SC19972 - Mayer-Wittmann v. Zoning Board of Appeals ("The issue that we must decide in this appeal is whether the named defendant, the Zoning Board of Appeals of the City of Stamford (zoning board), properly granted the application of the defendant Paul E. Breunich for variances to reconstruct a legally nonconforming accessory structure on his property after it was severely damaged by a hurricane. Breunich sought variances from various setback requirements and height restrictions of the Stamford zoning regulations on the ground that, as applied to his property, their strict enforcement would impose an unusual hardship because he could not comply both with those regulations and with the regulations applicable to flood prone areas, which required him to elevate the structure. The Planning Board of the City of Stamford (planning board) unanimously recommended approval of the application, and, after a hearing, the zoning board unanimously approved it. The plaintiff, Karl Mayer-Wittmann, executor of the estate of Gerda Mayer-Wittmann, who owns property adjacent to Breunich's property, appealed from the decision of the zoning board to the trial court, which, after a trial, dismissed the appeal. This appeal followed. We affirm the judgment of the trial court.")

• SC19972 Concurrence - Mayer-Wittmann v. Zoning Board of Appeals

• Posted in:
• Land Use Law,
• Recent Opinions

Connecticut Judicial Branch, Law Library Services Unit, is currently conducting an online user survey seeking information to assist us in planning for the future. The Judicial Branch Law Librarians would like to hear from you. If possible, please participate by completing the survey. The survey will be available through October 31, 2019.

Thank you for your consideration of this request. Your input is important.

• Posted in:
• Library Notices

SC20078 - Bilbao v. Goodwin ("In this appeal, we are called on to determine how pre-embryos created through in vitro fertilization should be distributed upon the divorce of their progenitors. The plaintiff, Jessica Bilbao, and the defendant, Timothy R. Goodwin, were married and underwent in vitro fertilization in an effort to have children. Several pre-embryos resulting from that treatment were stored for implantation in the future. As part of a storage agreement with the fertility clinic, the parties unequivocally stated that they wanted the pre-embryos discarded if they ever divorced. Their marriage has since been dissolved, and the plaintiff now seeks to have the pre-embryos discarded in accordance with the storage agreement. The defendant argues that the agreement is unenforceable, however, and wants the pre-embryos preserved or donated. The trial court concluded that the storage agreement was unenforceable but awarded the pre-embryos to the plaintiff. We conclude that the storage agreement is enforceable and, therefore, reverse the trial court's judgment insofar as the court determined that the agreement was not enforceable.")

• Posted in:
• Contract Law,
• Family Law,
• Recent Opinions

Thursday, October 31st

• Posted in:
• Library Notices

The Connecticut Law Journal, Volume LXXXI, No. 18, for October 29, 2019 is now available.

Contained in the issue is the following:

• Table of Contents
• Volume 333: Connecticut Reports (Pages 543 - 599)
• Volume 333: Orders (Pages 923 - 927)
• Volume 333: Cumulative Table of Cases Connecticut Reports
• Volume 193: Connecticut Appellate Reports (Pages 766 - 868)
• Volume 193: Memorandum Decisions (Pages 906 - 906)
• Volume 193: Cumulative Table of Cases Connecticut Appellate Reports
• Volume 194: Connecticut Appellate Reports (Pages 1 - 120)
• Volume 194: Cumulative Table of Cases Connecticut Appellate Reports
• Miscellaneous Notices
• Supreme Court Pending Cases

• Posted in:
• Connecticut Law Journal,
• Recent Opinions

AC40534 - State v. Ward (Motion to correct illegal sentence; manslaughter in first degree; assault in first degree; unpreserved claim that defendant's due process rights, under federal constitution, were violated when trial court failed to refer motion to correct sentence imposed in illegal manner to sentencing judge; "The defendant, Jeffrey K. Ward, appeals from the judgment of the trial court dismissing his motion to correct a sentence imposed in an illegal manner (motion to correct). On appeal, the defendant claims that the court erred in (1) adjudicating the motion to correct, rather than referring the motion to the sentencing court, and (2) concluding that it lacked subject matter jurisdiction over the motion to correct. We disagree and, accordingly, affirm the judgment of the trial court.")

