Connecticut Supreme Court

FCM Group, Inc. v. Miller, 300 Conn. 774 (2011):
(Palmer, J.)  The plaintiff builder of a new home filed suit against the defendants, a property owner and his wife, for breach of contract and to foreclose two mechanic’s liens.  The defendants filed a third-party complaint against the plaintiff’s corporate president seeking to pierce the corporate veil in order to receive damages for, inter alia, breach of contract.  The matters were referred to an Attorney Trial Referee (ATR), who awarded the plaintiff $266,846 in damages, which included money for lost profits.  The ATR also awarded the defendants $5,000 in damages under the lien statute for successfully defending against one of the liens.  The third-party defendant was held personally liable for the entire $5,000 award.  The trial court thereafter rendered judgment of strict foreclosure as to one of the liens and awarded the plaintiff $64,405.17 in statutory attorneys’ fees for the lien foreclosure.  The defendants appealed and the plaintiff and third-party defendant cross-appealed.  The Supreme Court, after transferring the case to itself, reversed the judgment in part, holding that the trial court improperly accepted the ATR’s finding because the defendant-property owner’s wife, who was not a party to the construction contract between the defendant-property owner and the plaintiff, could not be held liable for breach of contract.  In addition, the Court held that the trial court improperly awarded the plaintiff the balance remaining under the construction contract and it reversed the award of attorneys’ fees to the plaintiff.  Finally, the Court held that the plaintiff was not entitled to recover delay damages, that the plaintiff could not prevail on its claim that the ATR improperly determined the amount of the mechanic’s lien, and that the trial court improperly declined to award the defendant-property owner reasonable attorneys’ fees.

Connecticut Appellate Court

St. Germain v. Hurd, 128 Conn. App. 497 (2011):
(Dupont, J.)  The plaintiff filed a declaratory judgment action, seeking to exclude the defendants, his neighbors, from using his driveway to access their property and from using part of his land adjacent to the driveway as a “turnaround” for their cars.  The trial court found that the defendants had acquired a prescriptive easement to use the plaintiff’s driveway for ingress and egress purposes, but found that the defendants had failed to establish an easement over the turnaround area.  The defendants appealed.  The Appellate Court affirmed the judgment of the trial court, holding that the trial court did not commit clear error in finding that the defendants had submitted insufficient evidence to support their claim that they had acquired a prescriptive easement over the turnaround area.

Flannery v. Singer Asset Finance Co., LLC, 128 Conn. App. 507 (2011):
(Bear, J.)  The plaintiff sued to recover damages from the defendant business for allegedly aiding and abetting in breach of a fiduciary duty and for violating CUTPA.  The plaintiff had won the Iowa state lottery and was to be paid in twenty annual installments.  The defendant was a business engaged in purchasing lottery winners’ installments and providing the winners with discounted lump sum payments.  The plaintiff’s action was based on his claim that the defendant was involved with the plaintiff’s attorney in a marketing scheme to induce the plaintiff to sell his annual installments so that he could gain tax advantages.  The defendant claimed that the plaintiff’s action was barred by the relevant statutes of limitation.  The trial court agreed and entered summary judgment for the defendant on that ground, and the plaintiff appealed.  On appeal, the plaintiff claimed that the statutes of limitation were not tolled because of the continuing course of conduct doctrine or, alternatively, the doctrine of fraudulent concealment.  The Appellate Court affirmed the judgment of the trial court, holding that the plaintiff had failed to allege that the defendant intended to delay the plaintiff in filing the action as an element for fraudulent concealment, and that the plaintiff did not invoke the doctrine of the continuing course of conduct as he should have in earlier pleadings.

