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Monday, June 29, 2009
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Agency Courts FREEDOM OF INFORMATION COMMISSION
Public Not Fairly Apprised Of Executive Session Topic 
In order for the public to be fairly apprised of the business to be transacted during an executive session, the public agency must give some indication of the specific topic to be addressed, prior to convening such session.
Appellate Court BUSINESS LAW
Spouse’s Unjust Enrichment Could Not Be Presumed
While the defendant was properly held personally liable under the instrumentality rule for piercing the corporate veil, it could not be presumed that his spouse was unjustly enriched by his misappropriation of the plaintiff investor’s property.
CIVIL PRACTICE
Settlement Agreement Correctly Enforced Against Attorney
A court’s finding that the parties entered into a binding settlement agreement was not clearly erroneous where the defendant attorney’s belief that his agreement with one plaintiff would result in a settlement agreement with the second plaintiff was a purely subjective consideration that was not relevant to the court’s finding of an enforceable contract.
CIVIL PRACTICE
Settlement Agreement Was Properly Enforced
Although settlements and releases are agreements that enforce or strengthen each other’s purpose to terminate litigation, one is not required to enforce the other because each agreement calls for separate actions and consideration.
CONTRACTS
Employment Contract Missing Prohibitory Term Was Enforceable
Because the intent of a non-solicitation agreement was plain from an objective reading of the contract, a request for reformation was not necessary and the trial court could have supplied the missing prohibitory language to carry out the parties’ clear intention.
CONTRACTS
Home Improvement Contract Was Properly Found Ambiguous
The trial court properly considered a fact finder’s determination of the scope of the work performed under a home improvement contract under the clearly erroneous standard of review where the contract was ambiguous.
CRIMINAL PRACTICE
Double Jeopardy Claim Was Expressly Waived
The defendant waived his claim of a violation of his right against double jeopardy and could not prevail on the unpreserved claim under the 1989 Connecticut Supreme Court case of State v. Golding.
CRIMINAL PRACTICE
Credibility Not Insufficiency Issues Were Raised And Rejected
The defendant, convicted of larceny in the sixth degree, could not prevail on his sufficiency of the evidence claim when he confused the issues of sufficiency and credibility and the Appellate Court cannot decide issues of credibility.
CRIMINAL PRACTICE
Proper Admission Of Whelan Statement Was Conceded
The Appellate Court does not review evidentiary claims raised for the first time on appeal and the defendant’s contention that a witnesses’ recanted statement was improperly admitted was raised for the first time on appeal and additionally waived at trial.
CRIMINAL PRACTICE
New Trial Required On Kidnapping Count
The kidnapping conviction in this case was reversed and the matter remanded for a new trial on that count alone consistent with the 2008 decision in State v. Salamon, in which the Connecticut Supreme Court reversed its longstanding jurisprudence that interpreted our kidnapping statutes to include any restraint that was necessary or incidental to the commission of a separate underlying crime.
FAMILY LAW
Reunification Efforts Were Not Appropriate And Not Required
Reasonable efforts to reunite the respondent father and his child were no longer appropriate and, consequently, it was not necessary for the court to find that the Department of Children and Families made reasonable efforts to locate the parent and to reunify him with the child under C.G.S. §17a-112(j)(1) prior to terminating his parental rights.
TRUSTS AND ESTATES
Probate Court Appeal Was Properly Dismissed As Untimely
The trial court properly concluded that it was without subject matter jurisdiction over the plaintiff’s appeal from the judgment of the Probate Court due to the plaintiff’s failure to file his complaint within 30 days of the mailing of the Probate Court’s memorandum of decision as required by C.G.S. §45a-186(a).
CIVIL PRACTICE
Application For PJR Not Based On Foreign Action
The trial court’s decision was not clearly erroneous in concluding that an application for a prejudgment remedy was brought in contemplation of an independent action on a guarantee in Connecticut rather than to enforce a foreign judgment prior to the foreign judgment’s having been obtained.
