Advance Release Opinions – June 29

Reviews of Connecticut Appellate Court advance release opinions about divorce, mortgage foreclosure, and worker’s compensation.

Divorce

Magsig v. Magsig – Trial court denied plaintiff’s contempt motion about compliance with an indemnity provision of the dissolution decree. Appellate Court affirmed, finding that (1) trial court considered defendant’s testimony about his understanding of indemnity provision solely on the wilfulness issue, not in interpreting provision; and (2) indemnity provision could not be interpreted to protect plaintiff against liability, as opposed to loss, because the liability was already extant at the time of the decree.

Mortgage Foreclosure

HSBC Bank USA, N.A., Trustee v. Hallums – Per curiam opinion affirming that (1) plaintiff had standing because borrower did not rebut the presumption of ownership arising from plaintiff’s holder status; (2) borrower’s bankruptcy discharge did not preclude foreclosure of the mortgage; and (3) borrower’s claims about the best evidence rule and clean hands doctrine were “baseless.”

Jenzack Partners, LLC v. Stoneridge Associates, LLC – Jenzack took an assignment of a note that was guaranteed. The guaranty was secured by a mortgage on the guarantor’s home. Trial court entered a judgment of strict foreclosure as to guarantor’s home. Guarantor raised three arguments on appeal. First argument was that Jenzack lacked standing because the assignment did not specifically assign the guaranty. Appellate Court rejected this argument because assignment of the note automatically carried with it assignment of guaranty. Second argument was that document showing loan balance on date of assignment was inadmissible hearsay because it came from a document that assignor had given to Jenzack. Appellate Court agreed and reversed, finding that business records exception is for records made in the ordinary course of business, not records received in the ordinary course of business. Third argument was that Jenzack was not entitled to attorney’s fees because the attorney’s bills were addressed to a party other than Jenzack. Appellate Court rejected this argument because there was testimony that Jenzack had had problems receiving its mail, and the “someone else” was added to insure that it would receive the attorney’s bills.

Worker’s Compensation

Mickucka v. St. Lucian’s Residence, Inc. – Defendants had been paying plaintiff temporary total incapacity benefits. Defendants then filed a form 36, seeking to discontinue benefits because plaintiff had achieved maximum medical improvement. Commissioner approved the form 36 at an informal hearing. Plaintiff objected, and sent a notice of formal hearing about “Form 36/Discontinuation of Benefits.” At the formal hearing, plaintiff attempted to present evidence that plaintiff was entitled to benefits for a vocational total disability even if she had achieved maximum medical improvement, i.e., an Osterlund claim. Because that was not part of plantiff’s notice of hearing, commissioner precluded the evidence, but invited plaintiff to pursue an Osterlund claim in a separate, future hearing. Commissioner found that plaintiff had reached maximum medical improvement and had work capacity. Without pursuing the Osterlund claim, plaintiff appealed to the board, arguing that the commissioner could not rule on the form 36 without considering whether plaintiff was still temporarily totally disabled. Board affirmed. On appeal to the Appellate Court, plaintiff claimed that she was denied due process when commissioner precluded her from presenting evidence of a lack of work capacity. Appellate Court rejected that claim, finding that commissioner precluded plaintiff from presenting Osterlund evidence when the form 36 was the only issue noticed; commissioner gave plaintiff opportunity to present he Osterlund evidence at a separate, future hearing. And, Appellate Court noted that allowing plaintiff to present Osterlund evidence at the form 36 hearing would have deprived defendants of due process because they were not given proper notice. Appellate Court rejected as unripe plaintiff’s claim that she was totally disabled because that would have been the issue in the Osterlund claim, which plaintiff had not pursued.