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Appellate Court Notes: Week of March 21, 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 May 4, 2016

Appellate Court Advance Release Opinions:

In this divorce action, the parties had been married for twenty-five years and had two adult children, and had comparable incomes of about $50,000 each.  Despite generous gifts from both in-laws over time, the parties had saved nothing.  They resided in a home formerly owned by the wife’s mother, but which was quit claimed to the wife in return for the mother-in-law’s retention of a life estate and a signed agreement by her son-in-law that in the event of a divorce, he would waive any claim to the property.  The wife and the husband moved into the house while the mother was living there and promised in return to take care of her.  That house with a post-life estate residual value of  less than $1 million became the sole significant asset for the Trial Court to play with.

The Trial Court concluded that the husband’s promise to his mother-in-law to waive his marital rights in the house was void as against public policy.  Accordingly, the Trial Court awarded the house to the wife and ordered the wife to pay the husband a lump sum alimony of $225,000 in installments of $22,000 per year.  The Trial Court claimed it was not abrogating the agreement with the  mother-in-law, but was simply awarding a share of the property.  The Trial Court treated the agreement as an equivalent of a post-nuptial agreement, which required special scrutiny under Connecticut law, as it is assumed that existing spouses will not be as cautious as prospective spouses, to include the opportunity to confer with independent counsel.

On appeal, the Appellate Court noted that, despite claiming it was not abrogating the mother-in-law’s agreement, that is exactly what the Trial Court did when it refused to enforce a key provision of the contract.  Next, the Appellate Court said that the Trial Court improperly evaluated the agreement by applying the Special Scrutiny Test when, in fact, the agreement was not a post-nuptial agreement.  The agreement in question was not a direct agreement between the wife and her husband, and, in fact, included no direct promises between the two of them.  Instead, it was an agreement between the mother-in-law and the wife, to which the husband signed on.  The agreement expressly stated that the husband’s waiver of his rights was part of the consideration for the mother’s making of a gift of a remainder interest after her life estate to her daughter, the wife.  Thus, the agreement should have been interpreted under standard contract law.  The mother-in-law expressly conditioned her gift upon, and was induced to make, the transfer by the husband’s waiver.  While the husband and wife purportedly promised to act as caregivers if they moved into the property, such a term was purely illusory, as it could have been ignored by either side, and thus was a “token promise” but not a “bargained for promise.”  The wife had standing to enforce the promise made to her mother, not as an oblige, but as a third party beneficiary.

That did not mean the wife had won however.  The Appellate Court remanded the matter to the Trial Court to once again determine under a proper analysis whether the contract should still be declared void as against public policy on the grounds that it was an agreement between a spouse and a third party, intended to promote, facilitate, or provide an incentive for divorce (citing New York law).

The Appellate Court warned that whether to enforce a contract that violates public policy is not a black or white analysis.  Rather, the Court may choose to enforce some or all of a contract, or even determine that totality of the circumstances justifies enforcement, even though public policy might be violated.  It will involve a balancing of all the factors.

The Appellate Court did not have a problem with the Trial Court reopening the evidence on its own to require additional appraisal testimony as to the value of the house.  It was error, however, for the Trial Court to accept real estate valuation testimony from a CPA who was not qualified as a real estate appraiser, whose expertise was in business valuation.  His valuation of the remainder interest in the life estate should not have been accepted by the court.  Further, the CPA applied a discount rate in valuing the life estate that was applicable to low risk investments that had no relationship to the high risk investment of purchasing the remainder interest in real property when a life estate is still active.  So on remand the Trial Court was directed to again take up the valuation of a residual estate along with enforceability of the mother-in-law contract.

  • AC37670 - Staurovsky v. Milford Police Dept.

The City of Milford successfully challenged an award for heart and hypertension benefits to a police officer who sustained a post-retirement heart attack while shoveling snow in his driveway two weeks after his last day on the force.  While concluding the claim was timely filed, the Appellate Court held that the plaintiff had failed to prove he had suffered a condition or impairment to his health caused by heart disease during the course of his employment.

It is not enough, as the plaintiff argues, that the employee have the disease.  There must also be some manifestation of the condition or impairment caused by it during the time of employment.

  • AC36900 - Doyle Group v. Alaskans for Cuddy

A candidate for the United States Senate seat of Alaska hired the plaintiff Connecticut consulting firm.  The contract provided for the recovery of interest and attorney’s fees if sums called for therein were not paid.  Owed a $20,000 balance, the plaintiff sued  the defendant in Connecticut and obtained a verdict.  The Trial Court had instructed the jury not to consider interest or attorney’s fees, as the Court would address those claims later.  The plaintiff then moved for an award of $13,000 in interest and $6,000 in attorney’s fees.  The defendant objected, with the somewhat frivolous claim that the jury verdict was final, and could not be altered by adding fees or interest, and that further, post-judgment interest could not be added when more than one hundred and twenty days had passed.

The Trial Court disregarded those arguments, and noted that it was not reopening the judgment, but was merely following up with an ancillary matter for which the Trial Court retained jurisdiction.  Further, the Trial Court noted that it could award pre-judgment interest as it was allowed for under the contract, without finding that retention of the funds were wrongful.

On appeal, the Appellate Court agreed with the Trial Court.  The defendant argued in the alternative, that an earlier appeal in the case was now rendered void because the attorney’s fees issue had never been resolved until recently.  The Appellate Court threw that argument out as nonsense as well, noting there was a bright line rule that judgments are final for the purposes of appeal, even though the recoverability or amount of attorney’s fees for the litigant remain to be determined.  It does not matter if the award for attorneys’ fees is contractual, statutory, or common law punitive. (CUTPA attorney’s fees are the exception, however, and need to be decided before an appeal can be filed).

  • AC37662 - Stanley v. Commissioner of Correction

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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