CONTRACTS
Indemnification Damages Were Improperly Calculated
The trial court properly found that a roofing contractor’s deceptive acts violated the Connecticut Unfair Trade Practices Act, C.G.S. §42-110a, but improperly calculated the contractor’s indemnification damages against a subcontractor.
FAMILY LAW
Contempt Finding Was Improper As Contradictory Orders Had Issued
A judgment of civil contempt is improper when the contemnor is unable to obey the court’s order through no fault of his own, and, here, the trial court improperly found that a former husband had willfully failed to honor his obligation to notify his ex-wife of his becoming employed when he was repeatedly ordered not to have any contact with her.
LAND USE AND PLANNING
Permit Modification Properly Denied For 22 Dogs In Residence
The trial court properly dismissed an appeal from the decision of a plan and zoning commission which denied the plaintiff’s application for a special use permit to allow her to retain 22 dogs in her home in a residential neighborhood.
WORKERS’ COMPENSATION
Double Recovery Was Not To Be Countenanced
The plaintiff’s receipt of temporary total disability benefits in addition to his wages with no mechanism to return one to the employer could not be countenanced as our workers’ compensation jurisprudence has long prohibited `double dipping.'
Federal Courts CIVIL PRACTICE
Law Professor Precluded From Testifying About Liability
`Legal conclusions as to ultimate issues generally do not assist the trier of fact because they simply tell the trier of fact what result to reach,' pursuant to the Northern District of Illinois’s 2005 decision, Klaczak v. Consolidated Medical Transport Inc.
CIVIL PRACTICE
Admission Of Evidence From Destroyed Soil Samples Barred
`The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation,' pursuant to Fujitsu Ltd. v. Federal Express Corp., a 2001 decision of the U.S. Court of Appeals for the 2nd Circuit.
CIVIL PRACTICE
Defendants Lacked Sufficient Minimum Contacts With State
A court may exercise personal jurisdiction if 1.) the defendants’ conduct meets the requirements of Connecticut’s long-arm statute; and 2.) the defendants have minimum contacts with the forum, and the suit does not offend traditional notions of fair play and substantial justice.
EMPLOYMENT
Allegedly Boss Retaliated When Worker Reported Misconduct
A court may consider Connecticut Fair Employment Practice Act claims based on conduct that took place after a complaint was filed with the Commission on Human Rights and Opportunities, if the claims are `reasonably related' to conduct alleged in the CHRO complaint.
EMPLOYMENT
African-American Attorney Failed To Prove Constructive Discharge
Constructive discharge takes place when `the employer, rather than acting directly, deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation,' pursuant to Pena v. Brattleboro Retreat, a 1983 decision of the 2nd Circuit.
Second Circuit Court Superior Court BUSINESS LAW
Tenant Sufficiently Alleged CUTPA Violation And Fraud
The elements of fraud are: 1.) a false representation was made as a statement of fact; 2.) the statement was untrue and known to be untrue; and 3.) the statement was made with the intent of inducing reliance, and the other party relied on the statement to his detriment.
CREDITORS’ AND DEBTORS’ RIGHTS
Third Mortgagee Argued For Priority Over Second Mortgagee
An entity that advances money to discharge a prior lien on real property, and takes a new mortgage as security, is entitled to be subrogated to the rights under the prior lien against the holder of an intervening lien of which he was ignorant.
FAMILY LAW
Wife Won 40 Percent Of House Proceeds And $2,700 Per Month
In reaching a decision on financial orders, a court may consider the length of the marriage, the spouses’ abilities to acquire assets, and the ages of the children, pursuant to McPhee v. McPhee, a 1982 Connecticut Supreme Court decision.
TORTS
Diocese Moved To Strike Breach-Of-Fiduciary-Duty Count
A diocese can be legally responsible for breach of a fiduciary duty, if a priest abuses a parishioner, and the diocese’s relationship with a parishioner, based on the particular of the parishioner’s ties to the priest and the diocese’s knowledge and sponsorship of that relationship, was of a fiduciary nature.