• AC40534 Dissent - State v. Ward

• Posted in:
• Criminal Law & Procedure,
• Recent Opinions

AC41949 - Summit Saugatuck, LLC v. Water Pollution Control Authority (Administrative appeal; appeal from denial of application for sewer extension by defendant water pollution control authority; "The defendant, the Water Pollution Control Authority for the Town of Westport, appeals from the judgment of the trial court sustaining the appeal of the plaintiff, Summit Saugatuck, LLC, from the defendant's decision to deny the plaintiff's application for a sewer extension to service a proposed affordable housing development. The court remanded the matter back to the defendant with direction to approve conditionally the sewer extension application subject to the completion of ongoing improvements and upgrades of capacity to the sanitary sewer system in the town of Westport (town). On appeal, the defendant claims that the trial court, by sustaining the appeal and ordering a conditional approval of the application, improperly substituted its own judgment for the reasoned and lawful discretion exercised by the defendant. We agree and, accordingly, reverse the judgment of the trial court.")

• Posted in:
• Administrative Appeal Law,
• Recent Opinions

AC41275 - Wozniak v. Colchester (Writ of mandamus; "This case concerns the obligation of a municipality to file an application on behalf of a property owner to correct flood maps promulgated by federal administrative authorities. The plaintiffs . . . appeal from the summary judgment rendered in favor of the defendant, the town of Colchester. The dispositive issue is whether the trial court properly determined that no genuine issue of material fact existed as to whether the plaintiffs were entitled to a writ of mandamus. We affirm the judgment of the trial court. . .

The plaintiffs have presented no basis on which this court reasonably could conclude that an individual property owner is prohibited, as a matter of federal administrative law, from filing a LOMR application with FEMA. The relevant federal regulations and the materials submitted in connection with the motion for summary judgment all contemplate such filings by property owners, and the case law reflects that property owners routinely apply for and secure LOMRs from FEMA. The availability of that legal remedy, which would provide the plaintiffs the very relief they seek, is fatal to their mandamus action. See Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531, 534, 450 A.2d 369 (1982) ("for mandamus to lie, the plaintiff must have no other adequate remedy"); 55 C.J.S., Mandamus § 7 (2009) ("mandamus is used sparingly . . . and only when it is the sole available remedy"). We therefore conclude that the trial court properly rendered summary judgment in favor of the defendant in the present case. The judgment is affirmed.")

• Posted in:
• Land Use Law,
• Property Law,
• Recent Opinions

AC41227 - Grogan v. Penza ("The defendant, Jill Penza, appeals from the judgment denying her postdissolution motion for contempt. On appeal, she claims that the trial court improperly concluded that the plaintiff, James K. Grogan, had not violated a 'true up' alimony obligation contained in the parties' separation agreement. The plaintiff cross appeals, claiming that the trial court abused its discretion in denying his request for statutory attorney's fees incurred in defending against the defendant's motion for contempt. We disagree with the parties' claims and, accordingly, affirm the judgment of the trial court.")

• AC41227 Concurrence and Dissent - Grogan v. Penza

AC40438 - Peters v. Senman ("The self-represented plaintiff, Monica L. Peters, appeals from the trial court's decisions denying, in part, her postjudgment amended motion for modification of custody and awarding attorney's fees to the defendant. The plaintiff also challenges the trial court's decision dismissing two motions she filed during the pendency of the custody modification proceedings, in which she sought a declaratory judgment that certain fundamental rights guaranteed by the United States constitution deprived the court of the authority to adjudicate parental custodial conflicts under the best interests of the child standard. On appeal, the plaintiff claims that the court (1) '[violated her] fourteenth amendment and other rights by terminating a portion of her rights under the Individuals with Disabilities Education Act (IDEA) [20 U.S.C. § 1400 et seq.] without conducting a fitness hearing'; (2) erred in concluding that she lacked 'standing to request a declaratory judgment to adjudicate her constitutional rights as a fit parent,' and violated her right to due process and abused its discretion by not ruling on her motions for declaratory judgment before trial commenced; (3) violated her and her child's rights under the first and fourteenth amendments to the United States constitution by failing to apply the proper balancing test under Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); (4) erred in awarding attorney's fees to the defendant, Numan Senman; (5) erred in failing to grant her motion for modification of custody; and (6) erred in using its own opinions to infringe on her 'fundamental rights to her child,' circumvented her due process right to cross examine the judge, and made clearly erroneous findings regarding her proposed orders and the needs of the child. We affirm the judgment of the court.")

