Appellate Court Notes - Week ending March 24

Welcome to our Supreme and Appellate Court summaries.  Here, I provide abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants.  I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long.  It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements.  These summaries are limited to the civil litigation decisions based on my own particular field of practice, so you will not find distillations of the many criminal and matrimonial law decisions on this page.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my opinion . . . and when mistakes of trial counsel are highlighted because they triggered a particular outcome, I will try to be mindful of the adage . . . “There but for the grace of God . . ..”  I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted March 24, 2014

• SC18996 - Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C.

This case arrived from a divided Appellate Court where some jurist opined that the plaintiff’s attorney malpractice claims sounded solely in tort, whose three-year statute of limitations had expired, ….while others partially concurred stating that the cause of action sounded in both tort and contract, but even the six-year contract statute of limitations had expired, ………but the dissent concluded that the cause of action sounded in tort and contract, and there was a question of fact whether the contract statute of limitations had expired.

The Supremes tore into the underlying allegations and parsed them out to ascertain whether the plaintiff’s cause of action truly sounded in tort or contract.  While acknowledging that the establishment of a contract between parties can give rise to the creation of a duty, and thus potential negligence causes of action, the Court also reaffirmed the doctrine that the Lower Courts are entitled to “pierce the pleadings veil” in order to get at the bottom of what the allegations of a complaint are really all about.  This decision went through a tortured analysis of each time a cause of action against attorneys have been interpreted as contractual and when such causes have been deemed to be tort-based.  Acknowledging that the issue has been dealt with in the courts below on numerous occasions, the Supremes deemed it an issue of first impression for their analysis, and held that an attorney must violate specific instructions of a client or a specific agreement to undertake certain actions in order to have an attorney malpractice action sound in breach of contract.  Allegations that the defendant attorney had performed tasks in a deficient manner are tort claims, not contract claims.

Dismissing the varied opinions of the Appellate jurists below, the Supremes concluded that the Complaint here merely presented allegations in tort, when it alleged that the defendant lawyers had pursued interests of another client in derogation of the plaintiff’s interest, wishes and instructions.  Although the plaintiff claims to have also instructed the lawyers not to comply with a settlement, this decision concluded that was an invalid instruction to the lawyers because the settlement had already been approved by the Court and the plaintiff had been polled by the Trial Judge.  Thus, the lawyers did not have to abide by those instructions of the client.  The allegations that the defendant’s lawyer breached his duty of undivided loyalty in violation of Rule 1.7 of the Rules of Professional Conduct, further affirmed that this was a cause of action sounding in tort.  While the Rules of Professional Conduct do not establish a private cause of action, they can establish a minimum standard of care, which is a tort-based concept.  In conclusion, the plaintiff’s claim was a tort action barred by the three-year statute of limitations.

Appellate Court Advance Release Opinions: 

This dispute involved a large parcel along the Connecticut River.  Starting in 1935, the owners started to convey parcels downstream from the main tract, with the first deed reserving a right-of-way “in perpetuity across said tract along a route now in use.”  The Deed, however, contained no language describing the locations, directions, dimensions, uses or purposes of the reserved right-of-way.  Fast-forward to the present time, and a dispute arose between three riverfront parcel owners over the vague right-of-way reserved in the 1935 Deed.  The Trial Court concluded that the plaintiff had an easement over one defendant’s parcel pursuant to the 1935 Deed, and an easement by necessity across the second defendant’s parcel.  On appeal, the first defendant claimed that the 1935 Deed conveyance was too vague for the plaintiff to meet his burden of proving the location, nature, scope and purpose of the easement.  The second defendant claimed there was no justification for easement by necessity because the plaintiff’s property otherwise had road frontage, navigable waterway frontage, and burdening their property with an easement to allow lawn maintenance and leisurely walks was inappropriate.  The Appellate Court agreed with the first defendant that the language of the 1935 Deed was too vague to create an easement.  Further, the easement by necessity against the second defendant was inappropriate, when there was no showing that the property was landlocked, and no showing that the parties tended to create an easement at the time the lots were created in 1960.

Easement by deeds are intended to last for an indefinite period of time, and therefore, clarity of their drafting is important.  It is that language that must be looked at to discern the parties’ intent.  If the easement does not fix the exact route to be followed, its location can be determined by the use of the grantee as acquiesced in by the grantor over time.  The burden, however, rests upon the party claiming the right of way to show the existence of these facts.  This easement was silent as to its location and purpose.  The plaintiff failed to present as to how the right of way was allegedly used since 1935.

