Week of April 20
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 firstname.lastname@example.org I hope the reader finds these summaries helpful. – Edward P. McCreery
Posted April 21, 2015
- SC19307 - Martorelli v. Dept. of Transportation
Plaintiff applied for a permit from the Department of Transportation (DOT) to operate a livery service consisting of a stretch limousine and a van. A competitor intervened and objected. The applicant claimed he would charge lower rates than the competitor. The DOT denied the application, claiming he had not satisfied his burden of proving the statutory requirement that the new livery service would improve public convenience, even though his financial assets and experience were adequate. On appeal, the applicant claimed that the DOT improperly expected him to show that other customers had been denied service.
The Supreme Court noted that the DOT had not previously articulated a definition of the statutory phrase “public convenience and necessity” as found in § 13(b)-103(a)(1) and the legislative history on this ambiguous language suggests that the intent was to protect public bus companies.
Further, turning to the similar phrase in the statutes dealing with public utilities, it means something that benefits the public generally, instead of a small part of the population. Generally denying a permit to protect the immediate competitors would be improper, and, creating competition would be in the public’s interest, as other states have found. Therefore the Court concluded that is not necessary that the new service be essential or absolutely indispensable. Public convenience should mean a use that would be more efficient, more economical, more convenient, more satisfactory, or different than the existing service. The matter was remanded to the DOT to conduct a new hearing using this new definition of public convenience standard. In rendering its decision, the Court also rejected three Constitutional challenges to the enforceability of the existing statute, now that it had defined the proper definition of the statutory term.
- SC19283 - Squeo v. Norwalk Hospital Assn.
In this case, the Court address squarely when a bystander emotional distress claim may be brought in connection with a medical malpractice action, and what degree of emotional distress must be suffered to trigger a cause of action. In a decision that appears to strictly limit when such claims were made, the Court held that the witness must observe gross medical malpractice that would be readily apparent to a lay observer, and that the injury they suffer as a result must be severe and debilitating, such that they warrant a psychiatric diagnosis, or otherwise substantially impair the bystander’s ability to cope with life’s daily routines and demands.
The plaintiffs had claimed that the hospital had prematurely discharged their suicidal son after an emergency psychiatric exam, and thirty-five minutes later, he walked home and hung himself on a tree in their yard. The plaintiffs found their son hanging from the tree, and attempted to revive him.
This decision agreed with the Trial Court that summary judgment was properly granted to the hospital because, despite the distress suffered by the parents, it was not of the debilitating nature required for such a claim. The plaintiffs did not seek medication or prolonged metal health care as a result of
witnessing their son’s hanging, and had remained steadily employed following the incident. This case, does however, put to rest the split of authority over whether or not bystander emotional distress claims can be brought in a medical malpractice action.
The Court noted that under Part #1 of the test, the malpractice observed (either during its occurrence or shortly thereafter) must be a blatant medical error, such as amputating the wrong limb. Examples of the serious emotional distress under Part #2 of the test must go beyond mental pain and anguish and would include psychosis, chronic depression, phobia, shock, etc. As with any bystander claim, the overall claim must still satisfy the requirements of Reasonable Foreseeability. The Court stressed that while a psychiatric diagnosis may not be specifically required to establish the claim, one would expect that a person suffering debilitating emotional injuries would seek medical or psychological care. A more lenient standard would be impractical and fail to provide clear guidance under the law.
An interesting part of the decision to watch out for as a defendant in filing your summary judgment motion is the notation that it is only when a plaintiff rebuts each and every material allegation in the complaint by documentary proof, does the burden of proof switch to the plaintiff to rebut the claims in the defendant’s motion for summary judgment.
This decision looked at when a party may move for a modification of the alimony and child support order on a basis that their original financial affidavit filed at the time of dissolution was inaccurate. The general rule has always been that a party cannot later refute the financial affidavit that they submitted at the time of the divorce. This Court attempted to clarify that Ruling to allow a party to attempt to show that a financial affidavit submitted at the time of dissolution was not only inaccurate, but that the error was not intentional or misleading, and that it would thus be inequitable to rely upon the mistaken information in a post-dissolution Court proceeding. Thus, it appears that the Bright Line Test has been thrown out.
- AC35988 - Milford Paintball, LLC v. Wampus Milford Associates, LLC
Landlord’s pre-lease execution assurances that it would undertake tenant fit-up in time for the tenant to conduct its seasonal business, combined with the timeframe set forth in the lease for the landlord to start such work, and combined with the lack of any effort on the part of the landlord to actually start the repairs, was a legitimate basis to make a finding of a CUTPA violation. [Query: Did the Lease have a No-Representations Clause and/or an Entirety Clause? ]
This decision seems to set a pretty low standard for a finding of a CUTPA violation, even though it acknowledges the law requires more than mere negligence or breach of contract. A Footnote adds that a plaintiff need not prove reliance upon the pre-negotiations representations, nor that they became a basis of the agreement. [It seems that the post-lease representations that the work would get done on time would have been a more appropriate basis to find a CUTPA violation, but in a Footnote, the Court noted it was relying just upon the pre-lease representations that the work would be done allegedly made to induce the tenant to sign the lease.]