• Posted in:
• Family Law,
• Recent Opinions

AC40736 - Tatoian v. Tyler ("The plaintiff, Richard Tatoian, in his capacity as trustee of the Ruth B. Tyler Irrevocable Trust, brought the underlying vexatious litigation action against the defendants, Bruce D. Tyler (Bruce Tyler) and Jay M. Tyler (Jay Tyler). The defendants are among the beneficiaries of the trust. In 2010, Jay Tyler commenced an action (prior action) against, among others, the plaintiff and Bruce Tyler. Jay Tyler named the plaintiff as a defendant in all seven counts of his complaint, but counts three through seven of the complaint were brought against the plaintiff exclusively. Essentially, with respect to the plaintiff, Jay Tyler alleged in his complaint that, in a variety of ways, the plaintiff had performed deficiently as trustee and sought money damages and equitable relief. In 2011, Bruce Tyler brought a cross complaint in the prior action. All four counts of the cross complaint, which was brought against the plaintiff exclusively, are nearly identical to the claims raised in counts four through seven of the complaint. Bruce Tyler sought, inter alia, money damages. After the plaintiff prevailed in the prior action, he commenced the present action, sounding in common-law and statutory vexatious litigation, for, inter alia, attorney's fees and costs he incurred, on behalf of the trust, in defending himself in the prior action. Following a court trial in the present action, the trial court found that the defendants lacked probable cause to bring one of the claims against the plaintiff in the prior action. Accordingly, the court rendered judgment in part in the plaintiff's favor and awarded him a portion of the attorney's fees and costs he incurred in defending the prior action.

The defendants appeal from the judgment of the trial court and raise the following claims: (1) the court lacked subject matter jurisdiction over the plaintiff's causes of action because he lacked standing at the time of the commencement of the present action; (2) the court improperly failed to consider whether the settlor of the trust, Ruth B. Tyler (Ruth Tyler), was subjected to undue influence in connection with the creation of the trust; (3) the court misinterpreted relevant law in its analysis of whether, in the prior action, the defendants had probable cause to claim that the plaintiff had violated General Statutes § 45a-541c by failing to diversify trust assets; and (4) the court misinterpreted relevant law in its analysis of whether the plaintiff could prevail in the present action merely by demonstrating that the defendants lacked probable cause to bring one of the claims that they brought against him in the prior action.

The plaintiff cross appeals from the judgment of the trial court. He claims that, although the court properly concluded that one of the claims raised against him by the defendants in the prior action was not supported by probable cause, the court erroneously failed to conclude that the defendants lacked probable cause to bring the remaining claims and had acted with malice in bringing the claims.

We disagree with the claims raised in the defendants' appeal but agree, in part, with the claim raised in the plaintiff's cross appeal. Accordingly, we affirm in part and reverse in part the judgment of the trial court.")

• Posted in:
• Recent Opinions,
• Tort Law

SC20002 - State v. Lewis (Carrying pistol without permit; criminal possession of pistol or revolver; certification from Appellate Court; "The defendant contends that the trial court improperly denied his motion to suppress the gun on the ground that his seizure and subsequent patdown were lawful under both the fourth amendment to the United States constitution and article first, §§ 7 and 9, of the Connecticut constitution. Specifically, he claims that the Appellate Court improperly concluded that the trial court correctly determined that (1) he was not seized until the police officer touched him and performed a patdown search for weapons, (2) the officer had reasonable and articulable suspicion that he had committed a crime, and (3) the officer had reasonable and articulable suspicion that he might be armed and dangerous. Although we recognize the unique challenges that this case raises, we disagree with the defendant's claims and conclude that the seizure and subsequent patdown of the defendant were lawful. We therefore affirm the judgment of the Appellate Court.")

• SC20002 Concurrence - State v. Lewis

• Posted in:
• Criminal Law & Procedure,
• Recent Opinions

The Connecticut Law Journal, Volume LXXXI, No. 17, for October 22, 2019 is now available.