As for the easement by necessity, the finding of such is only appropriate when there is a need on the part of the party claiming it.  While an easement by necessity may occur when a parcel has become landlocked, the reverse is also true, and that is such an easement expires when the owner of the dominant estate acquires access to a public or private road through another means.  If, as in the situation here, the plaintiff’s parcel is divided by a steep embankment, the mere fact that access to a portion of the plaintiff’s property down the steep embankment is inconvenient or expensive will not raise the presumption of a grant of an easement, except where the expense of making access would exceed the entire value of the property to which access was sought.  The necessity need only be a reasonable one however.  It is important to remember that the showing of “necessity” does not create the right-of-way, but merely evidences the presumed intent of the party’s real intentions when the parcels were conveyed.

Here, the plaintiff’s property was not landlocked, but access to the down slope portion along the river was difficult without crossing the neighboring parcel in order to conduct maintenance, repair storm damage, or to build a dock on the river.  The Trial Court, however, made no specific findings as to the need of access to this lower portion of plaintiff’s property.  The lack of finding was compounded by the plaintiff’s failure to offer evidence of the actual necessity of the easement in 1960 when the lots were carved off.  Current usage and current desire for a dock is of little evidentiary value when trying to ascertain the intent of the parties in 1960, and that is what that is what the court is supposed to be analyzing when trying to decide “necessity”. [Wow - would I be upset if my neighbor could cross my land just because it was more convenient for them to get to their boat.]

Fact-finder held a hearing on law firm’s fee collection action against former client, and made a recommendation  that judgment should enter in favor of the law firm for $20,000, plus $10,000 in interest.  Upon entry of judgment, the former client appealed pro se.  The defendant claimed that her due process rights had been denied because the Trial Court and the Fact-finder failed to give due consideration to her counterclaim against the law firm.  This claim was dismissed due to lack of briefing.  A claim that does not more than assert a due process violation without legal analysis is deemed abandoned.  Claims of professional misconduct raised for the first time on appeal but not presented to the Trial Court were also dismissed.  The Fact-Finder concluded that the defendant’s accusations that the lawyers did not follow her instructions and “over lawyered” the case, reflected her change of heart over the divorce and custody issues.  Previously, the defendant apparently expressed satisfaction with the representation.  Those factual findings will not be overturned on appeal.  The Fact-Finder did consider the defendant’s special defenses, but simply deemed them irrelevant.  The amount of the fees awarded were justified in light of the husband’s control of the finances, custody disputes, research required re: the marital laws of Nigeria, and the defendant’s change in her objectives and goals during the course of the representation.  The judgment for the law firm was affirmed.

This was a nifty little land use decision.  Plaintiff proposed a four-lot subdivision and obtained an inland wetlands permit for the proposed roadway.  Stratford, however, also had a zoning regulation that no structure could be built within fifty feet of the wetlands.  The plaintiff thus applied for a variance from the ZBA so the roads could be located in accordance with the wetlands permit.  Nonetheless, the ZBA denied the request for a variance.  The plaintiff appealed, claiming that the ZBA had no choice but to grant a variance when he had a wetlands permit because either (a) the ZBA had no jurisdiction over wetlands or (b) if it had jurisdiction, its decision was an abuse of process when he already had the wetlands permit.

The Appellate Court reviewed the enabling statutes for wetlands commissions and zoning commissions, and found nothing inconsistent with Stratford’s Zoning and Wetlands Regulations.  The Court concluded that the plaintiff was misconstruing the regulatory scheme and the Stratford Regulations.  Wetlands commissions are in charge of licensing of regulated activities.  Licensing, however, is a separate and distinct function from the authority of a ZBA to grant variances.  Stratford’s zoning regulations do not attempt to impose authority to license regulated activity upon the Zoning Board of Appeals.  It merely enables the Town to regulate the distance that one can erect a road structure near a water body.  The plaintiff’s argument that only wetlands commissions can regulate wetlands activities has no basis, because activity and proximity to wetland areas often raises concerns beyond the scope of those just affecting the wetlands.  Therefore, the ZBA did not usurp the jurisdiction of the wetlands commission.  In fact, the statutory scheme contemplates concurrent jurisdiction between wetlands commissions and zoning commissions, pursuant to §22a-42a, which ties the wetlands and P&Z approvals together.

As to the merits of the variance itself, the plaintiff failed to establish an unusual hardship, even though the lack of the variance would have reduced his subdivision from four houses to one house.  Mere economic hardship that is self-created is insufficient to justify a variance.  Financial gain is not a proper basis for granting a variance.