- AC36065 - Rheaume v. Rheaume
The ex-husband purchased a $1 million winning lottery ticket while his divorce proceedings were pending, and failed to disclose it to his ex-wife or the Court. When it was discovered, the Court held him in contempt of Court, and awarded the ex-wife $225,000. The ex-wife applied for an execution, which the marshal served upon the bank, and received a fee for $33,000 for his services.
This was an appeal from the denial of a protective order filed by the ex-husband, seeking to prevent further executions upon the judgment. First the Court held that the marshal properly deducted his fee from the sums received from the bank due to the judgment creditor, and therefore, the fees were not directly paid by the ex-husband, and he had no standing to challenge the marshal’s fees. In all other respects, the execution was properly applied for, granted, and executed by the marshal. There was no basis for a protective order against it.
- AC35485 - Spears v. Elder
This was the foreclosure of a judgment lien recorded against the defendant after he lost the first trial on the merits. The decision first holds that when a Foreclosure Court confirms the results of a foreclosure sale, the subsequent delivery of a deed is a ministerial act, and does not constitute an event which terminates the equity of redemption. Rather, the grantors equity of the redemption was terminated upon approval of the sale, and any rights they have remaining are against the proceeds of the sale. Thus, when the defendant property owner filed a bankruptcy petition after the sale was approved, the real property was not an asset of the bankruptcy estate. Any Homestead Exemption Rights that the former property owner had attached to the proceeds of the auction sale.
The decision also upheld summary judgment upon the defendant homeowners counterclaim in the foreclosure that the plaintiff had allegedly “tampered with a witness.” This issue came up during the original trial and a motion to set aside that trial, and was found to have no merit. This implicates the doctrine of res judicata, and summary judgment was appropriately granted against that counterclaim as an appropriate method for resolving res judicata issues.
The judgment on an issue is final as to every matter offered to sustain the claim or any other admissible matter that might have been offered. The doctrine applies to any aspect of the claim that a party had an opportunity to litigate. In this case, both the failure to call the alleged tampered witness in the first trial and thereafter, having the motion to set aside the judgment denied which raised the same claims, raised the issue of res judicata on that claim.
- AC35045 - State v. Tenay
- AC36564 - Barbee v. Sysco Connecticut, LLC
Trial Court granted summary judgment to the defendant employer, finding the plaintiff had failed to provide any evidence that causally connected her termination to her filing of a worker’s compensation claim. Upon return from an alleged workplace injury, the plaintiff was suspended that day for taking for personal use, damaged produce items that had been returned and that should have been destroyed. The employee claimed that this was common practice amongst the employees. She had never been previously disciplined over similar conduct. The Trial Court, in granting summary judgment, noted that the employee may have a wrongful termination claim if, despite the company policy, it was common practice to allow employees to take damaged items. However, there was no evidence that it was tied to her worker’s compensation claim.
The Appellate Court reversed noting that though defendant’s papers argued that the plaintiff was suspended and terminated for stealing non-saleable produce, there was contradictory evidence that it was common for employees to be allowed do so. The plaintiff asserted that she was singled out for selective enforcement solely because of her worker’s compensation claim. That allegation, combined with the fact that her termination was on the day she returned from worker’s compensation leave, suggests the plaintiff should be allowed to present her claim to a jury to determine whether or not the stated purpose for termination was masking the retaliatory purpose.
[This decision also restates the Rule that a defendant must negate each claim framed by the complaint before the burden shifts to the plaintiff to show a genuine issue of fact exists to justify a trial.]
- AC36328 - McMorris v. New Haven Police Dept.
A police officer being a “portal to portal” employee under C.G.S. § 31-275, is covered by the Worker’s Compensation Act from injuries he sustained when he was fully dressed and carrying his sidearm on his way to work, even though he was dropping his children at daycare on the way to work. The Worker’s Compensation Commissioner found the plaintiff’s act of driving his children to daycare was inconsequential relative to his employment duties, because he was actually covering for his significant other, who normally would have dropped the kids off and it was his normal way to work..
The Appellate Court agreed, noting that injuries sustained under “dual purpose” travel are compensable if the trip would have been performed even in the absence of personal benefit. [I guess it would not have been covered by worker’s compensation if he had to go in the opposite direction to drop the children off at daycare That would have been deemed a preliminary act in preparation for work. It seems that we are splitting hairs ridiculously thin here.]
