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Appellate Court Notes: Week of May 4, 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 24, 2016

Supreme Court Advanced Release Opinions:

  • SC19533 - Pikula v. Dept. of Social Services

The Supreme Court set aside a decision that held the plaintiff did not qualify for Medicaid because there was still $160,000 available in a discretionary trust for her benefit.  The plaintiff claimed that the testator (her father) had given sole and unilateral discretion to the trustee to determine whether or not any of the interest or principal should be paid for her care.

The hearing officer determined that the trust was a “general needs” trust for the purpose of the plaintiff’s eligibility for Medicaid.  In this situation, for the expenses of a nursing home.  Connecticut’s regulations establish a $1,600 asset limit to qualify as “medically needed.”  However, only assets that are actually available may be considered by the state in determining eligibility for public assistance.

Thus, the issue was whether the assets in a testamentary trust were “available to the plaintiff.”  If the terms of the trust provide for the support of the Medicaid applicant, the refusal of a trustee to make a distribution does not render the trust asset unavailable.  General support trusts are considered available because the beneficiary can compel distributions from the trust.  Where the beneficiary does not have a legal right to obtain the funds, such as where the trustee has unfettered discretion to withhold assets, they are not considered available to the beneficiary.

A trust which is secured against the beneficiary’s own improvidence and places it beyond the reach of creditors is a spendthrift trust.  (See also, § 52-321).  The terms of a trust may validly preclude transfer by the beneficiary, as well as claims by the beneficiary’s creditors.

In order to determine the type of trust that was created, the court must consider the intent of the testator by reviewing the language of the instrument, the surrounding circumstances, the family relations, and the parties’ conditions at the time of execution.  In determining whether or not a particular testamentary trust was intended to be a general needs trust or supplemental needs trust, the nature and extent of the trustee’s discretion on the distribution of trust income or principal in any guidelines given to the trustee must be considered.

Here, the trustee was only directed to use such income of the trust as it deemed advisable, with the right to return unused income to the principal.  The trustee was not required to provide maintenance or support to the plaintiff.  Further, the trust value of only $160,000 showed it was unlikely to be significant enough to provide long-term care and maintenance or expenses for any significant time frame.  The trust gave sole and absolute discretion to the trustee.  Based upon that, the court concluded there was no one who could compel the trustee to disburse any of the principal or income to the plaintiff.

The $160,000 would be quickly exhausted if expended upon the plaintiff’s residential placement in a nursing facility.  Therefore, on the whole, the trust here was more akin to a supplemental needs trust, as opposed to a general needs trust. Therefore, the funds were not available to the plaintiff, and should not have disqualified her for eligibility for Medicaid benefits.

Appellate Court Advance Release Opinions:

  • AC37577 -State v. Johnson
  • AC37507 - Meribear Productions, Inc. v. Frank

Westport defendants hired a California company to stage their home to help in its sale for $19,000 down payment and $1,900 per month, after an initial four-month period, to cover the cost of the staged furnishings. The defendants refused to allow the staging company access to retrieve its furnishings, and thereafter sold the home and claimed they had no knowledge of what became of the furniture.  The California company sued the defendants in California, and obtained a default judgment for the missing furniture and rentals to the tune of $250,000.

Plaintiff then commenced an action in Connecticut to enforce the foreign judgment.  The defendants claimed that California lacked personal jurisdiction over them, and that the staging agreement violated the Connecticut Home Solicitation Sales Act.  The Trial Court ruled in favor of the plaintiff.

The Appellate Court agreed, because the Staging Agreement provided that California law would apply, and that any dispute would be litigated in Los Angeles, California, for which the parties consented to jurisdiction and venue.  Even though the husband added a sentence that Connecticut laws would supersede those of California, he did not change the forum selection clause.  A foreign judgment is presumed valid, and the person attacking it bears the burden of proof.  A foreign court can obtain personal jurisdiction by the following: residency, minimum contacts, participation in litigation, or consent, such as by way of contract.  Here, consent was obtained by contract.

Next, the Appellate Court held that the staging contract was not governed by the Home Solicitation Sales Act.  The Appellate Court agreed that while the statutory language was ambiguous and the legislative history was not helpful, the act was designed to protect consumers against certain door-to-door salesmen practices.  The act contains an exemption for “transactions pertaining to the sale or rental of real property.”  In this case, staging a house for sale clearly “pertains to selling it.”  The Appellate Court also upheld doubling the damages for conversion.  Finally, the court also upheld awarding damages against both the husband and the wife, holding that there is no double recovery of damages until such time as at least one of the defendants’ ante’s up the full amount owed.

Plaintiff hired Attorney Number One to represent him in a personal injury action.  Attorney Number One purportedly settled the lawsuit and claimed the client would net $175,000, but later informed him that he had made a mistake, as there was a large unpaid medical lien.  Dissatisfied with Attorney Number One, the client then hired Attorney Number Two, who charged the client $27,000 to negotiate down the medical lien.  The client then turned around and sued Attorney Number One to recover those added legal fees as damages, and to do so, hired Attorney Number Two to bring the malpractice lawsuit.