Contained in the issue is the following:

• Table of Contents
• Volume 333 Conn. Replacement Pages 403 - 404
• Volume 333 Conn. Replacement Pages 417 - 428
• Volume 333: Connecticut Reports (Pages 502 - 542)
• Volume 333: Cumulative Table of Cases Connecticut Reports
• Volume 193: Connecticut Appellate Reports (Pages 608 - 766)
• Volume 193: Memorandum Decisions (Pages 903 - 905)
• Volume 193: Cumulative Table of Cases Connecticut Appellate Reports
• Miscellaneous Notices

• Posted in:
• Connecticut Law Journal,
• Recent Opinions

The 2019 edition of our research guide on Discovery (Financial) in Family Matters has been posted to our research guides webpage.

• Posted in:
• FYI,
• Legal Research,
• Self-Help

Wednesday, October 23rd

• Posted in:
• Library Notices

AC37692 - Fernandez v. Commissioner of Correction ("The petitioner, Rafael Fernandez, appeals from the judgment of the habeas court dismissing his second amended petition for a writ of habeas corpus, which alleged that communications between the then self-represented petitioner and the assistant state's attorney during plea negotiations, and the resulting implication of the assistant state's attorney as a potential witness at the petitioner's trial, required the disqualification of all of the state's attorney's offices and the Office of the Chief State's Attorney, and that the failure of the Office of the Chief State's Attorney to disqualify itself violated his right to a fair trial. On appeal, the petitioner claims that the habeas court improperly granted the motion to dismiss the petition filed by the respondent, the Commissioner of Correction, on the ground that the petition failed to state a claim upon which habeas corpus relief can be granted. We disagree and, accordingly, affirm the judgment of the habeas court.")

• Posted in:
• Habeas Corpus Law,
• Recent Opinions

AC42534 - In re Anthony L. (Termination of parental rights; "The respondent mother appeals from the judgments of the trial court rendered in favor of the petitioner, the Commissioner of Children and Families, terminating her parental rights with respect to each of the three oldest of her four minor children on the grounds that the respondent failed to achieve a sufficient degree of personal rehabilitation pursuant to General Statutes § 17a-112 (j) (3) (B) (i). On appeal, the respondent claims that her and her children's substantive due process rights were violated as a result of the trial court's analysis of whether termination of her parental rights was in the children's best interests. Specifically, the respondent claims that the court's failure to conduct a factual inquiry into the petitioner's three permanency plans, which called for the termination of her parental rights and adoption, in its best interest analysis denied her substantive due process of law. She claims that, because adoption was not going to occur immediately, due process required the court to determine whether the permanency plans secured a more permanent and stable life for each of the children compared to that which she could provide if she were given time to rehabilitate herself.

AC42606 - In re Kadon M. (Child neglect; "The respondent mother appeals from the judgment of the trial court transferring guardianship of her son, Kadon M., to his paternal grandmother. On appeal, the respondent claims that the trial court improperly denied the oral motion of the attorney for Kadon M. to appoint a guardian ad litem. We disagree and, accordingly, affirm the judgment of the trial court.")

• Posted in:
• Juvenile Law,
• Recent Opinions

AC41398, AC41543 - Commerce Park Associates, LLC v. Robbins; Robbins Eye Center, P.C. v. Commerce Park Associates, LLC ("The present appeals and cross appeal arise from two actions involving a commercial lease that share a nucleus of operative facts and were consolidated for trial. They raise, among other issues, whether the landlord's failure to take actions to remedy recurrent sewage backups into the leased premises occupied by an eye surgery center resulted in a constructive eviction that excused the tenant from the obligation to pay rent in accordance with the terms of the lease, and whether, as a result of the alleged inaction of the landlord and its property management company, the eye surgery center was entitled to recover compensatory damages for the loss of its use of improvements it previously had made to the premises.

In the action underlying AC 41398 (rent action), Commerce Park Associates, LLC (Commerce Park), sought to recover rent it alleges it was owed by a former tenant, Kim Robbins—an ophthalmologist and the owner of Robbins Eye Center, P.C. (REC). REC had occupied the lower level of a commercial property owned by Commerce Park in Bridgeport pursuant to a commercial lease but vacated the premises prior to the lease's expiration following a series of sewage backups that flooded the premises. Robbins now appeals, and Commerce Park cross appeals, from the judgment of the trial court rendered in part in favor of Commerce Park. Robbins claims that the court improperly (1) awarded Commerce Park rent for a period of time from November, 2014, through the third full week of April, 2015, and (2) miscalculated the amount of the rent that she owed for that period. Commerce Park claims by way of cross appeal that the court improperly determined that Robbins was constructively evicted from the premises after the third full week of April, 2015, by the sewage backups, and, consequently, Commerce Park was not entitled to recover any rent from Robbins after that date. We affirm the judgment of the court with the exception of its calculation of the amount of the rent awarded to Commerce Park and, accordingly, remand for a new hearing in damages in the rent action.

