Advance Release Opinions – Appellate Court – September 14

Reviews of Connecticut Appellate Court advance release opinions about civil procedure, divorce, easements, foreclosure, and personal injury. I know that I said that I hoped to be caught up by mid-October but this particular batch of opinions took a while to summarize – there were a lot, and they were complicated.

Civil Procedure

Kaye v. Housman – Breach of contract action for unpaid rent. Housman answered and asserted twelve special defenses. Kaye requested revision of eight special defenses. When Housman did not revise, trial court defaulted him for failure to plead. Kaye claimed the matter for a hearing in damages. Trial court denied Housman’s motion to strike the case from the hearing in damages list, conducted the hearing, and rendered judgment for Kaye. Appellate Court reversed, finding that even though Housman did not respond to request to revise, his answer precluded default for failure to plead and entitled him to contest liability.

Rocco v. Shaikh – Action to quiet title and discharge a purchaser’s lien, among other claims. Shaikh claimed that Rocco lacked standing because, after Rocco commenced the action, she transferred title to the property from herself individually to herself as trustee of her living trust. Trial court found for Rocco. Shaikh appealed. While appeal was pending, trial court terminated the appellate stay to permit Rocco to market and sell the property, which she ultimately did. Appellate Court affirmed, finding that the appeal was moot because reversing the trial court would not take title away from Rocco’s buyer. Appellate Court declined Shaikh’s invitation to “exercise supervisory authority over the administration of justice and reverse the trial court’s judgment because the judgment was procured by fraud,” saying that it could not “conclude that traditional protections available to the defendants were not and are not adequate, thereby warranting the rare and extreme exercise of our supervisory powers.”

Divorce

Keusch v. Keusch – Appellate Court reversed financial orders, finding that trial court (1) should have used actual income, not earning capacity, in calculating child support; (2) improperly deviated from the child support guidelines without first finding that applying the guidelines would be inequitable or inappropriate; and (3) abused its discretion in making its unallocated alimony and child support order nonmodifiable because it should be modifiable every time one of the couple’s three children reached the age of majority.

Easements

57 Broad Street Stamford, LLC v. Summer House Owners, LLC – Picture two commercial buildings, both units in a condominium, separated by an alley. The alley is part of Unit 2, and Unit 1 has an easement on it for access to Unit 1, the garbage area on Unit 2, and parking spaces inside Unit 2. After granting the easement, Unit 2 built a service access structure on the alley. Unit 1 claimed that the structure interfered with its reasonable use and enjoyment of the easement. Trial court found that, given the easement’s specific purposes, the structure did not interfere with Unit 1’s use or enjoyment because the structure did not block the access rights the easement provides. Appellate Court affirmed, concluding that Unit 1’s argument (1) that the structure might cause congestion within the easement was speculative; (2) that the structure restricted garbage area access was inconsistent with evidence that other units were accessing the garbage area without issue; (3) that the structure prevented large trucks from getting any closer than 100 feet to Unit 1 did not interfere with the easement because the easement did not guaranty closer access for large trucks and the other units were accepting deliveries from large trucks without issue; and (4) that, by allowing the structure to remain, trial court had given Unit 2 the unilateral right to determine when, where, and how Unit 1 could use the easement was inconsistent with trial court’s actual decision, which was that Unit 1 was not entitled to the entirety of the easement – the other units had a right to use it too and the only restriction on Unit 2’s use was that it be reasonable and as least burdensome as possible, which it was.

Jordan v. Biller – Thinking that a view easement granted to prior owners ran with his newly acquired property, Biller cut down some 80 trees on Jordan’s property. Trial court found that the easement was personal to the prior owners, so it did not run with the land, and awarded Jordan $446,660 in damages. Appellate Court affirmed. Ouch.

Foreclosure

U.S. Bank National Association v. Eichten – This is the most significant foreclosure decision in 2018, and probably since Bank of America, N.A. v. Aubut in 2016. If foreclosure is in your bailiwick, I encourage you to read the decision. Here’s the summary: Trial court granted plaintiff summary judgment as to liability. Appellate Court reversed, finding that (1) special defense of unclean hands arising out of a pre-commencement trial modification went to the making, validity or enforcement of the note and mortgage and was thus legally valid; (2) there were genuine issues of material fact about the unclean hands special defense that precluded summary judgment; (3) Eichten’s counterclaim, alleging that plaintiff breached a contract to provide a permanent modification after Eichten completed the trial modification and satisfied all other conditions, met the transaction test; and (4) there were genuine issues of material fact about whether (a) the parties had formed a contract for a permanent modification, (b) plaintiff breached any such contract, (c) any such contract came within the statute of frauds, and (d) any exception to the statute of frauds applied. Judge Alvord issued a concurring opinion in which she agreed that there were fact issues, but as to the breach of contract special defense (the majority found this defense legally insufficient), not the unclean hands defense.

Personal Injury

Farrell v. Johnson & Johnson – Lot of stuff happened in this case about lack of informed consent and misrepresentation for a mesh surgery. Farrell originally sued a number of defendants on a number of theories. After jury selection, Farrell withdrew against all of the parties except the surgeon and his medical practice. Trial court granted Farrell’s in limine motion to preclude surgeon from referring to any of the prior defendants. On Farrell’s direct examination, she testified that she had a contingency fee arrangement with her lawyers. On cross, over Farrell’s objection based on the successful in limine motion, trial court permitted her to testify that the contingency fee applied to recovery from any defendant, even the prior defendants. Trial court directed verdict on innocent misrepresentation. Defense verdict on all other claims. Appellate Court affirmed, finding (1) the cross examination about the contingency fee did not violate the in limine ruling because Farrell had opened the door on direct, and the testimony did not otherwise run afoul of CGS § 52-216a (Appellate Court said in a footnote that it would have been harmless error anyway); (2) trial court properly excluded as hearsay journal articles about the risks of the mesh operation (Farrell said she offered the articles to show that the surgeon had notice of the risks but courts said the issue was whether the mesh operation was in fact risky, not whether the surgeon knew or should have known); (3) trial court properly directed a defense verdict because “claims of innocent misrepresentation are based on commercial relationships between the parties and, because [Farrell] did not allege products liability claims against [surgeon] or [his practice], the court properly directed a verdict in their favor;” and (4) there was no error in the trial court’s jury charge on negligent misrepresentation because even though the trial court did not adopt Farrell’s exact wording, the court’s charge fairly and substantially conveyed its substance. As a side note, Appellate Court concluded that Farrell had preserved the jury charge issue for appeal even though she did not except or object to the court’s charge because she had submitted a written request to charge.