Attorney Number One, in defense of the malpractice lawsuit, then sought to take the deposition of Attorney Number Two.  Attorney Number Two objected, claiming it was harassment, but the court ordered him to appear for a deposition.  Attorney Number Two failed to show up for the deposition, and the Trial Court issued an order of nonsuit for failure to comply with the court’s order.  Client claimed that was inappropriate, because he was trying to obtain replacement counsel, and no client’s attorney should be allowed to be deposed until replacement counsel is retained.  The Trial Court noted that its direct order had been violated, had prejudiced the defense, and was part of a pattern of violations.

The Appellate Court agreed that the Trial Court was within its discretion to order a sanction of nonsuit for violating its discovery order.  Here, the order was clear and not complied with.  The sanction was proportional to the violation.  Plaintiff failed to comply with the court’s order within the time ordered by the court, and failed to exercise due diligence to obtain replacement counsel, and the conduct was part of a pattern, as the plaintiff previously refused to sit for more than two hours at a time for his deposition until forced to do so by a court order.  The continuing pattern of violations warranted dismissal of the action.  This was especially true when the Trial Court had repeatedly warned a party that sanctions may be considered if they did not comply.

The plaintiff psychologist claimed that she and the defendant (who was an attorney) were initially friends.  However, thereafter, the defendant started to show signs of delusion and paranoia, and started sending bizarre e-mail and voice message threats to the defendant, causing her to fear for her safety and her career.  The defendant also disseminated damaging, otherwise publically-available information about the plaintiff to potential employers, such as an unpaid civil judgment, unpaid student loans, and links to anonymous blogs that questioned her educational background and suggested potential criminal history.  The defendant also posted on websites that the plaintiff was dangerous and a psychopath, and alerted the staff of the plaintiff’s child’s school that the plaintiff was a “danger to children.”

The plaintiff filed a lawsuit, seeking a protective order pursuant to C.G.S. § 46(b)-16(a), and an injunction against stalking under C.G.S. § 53(a)-181(d).  The Trial Court concluded that there was sufficient evidence that the defendant, without justification, had embarked on a course of conduct designed to impugn the professional competence of the plaintiff and to humiliate and degrade her as a person and clinical psychologist, and warned the attorney that he was likely violating the Rules of Professional Conduct and risked criminal prosecution, and granted a protective order and issued an injunction against the defendant from contacting the plaintiff, her places of employment, her family members or school, and prevented the posting of web site materials or creating fictitious web sites.  A very broad order.

The defendant had acted pro se during the trial, but hired attorney John Williams and appealed, claiming that his conduct was Constitutionally-protected free speech and that there was insufficient evidence of stalking.  As to the free speech claim, the Appellate Court refused to consider it due to the lack of an adequate record.  First off, the defendant’s brief lacked any legal analysis, including a failure to argue how the First Amendment would apply to stalking claims or to C.G.S. § 53(a)-181(d).  The defendant never made a claim to the Trial Court that his actions were protected by the Constitution.  Lastly, there was an incomplete record, because the defendant had been representing himself pro se until he suddenly exited the Trial Court proceedings so that the plaintiff could not call him to testify.

Next, the court said there was sufficient evidence to find a violation of the Stalking Statute.  Despite the defendant’s claims, he was not a danger to anyone; a reasonable person in the plaintiff’s position would have feared for his safety in face of the defendant’s conduct.  Since the plaintiff was employed as a consultant, the defendant contacting potential institutions that might retain her services and posting derogatory comments on websites relevant to the plaintiff’s field of employment amounted to interference with employment.  A police officer’s warnings to the defendant to stop his conduct satisfied the statute’s requirement that he had been warned before finding liability. The Trial Court was also allowed to draw  an adverse inference from the defendant’s leaving trial so that he could not be examined by the plaintiff under oath.

In an asterisk footnote, the court explained why it was identifying the plaintiff by her first name only.  It said this was in accordance with its policy of protecting the privacy interests of applicants for protective orders.  It also was not identifying the name of the defendant attorney so as to, in turn, protect the identity of the plaintiff applicant.

Several neighbors on a private road in Greenwich, Connecticut got into a dispute over the location of their respective mailboxes.  For between ten and forty years, all the mailboxes were located on one parcel under a small shed roof, until the plaintiff issued a letter to his respective neighbors demanding that they remove the mailboxes or he would terminate their license and do so himself.  Despite a threat from the attorney for the neighbors, the plaintiff started to remove the mailboxes and deposit them in his neighbors’ driveways.

After being authorized by the neighbors, the attorney initiated a forcible entry and detainer action pursuant to C.G.S. § 47a-43 against the plaintiff.  The plaintiff promptly moved for summary judgment, but before any court hearing date, the neighbors’ lawyer unilaterally withdrew the lawsuit.  The plaintiff then commenced a vexatious litigation action against his neighbors and the law firm that represented them.  The neighbors all pled advice of counsel as a special defense and moved for summary judgment thereon.  The law firm also moved for summary judgment, holding that the law firm had probable cause to give the advice to their clients and that the forcible entry and detainer lawsuit was not instituted for an improper purpose, nor was it established that the attorneys engaged in misconduct intended to cause injury outside normal private litigation.  As to the claims against the neighbors, the evidence was that the neighbors had made full and complete disclosures to their attorney, and they had not brought the entry and detainer lawsuit as an improper attempt to “quiet title.”  The Trial Court granted their summary judgment.  The Trial Court also granted the law firm’s motion.