Mattie & O’Brien Contracting Co. v. Rizzo Construction Pool Co., 128 Conn. App. 537 (2011):
(DiPentima, C.J.)  The plaintiff general contractor sued the defendant subcontractor for damages stemming from the breach of a contract over the repair of a swimming pool.  The action was commenced in 2006 and, after the pleadings had closed, it was referred to an attorney fact finder in 2008.  At the start of the hearing, the defendant first notified the trail court and plaintiff of the existence of a mandatory arbitration clause in the parties’ contract.  The trial court determined that the defendant had waived the arbitration clause as a special defense by its inaction.  The trial court also denied the defendant’s motion to stay the proceedings until the close of arbitration.  The attorney fact finder thereafter recommended judgment for the plaintiff, which the trial court entered accordingly.  The defendant appealed and the Appellate Court affirmed the judgment of the trial court, holding that the trial court’s finding that the defendant’s inaction and delay in filing a motion to stay the action constituted a waiver of the arbitration clause was not clearly erroneous.

Weinstein v. Weinstein, 128 Conn. App. 558 (2011):
(Harper, J.)  The defendant ex-husband appealed from the trial court’s denial of his motion for modification of child support.  According to the child support order, the defendant was required to pay the plaintiff ex-wife $52 per week in child support, which was a deviation from the Child Support Guidelines.  The trial court, in denying the motion, found that although there was evidence that both parties’ incomes had increased, the income disparity between the parties remained the same.  Accordingly, the trial court maintained the previously ordered deviation from the Guidelines.  The defendant appealed and the Appellate Court affirmed the judgment of the trial court, holding that the trial court did not abuse its discretion in denying the defendant’s motion because the facts in the record supported the trial court’s findings.

Connecticut Supreme Court

Rapoport v. Zoning Board of Appeals, 301 Conn. 22 (2011):
(Zarella, J.)  The plaintiff landowner appealed from the trial court’s judgment upholding the decision of the defendant, the Zoning Board of Appeals of the City of Stamford, affirming the decision of the City Zoning Enforcement Officer that a dock located on the waters of Stamford Harbor was a neighborhood dock and not a marina, so that improvements to the dock were not subject to the city’s zoning regulations.  The trial court upheld the Board’s decision on the ground that all of the dock improvements were “waterward” and that adjoining property was used exclusively as a road to provide access to the dock by members of a private association.  The Supreme Court, after transferring the appeal to itself, affirmed the judgment of the trial court.  The Court held that the private road’s character as a vehicular “drop-off point” did not change when the dock was expanded and, as such, the road was not subject to zoning regulations.  In addition, the Court held that the evidence in the record supported the finding that the dock improvements were located waterward “of the mean high water line” and thus not subject to the city’s zoning regulations.  Finally, the Court held that the improvements to the dock did not constitute a marina, a yacht club, or a boat storage and repair facility, as referenced by the zoning regulations.

Markley v. Department of Public Utility Control, 301 Conn. 56 (2011):
(Rogers, C.J.)  The plaintiff, an electric utility ratepayer, filed suit to enjoin the defendants, the Department of Public Utility Control and its chairman, from enforcing a financial order issued pursuant to statute requiring the state’s two investor-owned electric power companies to continue to charge their rate-paying customers a fee that otherwise would have expired, with the proceeds going to the state’s general fund.  The plaintiff alleged that he is subject to the fee.  The defendants filed a motion to dismiss, alleging that the trial court lacked subject matter jurisdiction because, inter alia, the plaintiff’s claims were barred by the defendants’ sovereign immunity.  The trial court granted the defendants’ motion to dismiss because it determined, sua sponte, that it lacked subject matter jurisdiction over the action because the plaintiff had failed to exhaust his administrative remedies.  The plaintiff appealed, and the Supreme Court, after granting a motion to transfer the case to itself, affirmed the judgment of the trial court.  The Court held that the plaintiff’s claims were barred by the doctrine of sovereign immunity.  The Court additionally recognized that exhaustion was not a proper basis for dismissing the plaintiff’s claims.  Finally, the Court held that the plaintiff did not set forth a substantial claim that the financial order violated his right to equal protection, so the constitutional sovereign immunity exception did not apply, and that the plaintiff failed to set forth a substantial allegation of illegal conduct by the defendants, so that his statutory exception claims were barred as well.

