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Appellate Court Notes: Week of February 29, 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 April 4, 2016

Supreme Court Advance Release Opinions:

Appellate Court Advance Release Opinions:

Wife commenced divorce action against husband.  Three of their four children were already of the age of majority.  The husband had a variety of businesses with a base salary of $250,000 per year.  Monthly family expenses were running at $60,000, including college expenses for two of the kids.  The husband was paying $50,000 per month voluntarily and the wife was borrowing $10,000 per month from friends.  The husband was making up the difference between the $50,000 per month he was paying and his monthly income by liquidating his assets.  The wife moved for alimony pendente lite, and the court ordered him to the entire $60,000 per month to cover all of the family expenses of which about $4,000 per month was temporary alimony.  The defendant husband appealed, claiming that ordering him to pay all monthly expenses and an alimony payment exceeded the bounds of a proper pendent lite award, especially when he would have to continue to liquidate his assets to meet the Court’s Order.

The Appellate Court agreed that this was an impermissible distribution of marital assets under the guise of an interim order.  Such an order is to provide support for one’s spouse’s needs in accordance with the other spouse’s ability to pay.  It is not designed to punish one’s spouse, nor to start the process of redistribution of assets.

When accumulated assets do not actively reflect a party’s financial situation, the order is supposed to be paid out of current income or earning capacity, not out of assets.  The case law where the Appellate Courts have allowed pendente lite awards to be based upon assets had special facts behind them.  Otherwise, CGS § 46b-83 orders cannot be the basis for a redistribution of property.  At that stage of the proceedings, the court has not been statutorily authorized to distribute assets.  However, if the Trial Court finds that the spouse is lying about their income and/or assets, that may be a basis to order liquidation to pay interim alimony. 

Similarly, the Trial Court should not have ordered the defendant husband to pay all college costs for the two children in violation of Connecticut General Statutes § 46b-56(c), which limits educational support orders to the amounts charged by UConn for a full-time in-state student. 

Judge Beech concurred but would not have said that a Trial Court can never enter an order for alimony pendent lite when the payor is unable to satisfy it without invading assets.

  • AC36877 - State v. D’Amato
  • AC36601 - Turner v. Commissioner of Correction
  • AC37317 - O’Toole v. Hernandez

Connecticut General Statutes § 46(b)-231 provides authority to a family magistrate to order payment of the movant’s attorney’s fees when they seek to enforce child support orders as part of a contempt proceeding.

Plaintiff was a 10 percent residual beneficiary of a trust, and sued her sister and brother-in-law, claiming that they had misused trust funds and exercised undue influence over their mother to amend the trust to reduce her interests from 50 percent to 10 percent.  Plaintiff also sued the law that was involved in the drafting of the trust and the amendment.

Prior to filing the lawsuit, however, the plaintiff filed a bankruptcy petition in Nevada.  She had not listed her residual beneficiary interests as an asset in her bankruptcy filings, nor did she list her potential claims against her siblings or the law firm as an asset.  That omission violated Federal Bankruptcy Law that requires the disclosure of all assets, including interests in trusts and potential legal claims.  11 U.S.C. § 541(a)(1) and § 541(a)(7).  The plaintiff received a discharge in bankruptcy immediately prior to commencing this action.  Her claims properly belonged to bankruptcy estate, and thus, the bankruptcy trustee.

Accordingly, the defendants filed a motion to dismiss for lack of standing.  In response, the plaintiff acknowledged that she lacked standing, and filed a motion to substitute the bankruptcy trustee, pursuant to Connecticut General Statutes § 52-109, as the real party-in-interest, asserting that she had named herself plaintiff “by mistake.”  Connecticut General Statutes § 52-109, however, provides that substitution is permitted only when a court determines the action was commenced in the name of the wrong plaintiff through mistake, which the Trial Court said means honest conviction entertained in good faith, and not through one’s own negligence.

The Trial Court then concluded that commencing the action in plaintiff’s name was through negligence and not by mistake, and denied the motion to substitute, and granted the motion to dismiss.

In an interesting twist, the Appellate Court refused to address the merits of the plaintiff’s appeal, which claimed that the Trial Court had relied upon the wrong definition of what was a “mistake.”  The Trial Court had used a definition in a case cited by the plaintiff herself.  The Appellate Court agreed that a party cannot take a path at trial, and then change tactics on appeal.  Courts will decline to review a claim of error that the party themselves induced the Trial Court to make.  This principle bars the Appellate Review of Induced Errors on the grounds of fairness to the opposing party.       

A party cannot claim as error a legal position they urged upon the Trial Court.  The Plain Error Doctrine does not help the plaintiff because it is a rule of reviewability, not a rule of reversibility.  Plain error only applies when there is a manifest injustice.  There is no manifest injustice in refusing to entertain a newly minted argument that contradicts the position a party advanced before the Trial Court.

In a footnote, the court said it left for another day, whether or not the Trial Court’s interpretation of the term “mistake” was proper under the statute.

