Advance Release Opinions – July 13

Reviews of Connecticut Appellate Court advance release opinions about administrative law, child custody, divorce, easement, mortgage foreclosure, and professional negligence.

Administrative Law

Handel v. Commissioner of Social Services – Social Services denied Handel’s request for benefits more than 90 days after she requested a fair hearing. Trial court affirmed. Appellate Court reversed and directed judgment for Handel because Social Services failed to make final decision with 90 days as the statute required.

Child Custody

In re Katherine H. – Appellate Court affirmed trial court judgments finding respondent’s two children neglected, and committing them to DCF, because respondent failed to demonstrate that any of the trial court’s findings was clearly erroneous.

In re Zoey H. – Trial court found child uncared for and committed her to DCF by agreement of mother and the putative father, who was not, as it later turned out, the biological father. Later, the biological father intervened and petitioned to revoke the commitment to DCF. Trial court denied that petition. Biological father tried again with a new petition, and trial court denied it again. Appellate Court affirmed, finding that, because the child was adjudicated uncared for before biological father got involved, it was not (1) a deprivation of procedural due process to commit the child to DCF before assessing biological father’s fitness as a parent; or (2) a deprivation of substantive due process to deny biological father a presumption of fitness.

Divorce

Conroy v. Idlibi – Appellate Court affirmed divorce judgment, rejecting Idlibi’s claims that (1) Conroy was responsible for the irretrievable breakdown of the marriage; and (2) certain financial awards unfairly favored Conroy.

Zilkha v. Zilkha – Over defendant’s opposition, trial court granted guardian ad litem’s motion for an increase in her hourly rate. Appellate Court affirmed, finding that trial court (1) properly precluded defendant from eliciting testimony about guardian’s putative bias because the proceeding was about the hourly rate, not misconduct; and (2) properly set the hourly rate at the higher end of the Judicial Branch’s sliding scale given the hourly rates of the parties’ attorneys, complexity of the issues, and availability of other household income.

Easement

Hum v. Silvester – Trial court properly concluded that the Silvesters had acquired a prescriptive easement to use the Hums’ driveway to access their property. A prescriptive easement is essentially an easement acquired by adverse possession. CGS § 47-37

Mortgage Foreclosure

Bank of America, N.A. v. Kydes – Bank had standing to foreclose because Kydes, by failing to answer or object to Bank’s requests for admissions, admitted Bank was the holder of the note, and never presented any evidence to rebut the resulting presumption of ownership.

Professional Negligence

Corneroli v. Kutz – Legal malpractice. Though not at all relevant to the decision, certain facts are captivating: D’Amico bought a painting at a yard sale for $3. Turned out to be a John Singer Sargent worth millions. But D’Amico couldn’t get the painting authenticated as a Sargent so he couldn’t realize its value. Then D’Amico died. Enter his cousin, Corneroli, who said he and D’Amico agreed that if Corneroli got the painting authenticated, D’Amico would go halfsies with him on the profit. Corneroli entrusted the painting to a guy named Borghi, and it seems Borghi double-crossed Corneroli by selling it to a guy named Adelson for $1.2 million without telling Corneroli. Adelson then apparently sold it to someone else for millions more than he paid for it. Corneroli sued Borghi, Adelson and the second buyer, but did not include D’Amico’s estate in the case. Corneroli recovered some $300,000 from Borghi. D’Amico’s estate later brought its own action and settled with Adelson for $2.4 million. Corneroli then filed a claim against the estate for a chunk of that $2.4 million. Probate Court disallowed the claim.

Now we come to the facts pertinent to the appeal. Corneroli hired Kutz to appeal the Probate Court’s decision. Probate Court dismissed the appeal as untimely. Corneroli sued Kutz for legal malpractice. Trial court granted Kutz’s motion for summary judgment on the ground that Corneroli failed to present sufficient expert evidence to create a fact issue about causation. Appellate Court affirmed, finding that (1) expert testimony was required on causation even though it went to the ultimate issue because the factfinder needed expert assistance; and (2) Corneroli’s expert’s testimony was inadequate to create a fact issue because he testified only that a favorable outcome for Corneroli was a possibility, not a probability.