Connecticut Appellate Court

Peruta v. Commissioner of Public Safety, 128 Conn. App. 777 (2011):
(DiPentina, C.J.)  The plaintiff, who holds a permit for carrying a pistol or revolver, filed a declaratory judgment action seeking whether permit holders may openly carry a firearm in the state and whether the defendants may confiscate permits if a permit holder is arrested for openly carrying a firearm.  The trial court granted the defendants’ motion to dismiss, holding that the plaintiff had not first exhausted his administrative remedies because he had failed to first submit a petition for a declaratory ruling to the defendant Department of Public Safety.  The plaintiff appealed and the Appellate Court affirmed the judgment of the trial court, holding that an e-mail the plaintiff had sent to the Department of Public Safety was not a petition for a declaratory ruling, and that submitting such a petition would not be futile so the plaintiff was not excused from exhausting his administrative remedies.

O’Dell v. Kozee, 128 Conn. App. 794 (2011):
(Beach, J.)  The plaintiff, the administrator of the decedent’s estate, sued the defendants, the permittee and corporate owner of a restaurant, as well as the corporate owner’s principal member, for the decedent’s wrongful death.  The decedent had gone to the restaurant to participate in a billards league and, during the visit, consumed alcoholic beverages.  The decedent was being driven home by another restaurant patron, who was also drunk, when the car hit a parked box truck.  The decedent was ejected from the vehicle and landed in the roadway, where he was hit by a moving tow truck.  The plaintiff based his action on the Dram Shop Act.  The jury returned a verdict for the plaintiff in the amount of $4 million and the trial court, after denying the defendants’ motions to set aside the verdict and for a directed verdict, granted the defendants’ motion to reduce the verdict to $250,000, and rendered judgment for the plaintiff in that amount.  The defendants appealed, claiming the trial court improperly denied their motion to set aside the verdict and for a directed verdict because there was no evidence from which the jury could have concluded that the driver of the car was intoxicated at the time the restaurant sold him liquor.  The Appellate Court agreed and reversed the judgment of the trial court, holding that there was no evidence presented by the plaintiff to prove intoxication for the purposes of the Dram Shop Act.  The matter was remanded to the trial court with direction to enter judgment for the defendants.

U.S. Bank National Association v. Karl, 128 Conn. App. 805 (2011):
(Alvord, J.)  The plaintiff, who took title to a certain real property by virtue of foreclosure, initiated a summary process action in order to regain possession of the premises.  The trial court rendered judgment for the plaintiff and the defendants appealed, claiming that the trial court improperly denied their motion to dismiss on the ground that the notice to quit was defective for failure to name the landlord or owner of the property.  The Appellate Court affirmed the judgment of the trial court, holding that the notice to quit was properly signed by the landlord’s legal representative, as permitted by the notice to quit statute.

Bove v. Bove, 128 Conn. App. 811 (2011):
(Beach, J.)  The defendant, a party to an action for the partition of an area of land, challenged the order of the trial court granting the plaintiff’s motion to set a new sale date for one of the parcels subject to the partition.  The defendant had filed his fourth appeal from orders regarding the partition and two days later, a committee sale of the parcel was held.  The defendant was the highest bidder at that sale.  The defendant claimed, in his appeal from the granting of the new sale date, that the committee sale of the parcel after his fourth appeal violated the automatic stay in place because of the appeal.  He also claimed, however, that the sale should be approved.  The Appellate Court affirmed the judgment of the trial court and held that the committee sale had no force or effect because it was conducted during the automatic appellate stay in place because of the defendant’s fourth appeal.  In addition, the Court held that, the trial court having set a new sale date for the property as directed by the court in resolving the defendant’s fourth appeal, the committee sale was void and the defendant’s claim was moot.

Soracco v. Williams Scotsman, Inc., 128 Conn. App. 818 (2011):
(Lavine, J.)  The plaintiffs, husband and wife, sued the defendant company for personal injuries sustained by the husband when he fell from a construction trailer whose stairs had been removed by an employee of the defendant.  The wife was, at the time, an employee of a third-party company, which intervened as a plaintiff seeking to recover the workers’ compensation benefits it had paid to the wife.  The plaintiffs and the defendant thereafter entered a settlement agreement, where both plaintiffs received equal halves of a total sum of $750,000.  The intervening plaintiff sought a hearing to determine whether equally dividing the settlement amount was reasonable, and the trial court upheld the equal apportionment.  The intervening plaintiff appealed, claiming that the trial court improperly allowed the plaintiffs to settle without its consent.  The Supreme Court vacated the order of the trial court.  Thereafter, the trial court denied the joint motion of the plaintiffs and the defendant for judgment in accordance with the settlement agreement, and all of the parties filed separate appeals.  The Appellate Court dismissed all of the appeals, holding that the trial court’s denial of the joint motion for judgment was not a final appealable judgment.

