and non-covered causes.

The Court noted that apportionment of a claim is only allowed where the pre-existing disease was occupational.  Here, the condition of multiple sclerosis was not occupational.  Thus, the Commissioner’s findings that the incident materially and substantially worsened and aggravated the physical condition of the teacher causing her to be totally disabled was upheld.  Denial of any apportionment of the benefits was also appropriate.

  • AC36803 - Stamford v. Ten Rugby Street, LLC

The City of Stamford issued a cease and desist order to the defendant.  When he failed to comply, the City initiated an injunction action.  The municipality asserted that the defendant’s activities of crushing rock and excavation materials as well as operating a recycling operation required a special permit.  The defendant protested that he had been conducting such operations without interference from the City for years, proving he was in compliance with the regulations.  The Trial Court agreed with the City and issued a permanent injunction.  The defendant appealed.

First, the Appellate Court noted that the City of Stamford’s Zoning Regulations are permissive.  If a use is not spelled out as being permitted, it is automatically excluded.  The Zoning Regulations in question permitted a contractor’s equipment and storage yard; and even though that term was not defined, it could not be fairly interpreted to include crushing and sorting of excavation materials.  Allowing storage does not contemplate the crushing of large amounts of material.  This interpretation was ratified by other references in the regulations as to when crushing was or was not not allowed.  The Court also deferred to the interpretation of the Zoning Regulations by the ZEO, who noted that the regulations would allow the defendant to sell crushed stone that he bought from other sites, but he could not make the product on-site.  Noting that this was a case of first impression in Connecticut, the Court concluded its decision was consistent with other cases involving fights over the meaning of contractor yards.  Similarly, the regulations could not be interpreted – as the defendant claimed – to allow recycling operations.  The regulations clearly required a recycling permit.  The crushing and sorting for sale or disposal of solid waste materials that are residue from demolition projects fit that criteria.  Next, the defendant claimed it was a pre-existing non-conforming use.  Although the current regulations went into effect in the 1990s, the Court concluded the defendant failed to offer any evidence that its use of the property had been permissible prior to that date.

Finally, the Appellate Court held that the Trial Court was within its discretion to order the removal of the crushers entirely, even though the same machines allowed the defendant to conduct legal screening of other materials.  The ZEO had testified that removing the crushers from the property was the only way to make sure the defendant ceased its crushing operations, because he had already ignored the cease and desist order.

Plaintiffs were two brothers whose mother established a trust naming them as beneficiaries and the defendant attorney as the trustee.  [This is another part of the litigation previously summarized in last week.]  The brothers sued the attorney alleging he had mismanaged the trust by failing to diversify its assets.  The defendant attorney testified in his deposition that he relied upon the advice of an investment advisor in deciding not to diversify.

After the attorney’s testimony, the plaintiffs demanded the attorney file a claim against the investment advisor, but the defendant refused, and a Trial Court refused to order the defendant as trustee to bring such a claim.  The brothers then attempted to sue the investment advisor directly, but their claim was dismissed for lack of standing.  The brothers then continued their lawsuit against the attorney, and added a claim for his failure to sue the advisor.  In order to prevail on that claim, however, the brothers had to establish that the defendant attorney had relied upon the advice of the investment advisor.  However, at trial, the attorney flipped and said he had not relied upon the investment advisor’s advice.  The jury nonetheless returned a verdict in favor of the defendant attorney.

Responding to this outcome, the brothers brought a new second lawsuit against the defendant attorney, alleging fraud and CUTPA, claiming that the defendant’s flip flopping testimony constituted a fraud upon the court that cost them dearly.  The attorney then moved to dismiss the new lawsuit, claiming that his communications in the initial case in the course of his deposition and during trial were protected by the “Litigation Privilege” which provides that all statements made in court or deposition are absolutely privileged.  The Trial Court agreed, and dismissed the second lawsuit.

On appeal, the brothers claimed that the Appellate Court should recognize an exception to the Absolute Immunity Rule encompassed in the Litigation Privilege, when someone is abusing the judicial system.  The Appellate Court noted that the Litigation Privilege has been around for a long time.  It was initially applied to bar claims for defamation for what people testified to in court, but it has been expanded beyond that by the CT Supreme Court.

However, in doing so, the Supreme Court recognized a distinction between imposing liability for words used in court versus imposing liability for an improper use of the court system itself.  Thus, the Supreme Court came up with a four-part test to ascertain whether the tort of abusing the system was more akin to defamation or more akin to vexatious litigation.  The four-part test is not a black or white analysis, however, as it is overridden by a determination of whether immunity should apply as a matter of public policy.  There is a strong public policy to encourage participation and candor in judicial proceedings.  Prior decisions have already held that attorneys are absolutely immune from claims that they concealed their clients true financial status during alimony proceedings.  While such fraudulent conduct is to be strongly discouraged, it does not subvert the underlying purpose of a judicial proceeding, and is more akin to a defamation statement which can be adequately addressed by other available remedies.  By analogy, the court concluded that similarly, the absolute immunity bars a plaintiff’s claim of fraud against a defendant, asserting he/she testified falsely and differently in two judicial proceedings.  It is precisely this type of communication by a party to litigation that the privilege was designed to protect, and the public policy outweighs the risk of a defendant abusing the privilege by lying under oath.  Fears of perjury should address most abuses of the courts of this nature.  Such absolute immunity also barred the plaintiffs’ claims for CUTPA.

Finally, the plaintiffs tried to hang their hat on a letter the attorney sent to the brothers after they filed their first lawsuit against him.  The attorney demanded that the first lawsuit be withdrawn immediately, or the cost of defending the litigation would result in a claim by the attorney against the trust assets for reimbursement.  The attorney asserted that even that letter was covered by immunity because it was preliminary to litigation.  The brothers responded that it was actually after they started the lawsuit.  That did not matter to the Appellate Court which held the letter was clearly published in the course of, and clearly pertinent to, judicial proceedings.  The court noted a longstanding common law rule that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are pertinent to the subject of the controversy.  The absolute privilege or absolute immunity extends to every step of the judicial proceeding until final disposition.  The court said that the absolute immunity even extends to the attorney’s attempt to seek approval from the court of his trust accounting.

Thus this case recognized two absolute privileges or immunities and they are not limited to attorneys.  The first is an immunity over any civil damage claim against a witness whom it is asserted testified falsely under oath.  The second is any claim over a communication in preparation for, or in conjunction with, litigation.


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.  Copyright 2016 Pullman & Comley, LLC. All Rights Reserved.

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