The plaintiffs appealed.  The Appellate Court adopted the Trial Court’s rulings.  A footnote added that the defendant law firm had relied heavily upon two earlier court decisions in bringing the entry and detainer action.  The court suggested that the decisions did not really support bringing such an action under these facts, but a party should not be allowed to sue their opponent’s attorney for vexatious litigation by merely alleging they did not perform as thorough an investigation or as complete a legal research job as another reasonable attorney might have conducted.  Permitting recovery on such a basis would provide a plaintiff with a windfall, when the underlying basis for the initiation of the first lawsuit was tenable because the party claiming vexatious litigation would have been put to the very same burden of defense had their adversary been more thorough and asserted the proper cause of action.

Another footnote informs us that the plaintiff did get his way because all of the neighbors relocated their mailboxes to their own driveways.

  • AC37818 - Hadco Metal Trading Co., LLC v. Barcol-Air, Ltd.

Plaintiff was not allowed to challenge the granting of a $250,000 Prejudgment Remedy Order in favor of the plaintiff on the grounds that the Trial Court failed to consider the applicability of certain UCC provisions to the underlying agreement because defense counsel failed to raise that legal challenge before the Trial Court.

  • AC37830 - Rosenthal Law Firm, LLC v. Cohen

Law firm and client entered into an engagement agreement for legal services, whereby they agreed to submit any fee disputes to the Connecticut Bar Association for binding arbitration.  Thereafter, the law firm petitioned the CBA to resolve a fee dispute that arose, and a panel of three arbitrators found in favor of the firm.  The Plaintiff then filed an application to confirm the award, and the defendant filed an application to vacate the award, but by then was more than thirty days after the decision.

The Trial Court affirmed the arbitration award and held the application to vacate was too late, and the pro se defendant appealed.  He claimed that he had attempted to file an Application to Vacate in a timely fashion, and that was the date the court should consider.  The Appellate Court rejected that argument and noted that the late filing of an application to vacate deprives the Trial Court of jurisdiction to hear the application.

  • AC37887 - U.S. Bank, N.A., Trustee v. Morawska

First, the Court held in this foreclosure appeal that a Trial Court does not have to conduct an evidentiary hearing to decide whether to allow a mortgagor to re-enter the Foreclosure Mediation Program after a prior mediation effort failed and the mortgagor filed a bankruptcy petition that was dismissed.  Here the request was denied without a formal hearing. Next, the Court said that there was no prohibition on the Trial Court recalculating the judgment debt in conjunction with re-entering a judgment of strict foreclosure after the bankruptcy was dismissed.  This may be done as part of the motion to reopen the judgment and reset the law days, in accordance with G.G.S. § 49-15.

Plaintiff was injured when the excavator he was operating suddenly jerked to one side.  He sued his employer, claiming that the employer had rigged the excavator to operate at full throttle at all times, and failed to repair it after the employee complained, which conduct he claimed amounted to the intentional creation of a dangerous condition, which allowed him to sue his employer outside the Worker’s Compensation Exclusivity Provisions.  The employer moved for summary judgment, claiming that it had not sought to intentionally create a dangerous condition and, in fact, the company president had personally operated the machine on several occasions and had sought to have it repaired twice.

The Trial Court granted summary judgment to the employer, claiming there was insufficient evidence to prove intent on the part of the employer to create a working condition that was substantially certain to injure the plaintiff.  The Trial Court concluded it was significant that the employer himself regularly operated the machine, including before and after the plaintiff’s injury.  It is unlikely the employer would create a condition that would knowingly cause harm to himself.

The Appellate Court upheld the Trial Court’s decision.  It noted that there is a narrow exception to the general rule of worker’s compensation being the exclusive remedy to an employee and that exception is demonstrating that the employer actually intended  to injure the employee or intentionally created a dangerous condition that made the injury substantially certain to occur.  The substantial certainty standard is akin to an intentional tort.  It is not enough to show that the employer exhibited a lackadaisical or even cavalier attitude towards worker safety.  Rather, the plaintiff must show that the employer believed that his conduct would cause harm to the employee.  Thus, an employee cannot make a claim that he is not barred by the Worker’s Compensation Act by asserting claims of gross, wanton,  willful, deliberate, intentional, reckless, culpable, malicious negligence or other misconduct, short of a genuine intent to injure.

Here, the employee failed to establish any evidence of the employer’s subjective belief that the plaintiff’s injury was substantially certain to occur.  It is not enough to show that the employer’s rigging of the excavator to operate at full speed may have been reckless   or even have been cavalier   towards the employee’s safety.  Rather, the plaintiff would have had to have shown the employer believed that doing so would cause harm to the plaintiff. 

  • AC36888 - Lewis v. Commissioner of Correction
  • AC36923 - Farmer v. Commissioner of Correction
  • AC37559 - Stevenson 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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