Zaneski v. Thirsty Turtle, 128 Conn. App. 829 (2011):
(Bishop, J.)  The plaintiff, administratrix of the decedent’s estate, filed suit under the Dram Shop Act against the defendants – a tavern, its backer and its permittee.  She alleged the wrongful death of the decedent after a car accident on an interstate highway.  The decedent was driving the car when it was hit by another vehicle by an individual who had left the tavern two hours earlier after consuming three to four beers.  While the decedent and the other diver were on the shoulder of the highway exchanging information, a third vehicle hit the other driver’s vehicle, which caused it to strike and kill the decedent.  The jury returned a verdict for the plaintiff.  The trial court thereafter granted the defendants’ motions to set aside the verdict and for a directed verdict, and the plaintiff appealed.  The Appellate Court affirmed the judgment of the trial court, holding that the trial court did not abuse its discretion in granting the defendants’ motions because the evidence at trial was not probative of whether the other driver was visibly intoxicated when she was served at the tavern two hours before the accident.  The jury thus could not have reasonably determined that the defendants had served alcohol to an intoxicated person for the purposes of the Dram Shop Act.

Citibank (South Dakota), N.A. v. Evvard, 128 Conn. 843 (2011):
(Per Curiam.)  The plaintiff bank sued the defendant, seeking to recover on a credit card debt.  The trial court granted the plaintiff’s motion for summary judgment and rendered judgment accordingly.  The defendant appealed, claiming that the plaintiff, a foreign corporation not registered to conduct business in Connecticut, lacked standing and was thus statutorily barred from suing.  As such, the defendant claimed the trial court lacked subject matter jurisdiction.  The Appellate Court affirmed the judgment of the trial court, holding that the plaintiff did not lack standing because its activities fell under an exemption to the certificate of authority requirement for foreign corporations in Connecticut.  Moreover, subject matter jurisdiction has been exercised in similar actions maintained by the plaintiff in Connecticut on multiple occasions.

Rafalko v. University of New Haven, 129 Conn. App. 44 (2011):
(DiPentima, C.J.)  The plaintiff professor sued the defendants, a private university and professor, for, inter alia, breach of contract in connection with the denial of the plaintiff’s application for tenure.  The plaintiff claimed that the university’s faculty handbook required that tenure track candidates be given annual reviews and that he did not receive such reviews for some of the years that he was working there.  The trial court entered summary judgment in favor of the defendants and the plaintiff appealed.  The Appellate Court affirmed the judgment of the trial court, holding that the failure to grant tenure was not a breach of contract, that the plaintiff could not succeed on his claim of breach of covenant of good faith and fair dealing, that the lack of an annual review was not a material fact, and that the Department chairperson’s letter to the university’s tenure and promotion committee constituted an opinion not actionable as defamatory.

In re Christopher C., 129 Conn. App. 55 (2011):
(Per Curiam.)  The respondent father appealed from the trial court’s order adjudicating his minor child neglected and committing the child to the custody of DCF.  The respondent also appealed from the trial court’s denial of the motion of the intervenor, the child’s paternal grandmother, for permanent guardianship of the child.  The Appellate Court affirmed the judgment of the trial court, holding that the trial court properly denied the intervenor’s motion for permanent guardianship, as the record supported the court’s finding that she was not a suitable caretaker for the child based on the fact that she did not believe in her son’s culpability for his prior criminal convictions for, inter alia, sexual offenses against minors.  The Court also denied the respondent’s claim on appeal that he was denied effective assistance of counsel at the neglect proceeding because his claim was unsupported by the record and the respondent could not show that any alleged inadequacy of trial counsel affected the outcome of the proceeding.