Defendant challenged the conclusion of the Trial Court that the plaintiff’s mortgage had priority over the defendant’s claim that the property owner has orally promised to make disbursements to him of $35,000 each time a subdivision lot was sold.  The plaintiff claimed that his oral agreement was reduced to writing and recorded on the land records prior to the plaintiff’s mortgage.  That agreement, however, was not signed by an owner of record at the time of recording.  This matter had already been up to the Appellate Court once before and they had remanded the matter to the Trial Court to examine the deeds in the chain of title prior to the plaintiff’s mortgage.  After examining the appropriate deed, the Trial Court declared that there was no reference to the Per Lot $ Distribution Agreement in the predecessor deed, and therefore, any agreement with the defendant was outside of the chain of title, and the plaintiff’s mortgage would have priority.

On appeal a second time, the defendant claimed that the Trial Court should have allowed the admissibility of additional records to establish that the agreement was in fact within the chain of title and should have allowed him to call the plaintiff’s attorney as a witness so the defendant could delve into the results of his title search.  The Appellate Court concluded that the Trial Court’s limited review of the deeds complied with the remand instructions.  A remand is a mandate from the Appellate Court which limits the authority of the Trial Court to the specific directions of the mandate.  Compliance with the mandate cannot be deviated from.  The matter was remanded to the Trial Court to determine the order of priorities by reviewing the deed to the owner prior to the mortgage being recorded.  Suggestion that the Trial Court should have deviated from that remand order and looked at additional evidence was rejected.  This, in turn, made the arguments that the defendant should have been allowed to call the plaintiff’s counsel as a witness about additional findings in his title search a moot point.  In any event, the issue of grilling the attorney could not have been reviewed because the defendant failed to make an offer of proof regarding what the attorney would have testified to, and thus, reviewing it on appeal would have invited inappropriate speculation about the appropriateness of the attorney’s testimony.  (See Footnote 7).

AC34415 - Quiroga v. Commissioner of Correction

• SC18949 - Vendrella v. Astriab Family Ltd. Partnership
• SC18949 Concurrence - Vendrella v. Astriab Family Ltd. Partnership

Are horses naturally dangerous animals by their very nature?  Looks like the Supremes tries their best to duck this controversial issue.

When a father took his two year old son over to visit a horse by the fence at a nursery, the horse unexpectedly reached over and bit off a chunk of the son’s cheek.  The trial court granted summary judgment to the defendants because they had no knowledge of any prior incidents with this horse.  The Appellate Court reversed, holding that it was foreseeable that a horse would bite people. 

Strenuously trying to avoid being tarred and feathered for saying all horses are naturally dangerous, the Supreme Court concluded that such issues must be decided on a case by cases basis by the fact finder.   Acknowledging there was a ton of evidence below that all horses may randomly bite people, the majority declined to say they are naturally dangerous ….or that strict liability attaches when they do bite someone.  Equally, they refused to say that an owner was exempt from liability unless the horse was either roaming…… or was known to have dangerous propensities.   It will be up to the parties to present evidence to the jury that horses do….or do not….generally have dangerous propensities…..and whether this particular horse had any dangerous propensities…..and then the jury can decide if the owner took reasonable precautions based upon the entirety of the facts, i.e., was the owner negligent for not having prevented the harm.  The Court also said even if the jury in this particular case later concludes that horses have a natural tendency to bite, that will not be binding on future juries who will have to hear the evidence in their case.

Also trying not to upset horse owners, but taking a harsher stance was the concurring opinion.  These Justices said that everyone knows that horses nip and bite, not because they are dangerous, but maybe just because they are inquisitive or playful.  Therefore the CT Courts should bite the bullet and simple acknowledge that horses do a have a tendency to bite and skip to that point by so instructing the jury and then asking the jury to decide ….did the owner take reasonable steps to prevent the biting.   The retort of the majority was …maybe everyone knew that horses tend to bite in the 19^th century, but not in this day and age of automobiles.

And by the way…for you cat owners….cats were singled out as generally being the most timid and docile of domesticated animals (ha - I’ve seen a few that would dispel that suggestion)….and for your bull owners…..they were singled out as being some of the most dangerous, where special precautions for the safety of people must be taken.

[Whether the decision is solidly based on long standing principals of negligence and animal liability, or not, it’s a sad state of our society that you might have to double fence a horse to keep people from being hurt due to their lack of common sense.]

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