Advance Release Opinions – November 3

Connecticut Appellate Court

The Appellate Court advance released opinions in the areas of breach of contract, declaratory judgment, employment, personal injury, and zoning.

Breach of Contract

Frauenglass and Associates, LLC v. Enagbare – Law firm sued former dissolution client for unpaid fees and won. Client appealed and Appellate Court affirmed. Law firm then moved for postjudgment interest and attorney’s fees for prosecuting the collection action (fee agreement had attorney’s fees provision). Former client’s objection related to the law firm’s fees in the dissolution proceeding, not the collection action. Trial court granted law firm’s motion because the dissolution fee issue had already been finally resolved. Appellate Court affirmed.

Declaratory Judgment

21st Century North American Ins. Co. v. Perez – Insurer had properly terminated defendants’ car insurance for not fully paying a premium installment (before defendants had a fatal crash). Though defendants had made a partial payment, the doctrine of substantial performance did not save them because payment of premiums is an essential and material condition to car insurance and there can be no substantial performance when the performance owed is the payment of money and time is of the essence.

Employment

Samakaab v. Dept of Social Services – “[P]laintiff alleged that he was denied a promotion because of his age, sex, national origin, and his prior opposition to unlawful employment practices”. Trial court granted defendant summary judgment because plaintiff’s self-serving affidavit and deposition testimony did not demonstrate a fact issue. Affirmed.

Personal Injury

Burke v. Mesniaeff – Husband was giving a tour of his historic second home to three people when wife arrived in an agitated state. Husband forcibly escorted wife out of the house and down the driveway. Wife alleged assault and battery. Husband asserted justification because he acted in defense of others – the tour guests. Defense verdict. Appellate Court affirmed, finding that the trial court properly instructed the jury on justification. Judge Bishop dissented because in his view defendant’s evidence at trial and the jury instructions were tainted by the improper notion that wife could have been a trespasser in a house her husband owned (majority found this inconsequential because jury did not find wife was a trespasser) and the evidence did not support the defense of others justification.

Zoning

Griswold v. Computaro – Defendants filed motions to cite in new defendants and to open and modify an 18 year old stipulated judgment for the operation of an asphalt manufacturing facility. Those motions were assigned to the November 23 short calendar. On November 9, the town, the defendants, and the yet to be cited-in defendants agreed to modify the stipulated judgment. On November 12, the town, the defendants, and the yet to be cited-in defendants filed a joint motion to open and modify the stipulated judgment, together with a caseflow request to have all of the motions heard on the November 16 short calendar. The trial court granted the caseflow request and opened and modified the judgment on November 16. The proposed intervenors showed up on November 23 to file their motion to intervene and be heard on the motion to open and modify only to learn that the trial court had already done it without them on November 16. The trial court denied intervention. The Appellate Court reversed, concluding that (i) it was a violation of our rules of practice to proceed on November 16 when the matters had been published to the November 23 short calendar; (ii) because of (i), the intervenors were denied their statutory right to intervene; and (iii) because of (ii), the hearing on the stipulated settlement failed to conform to CGS § 8-8(n).