In the action underlying AC 41543 (tort action), REC sued Commerce Park and its property manager, RDR Management, LLC (RDR), seeking monetary damages for economic injuries that REC suffered as a result of their failure to make necessary repairs to the premises. Commerce Park now appeals from the judgment of the trial court rendered in part in favor of REC and awarding REC damages of $958,041.92 against Commerce Park. Commerce Park claims that the trial court improperly (1) awarded damages on the basis of gross negligence because (a) Connecticut common law does not recognize distinctions or degrees of negligence and (b) REC never pleaded or otherwise asserted allegations of gross negligence prior to trial; and (2) miscalculated the amount of damages awarded because the court (a) utilized an incorrect measure of damages in determining REC's losses and (b) misconstrued the length of Robbins' expected tenancy under the lease, which was an integral component of the court's calculation of damages. We agree that the court improperly included two unexercised lease extension options in determining the length of Robbins' tenancy and, accordingly, reverse the amount of damages awarded; we otherwise affirm the judgment of the court in the tort action.")

• Posted in:
• Contract Law,
• Landlord / Tenant Law,
• Recent Opinions,
• Tort Law

AC40635 - Thunelius v. Posacki ("In this protracted, high conflict custody and support matter, the defendant mother, Julia Posacki, appeals from the judgment rendered by the trial court following a sixteen day trial on the custody action filed by the plaintiff father, Gerald Thunelius. On appeal, the defendant claims that the court improperly (1) delegated its decision-making authority to the guardian ad litem appointed for the parties' minor child, (2) ordered that the prevailing party in any postjudgment dispute adjudicated by the court after unsuccessful mediation with the guardian ad litem be reimbursed by the other party for his or her share of the guardian ad litem's fees, (3) appointed the guardian ad litem without having complied with the requirements of General Statutes §§ 46b-54 and 46b-12, (4) issued a protective order sua sponte, (5) ordered the parties to enroll the child in private school through high school and to share the payments for that schooling, (6) relied on unsupported net income figures on the child support guidelines worksheet prepared by the Judicial Branch, and (7) retroactively modified a pendente lite child support order by effectively forgiving the plaintiff's support arrearage. We agree with the defendant's second and fifth claims and further conclude that the defendant's third claim is moot. Accordingly, we affirm in part and reverse in part the court's judgment, and we dismiss in part the defendant's appeal.")

• Posted in:
• Family Law,
• Recent Opinions

AC41420 - State v. Lynch (Operating motor vehicle while under influence of intoxicating liquor; failure to appear in second degree; criminal trespass in first degree; motion to withdraw guilty pleas; "The self-represented defendant, Kevin Lynch, appeals from the judgments of conviction rendered by the trial court following the denial of his motion to withdraw his guilty pleas. On appeal, the defendant claims that the court improperly (1) failed to conduct an evidentiary hearing on his motion to withdraw his guilty pleas, (2) denied his motion to withdraw his guilty pleas, and (3) failed to conduct an evidentiary hearing prior to terminating his participation in the pretrial alcohol education program (program). We affirm the judgments of the trial court.")

• Posted in:
• Criminal Law & Procedure,
• Recent Opinions

AC40329 - Wager v. Moore ("The plaintiff, Rachel Wager, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant Alexandria Moore in an action to recover damages for injuries that she sustained when she was struck by a vehicle operated by the defendant. On appeal, the plaintiff claims that the trial court erred when it (1) denied the plaintiff's motion to set aside the verdict on the basis of insufficient evidence to support the jury's finding of contributory negligence, (2) instructed the jury on contributory negligence when such a charge was not supported by the evidence, (3) failed to instruct the jury on law essential to the plaintiff's claim regarding the defendant's negligence, and (4) denied the plaintiff's motion for a mistrial and later motion to set aside the verdict, which were based on the improper introduction of hearsay evidence against her at trial. We disagree and, accordingly, affirm the judgment of the trial court.")

• Posted in:
• Recent Opinions,
• Tort Law