It was also deemed significant that the police officer was injured prior to the point where he would have had to deviate slightly from his normal route to the police station. Accordingly, the act of driving his children to daycare was inconsequential relative to his job duties, which includes driving in to work.
- AC36311 - Cheshire Land Trust, LLC v. Casey
Plaintiff entered into an oral agreement with decedent to help farm her land, with the two of them splitting the costs of building greenhouses and selling the produce raised therein and splitting the profits. The greenhouses were metal hooped tent like structures staked to the ground. When the decedent died, she bequeathed the greenhouses to the plaintiff, and all of her real estate to the local Land Trust. The Land Trust then entered into a lease of portions of the farm, including the house, to the defendant. Thereafter, when the defendant defaulted on his rent, the Land Trust issued a Notice to Quit and sent a letter offering to work something out with the tenant but but come hell or high water a new tenant was taking over the farm. The tenant defended the eviction in part by claiming the letter converted the Notice to Quit into an “equivocal action” rendering the Notice void.
First, the Court held that the letter from the Land Trust was still an unequivocal notification that the lease arrangement was being terminated. The Appellate Court noted that there is almost no limit to the possible words or deeds which might constitute an unequivocal act necessary to terminate a lease. The letter clearly stated that the Land Trust wanted possession of its property to lease it out to a new tenant, and was terminating the lease. The letter gave the property owner two options: (1) either remove their personal property, or (2) agree to sell the greenhouses to the Land Trust for the back rent and work out a new lease for just the house with the new tenant. Thus, the letter was not an equivocal offer by indicating it would enter into a new lease, but rather, was an invitation to negotiate for the use of a smaller portion of the property. Further, the letter went on to say the eviction would follow, absent a formal written agreement to the contrary. A landlord may try to settle a case after serving notice to quit, provided the landlord informs the tenant the summary process action is going forward, unless a settlement is reached between the parties. This approach strikes a balance between allowing settlement discussions to continue and helping to insure the tenant is not unsure as to whether or not they are being evicted.
Next the tenant argued it was entitled to an easement to get to the greenhouses bequeathed to them. The Court found that the tenants conceded the type of easement they were seeking was an easement in gross, one not previously recognized in Connecticut. This is because they were asking for an easement to get to the greenhouses that were on land they did not own and which did not abut other land they owned. An easement in gross is one that does not benefit the possessor of any tract of land in his use of it as a possessor. An easement in gross belongs to the owner independent of their ownership or possession of any specific land.
But what the tenants were really seeking was an easement by implication arising out of the totality of the transactions. Case law in other jurisdictions suggest that easements by implication are always by their nature, appurtenant. Appurtenant easements cannot be conveyed by a party entitled to it, separate from the land that benefits by it. Ultimately, the Court concluded it did not have to decide whether what the tenant wanted was an easement in gross…or….an easement appurtenant (to which he clearly was not entitled) ….nor whether easements in gross should be recognized under Connecticut law. It was sufficient to conclude that the greenhouses were not fixtures, and therefore, no easement of any kind to them was appropriate.
Whether an item is a fixture or personalty is a question of fact determined on how they are attached to the land. These greenhouses consisted of ground posts, upon which sat hoops, over which a long piece of plastic was stretched. The greenhouses could be picked up and moved, although that would be difficult. But since it is a metal skeletal structure only attached to the ground with stakes, and could be disassembled and reassembled elsewhere, it was a proper finding that the greenhouses were not fixtures. Since they were not fixtures, and could be moved, it could not be deemed to be the intent of the decedent that she intended to grant an easement for farm land purposes to access and use the greenhouses.
- AC36351 - Greene v. Keating
In this decision, the Appellate Court reversed the Trial Court’s rendering of summary judgment on grounds not alleged or briefed by the parties. The Appellate Court said that the Trial Court acted in excess of its authority. Initially, the defendants had sued the plaintiff, claiming prescriptive easement over their property. They lost that case. The plaintiff then turned around and sued the defendants and their law firm for vexatious litigation. Both sides filed cross-motions for summary judgment, one alleging that the underlying action had been brought without probable cause, and the other claiming that there was probable cause and/or they had relied upon advice from counsel.
The Trial Court noted, however, that the complaint cited C.G.S. § 52-568(2), which was a claim for malice and treble damages, and that there had never been a claim filed under C.G.S. § 52-568(1). Since the plaintiff never offered any evidence of malice, it granted summary judgment to the defendants. This was not an argument raised in the defendant’s motions for summary judgment, however. A Trial Court’s functions are limited to adjudicating the issues raised by the parties. A Trial Court cannot determine dispositive questions of law in the absence of a motion on that point. Summary judgment was reversed.
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 2015 Pullman & Comley, LLC. All Rights Reserved.