  • AC37265 - Connecticut Housing Finance Authority v. Alfaro

Connecticut Housing Finance Authority (CHFA) commenced a foreclosure of the defendant’s residential mortgage, asserting it was assignee and holder of the note.  The defendant filed a motion to dismiss for lack of standing, claiming the plaintiff could not prove it was the holder of the note.  Before any hearing on the merits was held, the plaintiff withdrew its foreclosure action as a matter of right, pursuant to Connecticut General Statutes § 52-80.  Six days later, the defendant filed a motion seeking an award of attorney’s fees under Section 42-150(b)(b), claiming it was a prevailing party in a consumer action brought by a commercial party.

The defendant argued that it was reasonable to assume that the plaintiff feared its defense, and that therefore its defense had merit and it would have won on the merits.

The Trial Court denied the request for attorney’s fees.  The plaintiff appealed.  The Appellate Court said it need not decide whether a consumer party can ever claim attorney’s fees when a commercial plaintiff has withdrawn their lawsuit as a matter of right, because on the facts of this case, the defendant never proved that his defense was the reason the plaintiff withdrew the action.  The defendant never submitted any evidence to the court, and the statute requires the consumer party to establish that they prevailed on the merits of their answer or special defenses.  The Trial Court never made any findings that the plaintiff withdrew its action because of the special defense that was asserted.  To assume that was their reason would be pure speculation.

Plaintiff sued his brother and the attorney who acted as trustee of their deceased mother’s trust, claiming mismanagement of trust assets and breach of fiduciary duties.  One brother cross-claimed against the other and the attorney.  Both brothers claimed the attorney had failed to act as a prudent investor in his capacity as trustee, and that his failure to provide a accountings while the mother was still alive prevented them from becoming aware that he never diversified the securities portfolio of the mother.

The Trial Court had granted summary judgment to the defendant attorney on all counts, except the claim that he failed to go after the investment advisor for not diversifying the trust assets, and failed to provide trust accountings.

The brothers appealed the Summary Judgment rulings letting the attorney off the hook on the other claims.  While that appeal was pending, the remaining claims against the attorney went to trial, and the jury returned a general verdict in favor of the attorney.

No appeal of that general verdict was pursued.  Next, the Appellate Court dismissed the pending appeal as the Summary Judgment ruling was not a final judgment.  Returning to the Trial Court, the brothers now argued that a further trial had to be held against the attorney for his failure to provide trust accountings during the mother’s lifetime.

The Trial Court disagreed, and said that all claims against the attorney had been resolved due to the intervening trial, and if the brothers had proceeded on a different theory against the attorney, and did not pursue the accountings, mistakenly believing they could do so after the appeal, they bore full responsibility for that tactical decision and had essentially abandoned the other claims against the attorney.  It does not matter that the jury was not instructed on the claims that the brothers now wished to raise anew.  Plaintiffs bore the responsibility to follow up on their requests to charge and to insist the jury be instructed on all pending claims.  Failure to do so amounts to an abandonment, especially when there was no appeal from the general verdict, and there had been no bifurcation of the trial.

The Appellate Court agreed with the Trial Court that there were no remaining claims to be tried against the attorney.  Had the brothers been able to show that the jury was not instructed on the claim, either because there was no request for an instruction or the Trial Court failed and refused to give an instruction, and that they appealed that failure, then they might have had a chance at a second bite at the apple.  But not when they failed to appeal the general verdict by a jury.

  • AC38029 - State v. Jusino
  • AC38637 - Citigroup Global Markets Realty Corp. v. Christiansen

Trial Court originally entered a judgment of strict foreclosure in 2009.  The judgment was opened and the law day was extended five times over six years as a consequence of five bankruptcy petitions of the defendant/borrower.  The Trial Court set the most recent law day as August 25, 2015.  Thereafter, the defendant filed three consecutive motions to open and extend the law day.  The Trial Court denied all three motions, yet at the same time, extended the law day with the first two denials, so that the final law day was set for December 1, 2015.  For the third denial, the Trial Court refused to extend the law day.

One day before the current law day, the defendant filed an appeal from the refusal of the Trial Court to reopen the judgment.  He did not exercise his right of redemption on his December 1, 2015 law day.  On December 8, 2015, the plaintiff moved to dismiss the appeal as moot, arguing that the third motion to open did not prevent the running of the law days, and accordingly title vested with the plaintiff.

The Appellate Court agreed, and held that the appeal was moot.  In 2013, Practice Book Section 61-11 and Section 61-14 were amended to prevent use of the Practice Book Sections as a “perfect perpetual motion machine” allowing the continued refiling of motions to reopen that would forever delay the running of the law days.  The amendment added subsections (g) and (h), and imposed a “two strikes and you’re out” rule, such that unless the third motion to reopen is accompanied by an affidavit under oath that the motion was filed for good cause, there is no stay.  No such affidavit was filed in this case.  And, accordingly, no stay of the running of the law day was triggered by the motion.


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

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