ALTERNATIVE DISPUTE RESOLUTION
Law Firm’s Dispute Is Subject To Mediation Or Arbitration
An agreement in any written contract to settle by arbitration any controversy shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally.
CIVIL PRACTICE
Attorney Sanctioned $11,884 For Deposition Violations
A court may issue sanctions, for violation of an earlier discovery order, if: 1.) the underlying discovery order to be complied with is reasonably clear; 2.) the underlying order was violated; and 3.) the sanction is proportional to the violation.
CRIMINAL PRACTICE
20 Years For Sexual Assault Of Special Ed Student Affirmed
The Sentence Review Division can modify a sentence if the sentence is `inappropriate or disproportionate in light of the nature of the offense, the character of the offender, the protection of the public interest and the deterrent, rehabilitative, isolative and denunciatory purposes for which the sentence was intended.'
ENVIRONMENTAL LAW
Disappointed Bidder Possesses Standing To Bring CEPA Suit
C.G.S. §22a-16 provides that any person, partnership, corporation, association, organization or other legal entity may maintain an action in Superior Court for declaratory and equitable relief against any person, partnership, corporation, association, organization or other legal entity for the protection of the public trust in the air, water and other natural resources of the state.
LEGAL PROFESSION
Applicant To Bar Did Not Exhaust Administrative Remedies
A plaintiff does not exhaust administrative remedies, if the plaintiff does not file a motion, asking that the Connecticut Bar Examining Committee reconsider its decision to deny the plaintiff’s application for admission to the bar.
TORTS
Allegedly Co-Workers Returned Keys To Drunk So He Could Drive
An individual can be legally responsible to a third person for the tortious conduct of another if the individual knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so conduct himself.
Supreme Court CRIMINAL PRACTICE
No Plain Error From Pinkerton Doctrine Instruction
Because it is possible for the commission of a reckless crime to be a reasonably foreseeable consequence of a conspiracy to commit robbery, a conviction of reckless manslaughter predicated on vicarious liability under the 1946 U.S. Supreme Court case of Pinkerton v. U.S. constitutes a cognizable crime in Connecticut.
LAND USE AND PLANNING
P&Z Lacked Authority To Require Off-Site Sidewalks To Subdivide
A planning and zoning commission, as a condition of its approval of a subdivision application, lacked authority under C.G.S. §8-25 to require the construction of off-site sidewalks on existing roads that do not intersect with a proposed road, under the guise of a general power to regulate public health and safety.
ADMINISTRATIVE LAW
Funeral Director Fined $50,000 For Refusal To Release Corpse
Substantial evidence in the record supported the decision to fine a funeral director and to revoke his license, because he allegedly fought with relatives about payment, called the decedent’s wife a `bitch,' and refused to release the decedent’s corpse to another funeral parlor, as requested.
CIVIL PRACTICE
Right To Replead Required Following This Summary Judgment
A trial court granting a summary judgment motion challenging the legal sufficiency of a counterclaim, should have treated the motion as a motion to strike and in accordance with the 2005 Connecticut Supreme Court case of Larobina v. McDonald, allowed the defendants to replead.
CRIMINAL PRACTICE
No Constitutional Exception For Post-Sentence Attack On Plea
Expressly reversing Appellate Court precedent to the contrary, the Supreme Court ruled that there is no constitutional violation exception to the general rule that the trial court’s jurisdiction over a criminal case terminates upon execution of the sentence.
CRIMINAL PRACTICE
Defendant Was Ineligible For Second Sentence Departure
The trial court properly concluded that the defendant who was found guilty in one case and pled guilty in another prior to sentencing in the first, was ineligible for a sentence departure under C.G.S. §21a-283a in both cases.
Tribal Courts CIVIL PRACTICE
Service Of Process Thrown At Defendant’s Feet Was Valid
In-hand service of process that takes place at a defendant’s usual place of abode, by an individual authorized to serve civil process, and who throws the summons and complaint at the defendant’s feet, is valid.
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